1602644 (Refugee)

Case [2020] AATA 2572

1602644 (Refugee) [2020] AATA 2572 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602644

COUNTRY OF REFERENCE:                   Myanmar

MEMBER:Dr Irene O’Connell

DATE:18 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2020 at 12:25pm

CATCHWORDS

REFUGEE – protection visa – Myanmar – race – ethnic Rohingya – nationality – stateless – religion – Muslim – particular social group – undocumented stateless Rohingya – political opinion – advocacy for Rohingya community – primary applicant departed Australia for Myanmar – fear of arbitrary killing – torture – detention – identity documents – illegal departure – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 45AA, 65, 91R, 438
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2

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 v Minister for Immigration and Ethnic Affairs (1989–1990) 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

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 on 8 February 2016 to refuse to grant the applicants a Temporary Protection (Class XD) (Subclass 785) visas under s.65 of the Migration Act 1958 (the Act).  

  2. The applicants, who are father and son, are from Myanmar. They arrived in Australia [in] May 2013 as irregular maritime arrivals (IMA) on a boat codenamed [name] and applied for protection (Class XA) visas on 19 August 2013.

  3. Their application was taken by the delegate to be a valid application for a Temporary Protection (Class XD) visa not a Protection (Class XA) visa. This is because of the introduction of s.45AA to the Migration Act and r.2.08F of the Migration Regulations 1994 (the…

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AGLC
1602644 (Refugee) [2020] AATA 2572
Case
[2020] AATA 2572
Decision Date

CaseChat Overview and Summary

This matter concerned an application for protection visas by individuals identifying as ethnic Rohingya, Muslim, and stateless from Myanmar. The primary applicant claimed to have departed Australia for Myanmar and expressed a fear of arbitrary killing, torture, and detention upon return, citing concerns related to identity documents and illegal departure. The decision under review was the refusal to grant these protection visas.

The core legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under the relevant legislation, specifically concerning whether they would face a real risk of suffering significant harm in Myanmar. This involved determining if they belonged to a particular social group, were subject to persecution based on race, religion, or political opinion, and whether any exceptions to protection obligations, such as the possibility of internal relocation or general risk to the population, applied. The validity of a non-disclosure certificate concerning departmental deliberations was also a preliminary matter.

The Tribunal found that the non-disclosure certificate was not valid as it did not sufficiently justify the claim for public interest immunity. However, the Tribunal noted that the information contained within the undisclosed documents was available elsewhere, including the delegate's decision record, and had been discussed with the applicants. Ultimately, the Tribunal was not satisfied that any of the applicants were persons in respect of whom Australia had protection obligations. Consequently, the applicants failed to satisfy the criteria for a protection visa under sections 36(2)(a), (aa), (b), or (c) of the Act.

The Tribunal affirmed the decision not to grant the applicants protection visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CLAIMS AND EVIDENCE The Tribunal has before it Department file ([number]) which contains the applicants’ protection visa application and supporting documentation. The file also contains an audio recording of the Department interview with the applicants held on 29 April 2015, correspondence between the delegate and the applicants and the delegate’s decision record refusing the grant of the visa. A non-disclosure certificate pursuant to s.438(1)(a) of the Act was placed by the delegate on folios 136–141 of the Department’s file. The non-disclosure certificate states that the basis for the certificate is that the relevant folios “relate to internal deliberations of the department.” The information captured by this certificate is the GM IMA Protection Support -Identity Integrity Checklist dated 22 September 2014. The Tribunal is not satisfied that the certificate is valid because it does not sufficiently identify the basis for public interest immunity or that the disclosure would be against the public interest. The certificate and documents, captured by the certificate, were discussed with the applicants at the Tribunal hearing. The Tribunal notes that the information contained in those documents is available in other documents including the delegate’s decision record. This was conveyed to the applicants at the hearing.Protection visa application In their application for a protection visa the first named applicant states that he was born in [year]. He speaks Rohingya, Burmese and English. He lists his ethnic group as Rohingya, his religion as Sunni Muslim and his citizenship as Stateless. The first named applicant states that prior to his arrival in Australia he was self-employed and involved in retail trade. The second named applicant states that he was born in [year] in Yangon. He states that he speaks Rohingya, Burmese and English. He lists his ethnic group as Rohingya, his religion as Sunni Muslim and his citizenship as Stateless. He states that he completed the school certificate in [year] and then held an apprenticeship in [a named industry] with a [product] company based in Yangon. The applicants’ family consisting of the first named applicant’s wife, parents and [number] children are all residing in Yangon. The eldest child is said to be missing as of April 2013. In a statement accompanying the protection visa application the first named applicant claims that he acquired a copy of a book titled “Compact Atlas of World History” by Khin Muang Thaung (published by Random House Publishers) which contains information about the Rohingya people’s origins in Myanmar. After reading this book, which is unavailable in Myanmar, he felt compelled to educate the Rohingya people about their history and he began speaking about the contents of the book at community meetings. He also attempted to circulate the book in Myanmar.

Decision

Reasons for decision

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.DECISION The Tribunal affirms the decision not to grant the applicants Protection visas.Dr Irene O’ConnellDeputy Division Head

Ratio Decidendi

Legal Principle Established

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