1509928 (Refugee)

[2016] AATA 3867

1509928 (Refugee) [2016] AATA 3867 (20 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509928

COUNTRY OF REFERENCE:                  Burma (Myanmar)

MEMBER:David Corrigan

DATE:20 May 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 20 May 2016 at 5:42pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be stateless, applied for the visas [in] February 2014 and the delegate refused to grant the visas [in] July 2015.

3. The applicants applied for Protection (Class XA) visas. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the applications are taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas.

4. The applicants appeared before the Tribunal on 16 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

5. The applicants were represented in relation to the review.

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

21. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. I have before me material including:

    ·Application for protection visa;

    ·Statutory declaration of the first named applicant (the applicant) dated 22 April 2014;

    ·Copies of letters from the [agency];

    ·Copy of letter from the [agency] in [Country 1] referring to the applicant’s [sibling] and [family];

    ·Interview with the delegate dated [in] February 2015;

    ·Agent’s submissions dated 14 March 2016;

    ·Statutory declaration of the applicant dated 2 March 2016;

    ·Copy of letter from [an agency] in Australia, dated [in] January 2016 certifying that the applicants are Rohingya;

    ·Translated letter from the applicant’s [sibling], dated [in] January 2016;

    ·Applicant’s statutory declaration dated 8 April 2016.

    ·Agent’s submissions dated 13 April 2016.

23. The applicant was born in [year] in [Arakan] State, Burma. She moved to Yangon when she was [age] years old.  She is a Rohingya Muslim.  The other applicants are her children aged between [ages].

24. At school, the applicant’s teachers would not encourage the Rohingya students and required them to pay bribes to stay in school. Rohingya students were forced to pay more for school repairs and were forced to sit at the back of the class and attend after school classes that only repeated lessons.  Rohingya are not issued ID cards and therefore cannot operate their own businesses and are not eligible to work in government, military, teaching or health.  They are restricted to working unlawfully in menial jobs.  It is difficult to access proper health care and they are required to obtain fraudulent travel documents to travel within Burma. 

25. The applicant experienced verbal abuse (called names such as “Indian lady”) but never witnessed violence against Rohingya.  She has been advised by her relatives that the situation in Yangon is very tense and many people have fled or intend to flee.

26. The applicant married her Rohingya husband when she was [age] years old.  In October 2010, he travelled back to Rakhine state to visit family and was killed a month later.  The applicant was told that her husband’s village was burnt in riots in which the police were attacking Rohingya. Her husband was killed trying to protect his [sibling].  One of her husband’s [siblings] has been missing since the riot and her husband was also killed.

27. Shortly after her husband’s death, the applicants were evicted from their home by the police.  They then went and lived with her [sibling] and in January 2011 the applicants travelled illegally to [Country 1].  They lived there for two years before coming to Australia.

28. It would be very difficult for the applicant’s children to attend school as they must be registered as living in an area.  She had a fraudulent birth certificate and fraudulent certificates were obtained for the children by the use of bribes.  These documents have been destroyed since her arrival in Australia.  The applicant fears that the authorities and Buddhist community will rape, torture and kill her and that she and her family will not be able to find work and shelter because she is a Rohingya.  She also fears that she will face harm for leaving Burma illegally.

    Assessment of claims

    Are the applicant’s Rohingya?

29. The applicant has been consistent in her claims that she and her children are Rohingya and that she is a Muslim.  She speaks the Rohingya language.  She has claimed that she has lived in Yangon since she was [age] years old and country information indicates that there exists a Rohingya community in that city.[1]  Her [sibling] also gave oral evidence to the Tribunal by telephone that supports this.  She has also submitted a copy of a letter from [an agency] in Australia certifying that the applicants are Rohingya as well as letters from the [agencies] that support that she and her family are Rohingyas.  Based on all this evidence, I find that the applicants are Rohingyas and the applicant is a Muslim.

    Are the applicants stateless?

    [1] Department of Foreign Affairs and Trade, CIS Request No. BUR133289 Rohingya in Rangoon, 15 June 2012.

30. In 2010, Chris Lewa of the Rohingya advocacy group, the Arakan Group, stated that the majority of Rohingya in Yangon did have full citizenship.[2]   However in 2015, he stated:

    A very few have full citizenship: some are clearly entitled to statutory (full) citizenship according to provisions of the 1982 Citizenship Law and some may have obtained this through bribes. Most Rohingyas in Yangon hold a National Registration Card, which was issued to all Burmese before the 1982 Law was enacted and which remains a valid document. The NRC is, however, NOT a proof of citizenship but of identity and of permanent residence. Among the latest arrivals smuggled out from Rakhine State, I assume that many do not hold any documents. I heard that some were arrested without document on the way as well as in Yangon and put in jail on immigration charges.[3]

    [2] Nai, A 2010, ‘Rohingya minority given ID cards’, Democratic Voice of Burma, 9 April,

    [3] Lewa, C 2015, Email from Chris Lewa: Re: Information request from the Australian Department of Immigration & Border Protection, [June].

31. In 2012, the Australian Department of Foreign Affairs and Trade (DFAT) was asked for advice on this statement and responded that they did ‘not have enough concrete evidence to state definitively that the majority of Rohingya in Rangoon have full citizenship.’ Further:

    Post is, to a degree, able to gather information about the status of Rohingya in Rangoon. The main source of information about Rohingya in Rangoon are members of the Rohingya community themselves and members of the UN/NGO/diplomatic community who work on Rohingya issues. Because information is gathered through discussions with individuals, it is difficult for post to make definitive statements about the entire Rohingya community in Rangoon. Some Rohingya in Rangoon do have citizenship and possess National Registration Cards (NRCs), and can obtain passports - post is not able to say what percentage of the overall Rohingya community would fall into this category.

    …

    Post can state that a significant number of Rohingya in Rangoon possess National Registration Cards (NRCs), and can obtain passports. Many Rohingya in this category that the Embassy has spoken to reported being forced to pay hefty "fees" to obtain these documents (and household registration lists), and routine discrimination whenever they dealt with government authorities (i.e. enrolling a child in school, harassment by local officials over the legal status of small businesses etc). This discrimination may not be based on a person being identified as Rohingya per se, but rather by appearance (South Asian), possible Islamic dress and an accent when speaking Burmese that identified the person as having come from Rakhine State. It is possible that other, non-Rohingya, Muslims from Rakhine State would face similar treatment. Muslims throughout Burma are regularly subject to discrimination.[4]

    [4] Department of Foreign Affairs and Trade 2012, CIS Request No. BUR13329 Rohingya in Rangoon, 15 June <CX289305>. 

32. More recently DFAT have commented that most Rohingya in Burma are not Burmese citizens.[5]

    [5] Department of Foreign Affairs and Trade, DFAT Country Information Report Burma (Myanmar) 9 June 2015.

33. The major concern I have with the applicant’s claims that the applicants are not Myanmar nationals relates to her disposal of her and her children’s birth certificates and her family list at her home in [Australia].  At her interview with the delegate, the applicant said she had no idea they would be useful and no nobody told her they were important.  At hearing, she stated that again stated that she threw them out because she thought they were not important.  Given the importance of the issue of her and children’s identity and their legal status in Myanmar to their protection claims, her explanation does not appear plausible or credible and this casts considerable doubt on her claims and causes me suspect that she destroyed these documents because they would reveal the applicants’ legal status in Myanmar.  However, the applicant has been consistent in the claims of statelessness and her claims were supported by the oral evidence of her [sibling] to the Tribunal.  Considered as a whole, the above country information does suggest that the majority or most Rohingya residing in Yangon are without citizenship.  In the absence of any other information to the contrary, I accept that the applicants do not possess Myanmar citizenship and are stateless Rohingyas.

34. I have had regard to the Department’s Refugee Law Guidelines which provides examples of factors relevant for determining an applicant’s country of former habitual residence.   I have assessed the applicants’ claims against Myanmar as their country of former habitual residence for the purposes of the Convention given they were born there and given the period of time they spent there.   Though the applicants spent two years in [Country 1], they were there unlawfully and I do not consider this time to be a significant period of de facto residence.  I do not consider this country to also be a country of former habitual residence in their case.

    Death of husband

35. I also have some concerns regarding the applicant’s claims that her husband was killed by the police in Rakhine state in 2010 given the lack of country information indicating any that there were any riots in Maungdaw in 2010 and country that Muslims required permission to travel to Rakhine state.[6]  However, other country information indicates that there have been incidents of police violence against Rohingyas in the area in recent years.  DFAT, for example, have reported credible sources suggest that the police in Rakhine state carry societal prejudices against Rohingya that it was possible that local may themselves have been involved in incidents of arson and assault.[7]  The US State Department reported in 2012, that authorities arbitrarily arrested Rohingya in Rakhine state and that NGOs alleged that local security officials were involved in committing violent crimes and arbitrarily arresting an unknown number of Rohingya.[8]  More recently, DFAT have also commented that Rohingya in Rakhine state (particularly Maungdaw) remain at a high risk of further violence and societal discrimination.  The applicant has been generally consistent about the death of her husband and her claims were supported by the oral evidence of her [sibling].  Accordingly, I accept that her husband was killed by the authorities in Rakhine state in 2010 though the exact circumstances of this event appear unclear.

    [6] US Department of State, Burma – International Religious Freedom Report 2013. 

    [7] Department of Foreign Affairs and Trade, DFAT Country Information Report Burma (Myanmar) 9 June 2015.

    [8] US Department of State, 2012 Country Reports on Human Rights Practices – Burma. 

1. Given her husband was killed by the police in Rakhine state after visiting his [siblings] there without permission; I consider it credible that the applicant was visited by the police in Yangon and that she had to attend a police station on a couple of occasions regarding her husband.   Country information indicates that Rohingya may be subject to significant and pervasive discrimination from local authorities[9] and I accept (taking into account the consistency of the claim) that the police told her landlord to evict her from her home.  I accept that she then went and lived with her [sibling] and in January 2011 the applicants travelled illegally to [Country 1]. 

   Future prospects

   [9] Department of Foreign Affairs and Trade, DFAT Country Information Report Burma (Myanmar) 9 June 2015.

2. In 2015, DFAT reported that taking into account their lack of access to citizenship and lower level of access to employment, and health and education services, that they assess that Rohingya in Burma (whether residing in IDP camps or not) face a high level of official discrimination.  They state that Rohingya living outside Rakhine state do not generally publicise their ethnicity and that they experience moderate levels of societal discrimination on a day to day basis.[10]  In 2012, they had reported:

   In general, Rohingya people living in Rangoon do experience different treatment than most Rohingya living Maungdaw or Buthidaung townships in Northern Rakhine State (NRS). While Post cannot say definitively that the following applies to all Rohingya in Rangoon, Rohingya in Rangoon are not, in theory and in general, subject to the same restrictions on movement, ability to marry or obtain an education as Rohingya in NRS. Despite this, Rohingya in Rangoon may be subject to significant and pervasive discrimination from local authorities, including through requests for exorbitant "fees" to be paid to undertake some or all of these activities.

   Many, but not all, Rohingya in Rangoon have lived in Rangoon for decades (even before independence) and are well established as small business people. As the movement of Rohingya from NRS to Rangoon is extremely dififcult [sic], they have, to an extent, been cut off from their original communities.[11]

   [10] Department of Foreign Affairs and Trade, DFAT Country Information Report Burma (Myanmar) 9 June 2015.

   [11] Department of Foreign Affairs and Trade 2012, CIS Request No. BUR13329 Rohingya in Rangoon, 15 June <CX289305>.

3. In December 2014, DFAT provided the following information on Rohingya who left the country illegally:

   By way of background, post notes that rule of law in Burma remains weak. Depending on the circumstances, authorities may not apply laws even-handedly or to the same extent in different cases. Circumstances that may affect the authorities' application of the law include the individuals involved, their relative social status, their ethnicity and their wealth. 

   A.    Can post provide an opinion on how Rohingya who are forcibly returned to Burma are likely to be treated on arrival?

   Post's assessment is that the treatment of returnees would likely depend on the returnees' citizenship status, as viewed by Burmese authorities, and personal identification documentation. It is highly likely that returnees whom the Burmese Government did not recognise as its citizens and who arrived without valid travel documents would be deported to the place from which they had most recently departed. In cases where immediate deportation was not possible, the returnees would likely be detained by the authorities until deportation could be arranged. It is possible that if they were not recognised as citizens and were not deported or detained on arrival, they could be sent to an internally displaced persons' (IDP) camp in Rakhine State. 

   B.   If they left Burma illegally how long are they likely to be detained for and under what conditions?

   Post understands that Burmese law provides for punishment including a fine, imprisonment or both to be applied. Post has been told anecdotally of one case (non-Rohingya) in which the returnee was imprisoned in Rangoon for six months. Conditions in Burma's prison system are extremely poor for inmates and include overcrowding, minimal access to health care and a low supply of food, which is typically of poor quality.

   C.   If they return without a passport how long are they likely to be detained for and under what conditions?

   Given weaknesses in the rule of law in Burma, it is difficult to assess this with certainty. While it is likely that authorities would first seek to deport returnees arriving without a passport, they may instead detain the returnees in prison. It is also possible that Rohingya returnees without travel documents could be sent to live in an IDP camp in Rakhine State.[12] 

   [12] "DFAT CIR report No. 14-29 - Rohingya returnees", Department of Foreign Affairs and Trade, 08 December 2014, CX1B9ECAB9403.

4. The US State Department has commented that in 2015 security forces reportedly subjected detainees to harsh interrogation techniques designed to intimidate and disorient, including severe beatings and deprivation of food, water, and sleep. They also reported that authorities took little or no action to investigate incidents or punish alleged perpetrators. Though the government began to make systematic improvements to the country’s prison system, conditions in prisons and labour camps, however, continued to be harsh due to inadequate access to quality medical care and basic needs, including food, shelter, and hygiene [13]

   [13] US State Department, Country Reports on Human Rights Practices for 2015 – Burma.

5. Considering the whole of the applicants’ circumstances, I find that the chance that they will be subject to serious harm cannot be described as remote.  The applicant’s husband was killed by the police in Rakhine state after visiting it without permission and the applicant later had to report to the police and the applicants were evicted from their family home in Yangon at the direction of the police.  Given this history, there is a risk that the applicant will be of greater adverse attention to the authorities upon her return. 

6. The above country information indicates that the rule of law in Myanmar is weak and that authorities may not apply laws even-handedly.  It also indicates a hostile government attitude towards Rohingya and that there is the potential for the applicant to be treated more harshly as a Rohingya who had illegally the country after the death of her husband at the hands of the authorities.  Prison conditions are described as extremely poor for inmates and include overcrowding, minimal access to health care and a low supply of food, which is typically of poor quality.  Whilst Rohingya in Rangoon are not, in theory and in general, subject to the same restrictions on movement, ability to marry or obtain an education as Rohingya in Rakhine State, Rohingya in Rangoon may be subject to significant and pervasive discrimination from local authorities, including through requests for exorbitant "fees" to be paid to undertake some or all of these activities. 

7. Considering the country information as a whole and the applicants’ individual circumstances, I find that they face a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of the state, for reasons of their race and membership of a particular social group consisting of “stateless Rohingya in Myanmar”.  Their fear of persecution is well-founded.

8. As the harm the applicants face is from the state, the issues of state protection and relocation do not arise.

9. The evidence does not establish that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in their case.

   Conclusions

10. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

    DECISION

11. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

    David Corrigan
    Member