1602248 (Refugee)

Case [2019] AATA 6831

1602248 (Refugee) [2019] AATA 6831 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602248

COUNTRY OF REFERENCE:                   Myanmar (Burma)

MEMBER: Dr Irene O’Connell

DATE: 4 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa.

Statement made on 04 October 2019 at 2:11pm

CATCHWORDS

REFUGEE – protection visa – Myanmar – race – ethnic Rohingya – nationality – stateless – religion – Muslim – particular social group – undocumented stateless Rohingya – arbitrary arrest – physical assault – obtaining identity documents – state protection – illegal departure – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 45AA, 65
Migration Regulations 1994, Schedule 2; r 2.08

CASES

Abebe v The Commonwealth of Australia [1999] HCA 14
Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225
Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v MIMA (1998) 86 FCR 547
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
Randhawa v MILGEA (1994) 52 FCR 437
Randhawa v MILGEA [1994] FCA 1253
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18

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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 February 2016 to refuse to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa under s.65 of the Migration Act 1958(Cth) (‘the Act’).

  2. The applicant, who claims to be a stateless person and a Rohingya Muslim from Myanmar, arrived in Australia in March 2013 as an irregular maritime arrival and was detained under s.189 of the Act in an Immigration Detention Facility. In May 2013 the applicant was granted a Bridging visa E and released from detention.

  3. On 25 July 2013 the applicant lodged an application for a Protection (Class XA) (Subclass 866) visa. By operation of s.45AA of the Act and r.208F of the Migration Regulations 1994 (Cth) (‘the Regulations’) that application was taken to be, and always…

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Details
AGLC
1602248 (Refugee) [2019] AATA 6831
Case
[2019] AATA 6831
Decision Date

CaseChat Overview and Summary

The applicant, an ethnic Rohingya Muslim from Myanmar, sought review of a decision not to grant him a Temporary Protection (Class XD) (Subclass 785) visa. The dispute centred on whether the applicant met the criteria for a protection visa under section 36(2) of the *Migration Act 1958* (Cth), specifically concerning claims of past harm and a well-founded fear of persecution. The decision under review was made by the Department and affirmed by the Tribunal.

The legal issues before the Tribunal were whether the applicant had established that he had suffered past persecution or had a well-founded fear of persecution based on his race, religion, or membership of a particular social group, and whether he could obtain protection from the authorities in Myanmar. The Tribunal was required to consider the applicant's claims of discrimination, arbitrary arrest, physical assault, and restrictions on his ability to obtain identity documents and pursue employment due to his Rohingya ethnicity and statelessness.

The Tribunal considered the applicant's evidence regarding his experiences of discrimination and harassment in Myanmar, including an incident of being assaulted by police at a checkpoint. It also noted the applicant's assertion that obtaining an education and practising his chosen profession were restricted for Rohingya people. However, the Tribunal found that the applicant had not established that he satisfied the criteria under section 36(2) of the Act, nor that he was a member of the same family unit as a person who satisfied those criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has also considered the relevant Department Guidelines, such as the Complementary Protection Guidelines which set out the Department’s interpretation of the Act and provide examples of the circumstances which may or may not fall within the criteria set out in s.36(2)(a) and (aa) of the Act. To the extent that the Guidelines were relevant to the consideration of the decision under review, they were of limited assistance in the circumstances. The Tribunal’s analysis of the country information and any relevant Guidelines are set out later in these reasons.CLAIMS AND EVIDENCEClaims before the Department The Tribunal has before it Department file [number] which includes a copy of the applicant’s protection visa application and the delegate’s reasons for decision. In his application for a protection visa, the applicant lists his nationality as Stateless, his ethnicity as Rohingya and his religion as Sunni Muslim. He states that he was born in Yangon and has resided all of his life in the [Town 1] area in Yangon. He states that his mother, [and specified family members] reside in Myanmar. He lists [number] years of education and states he has completed [school level]. The applicant does not nominate a profession but states he has completed a [subject] degree from [University 1]. In his statutory declaration (dated 25 June 2013) he provided the following information in respect to his educational attainments:It can be very difficult for Rohingya people to access education in Bmma. I was born in Yangon and can speak Burmese and studied hard and so was fortunately able to get an education. The highest level of education I obtained was a [specified degree for occupation 1]. I do not believe I would be able to pursue a higher level degree, such as a Masters because I am Rohingya and when you apply for the course you are asked questions about your ethnicity and religion. I was not able to practise [occupation 1] and obtain work as [occupation 1] in Burma as this is restricted to Burmese citizens by the authorities. In order to practise as [an occupation 1] after completing your degree you must undertake practical training and then have your training approved by the [authorities]. Because I am Rohingya and stateless I am not permitted to undertake this training and then practise as [an occupation 1]. The only work I could find was as a tutor for children. In terms of his personal experiences of past harm the applicant states the following: While I was growing up in Yangon, life was very difficult. Rohingya people face constant discrimination at the hands of the Burmese people and Burmese authorities. Travel is restricted for Rohingya people, and we are not allowed to move from one state to another. We are treated lower than animals.In 2002 I went to visit my friend in Mandalay. In order to obtain a permit to travel from Yangon I had to pay an excessive amount of money, more than Burmese citizens pay. I travelled by public transport on the bus. We stopped at a checkpoint and the police harassed and insulted me because I am Rohingya and then hit and slapped me before allowing me to continue on my journey. Incidents of this nature happen regularly to Rohingya people. We Rohingya cannot live freely.

Decision

Reasons for decision

It is not submitted nor is there any evidence before the Tribunal to suggest that the applicant satisfies s.36(2) of the Act 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 Tribunal finds that the applicant does not satisfy the criteria in s.36(2) of the Act.DECISION The Tribunal affirms the decision not to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa.Dr Irene O’ConnellDeputy Division Head

Ratio Decidendi

Legal Principle Established

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