1510526 (Refugee)

[2019] AATA 827

1510526 (Refugee) [2019] AATA 827 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510526

COUNTRY OF REFERENCE:                  Myanmar

MEMBER:Paul Millar

DATE:3 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 03 January 2019 at 8:40am

CATCHWORDS

REFUGEE – protection visa  – Stateless – Myanmar – race – Rohingya – religion –Muslim – pursued by Myanmar authorities – issues regarding credibility – not a witness of truth– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424, 499

Migration Regulations 1994, Schedule 2

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).  The first named applicant is a [age deleted] year-old male (‘the applicant’).  The second named applicant is his wife and the remaining applicants are their children.  Only the applicant made claims for protection.  The applicants, who the Tribunal finds to be citizens of Myanmar, applied for the visas on 17 July 2015 and the delegate refused to grant the visas on 17 July 2015.[1]  The first and second named applicants appeared before the Tribunal on 29 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from a number of witnesses discussed further below.  The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages.

   [1] The finding of the Tribunal with respect to the citizenship of the applicants is based on copies of pages from their Myanmar passports which appear on Department file [at] folios 18 – 119.

   RELEVANT LAW

2. 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.

3. 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).

4. 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.

5. 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’).

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to the applicant’s evidence to the Department and the Tribunal, he claims protection on the grounds that he is a Rohingya Muslim who is being pursued by Myanmar authorities.[2] The Tribunal holds the following concerns about the applicant’s credibility.

   Evidence about the applicant’s travel in and out of Myanmar

   [2] The applicant’s evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; the applicant’s written statement lodged with the protection visa application at folios 197-199 of Department [file]; the applicant’s evidence at his interview with the delegate for which there is an audio recording and to which the Tribunal has listened; the applicant’s written appeal statement dated 18 August 2015 and the evidence of the applicant and his wife at the Tribunal hearing.  The Tribunal had access to the applications made by the applicants for  [temporary] visas to enter Australia.

8. The applicant told the Tribunal that in June 2012 conflict broke out in the Rakhine and Rohingyas were killed.  This included his brother, who lived there, who was killed in [a location].  From that time the applicant gave money to X, a man in the Rakhine, who would organise the purchase of goods for Rohingya families in need and who would also pass on funds to the applicant’s family. At the same time, the outbreak of conflict and the killing of Rohingyas in the Rakhine, including his brother, made the applicant very scared and worried for his and his family’s safety. For that reason, in late 2012, he and his family travelled to [Country 1] and [Country 2].  They returned to Myanmar in early January 2013 because he could not afford the costs of remaining abroad.

9. In early March 2013 the authorities arrested the applicant and detained him for [a few] days.  This was because in February 2013 X got arrested and, after being tortured, gave away the applicant’s name to the police.  In detention the authorities accused him of involvement in the conflict in the Rakhine that arose in June 2012.  They accused him of being ‘political’ and being illegally involved in the conflict.  They mentioned the applicant’s brother but said nothing about him.  The applicant’s release came about after payment of a bribe by a ‘broker’. The police told the applicant that whenever they wanted him he had to come to them.

10. Following his three day detention, intelligence officers would come to the applicant’s home to find him and also extort money from him. Usually the applicant was not at home because he had bribed a local official to warn him of such visits.  In fear for his safety, the applicant and his family in early April 2013 went to [Country 1].  In late April, the applicant returned to Myanmar to collect more money as the family had run out of funds in [Country 1].  Two weeks later, he left Myanmar and travelled to[Country 1].  The whole family returned to Myanmar in late July 2013 after staying in [Country 1] and [Country 2].  They returned because they could not stay in [Country 1] and [Country 2] for a long period.  The applicant was about to contact an agent to ‘find another way’.  In [Country 2] he asked a broker about applying for refugee status there but the broker said that would be very difficult.

11. From July 2013, the applicant resumed living in his home in Yangon. He had to maintain contact with and pay money to the head of the local administration office for that person to tell him if anyone from the authorities was coming to find him. When this person told him the authorities were coming, at night the applicant would stay in other places in hiding.  In this respect, the applicant explained that the police would at times do random checks at night and the person at the local administration office would tell the applicant when they were coming enabling him to hide from them. When the police came they would tell the applicant’s wife that he must go to see them.  This would occur about twice per month. The applicant was able to evade the authorities by this means.

12. In January 2014 the applicant’s native village in the Rakhine was burned down by a Buddhist group and the police. This event was preceded by some Rohingya women being taken and raped by local Buddhists and security officials.  Those groups then falsely accused Rohingya people of killing a police officer. These events were reported in the media and became ‘big news’. The government knew the applicant was from that village, the applicant being one of the educated people from that village and if an incident occurred in the village the authorities would come and question him.  They also knew that the applicant maintained contact with his village.

13. The authorities came to apprehend the applicant about this and again he could avoid them by bribing the head of the local administration office to warn him when they were coming.  He said that they were ‘desperately’ looking for him.  They came to his home to find him more often than they had before this incident.  Intelligence officials had contact with local people, including those in his street, and were asking them about him. They always watched for where he went and what he was doing. For his safety the applicant left Myanmar in late January 2014 and went to [Country 1] and [Country 2].  From this time he was in hiding until coming to Australia.  Even so, in mid-February 2014, the applicant returned to Myanmar.

14. When he left and re-entered Myanmar he had to deal with an agent or brokers to ‘organise everything’ for him.  He paid money to them.  The authorities kept looking for him.  For that reason, the applicant applied for a [temporary] visa for Australia in late March 2014.  The visa was granted to the applicant and his family on 3 April 2014 and they left Myanmar for Australia in mid-April 2014.  When asked why he did not apply for a visa earlier than he did, the applicant said that there is a system in place in Myanmar.  First, the authorities confiscate the properties and businesses of a person and then target them. When asked if the authorities confiscated his properties or businesses, the applicant said that he had one house in Yangon and they did not take that.

15. When again asked why he did not apply for a [temporary] visa before early 2014, the applicant said that prior to that time he had managed to survive by bribing the authorities. He said that he was hiding most of the time.  After that, it became extremely hard to hide and stay there.  When asked how he came to know about [temporary] visas for Australia, the applicant said that he contacted a broker who organised everything for him after funds were placed into a bank account.  The Tribunal asked the applicant when he first enquired about obtaining a visa to travel to Australia.  In response, the applicant said that after travelling to [Country 2] and [Country 1] and returning to Myanmar in February 2014 he was very concerned that he would be arrested.  He felt that it was not safe for him to remain there and so he contacted a broker and asked how he could obtain a visa to come to Australia, what paperwork was involved and how much that would cost.

16. The Tribunal put to the applicant that, according to his evidence, in April 2013 he and his family fled from Myanmar because he believed that he was in great danger.  Even so, he soon after returned to Myanmar.  Then, in early 2014 he again fled Myanmar, due to the danger he perceived from the authorities.  However, again, he soon after returned to Myanmar.  The Tribunal put to the applicant that on these journeys out of his country he travelled to places like [Country 1] and [Country 2] where he had already been for his safety as early as December 2012, and had, in essence, determined that he would not be able to remain there.  The Tribunal also put to the applicant that although he claims to have fled from Myanmar in April 2013 for his safety it was not until March 2014, according to his evidence, that he first made enquiries about coming to Australia.

17. The Tribunal put to the applicant that all of these factors considered cumulatively suggested that, in fact, the applicant’s life was not at risk in Myanmar as he had claimed and his travel in and out of Myanmar was for other reasons that he was withholding.  In response, the applicant said that prior to 2012, even though there was discrimination he could still manage to live.  However, after the conflict in June 2012, it was extremely hard for him to live in Myanmar.  Even though he had a national identity card and passport he had to specify a Burmese name along with his Rohingya name.

18. The Tribunal asked the applicant why, if he fled Myanmar in April 2013 to save his life, he would travel to [Country 1] and [Country 2], when he had been there in late 2012 to seek safety and did not remain there.  In response, the applicant said that he knew those places very well. He had to engage a broker to organise those trips. Whenever he had a problem in Myanmar he would go there.  The Tribunal asked the applicant why he would return to those countries in 2014 for his safety when he had been to those countries in April 2013 for the same purpose but did not remain there.

19. In response, the applicant said that he was targeted by police in 2013 and it was not safe for him to stay in Yangon.  He just went away for three or four months but he stayed in touch with his broker to find out about the situation in Myanmar. When asked what the broker told him that made him decide to return to Myanmar, the applicant said that the broker would help him whenever he had to return to Myanmar by contacting airport officials there and bribing them.

20. The Tribunal put to the applicant that in March 2013 he became of interest to Burmese authorities who detained him and, from that time, continuously came looking for him. The Tribunal put to the applicant that by that time the authorities perceived the applicant as opposed to the government.  The applicant agreed with both of those statements.  The Tribunal asked the applicant how, therefore, he could obtain a Burmese passport and travel in and out of the country in that period without being apprehended by the authorities.

21. In response, the applicant said that people like him in Myanmar were doing similar things and this occurs all of the time.[3]  He said that his passport does not disclose his Rohingya identity so he would not be recognised as a Rohingya.  The Tribunal put to the applicant that they knew his (Burmese) name and his address as they were going there looking for him.  The Tribunal asked the applicant again how he was able to have a passport and leave and re-enter the country a number of times if the officials were trying to apprehend him.  In response, the applicant said that if money was paid everything was possible.

    [3] In his written appeal statement the applicant says that many political dissidents for example use their own Burmese passports to leave the country and use brokers who are familiar with corrupt officials.

22. The Tribunal then put to the applicant that in July 2013 he returned to Myanmar with his family and claimed that the officials were looking for him, yet he was still able to evade being apprehended all of the time from then until April 2014 when he left Myanmar.  In response, the applicant again stated that there was corruption in Myanmar and what he had done was possible through the payment of bribes. 

23. This applicant claims that his life was in danger from April 2013 after being detained by the authorities.  For that reason he flees from Myanmar, soon after returns and then flees again.  A few months later he returns, flees again in January 2014 for his safety, but, again, he soon after returns.  The applicant’s explanations for always returning to Myanmar, in essence, related to the costs of remaining abroad and being told obtaining refugee status in [Country 2] was difficult, were not convincing.[4]  That is especially so when the applicant had travelled to [Country 1] and [Country 2] in late 2012 because of fears for his safety in Myanmar yet chose not to remain there.

    [4] In his written appeal statement the applicant put forward broadly the same explanations for his travel in and out of Myanmar to [Country 2] and [Country 1] and why he did not remain in those countries.  He also said that he went to [Country 3] but did not remain there for similar reasons.  He also said that he did not want to overstay his visas for those countries.

24. The applicant explains his ability to be able to come and go in an overt manner using his passport, while at the same time being pursued by Burmese authorities, as being due to agents or brokers and paying bribes.  It is the payment of bribes that the applicant claims explains how he could have avoided the authorities following his arrest in April 2013 when, at the same time, he said they were constantly looking for him and the interest in him intensified after the burning down of his native village in January 2014.  The Tribunal can make allowance for officials in Myanmar being corrupt but the Tribunal is not persuaded that the applicant could come and go from his country and evade the authorities in his claimed circumstances through corruption.

25. The Tribunal also remains concerned that a highly educated person like the applicant who was able to travel out of his country and was involved in a business that concerned exporting products to other countries would only enquire about coming to Australia almost one year after he was first detained by Burmese authorities.  He did this after travelling out of the country a number of times to places to which he had previously travelled and in which he had decided he could not remain.  Overall, the Tribunal finds that the applicant has withheld the truth as to what happened to him after the conflict erupted in June 2012 in the Rakhine state and he has withheld the truth as to the true reasons for his travel in and out of Myanmar over the relevant period.

    Evidence about ceasing to operate his [export] business

26. To the Tribunal, the applicant said that after completing school, he undertook and completed a university degree and then married.  He then began a [goods] export business. He also established a [Business 1] with his family in the Rakhine state.  The Tribunal questioned the applicant as to how he operated the [goods] export business. In response, the applicant said that he operated this business through a company that he owned.  He would purchase the [goods] from a [supplier] in Yangon.  [Information deleted.  The applicant would then sell the [goods] to customers overseas.

27. The Tribunal asked the applicant what happened to this business.  The applicant said that due to the conflict in June 2012 in the Rakhine in which Buddhists killed Rohingyas, his business was affected. He said that to purchase the [goods] [he] had to deal with Burmese Buddhists and in approximately September or October 2012, they stopped selling the [goods] to him.  He said that from that time no one would sell the [goods] to him.  The Tribunal asked the applicant whether at that time, his business ceased to operate. In response, the applicant said that was correct.

1. The applicant said that from that time in September or October 2012 he stopped going to the [supplier] and stopped exporting the [goods] products. The Tribunal asked the applicant what he did for work from that time.  In response, the applicant mentioned the [Business 1] set up with family which he said began in 1999.  For this business he would purchase [products] in Yangon and send it to his brothers in the Rakhine state where they were operating a [Business 1] in [Town 1].  The applicant said that following the outbreak of the conflict in June 2012 people stopped going out of their homes to their businesses.  He said that the [Business 1] did not reopen after that. There were restrictions on people’s movements and Rohingya men were hiding. He said that it was at this time a brother was taken and killed by the authorities.  The applicant said that in 2015 [Business 1] was destroyed.

2. The Tribunal then asked the applicant how he supported himself if [Business 1] was not operating after the outbreak of conflict in June 2012 and he was no longer operating his [goods] export business from September or October 2012.  In response, the applicant said that he had savings so he managed to survive.  He said that [Business 1] in the Rakhine was operated by all family members and in hard times they helped each other.

3. The Tribunal asked the applicant when the last time that he exported [goods] from Myanmar was.  In response, the applicant said that the last occasion he did that was in 2012.  The applicant then said that although he could not buy the [goods] from the [supplier], sometimes, when he received an order from a customer overseas, he bought the [goods] from another company and exported that.  The Tribunal asked the applicant why the company would be willing to sell the [goods] to him if the [supplier] would not.  In response, the applicant said that the [goods] purchased from the company was [deleted] and he used the name of another person to purchase it.

4. The Tribunal asked the applicant when was the last time that he purchased the [goods] from the company and exported it.  In response, the applicant said the last occasion was February 2014.  The Tribunal then asked the applicant whether by this means he was doing much less business than he was when he purchased the [goods] directly from the [supplier].  In response, the applicant said that was correct.  The Tribunal reminded the applicant that he had said that he had been living off his savings from 2012 and the applicant said that was correct.  He said that, in fact, he only did a few transactions through this particular company. When asked why he did not do more, the applicant said that it was because of the situation and sometimes he had to sell the products and collect the money later on.

5. The overall impression conveyed by the applicant’s evidence to the Tribunal was that not long after June 2012 his business virtually ceased to operate.  In contrast, in his application for a [temporary] visa, which he signed on 20 March 2014, the applicant stated that he was employed as [a position] of a business and had been for nine years and 10 months.  He lodged documents indicating that he was a shareholder and [held a position] of the business entity.  To support his claims that he was, at that time, employed in this business the applicant also submitted Bills of Lading and Export Declarations issued between December 2013 and early February 2014 indicating his business was engaged in a number of transactions in that period for the export of  [goods] to different locations outside Myanmar.

6. The overall impression conveyed by the information the applicant has provided in his [temporary] visa application is that as at March 2014 he was employed in a fully operational business that was a going concern.  That evidence is inconsistent with the tenor of the evidence the applicant gave the Tribunal which was that from September or October 2012 this business virtually closed.  Pursuant to s.424A of the Act, by letter dated 16 July 2018, the Tribunal put this discrepancy to the applicant.  In response, in a statutory declaration made on 27 July 2018, the applicant said that after the conflict broke out in mid 2012 in the Rakhine state, he could not conduct his business properly and made an agreement with Y for that person to ‘oversee the operation’ of the company from August 2013.  In essence, Y operated the applicant’s business under the name of the applicant’s company.

7. In support of this claim, the applicant submitted a copy of the agreement between him and Y and a declaration made by Y on 26 July 2018 in which he repeats the account given by the applicant. The Tribunal has carefully considered these documents and the applicant’s claims but rejects them.  At the Tribunal hearing, the applicant made no claim to have entered into an agreement with another individual for that person to actually operate his business.  The applicant was questioned closely on this issue at the Tribunal hearing and was given ample opportunity to advance this new claim, if it was true.  He did not do so (and his [temporary] visa application makes no mention of this claimed arrangement).  The Tribunal finds that this new claim from the applicant and the documents he submitted have been fabricated to conceal the inconsistency between his evidence at the Tribunal hearing and his application for a [temporary] visa with respect to the [goods] export business he was operating in Myanmar.

   Evidence about the incident in January 2014 when the applicant’s native village was burned down

8. As set out above, the applicant told the Tribunal in January 2014 his native village was burned down.  He said that prior to that incident some Rohingyan women had been raped by security officers and local Buddhists who then falsely accused Rohingyans of killing a police officer. He said that these events were reported in the media and the authorities believed the applicant had given that information to the media.  It was at that time, they then pursued the applicant causing him to flee from Myanmar that same month.  The Tribunal asked the applicant to confirm that it was after his native village was burned down that he then left Myanmar and the applicant said that was correct.

9. The Tribunal put to the applicant that in his written statement lodged with his protection visa application he said that this fire in his native village occurred on 28 January 2014 and country information confirmed that.[5]  The Tribunal put to the applicant that according to his passport he left Myanmar [in] January 2014 [a number of days] before the fire.  In response, the applicant said that on 13 January women were raped and the whole village was looted. On the same day people were accused that they took a police officer.  The applicant then said that perhaps he had previously made a mistake and that on 26 January 2014 when the conflict escalated in the village he did return but not with family.

   [5] See Radio Free Asia Myanmar Panel Rejects Claims of Rohingya Killings, Recommends Citizenship 11 March 2014.

10. The Tribunal put to the applicant that according to his passport he left Myanmar [in] January 2014.  In response, the applicant said that as soon as he heard that his village had been burned down and the Rohingyas had been accused of taking a police officer, a very serious allegation, he became afraid and decided to flee from Myanmar.  The Tribunal put to the applicant that, according to his passport, he left his country [a number of days] before his village burned down.  In response, the applicant said that his village had not burned down by the time he left Myanmar; only the women had been raped and a police officer was missing.

11. The Tribunal rejects that claim because in his written statement and in his earlier evidence to the Tribunal the applicant a number of times said that after his native village was burned down on 28 January 2014 he left Myanmar because the authorities wanted to apprehend him believing he had informed the media about those events.  Pursuant to s.424A of the Act, by letter dated 16 July 2018, the Tribunal put this same discrepancy to the applicant. 

12. In response, in a statutory declaration made on 27 July 2018 the applicant said that his village was at the ‘edge of annihilation’ well before 28January 2014 but its destruction was fully completed on that date.  He said that in fact the authorities were looking for him from 13 January 2014 when the ‘incident’ began, the applicant referring to government supported gangsters causing harm to Rohingyas on a regular basis and security forces on that date executing people from the applicant’s native village. 

13. The applicant said that these events received wide media coverage before and after 28 January 2014.  However, the interest held in him by the authorities from 13 January 2014 was because the village in question was his native village and as he was a Rohingya. He said that he did leave Myanmar [in] January and returned [in] February.  After his return he understood he would be arrested because the destruction of his village had been leaked to the media.  He added that in his first written statement he kept his claims brief.  

14. The Tribunal has carefully considered these further submissions from the applicant.  However, the Tribunal finds that the applicant has invented yet another account to conceal the obvious discrepancy between his initial claims to have fled from Myanmar after his native village burned down on 28  January 2014 and his passport which indicates he actually left the country [a few] days before.  If the evidence related by the applicant, in particular, the account he now advances in his recent statutory declaration was true, the applicant would have advanced that same account in his written statement and also in his initial evidence to the Tribunal before the Tribunal reminded the applicant about the date he left Myanmar according to his passport.  The applicant’s desire to keep his first written statement brief would not have prevented him from saying that he left Myanmar before 28 January 2014, the date he gives in that statement as the date his native village was burned down.

    Conclusions on credibility

15. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events that he advances as occurring from June 2012 and on which his protection claims are, in essence, based, is false.  The Tribunal therefore disbelieves the applicant’s evidence about sending money to the Rakhine state through another individual and that the applicant was arrested and detained by the authorities in April 2013.  The Tribunal disbelieves the applicant’s claims that the authorities continued to pursue him from that time and that he was in hiding from them.  The Tribunal disbelieves the applicant’s claims that the authorities wanted to apprehend him following events that took place in his native village in January 2014.

16. To the Tribunal, the applicant’s wife gave evidence about the applicant’s claimed difficulties with Burmese authorities from April 2013. She repeated his claims about the authorities coming to the home looking for the applicant and his claims about having to leave Myanmar for safety.  The Tribunal has carefully considered that evidence but it does not outweigh the significant concerns Tribunal holds about the applicant’s credibility and which have led the Tribunal to find that he is not a witness of truth and his evidence false. The evidence of the applicant’s wife does not overcome the concerns the Tribunal holds about the behaviour of the applicant from 2013; his inconsistent evidence about his [goods] export business and about when and why he left Myanmar in January 2014.  Accordingly, the Tribunal finds that the applicant’s wife’s evidence is also false.

17. In reaching this credibility finding, the Tribunal has also considered medical evidence submitted by the applicant.[6]  In a report dated [in] May 2017 a psychologist assesses the applicant as suffering from mixed anxiety and depressed mood.  This diagnosis is based on claims the applicant has self-reported to the psychologist and the credibility of which the psychologist is not in a position to assess.  A letter dated [in] September 2018 from a different psychologist refers to the anxious mental states of the applicant’s wife and one of his daughters.

    [6] See folios 90, 126 -127, 154 and 156 of the Tribunal file.

18. The Tribunal is satisfied that the applicant and his wife were able to meaningfully participate in the hearing and give evidence.  They appeared to both well comprehend the Tribunal’s questions and respond to them.  The Tribunal does not accept that the applicant’s mental state as diagnosed can explain or excuse the concerns the Tribunal holds about his credibility.  The Tribunal finds that there is no credible evidence as to the cause of the applicant’s mental state beyond apprehension about his uncertain status in Australia.[7]  The Tribunal also assumes that this is the cause of the anxious mental state of his daughter and his wife.  It could well be that with their immigration status in Australia resolved, their mental states will improve.  However the applicants have not claimed protection on the grounds of being anxious or depressed.

    [7] Similarly there is no credible evidence as to the cause of the applicant’s physical ailments recorded in these medical reports.

19. In reaching its finding on credibility, the Tribunal has also taken into consideration the evidence of the witness Z at the Tribunal hearing and also statutory declarations made by that person.[8]  According to his evidence, this person is the applicant’s uncle and on a recent trip to Myanmar he was told by different people that the applicant’s brother was apprehended by the authorities in June 2012, and died.  He said that as an educated Rohingya the applicant would have been targeted by the authorities. In his oral evidence and also in his written evidence Z stated that in Myanmar the applicant was persecuted and promoted the rights of Rohingyas.

    [8] See statutory declarations made on 12 May 2014, 18 August 2015 and 25 June 2018.

20. The Tribunal also took into consideration the evidence of the witness W who the applicant referred to as a brother-in-law but in a statutory declaration of 25 June 2018 this person stated the applicant was married to his wife’s [relative].  W also said that the applicant was an activist in Myanmar who was persecuted there.  These same claims were also made in letters from local Rohingya community groups submitted by the applicant.[9]  In one letter it is claimed that the applicant has been active on Rohingya issues in Australia.

    [9] See folios 26, 27 and 128 of the Tribunal file and folios 16 and 17 of Department file [information deleted].  See also folio 153 of the Tribunal file which is an identity card issued to the applicant by a Myanmar Rohingya community group in Australia.

21. While assertions are made in this evidence that the applicant was persecuted in Myanmar none of the sources of this evidence claimed to have directly witnessed the harm the applicant claims he suffered after the conflict broke out in June 2012 and on which, essentially, his protection claims are based.  While assertions are made in this evidence about the applicant being in some way politically active in Myanmar, none of the sources of that evidence have claimed to have directly witnessed the applicant undertaking those activities. 

22. Their broad assertions do not overcome the concerns the Tribunal holds about the applicant’s credibility and the Tribunal does not believe this applicant was politically active in Myanmar in any way.  While one source of this evidence claims that the applicant has been active in Australia, because the applicant is not a witness of truth, the Tribunal has no credible evidence that this applicant will (or will want to) engage in activism for Rohingyas in Myanmar. At any rate a broad statement from a community group of this nature does not demonstrate to the Tribunal that the applicant has been undertaking political activities in Australia.

23. The Tribunal accepts that the applicant and his wife are Rohingya Muslims originally from the Rakhine state.  The Tribunal accepts that the applicant’s native village is the one referred to in his evidence and country information as being burned down in January 2014. The Tribunal accepts claims made by the applicant to the Department about being beaten by security officers in his native area in 1989.  The Tribunal accepts that the applicant’s father was maltreated by the authorities in 1994 and will accept that his brother died in June 2012.[10]

    [10] See folios 87-89 of the Tribunal file being an identity card issued to the applicant's brother.

24. The Tribunal also accepts that other family members of the applicant have left the Rakhine state and left Myanmar as he told the Tribunal.[11]  The Tribunal will also accept that [Business 1] that the applicant helped to establish ceased to operate once the conflict broke out in June 2012.  However again, the Tribunal has no credible evidence about what has happened to [Business 1].  The applicant claims it was destroyed in 2015 but, because he is not a witness of truth, the Tribunal rejects that claim.[12]  In his first written statement the applicant makes claims about his family’s properties all being confiscated but never claimed [Business 1] itself was confiscated.

    [11] See folios 116 – 119 of the Tribunal file which are documents submitted by the applicant indicating that siblings and their families are [another country].

    [12] The Tribunal is therefore not satisfied that photographs of a destroyed building submitted by the applicant and appearing at folios 111-113 of the Tribunal file are [Business 1].

25. The Tribunal accepts that the applicant’s native village is the village named as being burned down in January 2014,[13] but disbelieves claims the applicant makes in his written statement that his family in that village were interrogated as to his whereabouts. That claim is part of the applicant’s overall claim about being of adverse interest to Burmese authorities, an overall claim the Tribunal disbelieves.  Because he is not a witness of truth, the Tribunal also disbelieves claims the applicant made to the Tribunal that apart from and before sending assistance to his native area through the individual X, the applicant also used to give donations to Rohingya activists. This includes disbelieving claims made in his first written statement about being secretly involved with Rohingya activists in Myanmar.  The Tribunal has no credible evidence that this applicant was involved with or assisting Rohingya activism.

    [13] At folios 106-110 of the Tribunal file are photographs submitted by the applicant said to indicate his native village was burned down again in September 2017, but, because he is not a witness of truth, the Tribunal has no credible evidence that his village is depicted.

26. In view of the Tribunal’s findings about the credibility of the applicant and his wife, the Tribunal finds that there is no credible evidence as to why the applicants travelled out of Myanmar from late 2012.  In his interview with the delegate, the applicant made claims about being impecunious but the Tribunal has no credible evidence about that.  There is no credible evidence about what the applicant did with his export business from which he was able to support his family and for them to be able to travel out of Myanmar.  There is no credible evidence as to why the applicants came to Australia and why they do not wish to return to Myanmar.  There is no credible evidence that the authorities or anyone else in Myanmar seeks to harm the applicants. 

    Assessment of the risk of the applicants suffering serious harm

27. Country information indicates that there are Rohingya living in Yangon who have obtained citizenship status and a significant number of Rohingya in Yangon have national registration cards and are able to obtain passports.[14]  The applicants all hold Myanmar passports.  Even if, as the applicant claims in a letter dated 8 November 2018, they are issued in Burmese names and not the applicants’ true Rohingya names, the Tribunal is satisfied that, in line with country information, they are Rohingyas who do have Myanmar citizenship. 

    [14] Department of Immigration and Border Protection, Country of Origin Information Services Section (COISS) Rohingya: Issues Relating to Statelessness (Myanmar, Bangladesh and Malaysia) Thematic Briefing 14 July 2017 at p 9 Rohingya in Yangon.

1. In its country information report on Myanmar, DFAT distinguishes between the treatment of Rohingya in the Rakhine state and Rohingya populations outside that state.[15]  With respect to Rohingya in Rakhine state, DFAT refers to that population being subjected to endemic official and societal discrimination; severe restrictions on their freedom of movement; systemic extortion and harassment and a high risk of violence.[16]  With respect to Rohingya outside Rakhine state, DFAT states that this population typically has higher incomes and better access to resources than those in Rakhine state.[17] They are typically able to obtain identity documentation that allows them to live and work without facing the high levels of discrimination otherwise experienced by Rohingya in daily life.[18] 

   [15] DFAT Country Information Report Myanmar 10 January 2017.

   [16] DFAT Country Information Report Myanmar 10 January 2017 at 3.10.

   [17] DFAT Country Information Report Myanmar 10 January 2017 at 3.27.

   [18] DFAT Country Information Report Myanmar 10 January 2017 at 3.27.

2. DFAT assesses that this population experiences moderate levels of societal discrimination on a day-to-day basis.[19]  DFAT assesses that Muslims outside Rakhine state experience similar levels of societal discrimination and a low risk of societal violence on a day-to-day basis.[20] More recent country information conveys a similar position for Rohingyas who live outside the Rakhine state.[21] In its country information report on Myanmar, DFAT examines the treatment of returnees to Myanmar and states that it is not aware of any credible reports of the mistreatment of failed Rohingya asylum seekers stemming specifically from their having sought asylum overseas.[22]

   [19] DFAT Country Information Report Myanmar 10 January 2017 at 3.27.

   [20] See DFAT Country Information Report Myanmar 10 January 2017 for the discussion at 3.40 – 3.45 on Muslims outside Rakhine state and mention of isolated incidents of attacks on Muslims.

   [21] See Department of Immigration and Border Protection, Country of Origin Information Services Section (COISS) Situational Update Myanmar 15 December 2017 at p 3 Muslims outside Rakhine state.  This source indicates that Muslims outside of Rakhine state encounter discrimination and there have been isolated incidents of violence against them in different locations in Myanmar over a number of years.

   [22] DFAT Country Information Report Myanmar 10 January 2017 at 5.3 - 5.38.

3. From this country information, the Tribunal infers that the risk of the applicants suffering serious harm in Myanmar is remote.  The Tribunal can acknowledge isolated incidents of violence against Muslims outside Rakhine state and how the conflict in that state could increase the risk of such incidents.  However, the Tribunal is not satisfied that violence against Muslims outside Rakhine state takes place on a scale that equates with a real chance of the applicants suffering serious harm in Yangon.  The Tribunal also acknowledges discrimination against Rohingyas but the applicant and his wife completed high school education and attended university. Their school-age children were attending school in Myanmar.  The applicant was operating a business and the family could travel out of Myanmar.

4. The Tribunal infers there is not a real chance the applicants will suffer serious harm on the basis of discrimination for being Rohingyas.  The Tribunal acknowledges the applicant was once beaten by security officers in the Rakhine state in 1989.  However, that event was long ago and there is no credible evidence the applicant has suffered harm at the hands of the authorities in his life in Yangon.  The Tribunal has accepted the applicant’s evidence about his father being maltreated; his brother dying in June 2012; family members leaving the native area and Myanmar;  [Business 1] in [Town 1] ceasing to trade from June 2012 and that the applicant’s native village was burned down in January 2014.  However, in his life in Yangon the applicant has not been affected by what has taken place in the Rakhine state. There is no credible evidence before the Tribunal that the applicant suffered harm in his life in Yangon in particular in the period from June 2012 which is the relevant period in which his protection claims, in essence, arise.

5. The Tribunal is also aware of statements by DFAT that Rohingya living away from the Rakhine state do not publicise their ethnicity and maintain a low profile in that respect.[23]  However, there is no credible evidence that this has led to the applicants suffering serious harm. The Tribunal has acknowledged that they have used Burmese names in their dealings with officialdom but the Tribunal does not accept that they have had to modify their conduct in any way to avoid serious harm.  Finally, the Tribunal infers from the country information that the risk of the applicants suffering serious harm in Myanmar because they have sought protection in Australia is also remote.

   [23] DFAT Country Information Report Myanmar 10 January 2017 at 3.27.

6. The Tribunal discussed the country information with the applicant in general terms and put to him the inferences which it draws from that information applied to the applicants’ circumstances.  In response, the applicant made broad claims that Rohingyas suffer harm everywhere in Myanmar and that the government was against them.  Those broad claims do not alter the Tribunal’s view of the risk of the applicants suffering serious harm based on the country information above.

7. The applicant also stated that a Muslim lawyer had been killed at the airport in Yangon.  He referred to a Rohingya who had sought asylum in Great Britain being arrested on return to Yangon.  The Tribunal does not know the precise circumstances of these people and again these claims do not persuade the Tribunal to depart from the positions expressed in country information above about the risk of the applicants suffering harm because of their ethnicity and because they sought asylum in Australia.  The applicant also said that the government confiscates the property and businesses of people before targeting them. However there is no credible evidence that the applicant’s property has been confiscated or that the Burmese authorities have targeted him.  At the end of the hearing the applicant said that he had never been recognised as a Burmese citizen.  He said that having a Burmese passport did not make him a citizen as passports can be obtained through agents. He had no right to move from one place to another. 

8. The Tribunal rejects the applicant’s claims because he clearly was able to move in and out of Myanmar and, for the reasons already given, the Tribunal finds that the applicants are citizens of Myanmar.  He claimed he had no right to practice his religion.  The Tribunal pressed the applicant on that and he said that it was extremely hard to attend a mosque because there were groups such as Buddhist extremist groups that would prevent them attending.  The Tribunal put to the applicant that available country information indicated discrimination against Muslims and incidents of violence but contained no claim that Muslims in Yangon could not practice their religion including attending mosques.  In response, the applicant said that information from DFAT was based on what the Burmese government said. However, the DFAT reports are based on a range of sources and do disclose human rights abuses by the Burmese government.

9. To the Tribunal, the applicant submitted country information.[24]  This information relates to the treatment of Rohingyas in the Rakhine state; human rights practices in Myanmar in general and general statements about anti Muslim sentiment.  In his written appeal statement the applicant refers to a source about anti Muslim sentiment across the country.  The Tribunal has considered this information but it is not inconsistent with the country information set out above about risk for Rohingyas in Yangon.  It does not persuade the Tribunal to depart from the inferences it draws from that information.  At the hearing, the two witnesses, in reference to their recent travels to Myanmar, said that Rohingyas in Yangon were not safe.  Again this does not persuade the Tribunal to depart from the country information above which gives an independent assessment of the risk for Rohingyas in Yangon.

   [24] See folios 44 - 67; 121 – 124 ; 139 – 144 of the Tribunal file.

10. To the Tribunal, the applicant submitted a letter from the school attended by his children referring to the applicant setting up businesses in Australia and asserting that the family make good migrants.[25]  The Tribunal has considered that information but it does not demonstrate that there is a real chance that the applicants will suffer serious harm in Myanmar.  For all of the reasons given above, the Tribunal finds that there is not a real chance that the applicants will suffer serious harm in Myanmar.  They do not hold a well founded fear of persecution based on any convention ground.  For those same reasons, they do not meet the complementary protection criterion.

    [25] See folios155 – 156 of the Tribunal file.

    CONCLUSIONS

11. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Paul Millar
    Member