1517998 (Refugee)

[2018] AATA 4007

1517998 (Refugee) [2018] AATA 4007 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517998

COUNTRY OF REFERENCE:                  Myanmar (Burma)

MEMBER:Paul Windsor

DATE:24 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 24 August 2018 at 11:22am

CATCHWORDS
REFUGEE – Protection visa – Myanmar – race – ethnic Chin – religion – Christian – particular social group – elderly Christian widow in Myanmar – physical assault – attacks by extremist Buddhists or Muslims – threats of killing – state protection selectively withheld – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 417, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Myanmar, applied for the visa on 23 December 2013 and the delegate refused to grant the visa on 16 December 2015.  

3. Due to the applicant’s age and her being illiterate, the applicant’s son, [Son A], provided a statutory declaration in support of his mother setting out her claims for protection.  He also attended an interview with the Departmental delegate along with his mother and the delegate records that, due the applicant having hearing problems, being illiterate, having difficulty understanding legal terminology and the interview process, her son answered most of the questions asked during the interview.  The delegate refused the visa on the basis that the applicant’s son (and her daughter) had not provided consistent information to the Department on her behalf, leading the delegate to question the credibility and reliability of many aspects of the applicant’s claims.  The delegate found that the applicant’s son was not a credible witness and did not accept that he had provided truthful information on behalf of the applicant.  The delegate found that, based on all the information before her, and considering relevant credibility concerns, she was not satisfied that the applicant faces a real chance of Convention-based persecution on return to Burma now or in the foreseeable future.  The delegate also found she was not satisfied that the applicant faces a real risk of being subjected to significant harm should she be returned to Burma.

4. The applicant sought review of this decision on 27 December 2015.  The applicant provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 1-14 of the Tribunal file.

5. The applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments.  The applicant’s son, [Son A], attended the hearing as a support person for the applicant.  He did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Chin and English languages.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

7. 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

8. 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).

9. 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.

10. 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.

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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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

18. 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’).

19. ‘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.

20. 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

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Home Affairs (formerly the Department of Immigration and Border Protection) (the Department) - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. In her Protection visa application the applicant claims to be a Burmese citizen who was born in [Town 1] in Chin state Myanmar on [date].  She states that she belongs to the [Chin] ethnic group, is a Christian, and speaks [Chin].  She indicates that she was married in [Town 1] in [year] and was widowed [in] June 2013.  She indicates that she departed Myanmar legally [in] July 2013 through Yangon airport and arrived in Australia on the same day, entering on a Visitor visa.[2]

    [2] See folios 1-18 of the Departmental file.

    Claims from the Protection visa application

23. Questions 43-49 of the applicant’s Protection visa application (regarding the applicant’s reasons for claiming protection) direct the reader to an attached statutory declaration of 19 December 2013, by the applicant’s son [Son A], prepared with the assistance of the representative, ‘on behalf of’ the applicant.[3]  The applicant’s claims, as set out in her son’s statutory declaration on her behalf, are summarised as follows:

    [3] See folios 19-21 of the Departmental file.

    ·The applicant is [age] years old, illiterate (she did not go to school) and deaf in one ear.  She is very scared at the moment and finds it difficult to understand and communicate.  She is nervous and does not sleep very well and is taking sleeping tablets almost every night.

    ·She is a national of Myanmar and is afraid to return because she is afraid she will be attacked by Muslims or Buddhists because of her Christian religion.  She has been discriminated against in Myanmar but after her husband passed away in June 2013 was physically attacked and threatened.

    ·She and her husband had three children.  The eldest daughter, [Daughter A] - born in [year], lives in Australia, as does her son [Son A] – born in [year].  The second daughter, [Daughter B] - born in [year], lives in [Country 1].  [Daughter A] was granted a Protection visa in 1997 on the basis of being a Christian in Myanmar, and is now an Australian citizen.  [Son A] arrived in Australia on a [Refugee] visa in November 2009.  He was resettled from [Country 1] on the basis of the persecution he faced as a Christian in Myanmar.  [Daughter B] has been mandated as a refugee by UNHCR in [Country 1].

    ·There are no family members left in [Country 1].

    ·Her husband was [an occupation 1].  She became a Christian about a year after they were married and has since been a devout Christian.

    ·She and her husband moved from [Town 1] to Yangon in 2003.  Her husband had retired from 1988 and they wanted to be near their children where their children could see them and support them better.

    ·The applicant and her husband were very active in the Baptist Church in Myanmar.  As her husband was an educated man and a strong believer he became an Elder of the church.  Since her husband’s death, however, she is afraid to go to church on her own because the local people know she is a Christian.  They were well-known Christians in the area and because they could not speak Burmese they were very vulnerable.  They had enemies including from Buddhist and Muslim groups.  They suffered a lot of discrimination as Christians.  Because they could not speak Burmese they had to rely on people they could trust when they were in the marketplace.  When there were food distributions she missed out while Buddhists of the same age were given food.

    ·After her husband retired they grew a vegetable garden in order to make some money to support themselves.  Because they were well-known as Christians the garden was destroyed many times by local Buddhists or Muslims.

    ·In July 2008 the applicant and her husband visited her daughter in Australia.  They stayed for about six months.  Even though they had faced discrimination in Myanmar they had not faced persecution at that time.  They did not seek protection because they longed to go back to the church.  They had been granted another visitor visa in April 2013 and were planning to travel to Australia together when her husband died [in] June 2013.

    ·About a month after her husband died, the applicant was attacked in her home.   A man banged on the door and forced his way into her house.  He yelled at her and shook his fist at her.  He threatened her but she could not understand what he was saying.  She believes he was Muslim as he had a beard.  She was terrified and thought she would be killed.  After a few minutes he left her home.  She was in shock and could not move.  She believes she was attacked because local people know she is alone.  Extremists know she is a Christian and living on her own as a widow.  She could not go to the police because she did not know the attacker and could not speak Burmese to them.  She is afraid of the police as they are mainly Buddhist and she did not believe they would help a Christian.  She left for Australia a few days after this incident.

    ·She is at risk as an elderly Christian woman and a widow in Myanmar who is alone and helpless.  She could be attacked by extremist Buddhists or Muslims.

    ·The Myanmar authorities are unable to stop attacks against Christians in Myanmar.  The police are mainly Buddhists and do not care what happens to Christians.

24. Included with the application was a supporting letter (and English language translation) from the Assistant Pastor of [her church] in Yangon.  This letter indicates that the applicant and her husband were members of the church since 2004.  The letter refers to the activities of the applicant’s husband, including as an elder, [in specified roles], and his talent as a singer.  The letter comments that Christians in Myanmar do not have freedom or rights to worship and because of this cannot make any noises such as playing music, and have to sing quietly.  It also comments that there is no permission to build new churches.  The letter refers to the applicant and her husband having to take a public bus which has no facilities for people with special needs and senior citizens, to attend church, commenting that they were threatened or bullied by Buddhists and Muslims while on the bus.  The letter also states that their house was stoned on two occasions by an unknown culprit, commenting that they became targets for being Christians.  The letter concludes that as the applicant is a widow, it would be a danger and unsafe for her to come back to Myanmar.[4]

    [4] See folios 58-59 of the Departmental file.

25. The representative provided a legal submission dated 11 March 2014.[5]  The submission outlines that two of the applicant’s children have settled in Australia (having been granted a Protection visa and resettled as a refugee respectively on the basis of being Christian), and that her elder daughter is in [Country 1] where she has been mandated as a refugee by UNHCR on the basis of being a Christian.  It is asserted that the applicant has no family members remaining in Burma.  The submission states that the applicant has a well-founded fear of persecution if returned to Burma, separately or cumulatively, on the basis of her:

    ·Religion – as a Christian; and

    ·Membership of a particular social group constituted by:

    oWomen in Burma; and/or

    oChristian women in Burma; and/or

    oChristian Chin women in Burma; and/or

    oUnaccompanied/widowed Christian women in Burma; and/or

    oFamily – being a member of [her named] family.

    [5] See folios 69-83 of the Departmental file.

26. It is claimed that the persecution feared involves serious harm and systematic and discriminatory conduct by non-state actors, namely religious extremists; and/or official discrimination including denial of equal civil and religious rights, unequal treatment before the law, restrictions on promotion of religion, group culture and freedom from threats from other groups in society.

27. The submission includes legal argument and references to country information in support of the applicant’s claims.

28. It is claimed effective state protection would be selectively withheld from the applicant for the Convention reasons of her religious and ethnic minority status.

29. The delegate’s decision record indicates that the applicant attended an interview with the delegate on 10 April 2015.  As requested by the representative in her submission of 11 March 2014, due to the applicant’s age, frailty, deafness in one-ear and illiteracy, her son gave evidence on her behalf.  As noted above, the delegate’s decision record indicates that the applicant’s son answered most of the questions asked at the interview.  The decision record indicates that at the interview the following relevant additional matters were raised:

    ·The attacker in her home made an action with his hands that he would cut off her head.  She does not know if he stole anything as she was terrified and shaking.

    ·The representative indicated that the applicant will not catch the bus alone to attend church, due to her fear of persecution, which impacts on her ability to practice her faith, requiring her to modify her behaviour.

1. The delegate’s decision record indicates that on 24 September 2015 the Department wrote to the applicant inviting her to respond to adverse information regarding her family composition.  This information was that her son had previously indicated to the Department (in the context of his Refugee visa application) that he had [number] siblings, which made it difficult for the delegate to accept the applicant’s claim that she had no family or friends remaining in Yangon.  The applicant was also requested to respond to information regarding claims in her son’s Refugee visa application regarding where he was residing and his activities in the church before he departed Burma in 2007.[6]

   [6] See folio 12 of the Tribunal file.

2. The applicant’s representative responded to the invitation to comment on 9 November 2015.[7]  The representative stated that the applicant’s children in Australia were responsible for the information provided to the Department and for telling their mother what to say and ‘admit they made an error of judgement in not disclosing all their siblings in assisting their mother to lodge her application’.  The representative submits that she met the disclosure of this information with great concern, particularly regarding the prejudice it would cause the applicant’s application.  The representative indicates that she understands the sole motivation of the applicant’s two children in Australia was to assist their mother given her adverse experiences as an elderly Christian woman in Myanmar and that they ‘erroneously believed that if they disclosed all their siblings it would weaken their mother’s case’.

   [7] See folios 91-95 of the Departmental file.

3. The submission indicates that the applicant had [number] children, [number] deceased.  The submission indicates that the applicant has a son, [Son B], born in [year], who lives Yangon with his wife and child, and who moved into the applicant’s house about a month after the applicant left Myanmar (having previously lived there for a time with his wife and child); and a son, [named], born around [year], who has a wife and [number] children and lives in Shan state where he has been doing missionary work for the last 30 years.  A ‘Household Members List’ was also submitted indicating that when the household in Yangon was last checked on [in] 2010 [number] persons were registered as members of the household, including the applicant and her husband, [number] sons (including [Son B] and [Son A]), a daughter ([Daughter B]), a daughter in-law ([Son B’s] [wife]) and [number] grandchildren (including [Son B’s] child [named]).

4. The representative submits that failure to disclose all her children does not detract from the applicant’s core claims to fear persecution from Buddhists and/or Muslim extremists as a Christian, elderly woman and widow.  She submits that it is ‘immaterial whether she has a son in Yangon and a son in Shah State or friends in Myanmar’, commenting that it ‘is likely that she has friends from her church community in Yangon’, because it is the state of Myanmar that is required to provide effective protection from the serious harm she fears, and she should not be required to live discreetly.  It is submitted that if the applicant freely expresses her religious beliefs in Myanmar and identifies herself as a Christian woman/widow she would have a well-founded fear of persecution in Myanmar.

5. The representative also submits that the applicant’s son in Australia, [Son A], confirms that he did not live permanently in Yangon but was based in [Town 1] ‘as he has previously explained’.  He did not go ‘back and forth’ to see his parents but visited Yangon about 2-3 times a year up until he fled Myanmar in 2007.  It is claimed that the daughter currently residing in [Country 1] ([Daughter B]), while listed on the family registration list because she was not married, was a Reverend in her church and involved in the Ministry, and did not have a permanent place of residence but moved around the country a lot.

6. On 23 November 2015 the representative forwarded further information regarding the death of the applicant’s son, [named], in 2004, indicating that he died when he was accidentally shot by a police officer while he slept in sleeping quarters which workers shared with local police.  It is claimed that after his death his wife left their children in the care of the applicant and her husband and that a few years ago their mother took them back into her care and they are now living in [another country].[8]

   [8] See folios 96-100 of the Departmental file.

7. The applicant attended the Tribunal on 19 June 2018 for a scheduled hearing but this had to be postponed due to the unavailability of the booked interpreter and inability to arrange a telephone interpreter.  At that time the applicant provided the Tribunal with a copy of health records indicating that she was hospitalised from [in] May 2018 for investigation of [medical conditions].[9]  The hearing was subsequently rescheduled for 7 August 2018.

   [9] See folios 49-51 of the Departmental file.

   Post-hearing submission

8. The representative provided a post-hearing submission dated 20 August 2018.[10]  The representative reiterated that the applicant is a vulnerable person due to her age, illiteracy, partial deafness in one ear, poor physical health and because she suffers from poor memory.  The representative submitted a further copy of the documents provided previously regarding the applicant’s hospital admission in May 2018.  The representative comments that following her discharge the applicant continued to experience [symptoms] and states that the applicant cannot look after herself and that her son looks after her on a daily basis between working.  The representative advises that the applicant has been on a waiting list since 28 April 2014 to attend [a specialist] service to undergo a specialist consultation regarding her [condition].

   [10] See the Tribunal file.

9. In relation to the hearing the representative comments that it is unclear how much of the legal process and the extracts of country information that were put to her for comment the applicant understood.  The representative indicated that the applicant could not answer questions about her experiences because she could not remember details including regarding the interview with the Departmental delegate as well as her experiences in Myanmar.  The representative submits that it would be highly prejudicial to draw adverse inferences from the applicant’s responses or lack thereof.

10. The representative conceded that the applicant provided a ‘somewhat’ different account to her son regarding the details of the claim that an intruder broke into her home in July 2013.  She comments, however, that it is open to the Tribunal to find that her son, while not witnessing the incident first hand, was told what happened at the time he made his statutory declaration, and the applicant was seeking to recollect details of the encounter at the hearing after she had stated that she was feeling [unwell], and it is plausible that the applicant confused the sequence of events or recalled details differently or inaccurately.  The representative states that this event in July 2013 precipitated the applicant’s flight from Myanmar following the death of her husband in June 2013, noting they had been granted visitor visa in April 2013 yet had not left the country.

11. The representative refers to country information provided previously in her submission of 11 March 2014 regarding the situation for Christians and religious freedom generally in Burma as well more recent information which she submits ‘points to the ongoing and systematic targeting and persecution of religious minorities in Myanmar including in Rakhine, Kachin and Shan state as well as in Yangon’.  She submits that DFAT presents a ‘somewhat sanitized version of events’ making references to Christians being ‘tolerated’, and submits that, in light of other reporting and the applicant’s profile as a Christian Chin widowed woman, the confidence expressed by DFAT should not be overstated.

12. The representative also indicates that while in no way conceding the applicant’s refugee claims, the applicant may also seek to request Ministerial Intervention to permit her to remain in Australia and requests that the Tribunal also consider exercising its own referral powers for intervention in this case.

    Findings and reasons

13. The issues in this review are whether there is a real chance that, if the applicant returns to Myanmar, she will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Myanmar, there is a real risk the applicant will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity

15. On the basis of the copy of the applicant’s Myanmar passport provided to the Department,[11] the Tribunal accepts that the applicant is a citizen of Myanmar and that her identity is as she claims it to be.  The Tribunal accepts that Myanmar is the applicant’s country of nationality for convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

    Vulnerability

    [11] See folios 32-56 of the Department file.

16. At question 11 of her Protection visa application it is stated that the applicant is ‘elderly, illiterate, deaf in 1 ear, very vulnerable’.  Her son prepared a statutory declaration in support of his mother, with the assistance of the representative, commenting that he knows what ‘has happened to her in Myanmar and why she does not want to go back’.  In her submission of 11 March 2014 the representative requested that due to her client being a ‘vulnerable applicant’ any interview scheduled ‘should take into account her frailty to obviate any stress and anxiety’, should be kept to a minimum, and her son should give evidence on her behalf.  It is clear from the delegate’s decision record that the Department facilitated these requests.

17. In her response to the request to attend a hearing, the representative indicated that that the applicant’s age ([age] years), illiteracy, partial deafness in one ear, and poor health may affect her ability to take part in the hearing.  The representative also commented that the applicant may have difficulty understanding legal processes.  The representative did not request that the Tribunal take evidence from any witnesses.  While the applicant’s son attended the hearing as a support person for the applicant, noting the delegate’s findings regarding the credibility, reliability and truthfulness of the evidence he provided previously on the applicant’s behalf, the Tribunal did not ask him to give evidence at the hearing.

18. In considering this case the Tribunal has taken into consideration the Tribunal’s July 2015 Guidelines on Vulnerable Persons.  At the hearing the Tribunal rearranged the usual seating arrangements to ensure that the interpreter was seated on the side of the applicant where she is not affected by hearing loss.  The interpreter spoke in a loud clear voice and in short sentences.  The Tribunal sought to simplify the content of legal formalities as much as possible.  The representative advised that the applicant had been suffering some [medical symptoms] (and had previously provided medical reports regarding the applicant’s hospital admission in May 2018 for investigation of [medical conditions]).  The Tribunal advised the applicant that a break could be taken at any time should she wished.  At her request the Tribunal also provided the applicant with a glass of warm water rather than the usual cold water.  A break was taken when the applicant indicated she was feeling [unwell] and the hearing recommenced when the applicant indicated she felt able to continue the hearing.

19. The Tribunal noted the information at paragraphs 49-53 of the Guidelines on Vulnerable Persons in relation to ‘Older people’, including that that most older people do not have mental health problems or dementia, which accounts for only 4% of disability in Australians over 65.  No information has been provided to indicate or suggest that the applicant is suffering from dementia.  In line with advice contained in the guidelines, the Tribunal considered that while the applicant may not be able to give all the facts she may be able to give views and remember some facts and events.  At the hearing the applicant often responded that she did not remember.  While on occasions the Tribunal asked the question again or in a different way, the Tribunal did not press matters when the applicant maintained that she not remember.  The Tribunal considers that the applicant was able to provide some relevant evidence at the hearing and that, along with her son’s statutory declaration on her behalf and the various submissions by her representative, including the post-hearing submission (which the Tribunal allowed her two weeks to provide), the applicant has had a meaningful opportunity to present her case.  While being mindful of the applicant’s age and health conditions in considering her oral evidence, noting that there is nothing to indicate that she is suffering dementia or serious memory loss, the Tribunal does not accept the representative’s assertion that it would be highly prejudicial to draw adverse inferences from the applicant’s responses at the hearing.

    Credibility

20. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

21. 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’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

22. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

23. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

24. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

25. Given the information provided by the representative in response to the adverse information put to the applicant for comment by the delegate, and the delegate’s subsequent findings, it is clear that credibility is an issue in this case.  In her submission of 9 November 2015 responding to adverse information put to the applicant for comment, the representative confirmed that the applicant’s son [Son A] and daughter [Daughter A] did not disclose all their siblings ‘in assisting their mother to lodge her application’, and told their mother what to say to the Department.  In his statutory declaration on behalf of his mother, [Son A] indicated that his mother had three children, all of whom had now left Myanmar, and that ‘There are no family members left in Myanmar’.  The Tribunal finds that this is not true and was concocted by the applicant’s children in Australia.

26. In this submission the representative also ‘confirms that he [Son A] did not live permanently in Yangon and was based in [Town 1] as he has previously explained’ and did not go back and forth to see his parents but visited about two or three times a year up until he fled Myanmar in 2007.  She comments that it was far for him to go to Yangon and he also could not afford to do this with frequency.  The delegate’s decision record comments that the household registration list provided by the applicant lists [Son A] as living in Yangon with his family during this time and supports the initial claim made by the applicant that she moved to Yangon to be closer to her children.  She comments that the claim that he visited two or three times a year contradicts claims he made in his statutory declaration on behalf of his mother that he used to be a Sunday school teacher at the church in Yangon and attended the church.  The delegate indicated that she did not find [Son A] to be a credible witness.

27. Like the delegate, the Tribunal also finds that the more recent claims contradict other evidence.  [Son A] wrote at paragraph 16 of his statutory declaration that his parents moved from [Town 1] to Yangon because there were no children left at home in [Town 1].  In paragraph 17 he indicated that he and a close relative attended the [specified church in] Yangon, which was set up [in] 1992, from the beginning, and at paragraph 18 he indicated that before he left Myanmar he was a Sunday school teacher at this church.  At the hearing the Tribunal asked the applicant whether [Son A] was living with her, in her house in Yangon.  She said he was, commenting that he also came to Australia.  Based on the applicant’s oral evidence, the Household Members List provided, and the initial statutory declaration, the Tribunal concludes that [Son A] also was not truthful regarding his living arrangements prior to him departing Myanmar and that he was based in Yangon with his parents at that time, rather than [Town 1].

28. As well as finding that the claim that the applicant had no family remaining in Burma and was alone after her husband died in June 2013 was concocted; for the reasons discussed below the Tribunal finds that a second key claim in this case (that a Muslim man forced his way into the applicant’s home and threatened her, including by making a throat slitting gesture) was concocted by the applicant’s son and did not occur.  The Tribunal agrees with the delegate’s assessment that the applicant’s son was not a credible witness and did not provide a truthful account on behalf of the applicant.  As the Tribunal considers that the applicant was aware of these false claims made on her behalf (the representative’s submission of 9 November 2015 indicates that the applicant’s two children in Australia accept responsibility for the information provided and for telling their mother what to say) and has maintained the false claim that a Muslim man forced his way into her home, the Tribunal also did not find the applicant to be a credible witness.

    Assessment of claims

1. The applicant claims to fear persecution amounting to serious harm in Myanmar from Muslims and/or Buddhists because of her profile as an elderly widowed ethnic-Chin Christian woman.  It is claimed that the authorities are unable and unwilling to stops attacks against Christians in Myanmar.

   Claim to fear harm from Buddhists and Muslims

2. In the original statutory declaration provided on behalf of the applicant by her son, it was claimed that the applicant was afraid to return to Myanmar as she is afraid she will be attacked by Muslims or Buddhists because of her religion as a Christian and as an elderly widow.  It was asserted that while the applicant had been discriminated against in Myanmar in the past, after her husband passed away in June 2013 she was physically attacked and threatened in July 2013, and following this incident immediately made the decision to leave Myanmar and come to Australia, leaving a few days after the incident.  It was asserted at paragraph 12 of the statutory declaration that there are no family members left in Myanmar and at paragraph 30 that the applicant is at risk as an elderly Christian woman and a widow in Myanmar because people in her area know she is a Christian and alone and extremist Buddhists or Muslims could attack her and she would be helpless.  At paragraph 25 and 26 the applicant’s son asserted, on behalf of the applicant, that even though his parents had faced discrimination in Myanmar they did not apply for a Protection visa when they visited Australia for six months from July 2008 because they had not faced persecution at that time and the reason the applicant is seeking protection now is because of what happened to her after his father (her husband) died.

3. When asked about this incident at the hearing, the applicant provided a quite different account to the one provided by her son in his statutory declaration on her behalf.  She indicated that there was a knock on the door, she opened it and a man came into the house.  She said she just wanted to get out, so she ran away.  When asked what she did when he came into her house she said she knew he was a bad guy.  When queried that her son’s statement said he left the house she commented that he was still there when she left.  When asked what he looked like she said he had a long beard.  When asked why she thought he came to her house she said that people come to Christian houses.  When asked whether she thought he was a Muslim she said she thought so.  When asked if he said or did anything she indicated that he went into a room and she ran out.  When asked if he followed her she said she doesn’t remember.  When asked what she did after she ran out of the house she said she can’t really remember.  She commented that she feared for her life.  The applicant did not indicate that this man yelled and shook his fist at her or that he made a throat slitting gesture with his hand.  Contrary to the account in her son’s statutory declaration, she did not say that she was in shock and could not move, and that a few minutes later he left her house, but indicated that she left the house to avoid him.  While the Tribunal accepts that the applicant’s age may affect her ability to recall some detail of an event such as this, in the absence of any information indicating that she is suffering serious memory loss issues or dementia, the Tribunal does not accept that she would not be able to recall the key details of what happened, particularly whether she fled the house or not, and whether this man made a throat slitting gesture towards her.  Given that it has been conceded that the applicant’s son knowingly lied in his statutory declaration in relation to the other key claim, that the applicant has no family left in Myanmar and is alone, and the Tribunal’s findings that he has not been truthful regarding his own living arrangements prior to his departure from Myanmar in 2007, the Tribunal also finds that he concocted the story about a Muslim man forcing his way into the applicant’s home.  The Tribunal considers that the applicant has presented a quite different account to that previously presented by her son on her behalf because she was attempting to maintain a concocted claim that a Muslim man forced his way into her house.  On the basis the overall lack of credibility of her son, and the significant differences between the two accounts, the Tribunal does not accept that this incident occurred.

4. In reaching this finding the Tribunal has considered the representative’s comments in the post-hearing submission implying that the timing of the applicant’s departure from Myanmar indicates that this claimed incident in July 2013 precipitated her ‘flight from Myanmar’.  The Tribunal does not accept this is the case.  The representative indicates that the applicant and her husband had been granted Visitor visas on 24 April 2013 to travel to Australia, yet they had not left the country.  Given the evidence indicates that the applicant and her husband were planning to travel in June 2013 but did not do so because the applicant’s husband passed away [in] June 2013 following a [medical condition], nearly two months after the visas were granted, it is clear that the applicant and her husband were in no hurry to depart Myanmar.  The applicant’s subsequent arrival in Australia on 30 July 2013 appears logical in terms of her travelling to Australia to visit her two children following the conclusion of an appropriate period of mourning following her husband’s death [in] June 2013.

   Past discrimination in Myanmar

5. As discussed with the applicant, the DFAT Country Information Report on Myanmar indicates that the Myanmar Constitution entitles all citizens to the right to freely profess and practice their religion subject to public order, morality and health; and recognises Christianity as one of the religions existing in the Union at the day of the coming into operation of the Constitution. The DFAT report indicates that 6 per cent of Myanmar’s population of 51.4 million people are Christians and that while each of the three major ethnic groups that have significant Christian populations (the Chin, Kachin and Kayin) has a home state in which a substantial proportion of its population live, large numbers of each group live elsewhere in the country, particularly in major cities. Yangon, where the applicant resided from 2003 until coming to Australia in July 2013, is the most populous city in Myanmar, home to around 7.4 million people.[12]

   [12] DFAT Country Information Report, Myanmar, 10 January 2017, sections 2.8-2.11 and 3.28.

6. The DFAT report indicates that while, in general, Christians are tolerated in Myanmar, they can face low levels of official and societal discrimination.  By way of examples the report indicates that Christians are rarely promoted to senior levels in the government, military or police; and that human rights groups in Myanmar told DFAT that Christians find it difficult to obtain land on which to build new churches (although building new churches on existing land is generally possible), and there are reports of isolated attacks on new or repaired church buildings.  DFAT also states that credible sources told it that hard-line Buddhist groups occasionally build pagodas on church property.  The report does not indicate that Christians face a risk of societal violence (whereas DFAT does comment on various levels of risk of societal violence faced by Muslims in Myanmar, ranging from low through moderate to high risk, depending on location and whether or not they are ethnic Rohingya Muslims).[13]   

   [13] DFAT Country Information Report, Myanmar, 10 January 2017, sections 3.10, 3.28-3.45.

7. The DFAT report also indicates that the Myanmar government recognises eight major ethnic groups, including the Chin (and 135 ‘national races’, members of which are granted full citizenship under the law).  DFAT assesses that, in general, other than those who identify as Rohingya, people in Myanmar typically face a low level of official and societal discrimination on the basis of their race or ethnicity.[14]

   [14] DFAT Country Information Report, Myanmar, 10 January 2017, sections 3.1-3.6.

8. As noted above, the applicant’s son indicated in his statutory declaration on her behalf that while the applicant had not suffered persecution prior to her husband’s death in June 2013, she and her husband had faced discrimination.  At the hearing the Tribunal asked the applicant about the various discrimination that it had been claimed they had suffered.  In relation to the claim that they had a vegetable garden which was destroyed many times by local Buddhists or Muslims because they were well known as Christians, the applicant indicated that they had a small garden located a little distance from their residence.  She said it was 1 furlong away (approximately 200 metres).  She said they grew mustard leaf and a type of ‘long vegetable’ in the garden.  When asked if they had any problems with the garden she indicated that sometimes those who did not like them destroyed the garden.  When asked how often this happened she said it happened twice.

9. In relation to the claim that they were vulnerable when they went to the market because they did not speak Burmese, and noting the submissions indicated that her husband was an educated man and [an occupation 1], the Tribunal asked the applicant if her husband spoke Burmese.  She replied that he did, commenting that he was [an occupation 1].  When the Tribunal queried her that her son’s statement on her behalf indicated that they had to rely on others in the marketplace because they could not speak Burmese, she replied that he was not very good at speaking Burmese.  The Tribunal found the applicant’s initial response, asserting that her husband could speak Burmese, to be the more spontaneous and convincing response and considers that her husband could speak Burmese well enough to ensure that they were not exploited when they visited the marketplace.

10. In relation to the claim that they would be bullied on the bus going to church, when asked about whether they experienced any problems travelling on buses, the applicant indicated that they did not have problems other than she found it tiring when she travelled by bus.

11. In relation to the claim that they could not sing loudly in church, the Tribunal commented that it had viewed the video footage provided by her son of his father singing in the church and noted that he was singing into a microphone and his voice was being amplified, which does not support this claim.  While the applicant commented that she couldn’t recall her husband singing with a microphone, the DVD recording provided by her son clearly indicates this.[15]

    [15] See folio 64 of the Departmental file.

12. Contrary to the comments in the letter by the Assistant Pastor of her church in Yangon that he had heard the applicant and her husband say their house had been stoned two times by an unknown culprit, when the Tribunal asked the applicant whether they had experienced any problems in Yangon from when they moved there in 2003 up until they first came to Australia in 2008 she indicated that there was the problem that prompted her to leave in July 2013.  When asked about any problems before then, however, said she could not remember, suggesting that there had not been any significant issues.

13. Considering the relevant DFAT advice the Tribunal accepts that the applicant and her family may have suffered some low level societal discrimination and harassment, such as having their garden damaged on two occasions, or someone throwing stones on their roof, or being denied access to food distributions.  Given the comments in the applicant’s son’s statutory declaration that even though his parents had faced discrimination in Myanmar they did not seek protection when they visited Australia in July 2008 because they longed to go back to their church, and because they had not faced persecution at that time, which is consistent with the applicant’s oral evidence, the Tribunal finds that any official and/or societal discrimination they faced did not amount to persecution involving serious harm.  The Tribunal also finds that there is nothing, apart from the claim that an intruder forced his way into the applicant’s house in July 2013 and threatened her (which the Tribunal does not accept occurred) to indicate that the nature and level of any discrimination experienced by the applicant changed over the period from when she returned to Myanmar in 2009 until she left for Australia in July 2013 and nothing to indicate that she faced treatment amounting to serious harm.  For these reasons the Tribunal does not accept the claims made in the statutory declaration by the applicant’s son that the applicant and her husband had enemies including from Buddhist and Muslim groups and were very vulnerable because they were well-known Christians in the area and because they could not speak Burmese.  This is not borne out by their experiences in Yangon from 2003 until 2013.  

14. For the same reason the Tribunal does not accept the claim that the applicant faces a real chance of suffering persecution involving serious harm on return to Myanmar because she is a member of the [named] family, who are well-known to religious extremists in the area, given their prominent role in the church and because members have fled Burma due to religious persecution and have been granted relevant status abroad.  The Tribunal considers that there is nothing in the evidence to indicate or suggest this is the case, noting that [Daughter A] departed Myanmar in the 1990s and [Son A] departed in 2007 but the applicant, her husband and other remaining family members were not targeted by extremists and did not suffer serious harm as a consequence.  No information has been advanced to indicate or suggest that [Son B] has been targeted by extremists for serious harm as a consequence of being a member of the [named] family, following the departures of further family members including [Daughter B] and the applicant.

15. In reaching the above finding the Tribunal has also taken into consideration that the applicant and her husband were able to attend their church in Yangon and participate in a range of church activities from 2003 until 2013 without experiencing serious harm.  While the Tribunal has given consideration to the DFAT information regarding difficulties experienced building new churches and reports of isolated attacks on new or repaired churches, there is nothing in the applicant’s evidence to indicate or suggest that has been an issue in relation to the applicant’s church in Yangon.  The Tribunal finds that there is nothing to indicate or suggest that this situation might change in the reasonably foreseeable future.  The Tribunal concludes, therefore, that the applicant does not face a real chance of suffering persecution involving serious harm on account of her ethnicity and/or religion from government authorities or Buddhist or Muslim community members should she return to Myanmar.

    Claim to be at risk of serious harm as a woman and elderly widow who is alone and helpless.

16. The Tribunal does not accept that the applicant faces a real chance of persecution in Myanmar simply on the basis that she is a woman.  While the DFAT report indicates that DFAT assesses that women in Myanmar face a moderate risk of domestic violence and moderate levels of societal discrimination on the basis of their gender, there is nothing in the applicant’s evidence to indicate or suggest that she experienced domestic violence in the past or faces a real chance of experiencing domestic violence in the reasonably foreseeable future.  Similarly, there is nothing to indicate or suggest that the applicant faces a real chance of suffering discrimination involving serious harm, on the basis of her gender, should she return to Myanmar.

17. While it is a fact that the applicant is an elderly widow, the Tribunal does not accept the claim that she is alone and helpless (and by inference that she is vulnerable and at particular risk) in Myanmar. 

18. The Tribunal considers it is clear that the language in the applicant’s son’s statutory declaration on her behalf, and the failure to disclose that she had family members remaining in Myanmar, including a son in Yangon, was calculated to convey a picture of an extremely vulnerable woman, alone and at high risk of harm.  Her son wrote that ‘There are no family members left in Myanmar’ and that his mother was ‘attacked because she is on her own’, ‘Extremists know she is a Christian and living on her own’ and ‘Extremist Buddhists or Muslims could attack her and she is helpless’.

19. The applicant’s son failed to disclose what was subsequently revealed when the Household Members List was provided to the Department, that [number] people had been living in the applicant’s home at one time, including himself and his brother [Son B], who continues to reside in Yangon, in the applicant’s residence, with his wife and child. 

20. The Tribunal does not accept the representative’s assertions that the failure to disclose all her children does not detract from her core claims to fear persecution from Buddhists and/or Muslim extremists as a Christian, elderly woman and widow; or that it is ‘immaterial whether she has a son in Yangon and a son in Shah State or friends in Myanmar’ and that it ‘is likely that she has friends from her church community in Yangon’, because it is the state of Myanmar that is required to provide effective protection from the serious harm the applicant fears.  The Tribunal considers that these issues are very important, because it had been claimed that the applicant did not face persecution while her husband was alive, but because of a material change in her circumstances, being the death of her husband, she had become vulnerable and helpless because she was alone.  It was also claimed that since her husband’s death, she is afraid to go to church on her own.  The Tribunal finds that this is not the case because the applicant has immediate family, her son [Son B], not only living in Yangon, but living in the applicant’s house.  The Tribunal also considers it material that the representative has indicated that it is likely that the applicant has friends from her church community in Yangon.  The Tribunal agrees with this assertion and considers that, especially given the high standing of her now deceased husband within the church, and her own role in the ‘women’s department’ of the church (as per the Assistant Pastor’s letter) it could reasonably be expected that the church would arrange support for the applicant to ensure that she was not living alone and did not have to travel to church alone.

21. The Tribunal asked the applicant about these matters at the hearing.  When asked why she had not been truthful with the Department regarding her family details she replied that maybe it was because her memory is not good and sometimes she [experiences medical symptoms].  The Tribunal put to the applicant that it seems unlikely that she would not remember that she had had [number] rather than three children, and that [number] were still living including one in Yangon.  She did not offer further comment.

22. The applicant indicated that her son who was living [in] Shan state still lives there where he is a pastor in the church

23. She said her son [Son B] is still living in Yangon with his wife and child.  She said he is [an occupation] for a private company.  When asked what sort of [work] he does she said he [details deleted].  When asked if he was living in her house she said she can’t remember and doesn’t really ask much.

24. Noting that submissions indicated that [Son B], his wife and child used to live with the applicant, but had moved out, and subsequently had returned to live in the applicant’s house about a month after she came to Australia in July 2013, the Tribunal asked the applicant why she had not moved to join [Son B’s] household or he had not moved back into her residence after her husband died.  The Tribunal commented that it understood that culturally it would be usual for a son to care for his mother in circumstances where they have become widows.  The applicant replied ‘yes, that’s true’ and indicated that would be the case for other people, but commented that maybe her daughter-in-law does not like her.  The Tribunal asked the applicant if she returned to Yangon whether there was any reason she could not live with her son in Yangon.  She replied that her daughter in law doesn’t like her and therefore she could not live with her.  The Tribunal found this response unconvincing, noting the cultural norm that son’s care for their widowed mothers and that she had lived with her son, daughter-in-law and their child (and six others) in her residence in the past, and the tentative nature of her initial response that maybe her daughter-in-law does not like her.  Even if her daughter-in-law did not particularly like her, the applicant did not indicate there was any animosity between her son and herself and the Tribunal does not accept that her son would not care for the applicant or make suitable arrangements for her car if she returned to Yangon.

1. The Tribunal also asked the applicant whether the church could arrange care for her.  She replied that in Burma the church is very poor and therefore could not look after her.  While the Tribunal accepts that the church would be poor by Australian standards it does not accept that a church with [number] members which the applicant’s husband had served as a church elder, [in specified roles], singer and provider of testimonials and which she had also served through involvement in the women’s department, would not be able to arrange appropriate and adequate accommodation, support and care for the applicant if that became necessary.

2. Accordingly, the Tribunal finds that the applicant would not be alone, helpless and vulnerable if she returned to Myanmar.  The Tribunal considers that she would most likely continue to reside in her home with her son, his wife and their child.  If for some reason this was not possible, the Tribunal considers that the church could arrange for suitable people from the church congregation to live with the applicant in her residence (or their residence) and provide support and care for her.  The Tribunal does not accept that the applicant would be vulnerable to harm by Buddhist or Muslim extremists (or anyone else) because she was living alone or that she would be unable to continue to travel to and attend her church or to practice her religion.

3. On the evidence and considering the relevant country information, the Tribunal also does not accept that the applicant has lived discreetly in the past in Myanmar, concealing her Christian beliefs, or that she would be required to do so in the future (as suggested by the representative), to avoid a real chance of persecution in Myanmar due to her Christian beliefs.

   Claim that the DFAT country report presents a sanitized account of the situation faced by Christians in Myanmar

4. At the hearing the Tribunal put to the applicant not just information from the most recent DFAT Country Information Report on Myanmar but also discussed the country information cited in the delegate’s decision record indicating that the majority of concerns regarding restrictions on ethnic Chin Christian religious freedom and religious persecution of ethnic Chin Christians in Myanmar, and gross human rights abuses by the Burmese army against ethnic Chin, related to events in Chin state in the west of Myanmar. The delegate also cited reporting by the US Department of State in October 2015 indicating a significant easing of restrictions affecting the Christian majority in Chin state, and reporting by the US Commission on International Religious Freedom in August 2013 that in Chin state the military’s withdrawal from daily governance ended the most egregious human rights abuses against the mostly Christian Chin.

5. The Tribunal finds that the country information cited by the representative in her submission of March 2014 overwhelmingly refers to religious freedom violations and serious human rights abuses against ethnic minority Christian and Muslim communities (particularly the Rohingya Muslim community) in Kachin state and Rakhine (Arakan) state.  The submission comments that there continue to be severe human rights violations in conflict-affected border areas, noting that while the government had forged ceasefires with 10 ethnic minority militias, armed clashes continued in Kachin, Kayah, Kayin and Shan states.

6. In the post-hearing submission of 20 August 2018 the representative asserts that more recent information points to the ongoing and systematic targeting and persecution of religious minorities including in Rakhine, Kachin and Shan states, as well as in Yangon.  She draws the Tribunal’s attention to reports in The Guardian and the Christian Post, as well as the 2018 Human Rights Watch 2018 country report on Burma.  Having read these reports the Tribunal finds that they do not contradict the DFAT reporting.  The report in The Guardian refers to human rights abuses in Myanmar arising from conflict in the northern state of Kachin, where the Kachin Independence Army refused to sign the national Ceasefire Agreement in October 2015 and insurgents continue to attack security force personnel and there are ‘human rights abuses on both sides’.  The Christian Post article refers to the Trump administration having sanctioned the Myanmar military for their ‘ethnic cleansing’ of the Muslim Rohingya population in Rakhine state and ‘widespread human rights abuses’ against Christian and other religious minorities in Kachin and Shan states.  Neither of these articles mentions issues for Christians in Yangon.  Similarly, the 2018 Human Rights Watch Country Summary for Burma refers to the military having launched a large-scale ethnic cleansing campaign against the Rohingya Muslim population in Rakhine state, and comments that the peace process with ethnic armed groups made no meaningful progress, with fighting between the military and ethnic armed groups intensifying in Kachin and northern Shah state and civilians endangered by indiscriminate attacks, forced displacement and blockage of aid by the government.  The Human Rights Watch report does make one reference to difficulties experienced by Christians in Yangon, reporting that authorities sent a letter to a Christian man in Yangon, warning him not to continue to pray in his home with others without first receiving approval from the authorities.  This is reported in the context of religious activities often being tightly regulated with authorities threatening to fine or imprison those who conduct organised prayers in their homes.

7. As the applicant lived in Yangon and there is no suggestion that she would reside in Rakhine, Kachin or Shan state, and is not a Rohingya Muslim, the Tribunal does not consider that the reports of ongoing religious restrictions and human rights abuses affecting those states and the Rohingya Muslim community more generally are relevant to her circumstances.  As there is no suggestion that the applicant or her family had in the past or would in the future want to hold organised prayer sessions in her home, the Tribunal also finds that the report that a Christian man in Yangon was warned by authorities about conducting organised prayer sessions in his home without approval is not relevant to the applicant’s circumstances.  Having carefully considered the country information cited by the applicant’s representative the Tribunal is satisfied that the information in the 2017 DFAT Country Information Report provides an accurate assessment of the situation facing ethnic Chin Christians, including the applicant, who are residing in Yangon.  In this regard, the Tribunal also notes that while the report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources (including protected sources) in Myanmar, including in Yangon and Rakhine State, it also takes into account relevant and credible open source reports.  These include reports from the US State Department, Assistance Association for Political Prisoners (Burma), Freedom House, Human Rights Watch, Amnesty International, International Crisis Group, the International Monetary Fund, the United Kingdom Foreign and Commonwealth Office, the UN Office of the High Commissioner for Refugees, the UN Office of the High Commissioner for Human Rights and the World Bank.[16]

   [16] DFAT Country Information Report, Myanmar, 10 January 2017, section 1.4.

8. Having carefully considered the applicant’s claims and circumstances individually and cumulatively, the Tribunal finds that there is not a real chance that the applicant would suffer persecution involving serious harm from the Myanmar authorities and/or Buddhist or Muslim extremists and/or community members because of her Chin ethnicity and/or Christian religion and/or her status as an elderly widowed woman and/or because she is a member of the [named] family.

9. As the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm should she return to Myanmar, the Tribunal does not consider that the applicant would require the protection of the authorities in Myanmar.

   Complementary protection

10. In the submission of 11 March 2014 the representative did not advance independent claims under the complementary protection criterion that the applicant faces a real risk of significant harm if returned to Myanmar, but submitted that the applicant’s claims fall squarely within the group of individuals persecuted in Burma and is a person to whom Australia has protection obligations under the refugees convention, as set out in s.36(2)(a) of the Act for a protection visa.  Notwithstanding this submission, and having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.

11. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to Myanmar, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[17]

    [17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

12. Considering the applicant’s circumstances and claims to protection both individually and cumulatively, and having regard to the findings of fact set out, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Myanmar, there is a real risk that the applicant would suffer significant harm in the form of having the death penalty carried out on her; and/or being arbitrarily deprived of her life; and/or being subjected to torture; and/or being subjected to cruel and inhuman treatment and punishment; and/or degrading treatment or punishment, from Buddhist or Muslim religious extremists or community members, the Myanmar authorities, or anyone else, should she be returned to Myanmar.

    Conclusions

13. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

14. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

15. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Ministerial Intervention

17. The Tribunal has had regard to the representative’s request in her post-hearing submission that the Tribunal also consider exercising its discretion to refer this case for consideration under the Minister’s intervention power (in this case, under s.417 of the Act).  Considering all the circumstances of this case, the Minister’s guidelines regarding the types of cases that might be referred to the Minister, and noting that the representative can request Ministerial intervention independently of the Tribunal, the Tribunal decided not to refer the case for possible consideration by the Minister.

    Paul Windsor
    Member