1511094 (Refugee)

[2018] AATA 4966

1511094 (Refugee) [2018] AATA 4966 (27 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511094

COUNTRY OF REFERENCE:                  Burma (Myanmar)

MEMBER:Jane Marquard

DATE:27 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2018 at 11:37am

CATCHWORDS

REFUGEE – protection visa – Myanmar – race – ethnic Rakhine – religion – Buddhist monk – political opinion – advocate for minority rights – political protests – land confiscation – physical assault – attacks by armed forces – torture – religious leaders critical of government – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 5AAA, 36, 65, 91R, 91S, 499

Migration Regulations 1994, Schedule 2

CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998)

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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: OVERVIEW

1. The applicant is a citizen of Myanmar, born in [year] in [Town 1] in Rakhine State. He has a Burmese passport. He left Myanmar for [Country 1] in 2009 following the Saffron Revolution and studied there until 2013 when he returned to Myanmar. He went to [Country 2] for a short time in 2013 and to [Country 1] again [during] 2014.

2. He arrived in Australia [in] September 2014. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 13 October 2014. The Department of Immigration (the Department) refused to grant that visa on 22 July 2015. This is an application for review of that decision before the Administrative Appeals Tribunal (the Tribunal).

3. In summary the applicant claims to fear returning to Myanmar because he is part of the Rakhine minority and has been involved in human rights activism in Myanmar.

4. Myanmar is a south-east Asian parliamentary republic, which achieved independence from Britain in 1948. Following 26 years of rule by General Ne Win and the Burma Socialist Programme Party, Ne Win stood down in 1988, followed by military rule until 2011 and a period of instability. In 2015 Aung San Suu Kyi’s National League for Democracy (NLD) won the elections and took over power.[1] According to the Department of Foreign Affairs and Trade (DFAT), the establishment of civilian government in Myanmar in 2011 led to the removal of several restrictions around political commentary and freedom of speech. Many former political dissidents are now politically active and many former political prisoners are members of parliament.[2]

   [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Myanmar, 10 January 2017.

   [2] Ibid.

5. The U.S. government estimates the total population of Myanmar as 55.1 million (July 2017 estimate). According to estimates, approximately 88 per cent are Theravada Buddhists. Theravada Buddhism is the dominant religion among the majority Bamar ethnic group and among the Shan, Rakhine, Mon, and numerous other ethnic groups.[3] The Rakhine are an ethnic group making up four per cent of the population.[4]

   [3] US Department of State, International Religious Freedom Report for 2017, Department of Foreign Affairs and Trade, DFAT Country Information Report Myanmar, 10 January 2017.

6. The Tribunal must determine whether the applicant meets the refugee criteria or complementary protection criteria. A summary of the relevant law is set out in Attachment A. The key issues for the Tribunal are whether the applicant was a human rights activist, and whether he races a real chance of serious harm based on his political opinion, or a real risk of significant harm.

7. The Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act. A summary of the evidence, findings and reasons for the findings is set out below.

   CLAIMS AND EVIDENCE

8. The applicant submitted an application to the Department as well as supporting documents, and took part in a Departmental interview. The applicant appeared before the Tribunal on 26 July 2018 and provided a number of written documents. His evidence before the Department and Tribunal is summarised below.

9. The applicant was born in [Town 1], in Rakhine State and belongs to the Rakhine ethnicity, a minority in Myanmar. He speaks Rakhine, Burmese and English. He is a Buddhist and became a Buddhist novice in [year] and a fully ordained monk in [year]. His parents still live in his hometown with [a relative]. He has a [Relative A] who is living in [Country 1].

10. [Town 1] is a township of around 100 000 people where [fishing] and farming are the primary industries. The applicant’s parents, who are from the region, are still living there, as is [a relative]. His [Relative A] is in [Country 1]. His father and mother are farmers. There are some other relatives in [Town 1] as well. The majority of people in his township are ethnic Rakhine, and there are some Rohingya people as well. His parents were not involved in political groups, but his father would attend some political protests from time to time, when land was confiscated by the military. He advocated for land to be returned by the military. His father also supported the views of Aung San Suu Kyi.

11. In 2007 when the applicant was [age] years old he studied Buddhist Pali courses in Yangon. He lived at [a monastery] with [number] monks. The Saffron Revolution protests, involving students and monks began on 18 September 2007 and he and ten of his friends joined in, and he helped organise. They marched through Shwedagon, Sule and Botataung Pagoda and chanted Matta Sutta (loving kindness). One of the monks encouraged them to join.  They supported from the back of the protests. The main objectives of the protests were to achieve reduction in prices in the markets, and to free political prisoners. He believed that although it was a risk it was worth it as they were in a group so would be safe. He said that at that time he was a Buddhist monk. His belief was that he should do something for the people, as people were scared. There was an uprising in 1988 and this was the largest protest since then. The military government controlled the resources and did not share the spoils with the people, particularly the various ethnic minorities. He spoke at the protest, saying that they should peacefully try and get rid of the military government as this was good for the future. He was afraid but the protest was peaceful, and he told his class mates that they should join in the next protest, to help their people. In the following days, all the students took part in the peaceful protests. Within one week, such protests had spread throughout the country. The government warned the protestors to cease but he did not think that the authorities would use violence as the protests were peaceful. However on 26 September 2007 army soldiers fired on them near the eastern gate of Shwedagon Pagoda, Yangon at about 12pm. He was in the third row with two of his friends and they all separated. He saw three or four monks fall, and the army soldiers started beating them with batons, tear gas was used, and they arrested people and put them in trucks. He was hit with a stick and kicked in his back. He ran for his life and climbed over the wall of [a location] to hide with ten other monks. After 30 minutes he came out from hiding and took a taxi to the monastery. Later in the evening Thein Phy Street was blocked by security forces. He got a high fever from the pain. He and his friends watched the news about the protest. He never saw two of his friends again and later learned that they had been sent to labour camps in Kachin State.

12. On 27 September 2007 at about 3.30am he was woken by the sound of vehicles and shouting. One of the monks shouted that there were soldiers outside. One monk suggested that they gather in the main hall for safety. Some monks tried to run. However there were about ten military trucks and many soldiers around the monastery.  All the monks and abbot gathered in the main hall and the army officers checked their names and said that they would take them for breakfast and ask questions. They followed their instructions and there was no violence. At first, the applicant did not realise that they were being arrested. The soldiers lied to them, and they were forced into military trucks and taken to the Insein G.T.I. (Government Technical Institute), which was no longer used as an institute. The conditions were bad there, with overcrowding in a small room, with no water and food, and no toilet. It was very dirty and wet. Military trucks carrying monks were arriving. There were about 300 monks and novices in the room, from different monasteries. This included monks who were 10 to 12 years old from [other monasteries] close to their monastery, and members of the public including monks. A number of monks had injuries but were not provided with medical treatment, mainly monks from [specified monasteries]. They had fought back when the soldiers arrived. They told them that some monks had been tortured and killed. Some monks did not have upper robes. The soldiers ordered them to bow their heads and not look at them. He asked them why, and he was kicked in the back and tortured. On the second day there, they were forced to disrobe by two old monks, whom he thought were imposters. Ordinary clothes were left for them to wear. This was difficult as their dress is a religious uniform which involves discipline and rules. These must be followed when wearing the uniform, and people respect the uniform. There were around 20 armed soldiers in the room. After that they were divided into groups and moved to other rooms. There were about 50 monks in his group. The soldiers took their personal information including their parents’ names. They were asked who the leaders and organisers were. When he said that he did not know, he was shouted at. They already had biographical details from the monks and took further information from each monk. They were detained for a week.

13. [In] October 2007 many monks were released but he was sent to Insein Prison in Yangon with many others. He broke down mentally and thought that he would be there forever. The conditions there were poor and mental and physical torture was common. They were forced to do manual labour with little food. He often felt sick but there were no medicines. He meditated and practised Buddhism for the wellbeing of himself and others, and one night he was slapped for doing this. Some monks disappeared and were never found. He believes that he was kept in prison for that period of time because some monks may have told the soldiers he had helped organise the protest.

14. [In] January 2008 for health reasons, he was released, along with other monks. He signed a statement that he would not participate in any form of political activity. [Number] monks from his monastery were released and taken back to the monastery. At the main hall, [a named official from] the Ministry of Religious Affairs, told them not to get involved with any political affairs. The next day, several monks from his monastery were released, but [others] were sent back to Insein Prison, two of whom were his close friends. After three months they were released on bail. One fled to [another country] and the other was later disrobed. He does not know what happened to other monks. Asked if this made him reluctant to participate in political activity again, he said that he had to sign an agreement not to participate when he was released. However he had been an eyewitness to injustice. He said that it was their mission and duty to continue fighting injustice.

15. He claimed that the army general forced all the monks to return to their hometowns. He was required to report to local authorities every day and could not preach. The local army officers came to his house to check on him and asked people about him. He had to get permission to travel. He felt very unsafe so decided to travel back to Yangon, with an intention to flee to the border of [Country 1] for safety.

16. The applicant said that his monastery in Yangon did not accept him back as a student and other places asked him about the Saffron Revolution, checked his identification and then told him that he could not be part of their monastery. He had to stay with friends in different monasteries for short times. Army and authorities would check on him and he had to leave.

17. He claimed that finally a monastery called [name] allowed him to stay. The authorities did come, but the abbot allowed him to stay if he was careful.

18. The applicant claimed that he went to [international agencies] to find out if he could leave for another country. He took English lessons at [one of them]. One day a monk who was studying in [Country 1] visited and suggested he apply for a passport to study in [Country 1]. He was able to get a passport, despite being in trouble with the authorities, because he paid a bribe to get police clearance. It is possible to pay money to the Immigration Office, and get the processing done quicker, without any questions. He had to supply many documents to obtain a passport. His application for a passport was approved and his passport issued [in] 2008. He was granted a [temporary] visa for [Country 1], and later in [Country 1] he was given a [different] visa for four years.  He saved money to leave [in] April 2009, all the time feeling unsafe. He was able to leave through the airport safely without any questions being asked. He was just lucky.

19. He spent four years studying at [a] University. He visited Burma for the summer holidays as he was worried about his mother who was sick. When he returned, he was there briefly, and stayed in one place, and there were no repercussions, even though he had previously been involved in protests in [Country 1]. In [Country 1], he was involved over three times in peaceful protests and democratic activities remembering the Saffron Revolution and those who disappeared and were killed, and regarding the political and human rights situation in Burma, calling for the release of Aung San Suu Kyi and political prisoners and democracy. The activities were organised by senior monks and sometimes he helped with organisation. There was a Workers Rights Group, members of whom would often attend, but he cannot remember exactly how many.  He took part in protests [at a location] in Bangkok.  He called for the release of Buddhist monks and political prisoners detained during the Saffron Revolution and an official apology for the Saffron Revolution crackdown. At the time, the [Burmese officials] did not want to create issues with [foreign] groups. The wife of the ambassador was herself also involved with religious groups. So he believed that news of the protests did not reach the Myanmar government at the time. He also completed his [qualification] in 2013.

20. [In] June 2013 he returned to Myanmar, intending to contribute what he had learnt in [Country 1]. He started to teach [subject] classes for young monks and novices in [his monastery] in Yangon in July 2013. The abbot had invited him back. He shared with his students political ideas and encouraged them to have a voice. At this time, the new president, U Thein Sein, was in power and there were some changes in the law. He wanted to teach ideas about the present Constitution and changes that need to be made. The laws had been dominated by the military and they needed to change that. He felt that there was a change in the political environment and that it would be safer to express his political views through teaching. A month later, police came to him saying that he needed to report what he was doing with the monks. An army intelligence officer also spoke to him. He was very disappointed that this was still taking place. He realised that nothing could be said against the military, whether in relation to law or any other matter. He was not a member of any association. He was sometimes involved independently with organising groups of students. He supported Aung San Suu Kui and her party. He went to his hometown to see his parents and relatives when he had free time. When he got the chance, he met local political leaders who raised their voices against the military rulers. This was a time when everyone was discussing political change, and changing the Constitution. He also participated in political rallies and got to know the Rakhine political leader, [Mr A], as well as other human rights activists. He met him because he is from his own Rakhine ethnicity and they were discussing land confiscation of Rakhine land by the military. They had similar ideas about rights they had lost in Rakhine and rights for minority. He became friends with them. He generally supported the values of the Arakan League for Democracy.

21. The applicant claimed that occasionally he gave speeches to monks and students in Yangon. In August 2013, he gave a speech on the roles of Buddhist monks at [Monastery 1 in] Yangon. He was not asked to give this speech, rather he put his name down to speak. He pointed out how the government uses religion for political advantage by creating tensions between Buddhists and Muslims. He also referred to the president and the need to change the Constitution and get rid of military law. He also referred to minority rights in Arakan state, including land being taken by the military for road construction. They wanted to reduce the number of army bases in Arakan state which caused difficulty for the Rakhines. A few weeks later the local authorities came to [his monastery] and he was forced to shut down his class, leave the monastery and agree not to get involved with politics.

22. He realised that it was not safe to live in Yangon, so returned to his hometown where he lived partly with his mother and partly in temples. One day while at a temple, the local police went to talk to his parents and searched the house, taking documents about human rights issues. The documents were flyers about how to change the Constitution. There was also information about the military confiscating the lands and taking minority rights and NLD documents. The police inspector threatened his father saying that they would arrest him if he could not hand the applicant to them. When the applicant heard this, he returned to Yangon to hide among the monks. Even though some political prisoners had been released with the new government, he was still being harassed for expressing his views.

23. The abbot suggested that he try and flee abroad. So he went to [Country 2] in 2013 but came back when his mother became very ill. He was concerned about being arrested, but he believed he had not done anything wrong or violated any law. He went to his hometown to arrange a clinic for his mother, but very few people knew that he was there. A notice was sent to his father in December 2013 asking where he was, and asking his father to meet with the authorities in two weeks.

24. The applicant was concerned as the authorities were targeting his father and [Relative B] because they had found the paperwork at their house. His father had been involved in the issue of land confiscation by the military. He was not sure about his [Relative B], but they may have thought he would get involved later.  Consequently he contacted a lecturer monk at [a monastery] to make travel arrangements for himself and his [Relative B]. [In] January 2014 they went to [Country 1] on a [temporary] visa. His [Relative B] is living there illegally as his passport and visa have expired. They are no longer registering people for refugee status in [Country 1].

1. [In] April 2014 his father, who had not met with the local inspector, was arrested and sent to [Prison 1] probably because of the papers they had found there. Because of this, the applicant returned to seek bail for his father, although it risked his own life. He returned as his father was old and he was worried about him. He arrived at the airport at Yangon, which is big, so he hoped that the authorities would not notice his arrival.

2. After arriving in Yangon, he contacted a lawyer who advised him that no bail could be sought for his father. The lawyer told him that a reliable source had told him that the applicant would be arrested. Knowing this, he went to see his mother, told his [relative] to care for his mother and returned to Yangon. [In] June 2014 he left for [Country 1] again. In August 2014 his father was released.

3. The applicant said that he was fortunate to participate in a conference in [an Australian city] in September 2014. He came to the conference to seek protection as he fears for his life in Myanmar.

4. The applicant was asked what he fears if he returns to Myanmar in the reasonably foreseeable future, given the current political state. He said that the current situation is worse than before because of the issue with the Rohingya people. When people argue for minority rights, then the military associates this with anti-government activity. Two years ago, around 60 to 70 students were arrested, and three were from his home town. He had communicated with most of those people before coming to Australia, and he is afraid that they will know about his communications with them. He currently believes that the military dominates power through the Constitution. They can arrest at any time. The Ministers for Home Affairs, Defence, and Border Control are all controlled by the military, which is still in power.

5. He participated in a protest at [a location] in 2017 when Burmese people from [that city] spoke about abuses against Rohingyas. He believes that the military has created the problem. Even though Aung San Suu Kyi is legally elected, she has no power. He is still a Buddhist monk in Australia.

6. The applicant said that minority issues are created by the government in order to divide the population, and that there are restrictions on freedom of the press and expression in relation to these issues. The confiscation of land by the military cannot be discussed. The Rohingya and Rakhine are suffering but not everyone knows about this. Asked about the Rakhine monks who have been supporting the army against the Rohingya, he said that they have paid money to the monks and given protection to them, which has fuelled their involvement. But there are many Rakhine who do not support this, and have lived harmoniously with Rohingyas for a long time. A lot of information from Rakhine is suppressed and not reaching the world media. For example, the issue about military taking the Rakhine lands has been suppressed. Some Rakhine youths are being arrested because of being associated with the Arakan military group as well.

7. He said that he is very frightened to return because of the control of the government.  There are many human rights violations. For example Rakhine youth are being arrested but no-one can comment on it. The military can act with impunity.

8. He provided the following documents:

   ·     Religious Registration Card, for a monk, listing his place of birth, and his monastery.

   ·     A number of photographs, with members of [a named organisation] in Yangon, 2013, giving a speech at [Monastery 1] in August 2013, with political activists from the [another agency] in 2014, with student activists, in his classes, demonstrating in [a location] in [Country 1], meeting with Rakhine political leaders and in a meeting with [Mr A].

   ·     Certificate for [his qualification] and transcript of academic record.

   DEPARTMENTAL DECISION

9. A copy of the decision by the delegate of the Department dated 22 July 2015 was provided to the Tribunal by the applicant. The delegate was not satisfied that there was a real chance of serious harm or a real risk of significant harm. The delegate made this finding on the basis that the applicant was able to be issued a passport, left the country legally for [Country 1], and returned on a number of occasions without arrest.

   FINDINGS AND REASONS

10. In coming to a decision, the Tribunal has taken into account evidence in the Department files and before this Tribunal, as summarised above, as well as independent country sources.

11. A summary of the relevant law is set out in Attachment A.

12. In coming to a decision, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

    Nationality

13. The first issue in this case is the country of nationality of the applicant. 

14. The applicant provided a copy of his passport and gave evidence that he was a citizen of and born in Myanmar. It was clear that he was familiar with the history, culture and political situation in Myanmar and the Tribunal accepts on the evidence before it that he is a citizen of Myanmar, and that Myanmar is the receiving country for the purposes of the complementary protection provisions.

    Refugee criteria – does the applicant have a well-founded fear of persecution for reasons of his political opinion?

15. The next issue in this case is whether the applicant has a well-founded fear of persecution, were he to return to Myanmar in the reasonably foreseeable future.

    Was the applicant involved in human rights activism in Myanmar?

16. The Tribunal has considered first whether the applicant was involved in human rights activism in Myanmar.

17. In assessing the claims the Tribunal has adopted a ‘reasonable approach’ to making its findings with regard to credibility.  While the Tribunal is not required to accept uncritically any and all claims made by an applicant, nevertheless, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

18. Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998):

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. 

19. The Tribunal also accepts that:

    if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt[5] 

    [5] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

20. The Tribunal is guided by these decisions and guidelines, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. All this is taken into account in these findings. The Tribunal has also utilised the published guidelines of the Administrative Appeals Tribunal in relation to credibility.[6]

    [6] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, >

    The Tribunal is satisfied that the applicant studied Buddhism at [a monastery] and took part in a series of protests known as the Saffron Revolution in 2007. He has provided documents evidencing his study of Buddhism and his ordainment as a monk. The applicant’s recount of his study and involvement in political protests was told with the kind of detailed recall and emotional response often commensurate with telling the truth. The Tribunal is satisfied that on 26 September 2007 army soldiers fired on a protest he attended near the eastern gate of Shwedagon Pagoda, Yangon, and that later friends of his disappeared. This incident is reported in media reports.[7]

    [7] See for example, Reuters, Death in the streets of Yangon, 8 April 2008, >

    The Tribunal is satisfied that a few days after he and fellow monks were involved in a peaceful protest in September 2007, police raided his monastery and took many monks into detention, including the applicant. The Tribunal is satisfied that he was tortured and ill-treated, and kept in detention until January 2008. The Tribunal is satisfied about these matters as the applicant provided the kind of significant detail about the events which is often commensurate with first-hand experience, such as the locations they marched, and the chants made. He also was able to provide explanation as to his motives for becoming involved in the protests, such as reducing prices of goods and freeing of political prisoners and to speak of his belief at the time that the authorities would not get involved with a peaceful protest. Furthermore, his experience of being taken in the middle of the night, to a derelict building, where the monks were forced to disrobe, accords with reports of the protests which took place in Myanmar in 2007. An article in the Sydney Morning Herald referred to the Saffron Revolution in which ‘thousands of monks were taken from their monasteries after rising up against a brutal regime’.[8] The article states that they were taken at midnight, held in primitive, humiliating conditions and with disrespect for the Buddhist robes. The article referred to soldiers at the Government Technical Institute in Insein, where the applicant claimed he was taken, breaking down when told by monks that they would go to hell.[9]

    [8] Sydney Morning Herald, Untold story: How Burma brutalized its monks, 8 October 2007, Sydney Morning Herald, Untold story: How Burma brutalized its monks, 8 October 2007, >

    His evidence about systematic targeting of monks at the time accords with a summary provided by the United States Department of State:

    The Assistance Association for Political Prisoners–Burma estimated that security forces raided at least 52 monasteries between September 26 and December 31, 2007, in retaliation for the peaceful monk-led prodemocracy demonstrations. Opposition activists and members of the clergy reported soldiers forcibly entered the monasteries at night and deployed tear gas, fired rubber bullets, and beat monks with batons and bamboo sticks. International NGOs estimated that at least 150 monks were arrested between September and October 2007, although at the end of 2007, many more monks were reportedly missing from their monasteries.

    In September 2007 the regime violently suppressed peaceful demonstrations led by Buddhist monks. Witnesses reported the regime conducted numerous nighttime raids on monasteries and private homes following September's peaceful prodemocracy protests. In Rangoon local witnesses, media, and foreign diplomatic representatives reported that many monks were missing from their monasteries after the crackdown began on September 26.

    In late September and early October 2007, foreign diplomatic representatives and members of the media visited several local monasteries and found many damaged and nearly empty. On September 28, 2007, journalists and foreign diplomatic representatives visited Ngwe Kyar Yan monastery in Rangoon and found bamboo batons, riot control munitions, broken windows, and pools of blood on the floor of the monastery's dormitory.

    On September 27, 2007, security forces conducted a pre-dawn raid at the Ngwe Kyar Yan monastery in Rangoon. Witnesses reported that police and soldiers beat monks and destroyed property. Approximately 70 monks were taken away. Cash, jewelry, and other valuables also were reported missing following the raid. [10]

    [10] United States Department of State, International Religious Freedom Report for 2008 – Burma, 19 September 2008.

21. The applicant’s experiences of torture also accord with country reports. In Amnesty International’s Report 2014-2015, The State of the World’s Human Rights, it is reported that in Myanmar torture was not criminalized and that Myanmar has failed to ratify the UN Convention against Torture.  It reports that officers from the police and military faced persistent allegations of torture and other ill-treatment, both conflict-related and of criminal suspects, and that investigations into complaints were rare and suspected perpetrators were seldom held to account.[11]

    [11] Amnesty International, The State of the World’s Rights, 2014 to 2015, 2015.

22. The Tribunal is satisfied that [in] October 2007 many monks were released but he was sent to Insein Prison in Yangon with many others. Again, he provided a number of details about the conditions and his emotions at the time, when he felt that he would break down mentally, which suggest that he had direct first-hand experience.

23. The evidence about the applicant’s release in January 2008 is also consistent with country information which indicates that the government released a number of monks towards the end of 2007:

    On 14 December 2007, 96 monks arrested in the September protests had been released.  Half of those released were from Ngwe Kyar Yan Monastery in South Okkalapa, Rangoon, including the abbot, U Yuveda.  Although the monks were allowed to return to the monastery, it remained under close surveillance by junta officials and lay people were not allowed access.[12]

    [12] Human Rights Documentation Unit 2008, Burma Human Rights Yearbook 2007, p. 89, >

    The Tribunal is satisfied that after the applicant’s release in January 2008 he was forced to sign a statement that he would not participate in any form of political activity.  The Tribunal is satisfied that notwithstanding this agreement, as well as continued monitoring and surveillance, he did continue to speak up against abuses of the government as he said a number of times that it was his duty as a Buddhist monk, and that it was his belief that he should do something for his people. His comments that after his detention he had been a ‘witness to injustice’ were persuasive as to his motives for continued involvement. Clearly the applicant had deep-seated beliefs about the importance of working to halt human rights abuses in his country.

24. The Tribunal is satisfied that the applicant left for [Country 1] because of continued harassment by authorities. The Tribunal is satisfied that he was involved in a number of peaceful protests while he was in [Country 1]. Such activity was consistent with his conduct while living in Myanmar. The Tribunal is satisfied that he returned to Myanmar in 2013 believing that the government had changed and that it would be safer to express his political views through teaching. He persuasively described his feelings of disappointment when he was visited by police at this time. Country information does indicate that repression of political opposition was taking place in 2012 and 2013 notwithstanding some changes in government personnel and practices. In the US Department of State Country Reports on Human Rights Practices for 2013 it was reported that government security forces were allegedly responsible for cases of extrajudicial killings, rape, and torture, particularly in ethnic minority states, including Rakhine.[13]

    [13] United States Department of State, Country Report on Human Rights Practices for Burma 2013, 2014.

25. The Tribunal is satisfied, on the basis of the applicant’s evidence, which has been credible overall, that he participated in political rallies and met local political leaders, including the Rakhine political leader, [Mr A] and [another leader]. The Tribunal is also satisfied that he supported the values of the Arakan League for Democracy, and occasionally gave speeches to monks and students in Yangon. A number of photographs have been provided to support his claims. The problem has been systematically created by the military. He believes that citizens need to stop the human rights violations against the Rohingya. He was able to describe the content of the speeches, including how the government used religion for political advantage by creating tensions between Buddhists and Muslims, the need to change the Constitution and get rid of military law, and minority rights in Arakan state, including land being taken by the military for road construction. The Tribunal is satisfied that he was forced to return to his hometown where he lived partly with his mother and partly in temples, after his course was shut down by authorities, and that he was harassed by police in his home region. The Tribunal is satisfied that he fled to [Country 2] for some time then returned to visit his mother who was sick.

26. While the Tribunal had some concerns as to why the applicant’s father was arrested prior to the applicant leaving for Australia, the Tribunal does accept that he was arrested, given that it has found the applicant to be a credible witness overall. Given that the father was involved in protests against land confiscation by the military, and that the police found the applicant’s documents at his house, it is possible that the authorities arrested him on this basis. The applicant’s story of his arrest is also made more credible by the fact that the applicant risked returning to Myanmar in order to try and seek bail for him.

27. The Tribunal is also satisfied that the applicant was able to obtain police clearance and a passport, and to depart and return to the country on a number of occasions. Although the applicant was harassed by authorities on numerous occasions, country information from DFAT indicates that even those convicted of offences have been able to obtain passports and travel. In September 2011, DFAT provided information in relation to a Burmese person who had been convicted under the Emergency Provisions Act and sentenced to 18 months in prison. DFAT advised of the ‘high likelihood that practices relating to the issuing of [police clearance] certificates would vary between police stations’:

    However, it may be possible that a conviction .. would not be reflected in a police clearance certificate because a) a bribe was paid, b) the police clearance certificate was fraudulent, or c) poor police record-keeping. Eighteen months is, by Burmese standards, a light sentence for “political” offences and a person who had been convicted under 5(J) of the Emergency Provisions Act for this period of time would possibly be able to pay a bribe to have the conviction omitted from their clearance. We note however, that the circumstances would need to be right; the bribe would probably need to be large given the nature of the conviction, and it would depend very much on the approach of the both the bribe giver and receiver – in many circumstances, this approach would not be possible due to the nature of the offence.

    …In some circumstances it would be possible for a person with the aforementioned conviction to leave Burma. They could depart the country unlawfully, possibly without documentation, or they may be successful in obtaining a passport and departing lawfully. We note that police clearance certificates are not required in order to apply for a passport.[14]

    [14] Department of Foreign Affairs and Trade 2011, Section 5(J) of the Emergency Provisions Act, CIR No.11/60, 16 September 2011.

1. DFAT advice from June 2002 states that a passport application does not require a police clearance certificate, and notes that such certificates could be obtained through bribery.[15]

   [15] Department of Foreign Affairs and Trade 2002, Order for restriction of movements, CIR No.189/02, 18 June 2002.

2. The Tribunal is satisfied that the applicant has continued to express his opposition to the military in Myanmar while in Australia because of genuine beliefs rather than to bolster his refugee claim. Attending rallies to oppose the government is consistent behaviour for the applicant, both in Myanmar and while he was living in [Country 1].

   Is there a real chance of serious harm if the applicant returns to Myanmar in the reasonably foreseeable future?

3. The next issue is whether the applicant has a ‘well-founded’ fear. This adds an objective element 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.

4. The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he or she has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[16]

   … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

   [16] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

5. The High Court’s decision in Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is ‘well-founded’ and it can be reached even if the event feared is ‘unlikely to occur’ and has only a ‘10 per cent chance’ of occurring, however, the chance of it occurring must be more than ‘far-fetched’ or ‘remote’,[17]  and the evidence must indicate ‘a real ground for believing that the applicant … is at risk of persecution’; a fear ‘is not well-founded if it is merely assumed or if it is mere speculation’.[18] 

   [17] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.

   [18] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.

6. As set out above the Tribunal is satisfied that the applicant has been arrested, harassed and threatened by authorities in the past and that recently his father was arrested. The question is whether the applicant would be harmed if he returned to Myanmar in the reasonably foreseeable future.

7. DFAT stated in 2017 that former political prisoners and exiled activists are now typically able to return safely to Myanmar, and that many have returned and been able to be politically active. DFAT does suggest however that those who criticised the military may be in more danger of arrest. The UK Home Office has also found that Myanmar nationals with a profile of voicing opposition to Myanmar authorities in the UK can now return without a real risk of detention.[19] DFAT also assesses that people who express political opinion face a low risk of official or societal harassment, violence or imprisonment based on their political opinion. Further, it was difficult to locate information in the United States International Religious Freedom Report or United States Department of State Report on Human Rights Practices which indicate that there is violence or discrimination towards Buddhist monks or Rakhine activists specifically.[20] 80 per cent of the population of Myanmar is Buddhist, and the government is Buddhist-controlled. Country information indicates that there is a close relationship between the authorities and monks of Rakhine, with many monks supporting action against the Rohingya people and in fact in some cases monks have instigated abuses.

   [19] Department of Immigration and Border Protection, Situational Update Myanmar, 15 December 2017.

   [20] United States Department of State, International Religious Freedom Report for 2017, United States Department of State, Country Report on Human Rights Practices for 2017 Burma.

8. These reports were discussed with the applicant who referred to his fear of being targeted as a human rights activist who is Rakhine, and who speaks out for minorities including the Rohingya. He claimed that if he returned to Myanmar he would feel the need to speak out. He said that Aung San Suu Kyi has the face but not the power, and abuses against minorities are continuing. The problem has been systematically created by the military. He believes that citizens need to stop the human rights violations against the Rohingya.  

9. As referred to by the applicant, the Human Rights Watch Report for 2018 states that the NLD-led government has thus far not capitalised on its initial momentum in guiding the country towards substantive reform or the creation of democratic institutions. The Report calls the 2008 Constitution ‘deeply flawed’ and notes that it permits the military to retain autonomy from civilian oversight and gives it extensive power over the government and national security. The Report states that restrictions on the rights to freedom and assembly persist and the government has failed to get rid of ‘rights-abusing’ laws that have been used to criminalise free speech and prosecute dissidents. According to the Report, arrests and prosecutions for participation in peaceful assemblies have continued.[21]

   [21] Human Rights Watch, Country Summary Burma, January 2017, >

   Other sources indicate that arbitrary detentions continue in the country, albeit it at a reduced rate compared with previous years. The law allows authorities to order detention without charge or trial of anyone they believe is performing or might perform any act that endangers the sovereignty and security of the state or public peace and tranquillity. Authorities continue to interpret the laws broadly to detain student activists, student leaders, farmers, journalists and human rights defenders.[22]

   [22] Department of Immigration and Border Protection, Situational Update Myanmar, 15 December 2017.

10. There is also evidence that religious leaders specifically have been targeted if they speak out against the government. An article by Freedom House in 2015, reports that the ban on Buddhist monk, Shwe Nya Wah Sayadaw, abbot of Shwe Nya Wah Monastery in Yangon, highlighted the way in which the Myanmar government targeted religious leaders critical of government.[23] The most recent International Religious Freedom Report referred to the Ministry of Religious Affairs and Culture ordering the closure of Mya Taung Saung Monastic Education School in the town of Mrauk-U in Rakhine State in 2017. This followed the military charging the head Buddhist monk at the school with having connections to the Arakan Army, after holding a soccer match. The Burmese military based in Mrauk-U found out about the match and filed charges against the monk and organisers. The school reportedly later received a letter from the ministry removing authorisation for the school to operate. The monastic school had approximately 180 students.[24]

    [23] Freedom House, Myanmar’s Ban on Public Speech by Monk Undermines Basic Rights, 2 April 2015, http:// freedomhouse.org/article/Myanmar-s-ban-public-speech-monk-undermines-basid-rights#.VSEjyS5jegd.

    [24] US Department of State, International Religious Freedom Report for 2017, 2018, >

    Rakhine leaders have also been targeted recently if they have spoken out against authorities. There were reports of the arrest in January 2018 of Rakhine political leader, Dr Aye Maung, in Sittwe after violence in Mrauk-U. According to reports, Dr Maung was the former Arakan National Party leader. He had given a speech stating that the Bamar majority treat Rakhines as slaves and did not grant them equal rights. Reportedly, he was charged with unlawful assembly and treason.[25]

    [25] Frontiermyanmar, Rakhine political leader Dr Aye Maung arrested in Sittwe after Mrauk U violence, 18 January 2018, >

    Freedom House in its 2017 report on the state of freedom in Myanmar reported:

    Free private discussion is constrained by state surveillance and laws that inhibit online speech...

    Under the 2014 revised Peaceful Assembly and Peaceful Procession Law, unauthorized demonstrations are punishable with up to six months in prison; a variety of other vaguely worded violations can draw lesser penalties. An antigovernment protest by farmers in April 2017 was permitted, while in February a medical student was arrested for protesting against violence in Rakhine State.

    The judiciary is not independent. Judges are appointed or approved by the government and adjudicate cases according to its decrees.

    Administrative detention laws allow individuals to be held without charge, trial, or access to legal counsel for up to five years if deemed a threat to state security or sovereignty. A 2017 assessment by the British-based NGO Justice Base, which promotes the rule of law, found that the country performed poorly in nearly every measure of international fair trial standards. According to a report by the Assistance Association for Political Prisoners (Burma), at the end of November, 228 individuals were being repressed due to political activities, of whom 46 were currently serving sentences, 49 were in pretrial detention, and 133 were awaiting trial outside of prison.

    In 2016, the parliament repealed the 1950 Emergency Provisions Act, which the previous military government had invoked frequently to silence and imprison dissidents.[26]

    [26] Freedom House, Freedom in the World 2018 Myanmar Profile, >

    Media reports in June 2018 referred to proposed laws in Myanmar restricting the rights to protest by making it easier to charge demonstrators with crimes.[27]

    [27] Elevenmyanmar, Hundreds rally against bill to amend protesting law, 4 June 2018, >

    As has been well publicised, in October 2016 and August 2017 a militant group, ARSA, associated with the local Muslim Rohingya population launched attacks on security posts in northern Rakhine state. Security forces responded with brutal clearance operations targeting the Rohingya. Often working alongside local Buddhist vigilante groups, the military conducted attacks on civilian populations that were widespread and systematic, involving serious human rights violations. Over 700,000 Rohingya fled the violence and over 6,700 were killed.[28] The authorities have been accused of killing, raping, burning and looting, driving thousands of Rohingya into fleeing the country.

    [28] Department of Immigration and Border Protection, Situational Update Myanmar, 15 December 2017.

11. Given the applicant’s consistent participation in speaking out against repression in Myanmar through protests, speeches, rallies and teachings, it is likely that he will continue to speak his mind and retain involvement in peaceful opposition if he returned to Myanmar. While some Rakhine monks have collaborated with the military in abuses against the Rohingya, this monk has clearly expressed his opposition to the treatment of the Rohingya by the military. He has been targeted in the past for his involvement in protests, and before he left the country police were seeking him out and arrested his father. As Freedom House reports that there is no right to a fair trial and the judiciary is not independent, the applicant is unlikely to have a fair trial. In Australia he has continued his commitment to speaking out against repression and attended a number of rallies. Given all these factors and the country information which indicates that human rights activists, including religious leaders and Rakhine spokespeople, can be targeted for arbitrary arrest and other forms of ill-treatment, the Tribunal is satisfied that the applicant faces a real chance of serious harm in the reasonably foreseeable future for reasons of his political opinion. The Tribunal finds that the chance of harm is both substantial and significant.

12. As the applicant fears persecution from state authorities, the Tribunal is satisfied that the applicant would not be able to safely relocate to another part of the country.

13. There is no evidence before the Tribunal to indicate that the applicant could enter and reside in a safe third country.

    Findings on well-founded fear of persecution

14. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of political opinion if he were to return to Myanmar in the reasonably foreseeable future.

    CONCLUDING PARAGRAPHS

15. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Jane Marquard
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

17. 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

18. 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).

19. 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.

20. 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.

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

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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

28. 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).

29. ‘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.

1. 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

2. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.