1608858 (Refugee)

[2021] AATA 1211

1608858 (Refugee) [2021] AATA 1211 (27 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608858

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 January 2021 at 2:50 pm (WA time)

DATE OF WRITTEN RECORD:                25 February 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Act.

Statement made on 25 February 2021 at 8:10am

CATCHWORDS
REFUGEE – protection visa – Myanmar – imputed political opinion – participation in pro-democracy movements – second applicant’s mother granted protection in third country – straightforward and credible evidence – one covert return to home country – country information – complementary protection – higher profile and risk of harm as married couple – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 36(2)(a), (aa), (2A)
Migration Regulations 1994 (Cth), Schedule 2

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 dependants.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 20 May 2016 to refuse to grant the applicants protection visas under the Migration Act 1958 (the Act).

2. At the hearing on 27 January 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.

   DECISION

4. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Act.

   Dr Colin Huntly
   Member

   
   

   Corrected Transcript

   ORAL DECISION OF MEMBER HUNTLY  [2.15 pm]

   INTRODUCTION

5. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. To qualify for the visa, an applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. 

7. Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department of Home Affairs on refugee law and complementary protection, together with DFAT Country Information in accordance with Ministerial Direction No.84.

   BACKGROUND

8. The applicants applied for the grant of a Protection visa in the prescribed form on 4 April 2014.  The application was consequently refused by a delegate of the Minister in a written decision dated 20 May 2016. 

9. The applicants provided the Tribunal with a copy of this decision with their application for review when they applied to the Tribunal for a review of the delegate’s decision.

   IDENTITY

10. According to the applicants’ passports, they are citizens of Myanmar. 

11. Having had the opportunity of reviewing these passports, which were provided to the Department with the original application for Protection, I have no reason to doubt the validity of these documents.  Accordingly, the receiving country for the purposes of the refugee and complementary protection assessments for these applicants is Myanmar. 

12. As discussed below, it is unnecessary to address the question of whether or not the applicants have a right to enter and reside in a third country for the purposes of s.36(3) of the Act.

    PROCEEDINGS BEFORE THE TRIBUNAL

13. The applicants appeared before the Tribunal on three occasions:  firstly, on 29 September 2020, then on 14 December 2020, and again, on 27 January 2021, to give evidence and present arguments. 

14. The applicants were not represented in this application by a registered migration agent.  All hearings were held with the assistance of an interpreter fluent in both English and Burmese.

15. At the first hearing, and again at the second hearing, I indicated to the applicants what documents I had in my possession.  Following the second hearing, additional documents were provided by the applicants relating to the migration status of Applicant 2’s mother.

16. At both the first and second hearings, I read to the applicants a summary of their claims for protection contained in pages 5 and 6 of the delegate’s record of the decision.  This ‘summary’ takes the form of a number of dot points, which indicate that (my summary):

    ·     Applicant 1 was involved in university pro-democracy movements. 

    ·     Applicant 1 acted with compassion and solidarity with respect to the Buddhist Saffron Revolution in 2007 and 2008, and assisted with some of the NGO relief for people affected by Cyclone Nargis in 2008. 

    ·     Since his departure from Myanmar, Applicant 1 has feared for his life because he believes he is perceived to be anti-government by the military establishment in Myanmar. 

    ·     Applicant 1 also provided evidence to suggest that, although his father was a senior government official in Myanmar, his mother’s family had been adversely affected by land acquisition decisions made by the authorities.

17. During the second hearing, Applicant 2 provided more detailed information relating to the circumstances surrounding her own personal family history.  According to Applicant 2, her mother had applied for protection in [Country] after having been a senior government official in her chosen field of speciality.  In that capacity, the applicant’s mother had previously travelled internationally on behalf of her government agency.  Eventually she sought, and was granted, political asylum in [Country] in October 2002.  Applicant 2 clearly found it difficult to explain her personal circumstances due, it appears, to the emotional effect that the separation of her parents and her own personal dislocation in Myanmar had had on her.

18. I have had the opportunity to interview this family unit at three hearings.  I have found their answers to my questions to be credible and straightforward.  I have also had the benefit of some useful, comprehensive, and relevant submissions concerning the personal history and circumstances of Applicant 2, including advocacy statements received from Applicant 2’s mother, who is currently resident in [Country].

19. I am prepared to give both applicants the benefit of the doubt.  In making this observation, I note the evidence given by both applicants, individually and separately during my hearings, relating to the covert nature of their return to Myanmar in 2011.  In particular, that on the occasion of this return visit they did not make it known to any person that they were travelling as husband and wife.  On the basis of this evidence, I find that the applicants face the genuine prospect of undue scrutiny due to the cumulative profile of the family unit, given the combined effect of the past politically motivated community-based work done by Applicant 1 and the special personal circumstances of Applicant 2.

20. Applicant 1 arrived in Australia as a Student visa holder in August 2008, and Applicant 2 arrived in September 2009, also as a Student visa holder.  Both applicants returned to Myanmar in May and June 2011.  Further student visas were subsequently issued to both applicants, and when these visas were cancelled in March 2014, the applicants applied for a Protection visa in April 2014.

21. I have had regard to more recent country information than that which was relied upon by the delegate.  In particular, the DFAT Country Information Report Myanmar, 18 April 2019; and, the ‘Myanmar Situational Update’, prepared by the Department of Home Affairs COISS, effective 21 December 2020. 

22. This Situational Update recognises that elections in Myanmar were reasonably free and fair, and that the National League for Democracy, led by Aung San Suu Kyi, has secured an emphatic victory, but that, regardless, with 25 per cent of parliamentary seats reserved for military, the longstanding control of the country by the military appears to have been maintained.

23. I have also had regard to the UK Home Office Country Policy and Information Note: Burma, critics of the Government, dated January 2019.  Reference is made[1] to the Country Guidance Case TS, dated 25 June 2013, by the United Kingdom Upper Tribunal which stated:

    In order to decide whether a person would be at risk of persecution in Burma because of opposition to the current government, it is necessary to assess whether such activity is reasonably likely to lead to a risk of detention, and the question of risk of ill-treatment will in general turn upon whether a returnee is detained by the authorities at any stage after return.

    [1] At [2.4.1].

24. The assessment of a foreseeable risk of harm to an applicant is an imprecise but necessary task for a decisionmaker.  In assessing the prospective exposure faced by a given applicant to harm in Myanmar on return, I am required to consider the applicant’s various risk profiles individually and cumulatively. 

25. In the first instance, considering the well-founded fear of persecution requirement in s.36(2)(a), I find it unhelpful, and in this instance unnecessarily limiting, to constrain my consideration of the global risk profile of the applicants to the technical confines of the refugee criterion.  Clearly, there are problems in assessing the applicants’ risk of harm, real or perceived, in Myanmar under either the ‘nationality’ or ‘political opinion’ elements of Article 1A of the Convention. 

26. What remains under this criterion is ‘particular social group’.  However, bearing in mind that the inherent and immutable characteristics of the applicants must be considered for the purposes of the Act relating to this limb of Article 1A (as explained in the case law), it is difficult to identify an appropriate particular social group that would adequately account for the cumulative risk profile of these applicants. 

27. Accordingly, for the purposes of this assessment, I find that the applicants do not meet the requirements of s.36(2)(a) of the Act, because the harm feared does not fall within the limbs of Article 1A of the Convention.

28. As is appropriate in such cases, I then must proceed to consider the alternative, ‘complementary protection’ criteria, at s.36(2)(aa) of the Act.  The test I must apply here is whether or not there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Myanmar, now or in the reasonably foreseeable future, the applicants face a real risk of significant harm. 

29. I note that ‘significant harm’ under s.36(2A) of the Act defines this in a manner that implies a standard of particularly grievous harm.

30. In assessing the potential of these applicants facing a real risk of significant harm on return to Myanmar, now or in the reasonably foreseeable future, firstly I must consider the various risks individually. 

31. Individually, when considering Applicant 1, and then considering Applicant 2, I find that the risks applicable to each aspect of the applicants’ various risk profiles do not reach a level that constitutes a real risk of significant harm.  However, when the cumulative effect of these particular vulnerabilities and risk profiles is considered, particularly if they were to return as a married couple, I find that cumulatively, due to these risks taken globally, there is a real risk that the applicants would be detained at the airport on return to Myanmar.  I further find that the country information referred to above suggests to a satisfactory level that what would result from this detention would be harm amounting to significant harm.  This risk applies now and in the reasonably foreseeable future.

32. Given this finding, I am satisfied that, on return to Myanmar the applicants face a real risk of significant harm, now or in the reasonably foreseeable future.  Accordingly, the applicants satisfy the criterion in s.36(2)(aa) of the Act, being the complementary protection criteria.

33. In considering whether or not the applicants would have access to effective and durable state protection and the availability of relocation within Myanmar, having had regard to the country information referred to above and the evidence of the applicants, I am satisfied that the principle agent of harm feared by the applicants is the Myanmar state and agencies thereof. 

34. I find, therefore, that effective and durable state protection is not available to the applicants if they were returned to Myanmar, now or in the reasonably foreseeable future. 

35. There is nothing to suggest the applicants can access effective third-country protection for the purposes of s.36(3) of the Act.

    DECISION

36. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Act.

    END OF ORAL DECISION  [2.50 pm]