1610045 (Refugee)

[2016] AATA 4557

1610045 (Refugee) [2016] AATA 4557 (7 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610045

COUNTRY OF REFERENCE:                  Burma (Myanmar)

MEMBER:Giles Short

DATE:7 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies paragraph 36(2)(a) of the Migration Act.

Statement made on 07 October 2016 at 6:35pm

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

INTRODUCTION

1. [The applicant] claims to be a stateless Rohingya Muslim from Burma (Myanmar).  He has said that he was born in Rangoon (Yangon), that he was only able to complete [a couple of] years of education because he had no documents and that he earned a living selling [goods] on the street.  He has said that he left Burma in 2012 after an incident in which he was involved in an argument with a police officer and he was arrested, beaten, kicked and insulted.  He has said that because he can be recognised as a Rohingya and a Muslim and because he had no documents he always had to pay money to the police to earn a living.  He has said that he believes that he will be put in gaol, that he will disappear or that he will be killed if he returns to Burma.

2. [The applicant]’s application for a protection visa was refused by a delegate of the Minister for Immigration and he applied to this Tribunal for review of that decision.  On 4 March 2016 the Tribunal, differently constituted (the first Tribunal), affirmed the decision under review.  [In] June 2016 the Federal Circuit Court ordered, by consent, that a writ in the nature of certiorari be issued to quash the decision of the first Tribunal and that a writ in the nature of mandamus be issued directing the Tribunal to reconsider and determine the matter according to law.  The Court noted that the Minister conceded that the decision of the first Tribunal was affected by jurisdictional error in the same manner found in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. It said that:

   ‘In relation to the applicant’s claimed fear of persecution arising from the incident with the policeman, the finding at [43] that ‘the Tribunal is not satisfied the applicant is as impoverished as he claimed’, referring to payments of large amounts of money to ‘get around generalised mistreatment’ constituted an error in that it required the applicant to engage in certain conduct in order to avoid persecution. This prevented the Tribunal from properly considering the applicant’s claim to fear the police or Burmese authorities generally and whether the applicant would have access to state protection.’

3. The matter is now back before the Tribunal pursuant to the orders made by the Federal Circuit Court.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issue in this review is whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Burma.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Burma?

   [The applicant’s] claims

4. [The applicant] has said that he is aged in his [age].  He has said that he was born in [Town 1] in Rangoon (Yangon) and that he lived there before he left Burma in December 2012.  In a statement accompanying his application for a protection visa he said that he had only completed [a couple of] years of primary school because he did not have a birth certificate or other documents.  He said that after he had left school he had worked selling [goods] imported from China on the street.  He said that because he was a Muslim he had had to pay money to the police so that they would not take all the things he was selling.  He said that the police had known that he was Rohingya because of his appearance, his accent and the fact that he had attended the mosque at prayer times.

5. [The applicant] said that one day a policeman had taken some of the things he was selling without paying.  He said that they had had an argument and that he had pushed the policeman who had fallen down.  He said that he had been arrested that night and beaten, kicked and insulted.  He said that his father had paid 50,000 kyats to obtain his release the following morning.  He said that his father had had to sign a document to say that he would not make any trouble in the future and that he would do exactly what the police said.  [The applicant] said that it was impossible for him to live in Burma and that he feared returning there because he was stateless and he had no rights.  He said that the authorities discriminated against the Rohingya and persecuted them.  He said that he had crossed into [Country 1] and he had caught a boat to [Country 2] from where he had come to Australia.

6. [The applicant] was interviewed by the primary decision-maker in relation to his application [in] July 2014.  [The applicant] said that he did not have a Burmese name, only his Muslim name.  He confirmed that he had been born in Rangoon and that he claimed to be stateless.  He said that he had no identity documents.  He said that he and other members of his family had applied for identity documents or any document which would enable them to stay there legally but they had never been granted anything.  He said that he had applied for a birth certificate but he had not got one.

7. [The applicant] said that he had not been assisted by anyone such as an agent when he had left Burma.  He said that he had paid a bribe of 10,000 ‘Burmese money’ to the police at the border because he had not had any documents.  He said that he had borrowed this money from some of his [relatives] who also lived in Rangoon and from his family.  He confirmed that he had crossed from [Town 2] in Burma to [District 1] in [Country 1].  He said that this had been [in] December 2012.  He said that he had met some Burmese in [District 1] who had helped him to travel by car to a place where he had boarded a boat to go to [Country 2] .  He said that he had paid $US700 to come to Australia.  He said that he had borrowed this money in US dollars from his [relatives] as well.

8. [The applicant] said that he had decided to leave Burma because they did not have any hope or chance or life there any more.  He said that there was too much difficulty.  He said that before coming to Australia he had heard that Rohingyas were granted protection here.  He said that his family had been living in [Town 1] in Rangoon but he said that his parents had been born in [Village 1] in Rakhine State.  He said that his father had been a street seller but because his father had had health issues [details] he had taken over from him.  He said that culturally his sisters as Muslim girls were not permitted to work.  He confirmed that he had been supporting his entire family.  He confirmed that his uncle’s family lived in Rangoon as well and he said that his uncle and his cousins were now supporting his family.  He said that he was in contact with his parents in Burma.  He said that no members of his family had had problems apart from him.

9. [The applicant] said that he had wanted to study more but he had not been able to study beyond [Grade] because he had had no official documents.  He confirmed that after he had left school he had helped his father to sell [goods] imported from China.  He said that they had had to pay money to the authorities for permission to sell in the streets but as Muslims and Rohingyas they had been asked to pay more.  He said that the authorities had tried to take their stock when they had gone for prayers.  He said that they had also known from their appearance that they were Muslims and Rohingyas.

10. [The applicant] confirmed that he claimed that one day a policeman had tried to take some [goods] without paying and they had argued.  He said that this had been before December but he did not know in exactly which month.  He said that the policeman had punched him and he had pushed the policeman.  He said that the next day this policeman had come to his home with another policeman and they had taken him to gaol.  He subsequently said that he had been taken to the [Town 1] police station.  He said that the policemen had kicked and beaten him and they had abused him.  He said that he had been arrested in the morning and detained overnight.  He said that they had asked for money from his father - 50,000 - in order to release him.  He said that he had been released the next afternoon.  He said that the problem was that they had had to do what the police told them to do.  He said that he did not know if he had been charged with an offence.  He said that they had told him that he had to follow what they told him to do if he wanted to stay in that area.  He said that he had been to a clinic after he had been released and that he still had pain in his [body part] when the weather was very cold.

11. [The applicant] said that he was really afraid to return to Burma because it would be really dangerous for his life.  He said that he was afraid of the government and the police.  He said that they knew that Rohingya people did not have any rights in Burma.  He said that once they put you in gaol or in prison you would never return back.  He said that the government hated them and they did not want them to stay in Burma.

12. The primary decision-maker put to [the applicant] that there were many Rohingyas in Rangoon who had been living there for a long time and who operated well-established small businesses.  [The applicant] said that these people had a lot of money and they were able to pay off the authorities but his family were poor so they could not afford to pay off the authorities to stay there peacefully.  He said that this was why they suffered.  The primary decision-maker put to [the applicant] that Rohingyas in Rangoon were not subject to the same restrictions on accessing education as Rohingyas in Rakhine State.  [The applicant] said that the children of those families who could afford to pay bribes to the authorities were able to study.  He said that people like his family who were poor were unable to pay the authorities what they were asking.

13. The primary decision-maker put to [the applicant] that a significant number of Rohingyas living in Rangoon had National Registration Cards and could obtain passports and household registration lists.  [The applicant] said that the people who had this documentation had paid bribes.  He said that real Rohingyas who wanted to obtain these things would never get them.  The primary decision-maker put to [the applicant] that what he had said at the interview with regard to his departure from Burma was quite different from what he had said at the entry interview.  In his entry interview he had said that his father had made arrangements with an agent and had paid $US3,500 to this agent.  He had also said that he had fallen down and he had been injured when he had argued with the policeman.  [The applicant] denied this.  He said that he had been so nervous at the time that he had not known what had been going on but that he had said later on that this was not true.  His representative noted that this latter inconsistency had been specifically addressed in the statement accompanying his application.

14. After a break to consult his representative [the applicant] said that it was well-known that Rohingya people were persecuted in Burma.  He said that this was why he was afraid to go back and he felt that his life would not be safe.  His representative submitted that there was overwhelming country information that presented a different picture of the treatment of Rohingyas in Burma from that advanced by the primary decision-maker.  The primary decision-maker said that he knew this.  [The applicant]’s representative submitted that it would not be overstating the case to say that there was a generally accepted position with regard to the persecution of Rohingya people in Burma.  He submitted that those Rohingyas who were able to get around those difficulties better than others were only able to do so through the payment of large amounts of money.  He submitted that this did not give these people any security if they stopped paying that money.

15. [The applicant]’s representative submitted that Rohingya people like [the applicant] were subject to persecution in the form of arbitrary arrest, beatings and torture.  He submitted that this could happen at any time because the authorities acted with total impunity and there was no one to protect the Rohingya.  He submitted with regard to the discrepancies in[the applicant]’s account of his departure from Burma that the bulk of his account was in fact entirely consistent and that allowances should be made for small errors made by people who were in a frightening situation after a difficult journey and who came with an enormous fear of authority.  He submitted that there had been a confusion around the arrest which did not bring into question the overall truth of[the applicant]’s claims.

16. On 21 December 2015 [the applicant] produced to the Tribunal a membership card issued by the Burmese Rohingya Community in Australia and a letter dated [in] May 2015 from that organisation stating that he was a Rohingya and that he had been born in [Village 1] in Rakhine State.  The letter said that the Rohingyas were facing human rights violations and that they were stateless in Burma.  It said that since 2012 they had been experiencing the worst violence and that as a result they had fled for the safety of their lives.

17. At the hearing before the first Tribunal on 29 February 2016 [the applicant] confirmed that he did not have a Burmese name.  He said that because he was a Muslim he preferred to use a Muslim name.  He confirmed that his parents and his [sisters] were all still living in Burma and that he was in contact with his family by telephone two or three times a week.  [The applicant] confirmed that he had been born in Rangoon and that his family had fled [Village 1] because of the persecution in that area.  He said that he was still unemployed in Australia because of his uncertain visa status.  He said that he attended the mosque five times a day to pray.

18. [The applicant] said that a broker had organised his travel from Rangoon all the way through.  He said that he had not paid any money at the border with [Country 1].  He said that somebody organised by the broker had picked him up and he had crossed the border in a small rowing boat.  The Tribunal put to him that he had told the primary decision-maker that he had paid a bribe at the border.  [The applicant] repeated that he had crossed the border to [District 1]in [Country 1] by boat.  He said that money had been paid but he did not know how the broker had organised it.  He then said that he had in fact personally paid a bribe to the police at the border in order to cross.  He said that his cousin had given him the money to pay this bribe.  He then said that the money had been paid by the agent and that it had all been organised from Rangoon.  The Tribunal put to him that he had told the primary decision-maker that he had not been assisted by an agent to leave Burma.  [The applicant] said that this was not right.  He said that his father had organised the whole trip but because his father had not had enough money his cousin had lent some money to him.  He said that this was the same cousin who was currently assisting his family in Burma financially.  He said that this cousin had a shop and that he had some good connections around or near the government.

19. The Tribunal put to [the applicant] the same information which had been put by the primary decision-maker to the effect that a significant number of Rohingyas living in Rangoon had National Registration Cards and could obtain passports and household registration lists and that many had established small businesses there.  [The applicant] said that this information referred to people who were well-established, who had been there for a long time and who had good businesses and good connections with the government agencies so they were able to obtain some identity documents but there were other groups which did not have the same connections and money and who were not able to obtain any identity documents.  He said that he was one of this group.

20. The Tribunal put to [the applicant] that the situation for Rohingyas outside Rakhine State varied from place to place.  [The applicant] said that although there were some Rohingyas in Rangoon they preferred not to speak the Rohingya language to each other because of the persecution.  He said that if they spoke Rohingya to each other they would be easily identified.  The Tribunal put to him that he had said that he could easily be identified as a Rohingya.  [The applicant] said that the Rohingyas were similar in appearance to other Muslims but even the Muslims discriminated against the Rohingyas.  He said that they called them Kaw Taur Kalar which was a very derogatory term.

21. The Tribunal put to [the applicant] that it did not think that all Rohingyas in Burma were necessarily owed protection in Australia although clearly some of them might be owed protection.  It put to him that Rohingyas in Rangoon who had National Registration Cards had far greater access to government services than stateless Rohingyas in Rakhine State.  It put to him that it might find that the reason why he had not continued attending school after [Grade]  had been that his father had not been able to afford to keep sending him to school.  [The applicant] said that to progress to Grade [number] he would have needed to pass a national examination and in order to sit for this examination he would have required identity documents.  He confirmed that he was not a Burmese citizen.  He said that the Burmese Government wanted to label them as illegal immigrants from neighbouring countries but this was not correct: his grandparents had been living in Burma for decades.

22. [The applicant] confirmed that the authorities had known that he was a Rohingya and that for this reason they had asked for more money from him than from other street sellers.  He said that they always tried to extort money from them and to threaten them because they knew that they did not have any power to fight back.  He said that his family did not own their own house and they had to pay bribes to the local authorities because they did not have a census document.  He said that his business had not been that successful: it had been a small business and he had had to look after the house and buy the products which he sold.  He said that he had not been the one who had paid for his travel to Australia: it had been his father who had paid $US3,500 to the broker.

23. [The applicant] said that the police normally came and asked for money but on three previous occasions this particular police officer had taken the goods.  He said that on this occasion he had argued with the police officer and the police officer had pushed him down.  He said that while the police officer had been pushing him he had also pushed the police officer down.  He said that after that he himself had fallen on the ground.  He said that other people had gathered and the police officer had left.  He said that after this the police officer had come and had taken him to gaol.  He confirmed that he had been mistreated and his father had paid a bribe in order for him to be released.  He said that this had happened in mid-October 2012.  He confirmed that he not been charged with an offence but he said that because he had signed a document they had a record of him and they could come at any time and arrest him, harass him and torture him.  He said that he had gone back to work after he had been released.

1. [The applicant] said that if he returned to Burma he would be imprisoned and tortured because they did not want Rohingyas in their country.  He said that a lot of people who had been imprisoned had gone missing.  He said that if he had had the family census document and a National Registration Card he would be an educated person and he would probably be a professional like an engineer or a doctor or working for the government.  He said that since he had not had any documents he had not been able to have a life like this.  He said that although it was said that Burma was a democracy the military were still ruling and the persecution of the Rohingyas was still continuing.  He said that they were deprived of their basic human rights.

   Discussion of[the applicant]’s claims

2. At the hearing before me on 5 October 2016 [the applicant] confirmed that he did not have a Burmese name.  I put to him that, as had been discussed on previous occasions, most Rohingya had a Burmese name as well as a Muslim name.[1]  [The applicant] agreed but he repeated that he only had a Muslim name.  He confirmed his date of birth as given in his application and that he had been born in Rangoon.  I noted that the letter which he had produced from the Burmese Rohingya Community in Australia said that he had been born in [Village 1], not in Rangoon.  [The applicant] said that this was not correct.  He said that his parents had been born in [Village 1] and they had moved to Rangoon.  He said that he did not have any identity documents: he had never had a National Registration Card, for example.  He said that they did not give anything to Rohingyas.  I put to him that a significant number of Rohingyas in Rangoon did have National Registration Cards.[2]  [The applicant] said only people who had been living there for a long time, who were wealthy and who were well-educated were able to obtain these documents.  He said that on the other hand those who were poor and illiterate and who had no education were not able to obtain these documents.  I asked him if he had ever had a birth certificate.  He said that he did not have anything because he was a Rohingya.  I asked him how he knew his date of birth.  He said that his parents had told him that in the hospital where he had been born they had been shown a document after he had been born but they had taken this document back from them.

   [1] ‘The Stateless Rohingya: Language and Culture’, downloaded from language.html, 2014, CIS28966.

   [2] Australian Department of Foreign Affairs and Trade (DFAT), ‘CIS Request No. BUR13329 Rohingya in Rangoon’, 15 June 2012, CX289305.

3. [The applicant] confirmed that he had only been able to complete [a number of] years of primary school and that he had then worked selling [goods].  He said that he had not had a shop or stall: he had sold in the market in [Town 1] which he said had been an open space in the street.  He said that he had had to pay the Municipal Police money to get a spot to sell because he had not had any documents and he had also not had a licence.  He said that he had bought the toys he sold from people who sold them in bulk.  He said that if a [goods] cost him 500 he would sell it for around 520 or 530.  He said that he would sell between 10 and 20 [goods] a day but sometimes he would not sell any.  He agreed that this meant that he had been making 200 to 300 kyats a day and he said that this had sometimes been enough to support his whole family and sometimes not.  He said that regardless he had had to run his house and to pay the rent as well.

4. [The applicant] confirmed that he had made his living in this way for over 15 years.  I asked him why he had decided to leave Burma in 2012.  He said that he had had a problem with the police when he had been selling stuff there.  He said that if he had stayed there they would have kept bothering him and telling him to come to their place and they would have made his life difficult.  He said that his life had also been at risk at this time and this was why he had left.  He said that this had been the first time he had had a problem with the police.  He said that there had always been injustices against the Rohingyas because of their race and their religion.  He said that this had been true under the military government but even now the military comprised 25 per cent of the parliament and ‘that lady’ could not do anything.

5. I noted that [the applicant] had told me that he had always had to pay money to the police to allow him to sell on the street but that he had had a particular problem with the police in 2012.  [The applicant] said that the police took money from the people who did not have licences but if, for example, they asked for 10,000 from normal people, they would ask extra - they would ask for 20,000 - from the Rohingyas because they could tell from their physical appearance that they were Rohingyas and that they were Muslim.  I noted that he had said that he had been doing this for 15 years.  [The applicant] said that he had been able to bribe them to keep doing this but they had always bothered him.  He said that sometimes they had taken his stuff.  He said that he had had to be patient but ultimately he had lost his patience because of the problem he had had and because his life had been at risk.

6. I asked [the applicant] why his life had been at risk.  [The applicant] said that the government had given them power because the government did not like Muslims: there were no opportunities or jobs for Muslims, there was no place for Muslims and it was very difficult to get a job or to survive.  He said that they discriminated against Muslims.  I asked him if something in particular had happened in 2012 which had made him decide that he had to leave Burma.  [The applicant] said that he had had a problem with the government and once you had such a problem you either ended up in gaol or somewhere else.  He said that they had threatened him, saying that they would look for him.  He said that he had been scared that something would happen to him and he had known that his life would be at risk so he had decided to leave.

7. I asked [the applicant] if he had ever been arrested or detained.  He said that one time he had been taken when he had had an argument with a police officer when he had been selling stuff.  He said that this had been just before he had come here, in around 2012.  He said that this had been the first time he had had an argument with a police officer.  He said that most of the time when he had been selling they had asked him for money and if he had not been able to pay them they would have taken the stuff he was selling.  He said that they had kept abusing him as a Rohingya.  He said that on one occasion a police officer had asked him for money and he had told him that he did not have money to give him.  He said that they had had an argument, that the police officer had pushed him and that he had retaliated and pushed back.  He said that then all the other Muslim people in the market had gathered and the police officer had left.

8. [The applicant] said that he had been arrested that night and they had taken him to the gaol.  He said that one of them had beaten him with a belt and had also kicked him.  He said that they had kept telling him that this was not his country.  He said that the next day his father had come and had paid a fine.  He said that his father had also had to sign an agreement saying that he would not be able to stay further if he caused any issue with the government and that they could take him at any time without any questions.  He agreed that they could have done this anyway.  I indicated to him that it was not clear to me what significance the piece of paper had had.  [The applicant] repeated that it had been an agreement that they could do whatever they liked and that if he caused any problem in future they could put him in gaol or do anything to him.  He agreed that they could do whatever they wanted anyway but he said that because of this agreement he had been afraid so he had left Burma.

9. I asked [the applicant] how he had actually left Burma.  He said that from Burma he had gone to [Country 1] and from [Country 1] to [Country 2].  He initially said that he had gone from Burma to [Country 1] by boat.  He then said that first he had gone to [City 1] by car and from there they had crossed the border to [District 1].  He said that he had had to pay money to the government people who were responsible for taking care of the matters on the road in order to cross the border.  He said that he had had to pay on the Burmese side of the border and also on the Thai side but on the Burmese side he had had to pay double because they had been able to recognise him as a Muslim through his physical appearance.  He said that if other people had had to pay 3,000 he would have to pay 4,000 because he did not have any documents.  He confirmed that he was claiming that he had had to pay 4,000 Burmese currency in order to cross the border.

10. I put to [the applicant] that he had said different things at different times about how he had crossed the border.  I put to him that when he had been interviewed by the primary decision-maker he had said that he had paid 10,000 Burmese currency to the police at the border.  [The applicant] said that maybe he had said this because he had been very worried or anxious and when someone was worried or anxious they could say anything.  He said that his mental health was not good.  He said that after the hearing before the first Tribunal he had not been able to sleep well and because of this he had gone to see a doctor.  He produced a letter saying that he had consulted a doctor on 21 April 2016 and had given a clinical history consistent with [medical condition].  The letter said that he was also suffering from [medical condition].  [The applicant] also produced prescriptions for[medication].  He said that he had told the doctor that he had been forgetting everything easily and that he was having too much stress and worry.  I noted that this had been after he had received the decision of the first Tribunal.  [The applicant] said that this had been an ongoing issue for him but he had not sought medical attention because he had thought that maybe he would be able to cope by himself.  He said that later on he had been having difficulty falling asleep because he had had a lot of tension and trauma from his country and now here.

11. I put to [the applicant] again that he had said different things at different times about how he had crossed the border between Burma and [Country 1].  He had told the first Tribunal that his father had paid $US3,500 to an agent and that he had crossed the border into [Country 1] in a small rowing boat.  [The applicant] said that this was correct.  I put to him that this was different from what he had just told me.  [The applicant] said that because his application for a protection visa had been refused his Centrelink payments had been stopped and he had been struggling financially.  He said that now he had managed to find work and he was paying tax: he was not relying on any NGO payments.  He said that now he was on medication and he had got a bit better but his [health] was still not settled.  I put to him that I thought that he would remember how he had crossed the border into[Country 1].  [The applicant] referred to what he had suffered in Burma and he said that when he had come here he had still been suffering in terms of language and settling.  He said that he had had too much worry and concern.

12. I referred to the fact that, as had been discussed at the previous hearing, the Australian Department of Foreign Affairs and Trade had advised in June 2012 that some Rohingya in Rangoon had Burmese citizenship, they possessed National Registration Cards, they could obtain passports and they were not in general subject to restrictions on movement or the ability to obtain an education.[3]  [The applicant] said that this was only for people who had a good relationship with the government, who were rich and who had already been settled there for a long time.  He said that people who had come from Arakan (Rakhine State) and who were not settled well were not able to do this.  He said that he did not have any documents and because of this the government could do anything they wanted with him.  He said that everyone in the world knew that the Muslims and the Rohingyas were being oppressed in Burma.  He said that they did not issue any kind of document to Muslim people.  He said that they still discriminated against people on the basis of their race and their religion.  He said that he had come here to seek protection and he had heard that Australia protected people.  He said that if he returned to Burma he would definitely be killed or he would disappear and even his family would not be able to find him.

    Conclusions

    [3] DFAT, ‘CIS Request No. BUR13329 Rohingya in Rangoon’, 15 June 2012, CX289305.

13. It is true that there are significant inconsistencies in[the applicant]’s evidence.  At the entry interview and at the hearing before the first Tribunal he said that his father had paid $US3,500 to an agent or broker in Rangoon and that he had crossed the river to [District 1] in [Country 1] in a small boat.  When he was interviewed by the primary decision-maker he said that he had paid a bribe of 10,000 Burmese money to the police at the border to cross from [Town 2] in Burma to[District 1].  At the hearing before me he said initially that he had gone from Burma to [Country 1] by boat, then that he had paid 4,000 Burmese currency to the government people who were responsible for taking care of the matters on the road in order to cross the border.  By way of explanation for these inconsistencies [the applicant] has said that he was nervous or very worried or anxious and that when someone is worried or anxious they can say anything.  At the hearing before me he said that his [health] was not good and that he had seen a doctor after the hearing before the first Tribunal.  He produced a letter saying that he had consulted a doctor on 21 April 2016 and had given a clinical history consistent with [medical condition] .  As I put to him, however, I think that he would remember whether he crossed the border into [Country 1] by crossing the river in a small boat or by paying a bribe to the police at the border.

14. There is also an inconsistency in [the applicant] ’s evidence with regard to the incident which he has said prompted him to leave Burma.  At the entry interview he said that the police officer had pushed him and he had fallen down, injuring himself.  In the statement accompanying his application for a protection visa he said that this was wrong and that he had pushed the police officer, causing the police officer to fall down.  At the hearing before the first Tribunal he said that in this incident the police officer had pushed him down.  He said that while the police officer had been pushing him he had also pushed the police officer down.  He said that after that he himself had fallen on the ground.  He said that other people had gathered and the police officer had left.  At the hearing before me he said that the police officer had pushed him and that he had retaliated and pushed back.  He said that then all the other Muslim people in the market had gathered and the police officer had left.  I do not regard this inconsistency as being as significant as the inconsistencies in[the applicant]’s evidence about how he left Burma.

15. Both the primary decision-maker and the first Tribunal considered that the inconsistencies in[the applicant]’s evidence were sufficient to support a positive finding that he was a Burmese citizen and not stateless, as he had claimed, and that he had left Burma legally travelling on a Burmese passport.  I have respectfully come to a different conclusion.  Both the primary decision-maker and the first Tribunal relied on the advice provided by the Australian Department of Foreign Affairs and Trade in June 2012 that some Rohingya in Rangoon had Burmese citizenship, that they possessed National Registration Cards and that they could obtain passports.  However the advice in question said that many Rohingya in this category to whom the Australian Embassy had spoken ‘reported being forced to pay hefty “fees” to obtain these documents (and household registration lists), and routine discrimination whenever they dealt with government authorities (i.e. enrolling a child in school, harassment by local authorities over the legal status of small business etc.)’.[4]  The DFAT Country Information Report - Burma (9 June 2015) states that:

    ‘Some Rohingya outside Rakhine state have been able to secure identity documentation by registering as another (normally Muslim) ethnicity. However this practice is neither legal nor widespread.’[5] (emphasis added)

    [4] DFAT, ‘CIS Request No. BUR13329 Rohingya in Rangoon’, 15 June 2012, CX289305.

    [5] DFAT Country Information Report - Burma, 9 June 2015, paragraph 3.9.

16. The Department explained that although many Rohingya were eligible for a form of citizenship under the 1982 Citizenship law, this was only ‘naturalised’ or ‘associate’ citizenship and offered diminished rights compared to full citizenship.  Moreover it required Rohingya to state their ethnicity as ‘Bengali’, a requirement which many Rohingya rejected, believing that it denied the existence of the Rohingya in Burma before 1823 and reinforced an inaccurate view of the Rohingya as immigrants from Bangladesh.  The Department said that as a result of a pilot project in 2014 the government had granted citizenship to approximately 800 Muslims (including both ethnic Kaman and Rohingya) out of a reported 1,000 applicants but that ‘at the time of writing, this avenue for applying for citizenship was not open to the majority of Rohingya’.[6]  I conclude on the basis of the Department’s advice referred to in this and the preceding paragraph that, while there may be some Rohingya in Rangoon who have Burmese citizenship, the vast majority have not obtained this legally, but by paying money, and that the legal avenues for Rohingya to obtain even ‘naturalised’ or ‘associate’ citizenship are not open to the majority of Rohingya.

    [6] DFAT Country Information Report - Burma, 9 June 2015, paragraphs 3.7-3.8.

17. I accept that [the applicant] is a Rohingya and a Muslim.  I note in this connection that he speaks the Rohingya language as well as the Burmese language.  I consider that the weight of the evidence favours the conclusion that, despite the inconsistencies in his evidence, he is stateless, as he has consistently claimed, rather than being a Burmese citizen, and I so find.  Both the primary decision-maker and the first Tribunal laid stress on the fact that [the applicant] had said at the interview with the primary decision-maker that no members of his family had had problems apart from him.  However I consider it clear from[the applicant]’s evidence that in saying this he was referring to a specific problem of the sort he claims to have had in 2012 rather than the persistent and pervasive discrimination against Rohingyas and Muslims which he has described.  [The applicant] has consistently said that he had to pay money to the Municipal Police in order to be allowed to earn his living as a street seller, that he had to pay more money than other street sellers because he was a Rohingya and a Muslim, and that the authorities knew that they could extort money with impunity from the Rohingyas and Muslims in this way because they had no one to protect them.

18. I consider that [the applicant]’s evidence in this regard is consistent with the advice provided by the Australian Department of Foreign Affairs and Trade.  As referred to above, in its advice in June 2012 it said that the Rohingya living in Rangoon reported ‘routine discrimination whenever they dealt with government authorities (i.e. enrolling a child in school, harassment by local authorities over the legal status of small business etc.)’.[7]  In the DFAT Country Information Report - Burma (9 June 2015) the Department said that ‘taking into account their lack of access to citizenship and lower level of access to employment, and health and education services, DFAT assesses that Rohingya in Burma (whether residing in IDP camps or not) face a high level of official discrimination’.[8]  The Department said that Rohingya outside Rakhine State did not generally publicise their ethnicity and that the level of societal discrimination which they faced was similar to that faced by other Muslims or people of South Asian appearance living in Burma.  The Department said that it assessed that Rohingya outside Rakhine State experienced moderate levels of societal discrimination on a day-to-day basis.[9]

    [7] DFAT, ‘CIS Request No. BUR13329 Rohingya in Rangoon’, 15 June 2012, CX289305.

    [8] DFAT Country Information Report - Burma, 9 June 2015, paragraph 3.18.

    [9] DFAT Country Information Report - Burma, 9 June 2015, paragraph 3.25.

1. For the reasons given above I find that [the applicant] is stateless and that he is unable to return to his country of former habitual residence, Burma, the country where he had lived all his life before he came to Australia in 2013.  In order for him to come within the definition of a refugee in Article 1A(2) of the Refugees Convention, he must also be outside the country of his or her former habitual residence owing to a well-founded fear of being persecuted for a Convention reason.[10]  I accept that [the applicant] is outside his country of former habitual residence, Burma, owing to a well-founded fear of being persecuted for reasons of his race (Rohingya) and his religion (Muslim) having regard to the evidence that the Rohingya (even those living in Rangoon) face a high level of official discrimination and moderate levels of societal discrimination on a day-to-day basis and that [the applicant] himself faced constant demands for money which affected his ability to earn a livelihood and which were enforced by the threat of arbitrary arrest, detention and physical ill-treatment of the sort which he experienced in 2012.

   [10] See Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168.

2. I consider that the persecution which [the applicant] fears involves ‘serious harm’ as required by paragraph 91R(1)(b) of the Act in that it involves a threat to his liberty, significant physical harassment or ill-treatment and significant economic hardship that threatens his capacity to subsist.  I consider that his race and his religion are the essential and significant reasons for the persecution which he fears, as required by paragraph 91R(1)(a) of the Act.  I further consider that the persecution which he fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for a Convention reason.  Since the government authorities in Burma are responsible for the persecution which [the applicant] fears, I consider that there is no part of Burma to which he could reasonably be expected to relocate where he would be safe from the persecution which he fears. 

   CONCLUSIONS

3. For the reasons given above, I find that [the applicant] is outside his country of former habitual residence, Burma, owing to a well-founded fear of being persecuted for reasons of his race and his religion. I find that he is unable to return to his country of former habitual residence. There is nothing in the evidence before me to suggest that he has a ‘right to enter and reside in’ any country other than his country of former habitual residence, Burma, of the kind referred to in subsection 36(3) of the Migration Act.[11] It follows that I am satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore he satisfies the criterion set out in paragraph 36(2)(a) of the Migration Act.

   [11] See Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35.

   DECISION

4. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies paragraph 36(2)(a) of the Migration Act.

   Giles Short
   Senior Member

   
   

   ATTACHMENT A - RELEVANT LAW

5. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.’

   Refugee criterion

6. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.  Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

7. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

8. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

9. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

   ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

10. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

    ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

11. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

12. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

    ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

13. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

    ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

    Ministerial direction

14. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

15. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

16. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

17. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.