1602248 (Refugee)

[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 to have been, an application for a Temporary Protection (Class XD) (Subclass 785) visa by the delegate. On 23 February 2016, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal.

4. The applicant claims he has a well-founded fear of persecution on several and interrelated grounds. These are his Rohingya ethnicity, his religion as a Muslim, his lack of citizenship and his membership of a particular social group, being ‘stateless Rohingya men’ and/or ‘undocumented stateless Rohingya’.

5. The applicant claims that if he returns to Myanmar he will face serious and significant harm such as arbitrary arrest, assault, harassment and significant economic hardship and will be required to unreasonably modify his behaviour to avoid the harm he fears. He claims that there is an absence of state protection in respect to the harm he fears.

6. For the reasons that follow, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act and affirms the delegate’s decision.

   RELEVANT LAW

   General Principles

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act. That is, he or she 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. As the applicant’s application for review was lodged in July 2013, the relevant law is the criterion in s.36(2)(a) of the Act as was in force prior to 16 December 2014. Subsection 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 (‘the Refugees Convention’).[1]

   [1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

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 Art.1 of the Convention. Article 1A(2) of the Convention 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 Art.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 of a ‘refugee’. 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,[2] and systematic and discriminatory conduct.[3] 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.[4] 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’.[5] 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.[6]

    [2] Migration Act, s.91R(1)(b).

    [3] Migration Act, s.91R(1)(c).

    [4] Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (Mason CJ).

    [5] Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ).

    [6] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 429-431 (McHugh J).

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.[7] People are persecuted for something perceived about them or attributed to them by their persecutors.[8]

    [7] Ibid at 284 (Gummow J).

    [8] Ibid.

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.[9] 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’.[10] A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[11]

    [9] See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571.

    [10] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 429 (McHugh J) and 407 (Toohey J).

    [11] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 389.

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.[12] 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.

    [12] See SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (SZATV) at [19] (Gummow, Hayne and Crennan JJ) (Callinan J relevantly agreeing at [105]; see also Kirby J at [69]-[70]).

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. Subsection 36(2)(aa) provides that 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. This is referred to as ‘the complementary protection criterion’.

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. 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.

21. 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 EVIDENCE

    Claims before the Department

22. 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.

23. 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].

24. 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.

25. 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.

26. By way of submission (dated 23 October 2014) the applicant indicated that as a Rohingya Muslim he is unable to obtain identity documents such as a national ID card, passport or driver’s licence. He did however provide the following supporting documentation:

    ·   A copy of a [degree] certificate from the [University 2] in the name of ‘[variant of applicant’s name]’ (dated [year])

    ·   A copy of the applicant’s High School matriculation certificate (dated [year])

    ·   A letter of support from [a named official for] for the Burmese Rohingya Community in Australia (dated [in] 2014), identifying the applicant as ‘[further variant of applicant’s name]’ and attesting to the fact the applicant is Rohingya.

27. The applicant provided a second statutory declaration (dated 22 October 2014) clarifying that both of his parents were born in Rakhine state and moved to Yangon around 1980.

28. The applicant was interviewed by a delegate of the Department of Immigration and Border Protection (the Department) and the Tribunal has listened to a recording of this interview. During the interview the applicant provided further information about his claims for protection.

    Claims before the Tribunal

29. The applicant’s adviser provided a submission (dated 1 May 2019) restating in general terms the applicant’s claims and disputing the adverse credibility findings made by the delegate in reaching his conclusion that the applicant is not Rohingya nor stateless.

30. The submission references country information relating to statelessness and treatment of Muslims and Rohingya in Burma and in Yangon in particular. It also provides country information on the themes of freedom of movement, illegal departure and failed asylum seeker and state protection. This information is sourced variously from Amnesty International, United States Department of State and UK Home Office and the Department of Foreign Affairs and Trade (DFAT). The submission also sets out some legal principles in regard to credibility assessment, risk threshold, harm and modification of behaviour.

31. It is submitted that ‘there is no state protection for the applicant in Myanmar’, as the applicant ‘fears harm from the Burmese authorities themselves’ including the police, military and intelligence as well as members of the public and/or Buddhist extremists. It is further submitted that there is a more than remote risk of persecution now or in the reasonably foreseeable future for the applicant in all parts of Myanmar and accordingly it would not be reasonable for the applicant to relocate to another area within the country.

32. Provided with this submission is a further statutory declaration (dated 1 May 2019) from the applicant. In this declaration the applicant sets out the following in respect to his mother’s place of birth:

    During my interview I was confused. I didn't intend or try to mislead the officer during the interview at all. I tried to explain that I was relying on what my father had told me and was making assumptions without checking with my mother. All my life she lived in Yangon. I made a mistake by saying she was born in Yangon and not checking with my mother. I did not believe it was such important information and would become such a big issue. Since the interview, I have now checked with my mother and she said she was born in Sittwe and later moved to Yangon.

33. In terms of his family he sets out the following:

    As I explained in my interview, the authorities came to our house and my brother and I were not there. They said to my parents that when my brother and I returned we needed to go and see them. We never showed up so the authorities asked my father to come to their office. He wasn't well at the time and he was old. When he was released, after being beaten and questioned, he went home and after a few weeks he died. So his age, the fact he was not well and the torture he received would have all contributed to his death.

    When I spoke about my father's death in my interview I was trying to give an update. I have no reason to make up my father's death. I did not give the information earlier because I did not think it was relevant, because all the focus was on me and what happened to me. Only later did I understand that what has happened to my family is also relevant.

    I don't have any evidence or proof that my father died. In Burma when a person dies, if the person has no ID document at all, you cannot get the authorities to issue any death certificate.

1. In respect to his experience of harm he sets out the following:

   I have already explained my experiences of being a Rohingya Muslim. My whole life story is about discrimination. There are so many things that I suffered in Burma. It is too much and unbearable for me to be able to describe in a short time, so please understand this.

   In Burma, many Rohingya are not proud to call themselves Rohingya. People call us Bengali or illegal immigrants. But we are not that.

   I have also felt a sense of insecurity as a Rohingya. That sense has been implanted in my mind since I was a child. I did not feel any safety in Burma. We could not speak Rohingya outside the home. I would like to be able to speak Rohingya, but not in Burma, because the authorities could have been informed.

   I never talked about being Rohingya or Muslim at school. I made sure I was a very well behaved student.

   I want to explain the problems I had as a Muslim growing up in Yangon. In my interview, I did not explain the situation properly. In Yangon I was able to go to Mosque but I did have big problems being a Muslim. When you compare the situation in Yangon to what is happening in Rakhine state, it is better for a Muslim person, but discrimination is throughout Burma. I did not mean that I had no problems practicing my faith in my interview, but l was comparing to the situation in Rakhine state.

   Everywhere you go as a Muslim, there is always discrimination. Regardless of whether you are in Rakhine or not, the government, military and non-Muslims will always discriminate against you.

   It is not safe being a Muslim in Yangon. You have to bribe authorities. When you plan to travel from one place to another, there are always checkpoints and inspection gates. At the check point your ID is checked, you are asked about who you are, where you are going, whether you have permission. Especially when you are Muslim, they always have the power to stop you and arrest you at any time if they are not happy with your answer.

2. He states that he could not find employment other than as a tutor because he is a Muslim. He claims that if he was to return to Myanmar the government could accuse him of anything and he fears that he will be killed or arrested because he has applied for asylum overseas.

3. Attached to the submission is a translated document of the family household list which the applicant states he only recently acquired. It is signed by the Ward Administrator dated [in] September 2018 and is said to certify that the applicant’s parents, [and specified family members] physically live at the nominated address.

   Oral evidence

4. The applicant appeared before this Tribunal on 9 September 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Burmese and English languages. The applicant was represented in relation to the review by his registered migration agent, who appeared at the hearing and provided submissions together with other materials in support of the application prior to and following the hearing.

5. In respect to his brother the applicant stated that he left Myanmar at the same time as his brother but they travelled to Australia separately. He stated that he did not know much about his brother’s activities or whereabouts other than he understood that his brother held a [temporary visa].

6. When asked about his journey to Australia the applicant stated that he left Myanmar [in] February 2013 and he initially travelled by car until arriving at [a location] where he crossed into [Country 1]. He then travelled for about two days by car to reach [a specified region]. The people smuggler took around three days to prepare for the travel to [Country 2] and they travelled to [Country 2] on a small fishing boat for about 12-13 hours. This was followed by a three-day journey to reach [a location]. He arrived to Australia by boat. The applicant remembers that the total trip took approximately 18 days. The Tribunal noted that as he arrived in Australia on [a specified date] it would seem that he was travelling for some 28 days. The applicant responded that maybe 24 or 25 days.

7. He stated that the main reason for leaving Myanmar was because he is discriminated against in his home country. If he were to return the applicant said that he will be tortured and put in gaol owing to the fact that he had left the country and applied for protection in another country. He has concerns that his return would cause the authorities to target his [family members] as collaborators in his departure.

8. In respect to his education the applicant stated that he undertook his studies in [subject] by distance education and as such he was not required to attend classes except for around 5- 10 days a year. He avoided doing this because he believed he would be identified as Rohingya by reason of his appearance.

9. The Tribunal asked the applicant about his involvement in Australia with the Burmese Rohingya community, noting that the letter of support from this group was dated 2014. The applicant stated that he sometimes attended events but had work commitments and therefore limited involvement with the community. He provided to the Tribunal a copy of an invitation to a fundraising event for Rohingya refugees organised by [Community Group 1] which he had picked up at his local mosque.

10. When asked about experiences of harm in the past, the applicant stated that he experienced physical and mental harm. In respect to physical harm the applicant referred to the incident set out in his written statements in 2002 when travelling to Mandalay. He stated that he was stopped at a checkpoint and questioned and then assaulted and required to pay a bribe before he could continue to travel.

11. In terms of his experience of mental harm the applicant referred to living in a constant state of fear of the authorities and also from Buddhist extremists. He stated that as a child he experienced discrimination because he is a Muslim and they were Buddhists and that discrimination was everywhere. He stated that he feels unsafe and that he has no freedom.

12. The Tribunal discussed with the applicant the copy of the Household Registration Certificate he had provided with his submission. In the course of the discussion the applicant indicated that the details were incorrect as his father has passed away, [and he and specified family members had left]. He stated that his mother had not sought to correct the details on the list as she would need to pay money to do so.

13. The Tribunal discussed with the applicant whether or not he spoke Rohingya. The applicant explained that his parents could speak Rohingya but he could not and he only learnt Burmese.

14. In terms of his fear of harm on returning to Burma he stated that he feared he would be arrested but that also his family would be arrested.

15. The Tribunal raised with the applicant the delegate’s concern as to whether the applicant’s departure from Burma was a legal or illegal departure. The applicant responded that he would not be able to come legally as you need to show that you are in a good financial position and own property so he stated that he took the risk to come to Australia by sea.

    Post-hearing submissions

16. Following the hearing, the Tribunal received submissions (dated 23 September 2019) addressing issues arising out of the applicant’s evidence at the hearing. Notably, the submissions addressed issues in respect to the applicant’s credibility.

17. The submission refers back to the submission of 1 May 2019 and provides further country information, a summary of the applicant’s protection claims and submissions in relation to the applicant’s protection claims both in respect to the Refugees Convention and under complementary protection. The harm feared by the applicant is particular to him given his ethnicity, religion, lack of nationality and actions in leaving illegally and seeking asylum.

    Country information

18. In accordance with Ministerial Direction No. 84 made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by DFAT expressly for protection status determination purposes. The Tribunal has had regard to the DFAT Country Information Report Myanmar (dated 18 April 2019).

19. The DFAT Country Information Report provides the following general comments in respect to education and employment in Myanmar:

    2.25 In Myanmar, education is compulsory and free until fourth grade. Myanmar’s adult literacy rate is around 93 per cent. Enrolment rates at primary school are very high, estimated at 100 per cent in 2016, but drop rapidly at secondary and tertiary levels of education, with enrolment rates of 51 per cent and 14 per cent at secondary and tertiary levels respectively. This drop-off in enrolments at secondary and tertiary levels of education is reflected in the average number of years of education, which is around 4.7 years in Myanmar compared with 5.2 years in Laos, 8 years in Vietnam and 7.9 years in Thailand. Some schools charge informal fees, to supplement the minimal government resources provided for education.

    2.27 Students from religious minority groups, particularly Muslims, experience unequal access to secondary and tertiary education (see Muslims). The government’s 2017 National Education Strategic Plan did not address issues related to mother tongue instruction. Local media reported that the General Administration Department (GAD) issued an order in June 2018 that required madrassas and mosques to only use Burmese language, and only hold religious classes and services in permitted places. Recent, reliable data on state-approved madrassas are rare; a 1997 Ministry of Defence report stated there were 759 madrassas nationally. According to Muslim leaders, the government has not approved the opening of new madrassas (and mosques) since 1962 (see Muslims).

    2.28 Myanmar has a high workforce participation rate, with many more men (82 per cent) than women (47 per cent) working. However 38 per cent of people are underemployed (defined as working part-time or not using their skills and qualifications), and 75 per cent of jobs are in the informal sector. Half of the working population are employed in the primary sector (agriculture, forestry and fishing), with the highest proportion in Chin (81 per cent) and Shan (75 per cent) States. In Karen and Kachin States, most people (62 and 54 per cent) work in the primary sectors, followed by the tertiary (services) (28 and 32 per cent) and secondary (manufacturing) (10 and 14 per cent) sectors.

    The report provides the following information in respect to Muslims and religious freedom in Myanmar:

    3.47 Section 34 of Myanmar’s Constitution entitles all Myanmar citizens to ‘freedom of conscience and the right to freely profess and practice religion subject to public order, morality or health’. Section 361 of the Constitution ‘recognises the special position of Buddhism’ as the faith professed by the majority of citizens; this applies only to Theravada Buddhism. The government bans any organisation of Buddhist monks from outside the nine monastic orders recognised under the Law Concerning Sangha Organisations (1990). Section 362 of the Constitution further recognises Christianity, Islam, Hinduism and animism as ‘the religions existing in the Union at the day of the coming into operation of this Constitution’. There are several other provisions in the Constitution that prohibit discrimination against citizens on the basis of religion, including section 352 which bans discrimination in the employment of public officials.

    3.72 Muslims in Yangon have described increasing restrictions on their ability to practice their faith in recent years. Public events marking Islamic days were cancelled by authorities in Yangon (and Bago, Bago Region) in 2017, due to pressure from Buddhist nationalist groups. In April 2017, authorities closed two madrassas that educated several hundred primary school students in Thaketa Township, Yangon. The closure was in response to protests by a group of up to 100 Buddhist nationalists who claimed the schools were illegally operating as mosques. At the time of publication, the madrassas remained closed. In June 2018, a large community prayer in Thaketa was banned by authorities, and police charged the Muslim prayer leader and two other community members with failure to obtain a permit to organise prayers, punishable by a fine or up to six months in prison. Some Muslims restrict their religious practices for fear of discrimination. Muslims in Yangon described to DFAT their decision to practice a less conservative form of Islam, including changing their dress and beards, to avoid visibly demonstrating elements of Bangladeshi or Indian Islam.

    3.73 The reduced tolerance for Islamic faith activities has been, at least in part, propagated by a rise in anti-Muslim sentiment at both the official and societal level. In its most extreme form, this has resulted in violent incidents against the Muslim community. In May 2018, local media reported that nationalist monks raised concerns with police of Rohingya hiding illegally in Mingala Taungnyunt Township, Yangon. The reports stated that when police investigations found no one to be living illegally in the neighbourhood, monks and Buddhist community members violently attacked the Muslim community, injuring at least two people. Police arrested eight individuals for their involvement. Several credible sources described a case in January 2018 of a young man being harassed and beaten in the street by plain clothed police in Yangon reportedly because of his Muslim appearance.

20. In respect to the circumstances of Rohingya in Myanmar the DFAT report distinguishes between the treatment of the Rohingya populations within and outside of the Rakhine state. Within the Rakhine state, official and societal discrimination on the basis of ethnicity against Rohingya is high, endemic and severe.[13] They face severe restrictions on their freedom of movement and are the subject of systemic extortion and harassment as well as extreme violence by security forces.[14] The risk of further violence for the remaining Rohingya in Rakhine state is considered to be high.[15]

    [13] DFAT Country Information Report Myanmar, 18 April 2019, at [3.8].

    [14] Ibid.

    [15] Ibid.

21. By contrast Rohingya outside Rakhine state, such as in Yangon generally have higher incomes and better access to resources than those in Rakhine state.[16] Typically, they are able to obtain identity documentation that allows them to live and work without facing the high levels of discrimination otherwise experienced by Rohingya in daily life.[17] They are not subject to local orders restricting freedom of movement.[18] DFAT assesses that they experience moderate levels of societal and official discrimination on a day to day basis.[19]

    [16] Ibid at [3.36].

    [17] Ibid.

    [18] Ibid at [3.35].

    [19] Ibid at [3.37].

22. The report provides the following information in respect to household registration lists:

    5.30 Under the Ward or Village Tract Administration Law, Village and Ward Tract Administrators throughout Myanmar are required to compile and register births and deaths and move people to and from household lists. As such, households are required to report any changes, including relocations and marriages, to Township Administration Offices. The types of documentation and the amounts of money required for this process vary across different jurisdictions. For example, Amnesty International reported in 2017 that transferring individuals from one household list to another in Rakhine State required a copy of the existing household list, a marriage certificate, a copy of their identity card, and letter of recommendation from the ward or village authority. Households are also required to present a copy of their list to authorities upon request. Household lists are issued and updated by the Ministry of Immigration and Population and the Ministry of Home Affairs.

    5.31 Household registration is required for the issuance of identity documentation, school enrolment (particularly at the secondary and higher levels), accessing services (including health, electricity and water), marriage and travel permission. Since the expiration of TRCs (see Rohingya, Citizenship, and National Identity Cards) in 2015, household lists have been the only form of identification for many Rohingya.

23. The report provides the following information in respect to documentation and the prevalence of fraud:

    5.52 The Citizenship Law provides for full, associate and naturalised categories of citizenship. Full citizenship is only available to people belonging to one of the officially recognised “national races”, or people belonging to ethnic groups that are considered to have settled in the country prior to 1823. Associate citizenship is available to people who had applied for citizenship before the Citizenship Law came in to effect, while naturalised citizenship is only available to people with “conclusive evidence” that they or their parents entered or resided in Myanmar prior to 1948, or were born to at least one parent who holds some form of Myanmar citizenship.

    5.53 There are variations of rights between these categories, and associate and naturalised citizens are not able to access the same rights as full citizens, including with regard to political participation, education, health, freedom of movement and property ownership. All citizens above the age of 18 in Myanmar are eligible to vote, but only full citizens whose parents were both also full citizens are eligible to stand for election. Enrolment in some university degrees, including medicine, law and engineering, is also restricted to full citizens. The government can revoke ‘in the interests of the State’ the citizenship, associate citizenship or naturalised citizenship of any person except those who are citizens by birth.

    5.54 Transparency International reported in 2017 that 40 per cent of Myanmar people who had applied for identity documentation had paid a bribe for the service.

    5.61 Document fraud is highly prevalent in Myanmar. Fraud can take the form of fake documentation, or genuine documentation provided on the basis of fraudulent information. The prevalence of corruption in Myanmar means that fake identity documentation can be purchased with relative ease, and identity feeder documents including birth, marriage and divorce certificates; household registration lists; and NRCs, CSCs and NVCs, are all subject to significant fraud. While passports have more sophisticated security features, it is possible to obtain a genuine passport using a fake national identity card.

24. In respect to illegal departure from the country DFAT states that while persons who have departed from the country illegally are technically subject to up to five years’ imprisonment for illegally crossing a border, DFAT is aware of, but unable to verify, reports of this provision being enforced in recent years.[20] DFAT is not aware of credible reports of mistreatment of failed Rohingya asylum seekers stemming specifically from their pursuit for asylum overseas.[21]

    [20] Ibid at [5.41].

    [21] Ibid at [5.51].

25. Additional country information was sourced from CISNET and in particular the following information provided by Mohammed Anwar, Secretary-General, Burmese Rohingya Community In Australia (BRCA) to the Department of Immigration and Border Protection dated 29 June 2015. This information is as follows:

    If the person is born in Myanmar but not in Rakhine state, he will have very limited Rohingya language and his primary language will be Burmese language. For example, a child born in Australia from a Rohingya parent can have a very limited Rohingya language but he will be a native English speaker.

    ii) We do ask at least 2 Rohingya referees who are already in Australia and have membership with our organisation to verify his/her identity. The criteria for the referees are they must be from the same village/area or know his/her family well. We then contact to those referees and ask clarification about his/her identity. Since Rohingya population in Australia is very small and most of them have links in Australia and Burma, it is very easy to identify the origin of a person

    iii) If the person cannot provide any referees from Australia, we then ask to provide us the contact details of his/her country of origin. We then communicate to those contacts and verify his/her details.

    Generally, we do not find any difficulties to differentiate a Rohingya from other group such as Bengali or Burmese Muslims. It can easily be detected from the language and family background. Therefore we are full confident that the persons that we provide membership cards/letters are genuine Rohingyas.

    Especially after June 2012, Rohingyas living in Yangon do not even dare to mention about their origin in anywhere. It is not only Rohingyas but also all Muslims in whole Burma (Myanmar) started facing extreme discrimination/threat/violence/racism. Because majority of Muslims’ appearances are Indian look alike (different from other ethnic group in Burma), the face becomes the identity to be targeted in the street. Prior to 2012, police protection may seem fair unless there is no political involvement however after 2012, it seems it becomes very difficult to get police protection for Muslims. In addition to that, Buddhist majority see Rohingyas and Muslims as alien and believe as illegal immigrants.

    The government authorities, security and police forces are mostly formed by Buddhists and therefore they become biased when it comes to give protection to Muslims. There has been continuous arson attacks in last 3 years on Muslims around Burma however Muslims hardly get protection and rather they were wrongly accused and prosecuted. In many occasions, the security and police officers watched while the Buddhists mob attacked and killed Muslims. The reason for that is these arson attacks are politically motivated and indirectly orchestrated by the central government. The Buddhist monk and hate preacher, U Wirathu (known as Burmese Binladen) and his 969 gangs are openly attacking Muslims but the authority do not take any actions against them. Rather, the president of Myanmar U Thein Sein praises him as the son of Buddha. Any small incident or rumour involving Muslims and Buddhists can cause whole Muslim villages or area under fire. One of the latest arson attacks on Muslims happened in the heart of Mandalay, 2nd largest city in Myanmar, and the details of the attack can be found at below links. Therefore, Rohingyas and Muslims in Yangon and other part of Myanmar are living under threat and in fear.

    Procedural matters regarding a non-disclosure certificate

1. The folios 69-71 and 82-84 in the Department’s file were the subject of a non-disclosure certificate issued pursuant to s.438(1)(a) of the Act. The certificate states that the disclosure of the relevant folios would be contrary to the public interest because they contain information relating to ‘internal deliberations of the department’.

2. The Tribunal is not satisfied that the reasons provided in the certificate are a sufficient basis for public interest immunity in this case or that disclosure would be against the public interest. Accordingly, the Tribunal is of the view that the certificate is invalid.

3. At the hearing, the applicant was informed of the existence of the non-disclosure certificate and the Tribunal’s view that the certificate is invalid. The Tribunal advised the applicant as to the nature of the information contained in the folios subject to the certificate, which consisted of an ‘identity integrity checklist’ and an ‘identity assessment’.

4. The applicant was invited to comment on the validity of the certificate and in post-hearing submissions the applicant noted the Tribunal’s comments at the hearing in respect of the certificate.

5. The Tribunal has not relied on the information contained in the folios subject to the certificate. The Tribunal notes that the information contained in those documents, to the extent that it may be considered to be relevant to the decision under review, is available in the delegate’s decision record.

   FINDINGS AND REASONS

   Country of reference

6. The applicant claims his country of former habitual residence is Myanmar (Burma) but that he is denied citizenship of this country and as a consequence he is stateless. The Tribunal finds that Myanmar is the country of reference with respect to the refugee criterion and the receiving country in respect to the complementary protection criterion.

   Does the applicant have a well-founded fear of persecution on return to Myanmar?

7. The Tribunal in assessing claims made by an applicant is required to make findings of fact in relation to those claims. This involves an assessment of the credibility of the applicant. In doing so, the Tribunal is guided by the relevant authorities[22] and is mindful of the difficulties faced by refugee applicants and the need to give the benefit of the doubt should the applicant be generally credible but unable to substantiate all his claims.

   [22] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; Abebe v The Commonwealth of Australia [1999] HCA 14; Randhawa v MILGEA [1994] FCA 1253; Selvadurai v MIEA & Anor (1994) 34 ALD 347; Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445; Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126;and Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719.

8. However the Tribunal is not required to accept uncritically any or all claims made by an applicant. Nor is the Tribunal required to have rebutting evidence available to it before finding that a particular factual assertion made by an applicant has not been made out.[23] The Tribunal did not find the applicant to be a credible witness and finds that the applicant has embellished claims. His evidence was at times unconvincing and incongruent.

   [23] 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.

9. The Tribunal accepts the following aspects of the applicant’s circumstances. The Tribunal accepts that the applicant was born in Yangon and resided there for all of his life prior to coming to Australia. The Tribunal also accepts the applicant’s educational and employment history. That is that the applicant completed secondary schooling and then undertook a [subject] degree and that he then obtained casual work tutoring.

10. The Tribunal accepts that the applicant is Muslim. The documentation from the applicant in terms of Household Registration lists the applicant’s and his family’s religion to be Islam. The applicant indicated in his evidence before the Tribunal that he attends a mosque in Sydney and the country information indicates that the applicant resided in a section of Yangon where there is a significant Muslim population.

11. In respect to making a finding as to the applicant’s ethnicity the Tribunal acknowledges that there are particular difficulties in establishing Rohingya ethnicity as Myanmar does not recognise Rohingya as a distinct ethnic group. The Tribunal notes that the applicant does not come from Rakhine state where the majority of Rohingya reside but rather he was born in Yangon but claims that his parents were from Rakhine state. On the latter point his evidence about his mother’s origins was inconsistent as he also gave evidence that she was also born in Yangon. The Tribunal notes his explanation for this inconsistency but does not accept that the applicant would be confused on the point.

12. The Tribunal notes that the applicant does not speak the Rohingya language which may help establish his ethnicity. The Tribunal does not place weight on this however given that the country information indicates that Rohingya residing in Yangon would not necessarily speak the Rohingya language.

13. The Tribunal notes that the applicant provided to the Department a support letter from the Burmese Rohingya Community in Australia which is dated [in] 2014 which states that the applicant is one of their Rohingya members. However at the hearing when the Tribunal noted that this letter is from some five years ago and asked the applicant about his ongoing involvement with this group it became apparent that the applicant has minimal if any involvement with the community. The applicant’s evidence was to the effect that he had contact from time to time at best. He suggested that his involvement was limited by work commitments. The applicant then provided to the Tribunal a handout of an invitation to a Rohingya Refugees Awareness event organised by [Community Group 1] as evidence of involvement with Rohingya community. When asked further about this he indicated that he had picked it up at his local mosque.

14. The applicant’s personal history is not one that reflects a life of mistreatment and discrimination as a Rohingya. In fact it would appear to be one of privilege. The applicant has resided in Yangon for the entirety of his life and has had a continuous education over a [specified time] period. This is in contrast to the national average of 4.7 years of education. The applicant has completed tertiary education acquiring a degree in [subject]. As set out above Burmese enrolment rates at secondary school is 51% and at tertiary level 14%.

15. The Tribunal does not accept the applicant’s claim that his ability to access education was achieved by use of fraudulent documentation and hiding his ethnicity. The applicant claimed that his ethnicity is known by his appearance and is distinct from other ethnic groups. The Tribunal notes that the applicant’s photograph is attached to both his [subject] degree and also to what would appear to be his secondary school certificate (dated [date]). He also stated at the hearing that you need to submit your certificate for entry to university. Given the use of photographic identification on these documents it does not make sense that he did not attend classes or attend his degree awards ceremony lest his ethnicity be discovered by reason of his appearance.

16. In any event the Tribunal places weight on the DFAT report which indicates that enrolment in particular university degrees such as in [his subject] is restricted by the authorities to full citizens. As such the Tribunal does not accept that the applicant’s educational history was predicated upon false documentation but rather finds it to be indicative of a person holding valid documentation and citizenship rights.

17. In terms of his employment history the applicant claims that he could not secure full-time work and is unable to practise [his occupation] because of his ethnicity and could only find work as a casual tutor until arranging a trip to Australia. This employment history is not at odds with the employment rates in Myanmar. The DFAT report indicates 38% of the population are underemployed and that the majority of jobs are in the informal sector. The Tribunal does not accept the applicant’s claim that his apparent inability to progress further in [his] profession is an indicator of his lack of a legal status or his claimed Rohingya ethnicity as opposed to a reflection of the general circumstance of underemployment in Myanmar. He claims that he could not practise [his occupation] because of his ethnicity but as set out above the DFAT report indicates that Rohingya cannot practise [his occupation] but also cannot study [that subject].

18. The applicant in his statutory declarations makes a number of statements about mistreatment that are generalised such as for example he states that his ‘whole life story is about discrimination’. And that there are so many things he has suffered but ‘it is too much and unbearable’ for him to describe in a short time and that Rohingya are treated lower than animals. The applicant has not supported these sweeping statements with actual experiences of harm or discrimination.

19. When asked at the hearing about his personal experiences the applicant recounted his experience in 2002 when he claims he was assaulted at a checkpoint and required to pay a bribe before he was released. He did not nor has he recounted any more specific or detailed examples. Rather he referred to his experiences of mental harm which he described in terms of a constant fear and worry of Buddhists and the authorities of Myanmar and feeling a sense of insecurity. The Tribunal accepts that the applicant was stopped at a checkpoint and assaulted and required to pay a bribe but does not accept that this was for reasons of his claimed ethnicity as opposed to a random act of violence to which the population at large would be exposed to.

20. When considered collectively the points set out above lead the Tribunal to reject the applicant’s claim that he is Rohingya and an undocumented and stateless Rohingya. Nor does the Tribunal accept that the applicant has experienced harm or discrimination by reason of this claimed ethnicity.

21. As set out above the Tribunal does accept that the applicant is a Muslim. The Tribunal notes and accepts the country information which indicates that Myanmar is a predominantly Buddhist country and that Islam is a minority religion. The Tribunal notes that the Constitution of Myanmar designates a privileged position to Buddhism but recognises freedom of religion. The Tribunal accepts the applicant’s evidence that there have been attacks on mosques by Buddhist extremists as this is supported by country information. However the Tribunal does not accept that these attacks are sanctioned by the state or that there is a withholding of state protection.

22. The Tribunal does not accept that the applicant would be unable to practise his religion in Myanmar and attend mosque. Nor that he would be required to unreasonably modify his religious behaviour to avoid the harm he fears. The Tribunal notes the DFAT report at point 3.72 which notes that Muslims in Yangon would practise a less conservative form of Islam in terms of their dress and beards to avoid harm. The applicant in his attire and manner as presented at the hearing did not appear as someone who would be required to alter these aspects in order to practise Islam in Yangon. Further the Tribunal notes that although the authorities are curtailing the building of new Madrassas and mosques there are mosques open in Yangon and that Muslims are free to attend these.

23. The Tribunal does not accept that the applicant departed Myanmar illegally. When asked at the hearing to recount his travel from Myanmar to Australia the applicant did not appear to be recounting actual lived experiences. The Tribunal acknowledges that it is some time since the applicant has arrived in Australia and as such recall of details of the journey may well become lost or blurred. However the applicant did not provide meaningful detail and was vague as to the period of time over which he travelled.

24. In addition when asked why he sought to travel illegally the emphasis of the applicant’s answer was on the need to enter Australia illegally because he would be unable to get a visa. In recounting his travel experiences the applicant was not recounting an experience where he had a need to flee from some particular circumstance. Rather he spoke of his travel more in terms of timing according to the seasons and a choice of destinations; that is, [a named country] or Australia.

25. The applicant claims that he will be imputed with a political opinion, being the applicant’s purported opposition to the Burmese authorities. The basis for this claim is said to arise as a result of ‘his illegal departure and claim for asylum in Australia’, ‘profile as a stateless Rohingya Muslim’ and/or ‘profile as a Muslim’.

26. The Tribunal does not accept that the applicant would be imputed with such a political opinion as the Tribunal does not accept the bases on which this claim is made. That is, for the reasons already stated the Tribunal does not accept that the applicant is stateless, is Rohingya or departed Myanmar illegally.

27. In respect to the applicant’s claim that he will be imputed with a political opinion because he has sought asylum in Australia the Tribunal notes and accepts the DFAT report which states that DFAT is unaware of credible reports of mistreatment of failed Rohingya asylum seekers stemming specifically from their pursuit for asylum overseas. As such the Tribunal does not accept that the applicant’s seeking asylum in Australia in combination with his Muslim religion or each taken separately would result in his arrest or detention or that of his family members.

28. 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) of the Act.

    Is there a real risk that the applicant will suffer significant harm on his return to Myanmar?

29. Having concluded that the applicant does not meet the ‘refugee criterion’ in s.36(2)(a) of the Act, the Tribunal has considered the ‘complementary protection 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) of the Act.

30. In addition, the Tribunal has carefully considered whether what has been accepted of the applicant’s claims leads to a cumulative or residual risk of harm that reaches the threshold of significant harm. The Tribunal finds that it does not. The Tribunal is not satisfied that, taking account of what is accepted of the applicant’s claims, there is a real risk he will suffer significant harm.

31. Having regard to all of the evidence before the Tribunal including the applicant’s claims, the submissions made and the relevant country information, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm, as defined by the Act, as a necessary and foreseeable consequence of his return to Myanmar.

32. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    Consideration of claims under s.36(2) of the Act

33. 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

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

    Dr Irene O’Connell
    Deputy Division Head