1602644 (Refugee)

[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 Regulations), which came into effect as of 16 December 2014, converting unfinalised protection (Class XA) applications of IMAs into Class XD matters. The date of the lodgement of their application also means that the law relevant to the consideration of their claims is that set out in s.36(2) of the Act in force prior to 16 December 2014.

4. On 1 March 2016 the applicants sought review of the decision of the delegate refusing them the grant of the protection visa. Both applicants appeared before the Tribunal at a hearing conducted on 10 September 2019. The applicants also provided written submissions to the Tribunal both prior to and subsequent to giving their oral evidence.

5. Movement records of the Department indicated that the first named applicant departed Australia [in] November 2019.  The Tribunal wrote to the applicants on 13 February 2020 inviting them to comment on or respond to the information before the Tribunal that the first named applicant had departed Australia and was therefore no longer a non-citizen in Australia.

6. On 27 February 2020 the applicants responded confirming that the first named applicant had departed Australia and conceded that he is no longer eligible for the grant of a protection visa by operation of s.36(2) of the Act which requires an applicant to be in Australia.

7. 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).

8. The second named applicant indicated that he remains in Australia and as such continues to be eligible for the grant of a protection visa and requested that the Tribunal determine his application for review.

9. He claims to be owed Australia’s protection on the basis of his race (Rohingya), religion (Muslim), imputed political opinion (his father’s advocacy of the Rohingya community), nationality (stateless) and membership of a particular social group (stateless Rohingyas in Myanmar). He also claims to be in need of Australia’s protection on the basis of the complementary protection criteria that he faces a real risk of arbitrary deprivation of his life, torture and degrading treatment or punishment should he return to Myanmar.

   RELEVANT LAW

10. 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.

11. 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.

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

13. Second, an applicant must fear persecution. Under s.91R(1)of the Act, persecution must involve serious harm to the applicant and systematic and discriminatory conduct. 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.[1] 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.[2]

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

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

14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.[3] People are persecuted for something perceived about them or attributed to them by their persecutors.[4]

    [3] Ibid at [284] (Gummow J).

    [4] Ibid

15. 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.

16. 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.[5] 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.[6] A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[7]

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

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

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

17. 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.[8] 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.

    [8] 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]).

18. 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

19. 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’).

20. ‘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.

21. 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

22. 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.

23. 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.

24. 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

25. 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.

26. 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.

27. 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.

28. He claims that the authorities became aware of his actions and sometime in March 2013 came to his house in search of him. He was not at home and his wife warned him not to return home. Instead he fled the country taking his son with him. He claims to have left Myanmar illegally, crossing the border into [Country 1] and then into [Country 2] with the help of smugglers. The applicants claim that they departed Myanmar on [a date in] April 2013.

29. The first named applicant claims he cannot return to Myanmar because he fears he will be arrested and tortured by the government by reason of his activities and his illegal departure as well as his race and ethnicity.

30. The second named applicant claims in his statutory declaration that he fled Myanmar with his father because he was scared after he heard that his father was wanted by the government.  He believed that as his father’s life was in danger then so was his.

31. He goes on to state that he is scared to express himself as a Rohingyan and that he faces discrimination and animosity from Burmese Buddhists. He feels intimated by Buddhists because he is a Muslim and he refers to the burning of a local Mosque by Buddhists. He fears for his life if he returns to Myanmar because he is a stateless Rohingya.

32. The applicants provided several documents in support of their application, these included:

    a.a letter from [name], [a leader] of [a Rohingya community group] in [Country 2] (dated 2012),

    b.   the first named applicant’s Myanmar Drivers Licence valid up to [July] 2014

    c.a copy of some pages of the book “Compact Atlas of World History” by Khin Muang Thaung (published by Random House Publishers).

    d.the second named applicant’s translated copy of his birth certificate, and

    e.a translated copy of the second named applicant’s Matriculation Examination Passed Certificate dated [date].

    Delegate’s decision

33. The applicants were interviewed by the delegate on 29 April 2015. After the interview the delegate wrote to the applicants and put to them inconsistencies between their oral evidence. The applicants had given divergent accounts in relation to the manner in which they left Myanmar and travelled through [Country 1]. In addition the first named applicant had stated his son had disappeared whereas the second named applicant stated that his brother had completed his studies and was working.

34. The applicants responded on 14 July 2015 suggesting in respect to their oral evidence that “the discrepancies are of a minor nature and not warrant an adverse finding being made as to credibility” and provided the following additional comments. They were very fearful during their illegal departure from Myanmar and crossing the [Country 1] border and therefore much of the travel was a blur but they have tried to provide accurate information. In respect to the whereabouts of the eldest son they stated that he continues to “be in and out of hiding” and “he cannot stay in the house given the risks and is not living there but is contactable from time to time”. Documents they had provided in support of their application were obtained by way of bribe and should not therefore be relied upon in terms of determining their citizenship or otherwise.

35. The delegate in making his decision found the applicants to be citizens of Myanmar and not stateless as claimed and did not accept that they had departed from Myanmar illegally. He accepted that they were of Rohingya descent and are Muslims. He found that that as they resided in Yangon they were not subject to persecution as Rohingya are in Rakhine state. He accepted that as Muslims they were subject to minor discrimination. He did not accept that the first named applicant was of adverse interest to the authorities and faced harm from them on his return to Myanmar.

    Evidence to the Tribunal

36. The applicants provided several documents to the Tribunal. These documents were:

    a.Identification Cards in the name of the first named and second named applicants from the [Community Association 1] issued in [2019].

    b.A letter from the [Community Association 1] dated [in] May 2018 commenting on the situation for Rohingyas in Burma and testifying that the applicants are Rohingya origin.

    c.Household registration certificate for the applicants.

    d.A letter from [a health] Service in relation to the first named applicant dated 7 May 2019 indicating that the first named applicant is suffering from mixed anxiety and depression.

    e.   a copy of the delegate’s decision record.

37. They made written submissions to the Tribunal dated 12 May 2019, 16 October 2019, 27 February 2020 and 18 March 2020. In the written submission dated 12 May 2019 the applicants claim that they fear harm in Myanmar by reason of their race (Rohingya), religion (Muslim), political opinion (advocacy of the Rohingya community), nationality (stateless) and membership of a particular social group (stateless Rohingyas in Myanmar). They also claim Australia’s protection on the basis of the complementary protection criteria of a real risk of arbitrary deprivation of life, torture and degrading treatment or punishment should they return to Myanmar.

1. In support of these claims they refer to country information sourced from Amnesty International, Human Rights Watch, United States Department of State Country Reports and DFAT in respect to the treatment of Rohingyas in Myanmar and the religious discrimination of the Muslim minority from the Buddhist majority.

2. Both applicants gave oral evidence to the Tribunal at a hearing on 10 September 2019. The first named applicant gave his evidence with the assistance of an interpreter in the Burmese, Rohingya and English languages. The second named applicant gave his evidence in the English language. The applicants were represented at the hearing by their representative, [named] who attended via phone.

3. In his oral evidence the first named applicant stated that he comes from the Arakan state and is Rohingya. He stated that [a specified relative] was [an official] and elected by the Rohingya community. He stated that Rohingya people in Burma have a lower standard of living because they have been oppressed by the government and are identifiable by dress and language. 

4. In response to questions about his family he stated that they reside in Yangon and that [number] of his children are currently attending [school]. He stated that [one child] is at home.

5. He stated that his son in Australia has worked at various jobs – at [a venue] and as a labourer. He stated that he is, himself in poor health as he has [medical conditions]. He stated that he had involvement for a two-year period with the [Community Association 1] as an event organiser.

6. He stated that the birth certificate in respect to his son was acquired by a bribe and that the reference to his ethnicity as Kaman was because the government would never use the term Rohinyga in any official document.  He stated that the high school certificate was also obtained by paying a bribe and both documents were obtained after they had arrived in Australia.

7. He said that he does not have religious freedom and extremist groups, such as a group called 969, have attacked and burnt mosques. As he is Muslim and has a family, he fears these people.

8. In terms of his departure from Myanmar the first named applicant stated that he went to the [Country 1] border from Yangon and from [Country 1] to the [Country 2] border and then from [Country 2] to [Country 3] by boat and then another boat trip to Australia. The applicant said he left Yangon in 2013 and was unable to provide any further information on his travels as he could not recall any details. The applicant said he could not remember due to his mental health problem and stress. The applicant said he could not remember how long it took him to arrive in Australia, only that it was a difficult journey.

9. When questioned further, the applicant said he thinks he left in April 2013 and remembers that he arrived in Australia [in] May 2013. He also mentioned that the boat journey took about [number] days. The entire trip was organised by people smugglers and he just followed their instruction.

10. At the hearing the Tribunal raised with the second named applicant the concerns raised by the delegate in respect to his evidence given about his departure of Myanmar. The applicant stated that he was young at the time and that given that the departure was now six years ago he could not remember details. He stated that since his arrival in Australia he has concentrated on his studies and working so he could not remember how he travelled to Australia. The Tribunal asked the applicant about his studies and events after his arrival in Australia. The applicant stated that he was in [one city] and then moved to [another] and that he was [at a location]. He stated that he moved to Sydney in 2014 and studied English language at [a school] and that he went to TAFE to study [a specified subject]. He also indicated to the Tribunal that he had acquired an Australian Driver’s Licence.

11. The Tribunal put to the applicant that he had been able to recall and speak about events immediately after his arrival in Australia yet was unable to recall relevant details of his departure from Myanmar and travel to Australia. The applicant responded that he honestly could not remember.

12. In a post hearing submission dated 16 October 2019 the applicants confirm that they are Rohingya and suggest that their ethnicity is apparent by their language, accent and dress. In terms of the documents provided in support of their application they maintain that they are fraudulent and cannot not be relied upon. The applicants claim that the household registration certificate which lists their race as Kaman was acquired through the payment of bribes. They claim that the authorities eventually realised this when the first named applicant was advocating for Rohingyas and then pursued him.

13. In respect to the second named applicant’s oral evidence about his trip from Myanmar to Australia it is suggested that his inability to recall any detail relates to the trauma he experienced in the trip:

    The secondary applicant wishes to reiterate that he genuinely cannot remember the specifics of his trip to Australia. ... He instructs that he was young at the time and reliant on his father’s guidance. Therefore, he followed his father and did not pay a lot of attention to the timeframes with respect to the journey. Further, he instructs that he was very scared that he and his father would face issues transiting to Australia given their lack of documents… he did not take in the specifics of the surroundings.

14. The applicants maintain that they did depart Myanmar illegally and that the DFAT report indicates that people who depart illegally are technically subject to up to five years’ imprisonment. This combined with their race and religion gives rise to a real chance of serious harm such as imprisonment on return to Myanmar.

15. On 27 February 2020 the applicants responded to the Tribunal’s invitation to comment on the movement record indicating that the first named applicant had departed Australia (see paragraphs 5–7 above). In a further submission dated 18 March 2020 the second named applicant indicated that his father had returned to Myanmar. He stated that his father returned because he missed his family and was in poor mental health.

16. The second named applicant advised that he has limited contact with his father but that the authorities had come to the family home on three occasions. His father had gone into hiding to avoid questioning from the authorities. He also states that his father was able to return because he held a household registration certificate “which he obtained through the payment of bribes.”

    Country information

17. 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) as well as country information referred to by the applicants.

18. 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.

19. 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. The report provides the following information in regard to Rohingya outside Rakhine State:

    3.35 There are a number of Rohingya living outside of Rakhine State, particularly in Yangon, but the size of the Rohingya population outside Rakhine State is unclear. This is due to both a lack of official statistics that recognise the Rohingya as an ethnic group, and also as some Rohingya in Yangon and other large cities in Myanmar reportedly conceal their ethnic identity, including through attempts to identity as Kaman or other Muslim groups. Anecdotal evidence suggests there are approximately 20,000 Rohingya living in Yangon. Rohingya outside of Rakhine State are not subject to local orders restricting freedom of movement as Rohingya in Rakhine State, however they may choose to live in particular locations due to concern of negative societal attitudes. In February 2018, Rohingya in Yangon described Buddhist neighbours and friends increasingly expressing sympathy with the government’s approach to the Rohingya in Rakhine State.

    3.36 Rohingya outside Rakhine State generally have higher incomes and better access to resources than those in Rakhine State, and are typically able to obtain identity documentation that allows them to live and work without facing the high levels of discrimination otherwise experienced by Rohingya in their day-to-day life. Typically, Rohingya in Yangon are registered as ‘Burmese Muslims’ or ‘Bamar Muslims’. A person willing to record their ethnic group as a Burmese/Bamar Muslim is generally able to access either full, associate or naturalised citizenship (depending on their family history, see Documentation), including national identity cards and residency documents which provide a legal right to a passport. Local sources reported that Rohingya can also pay bribes to officials to obtain a Kaman identity card. University students without CSCs (see National Identity Cards), including Rohingya and some religious minorities, are permitted to attend classes and sit examinations, but are unable to graduate and receive qualifications.

    3.37 DFAT assesses that Rohingya who live outside of Rakhine State experience moderate levels of societal and official discrimination on a day-to-day basis. While they are officially denied citizenship rights, Rohingya who choose to identify as Kaman or other Muslim groups face a similar level of discrimination to that experienced by other Muslims (see Muslims).

21. 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.

22. The DFAT 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.

23. 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.[9] DFAT is not aware of credible reports of mistreatment of failed Rohingya asylum seekers stemming specifically from their pursuit for asylum overseas.[10]

    [9] Ibid at [5.41].

    [10] Ibid at [5.51].

    FINDINGS AND REASONS

24. The Tribunal is satisfied that the first named applicant is not in Australia. The Tribunal makes this finding on the basis of the evidence provided by the applicants in a written submission dated 18 March 2020 and the movement record of the Department. As he is not in Australia he does not satisfy the requirements of s.36(2) and cannot be granted a protection visa. His substantive claims remain relevant insofar as they pertain to the second named applicant’s claims. In respect to the second named applicant the Tribunal makes the following findings.

    Country of reference

25. 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?

1. 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[11] 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.

   [11] 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.

2. The Tribunal is not, however, 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.[12] 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.

   [12] 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.

3. The Tribunal notes that at various stages in proceedings the applicants have suggested that   several of the documents submitted by them were obtained by paying a bribe. They have suggested that because of this the documents should not be relied upon, most particularly in drawing any inferences adverse to the applicants’ claims.  The Tribunal accepts that the documents obtained from Myanmar may well have been acquired by means of payment of a bribe. As set out above at paragraph 59 the DFAT report indicates that the payment of a bribe for official documentation is a relatively common practice in Myanmar. Thus whilst the Tribunal accepts that reliance on the documents must be exercised with caution it does not accept that information contained in the documents is necessarily false. As will be apparent from the findings set out below the Tribunal has placed some reliance on the documents most particularly when it accords with the applicants’ own evidence and/or with country information.

4. The Tribunal finds that the applicant is a national of Myanmar and is not stateless. The Tribunal makes this finding on the basis that the applicant’s household registration and birth certificate state that his nationality is Myanmar. This is supported by the freedom of the applicant and his father consistent with holding citizenship. That is the first named applicant returned to Myanmar.  And for reasons set out below the Tribunal does not accept that the applicants departed Myanmar illegally as so claimed.

5. The Tribunal accepts the following aspects of the applicant’s circumstances. The Tribunal accepts that the second named 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 as set out in his written evidence. That is, that the applicant completed secondary schooling and then took up an apprenticeship.

6. The Tribunal accepts that the applicant belongs to the Rohingya ethnic group. The Tribunal notes and accepts the country information and the evidence of the first named applicant that Rohingya is not a recognised ethnic group in Myanmar and as such the applicant’s ethnicity would not be on official documents and its absence therefore should not be considered adverse to the applicant’s claim to be Rohingya. The Tribunal notes that the applicant’s household registration lists his race as Kaman. This accords with the country information from DFAT set out above at paragraph 57 which suggests that Rohingya may identify as Kaman.

7. The Tribunal found the first named applicant’s evidence about their ethnicity to be persuasive and places weight on the fact that both applicants have been issued with identification cards from [Community Association 1]. The Tribunal notes in respect to the second named applicant that as he indicated to the Tribunal at the hearing that unlike his father he cannot speak Rohingya. This is consistent with the country information about Rohingya born and raised in Yangon.

8. The Tribunal accepts that the applicant is Muslim. The applicant’s birth certificate lists his father’s and mother’s religion as Islam and the family’s household registration also lists the applicant’s religion as Islam.  Country information indicates that there is a significant Muslim population in Yangon.

9. The Tribunal does not accept that the applicant has been subject to mistreatment amounting to persecution on the basis of his ethnicity or his religion or a combination of these. The Tribunal makes this finding for the following reasons.

10. As set out above at paragraphs 57 the DFAT report indicates that the treatment of Rohingya in Yangon is very different from that experienced by Rohingya in Rakhine state. The former are not subject to the restrictions and harassment imposed on the latter.  The applicant does not come from Rakhine state but rather has resided in Yangon for his entire life. 

11. Added to this applicant’s personal history is not one that reflects a life of mistreatment and discrimination as a Rohingya. The applicant has had a continuous education followed by an apprenticeship. The applicant in his statutory declarations makes a number of statements about mistreatment that are generalised such as for example he states that he cannot express himself as a Rohingya and that he is bullied and intimidated by the Buddhist majority. The applicant has not provided details of actual experiences of harm or discrimination.

12. The applicant’s personal history in terms of education and employment is not indicative of any serious past harm which might provide an indicator for future serious harm.

13. 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.

14. 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 set out at paragraph 56 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.

15. The Tribunal does not accept that the applicant departed Myanmar illegally. As was discussed with the applicant at the hearing he has provided evidence in respect to his claimed illegal departure from Myanmar that would enable the Tribunal to be satisfied that he had departed illegally.

16. He has claimed that he travelled from Myanmar to [Country 1] then [Country 2] and [Country 3] and finally to Australia but claims to be unable to recount details of these travels. He claimed variously that it was a long time ago, and that he was young at the time (aged [age] years) and simply followed instructions of others. The Tribunal accepts that these factors would have an impact on the applicant’s ability to recount accurately the totality of his travels. However, the Tribunal does not accept that these factors taken singularly or cumulatively would result in the applicant’s inability to recall any relevant details.

17. The applicant has also suggested that the experience of departing Myanmar illegally had traumatised him and impaired his ability that to recall anything. The second named applicant has not provided any medical evidence to the Tribunal to this effect. As pointed out to the applicant at the hearing his recall of events on his arrival in Australia and immediately thereafter was detailed and precise and contrasted strongly with his inability to provide specific and believable account of his travels to Australia.

18. The Tribunal does not accept that the applicant faces any harm by reason of his father’s claimed advocacy of the Rohingya community by promoting a book. The Tribunal does not accept that the applicant’s father has come to the adverse attention of the authorities by reason of a claimed promotion of a book. The claim of adverse attention from the authorities is asserted by way of visits from authorities. However the applicant’s father returned to Myanmar and to his family home without interference or arrest by the authorities.

19. Additionally, the applicant has several siblings and other family members currently living in Myanmar. When the Tribunal asked about these family members there was no evidence put before the Tribunal that they were at risk or had faced any past harm by reason of the claimed activities of the father. The Tribunal notes that conflicting evidence was given about one brother who was claimed to be missing but also to be working after completing his studies. The conflicting evidence leads the Tribunal to not accept that the relevant brother is or was missing.

20. For all the reasons set out above the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

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

21. 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.

22. As set out above the Tribunal does accept that the applicant is Muslim and of Rohingya descent. The Tribunal does not accept that the applicant would be subject to extreme humiliation because of his religion and ethnicity.  Nor does the Tribunal accept that the applicant faces a real risk that he would be arbitrarily deprived of his life or subject to torture on his return to Myanmar.

23. As set out above the applicant is not from Rakhine state but rather from Yangon and as the DFAT report indicates, circumstances for Rohingya and Muslims in Yangon is very different from those in Rakhine state. Further the applicant’s personal history in terms of education and employment is not indicative of any significant past harm which might provide an indicator for future significant harm.

24. 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.

25. 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.

26. 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

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

    Dr Irene O’Connell
    Deputy Division Head