1610977 (Refugee)

1610977 (Refugee) [2020] AATA 1502 (30 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610977
COUNTRY OF REFERENCE:                   Myanmar (claimed Stateless)
MEMBER:James Silva
DATE:30 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 30 April 2020 at 09:45 am

CATCHWORDS
REFUGEE – protection visa – Myanmar – non-disclosure certificate – race – Rohingya ethnicity – citizenship status – claimed statelessness or Myanmar citizen – assessment of credibility – lack of candour concerning the provision of documentations – ability to travel and reside throughout Myanmar – National Registration Card (NRC) – temporary registration card (TRC) – household registration certificate – discrimination as a Rohingya descendant – family’s integration into the Burmese Muslim community – applicant’s lack of Rohingya language skills and cultural identity – religion – Sunni Muslim – molavi – religious teacher – discrimination and violence against Muslims – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 45AA, 65
Migration Regulations 1994 (Cth), r 2.08F; 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a man in his mid-[age range] from Myanmar (Burma). He departed Myanmar on a passport of that country, but claims to be a stateless Rohingya, and formerly resident in Myanmar.
The applicant arrived in Australia [in] May 2013, by boat and without authorisation.
The applicant applied for a protection visa (class XA, subclass 866) visa on 30 August 2013. By operation of s.45AA of the Act and r.2.08F of the Regulations, from 16 December 2014 the application was taken to be, and to have always been, a valid application for a temporary protection (class XD, subclass 785) visa and was taken not to be, and never to have been, a valid application for a protection (class XA) visa.
On 23 June 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a temporary protection (class XD) visa pursuant to s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
The applicant appeared before the Tribunal on 10 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages. The applicant is unrepresented in this matter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is set out in the attachment to this decision. A key question is whether the applicant is a stateless Rohingya as claimed, or a citizen of Myanmar.
CLAIMS AND EVIDENCE
Claims
The applicant claims to be a stateless Rohingya to whom the Myanmar authorities have denied citizenship or documentation, due to his ethnicity, and who as a result has lived an unsettled, marginalised life as a result. He also claims that as a Muslim and religious teacher, he experienced verbal abuse and, from early 2013, witnessed anti-Muslim violence; he fears further mistreatment from the Buddhist majority and the authorities. He claims to fear persecution or significant harm in Myanmar as a result, cumulatively, of his Rohingyan ethnicity (and imputed Bengali nationality, and statelessness); his Muslim faith; and his prospective status as a failed asylum seeker.
Background
The applicant is a [age] year old man born in Hsipaw[1], a township in Myanmar’s Shan State. He is a Muslim, and claims to be an ethnic Rohingya. His first language is Burmese. On arrival in Australia and in his protection visa application, he stated that he also speaks Rohingya and is literate in Urdu (the latter being the language of much Islamic study in Myanmar). At hearing, the applicant stated that he also speaks a little Shan and Hindi; he nominated these before Rohingya.
[1] Also written Thipaw or Thibaw, due to variations in transliteration and pronunciation.
The applicant attended primary and middle school in Hsipaw until the age of about ten, and then attended four different schools – two in Mandalay (both religious schools, madrassas), and two in Yangon (‘universities’ in [Town 1] and [Town 2]). The applicant said that all these schools were privately run, religious boarding schools.
After completing university in Yangon, the applicant claims that he returned to Hsipaw, where he helped in his family’s [business]. From 2006 to 2007, he was in Mandalay. He had no formal work there, but travelled locally as an itinerant preacher. In 2007, he returned to Shan state and again worked in his family’s [business]. He spent some periods of time in Yangon (2008-2010, and again in 2011-2013), and in Shan state with his family. The applicant wrote on his protection visa application that, in Yangon, he was self-employed as [an occupation] and in [a certain industry]; and from 2011 he owned and operated a [business], as well as being a ‘[industry] agent’.
At hearing, the applicant claimed that he also used to teach in Yangon. (This is potentially relevant to his claims about his experiences as a Muslim, and his future conduct and profile if he returns to Myanmar.) In response to the Tribunal’s observation that he had not mentioned those activities in Yangon earlier, the applicant said he was concerned that there had been some misunderstandings through the interpreter. He said that the delegate’s decision had also incorrectly stated that he had worked as a [Occupation 1], when in fact he merely used to earn commission if he [perform specified task] (presumably, as a kind of [agent]).
The applicant claims that his parents were born in [Town 3], Rakhine State. His father died in 2014, and his mother spends time between Yangon and Hsipaw. He claims to have [a number of] siblings, all born in Hsipaw from [year] on. His oldest brother, who is [age] years of age, is unmarried and lives in [Country 1]. Another [number of] siblings live in Myanmar – an older sister near Mandalay[2], and the others in Yangon. One sister is deceased. The applicant said that three of his sisters are married, all to Rohingyan men without nationality.
[2] The Tribunal understood the applicant to refer at the Department interview and at hearing to ‘[Town name]’.
The applicant told the Tribunal that he is in contact with his widowed mother and some siblings in Myanmar, mostly via the messaging [app], which his younger brother has on his smartphone. He said that he has no relatives in Australia.
The applicant departed Yangon International Airport [in] April 2013, flying to [Country 2] and onwards to [Country 3]. On his protection visa application form, he indicated that he departed ‘legally’, on a Myanmar passport in the name of [alias]. He described the passport as ‘fraudulent’ (i.e., a genuine document, but fraudulently obtained). An agent in Myanmar had arranged the passport for him. In [Country 3], another agent (implicitly, someone involved in his travel to Australia) took it from him.
Evidence
The evidence before the Tribunal includes the following relevant material (from the Department and the Tribunal files):
§ Notes from the applicant’s Irregular Maritime Arrival Entry Interview on 25 May 2013.
§ The applicant’s protection visa application form, lodged on 30 August 2013, accompanied by a statutory declaration setting out his protection claims.
§ Identity and personal documents:
-   A copy of his Myanmar drivers licence, issued in 2010 (valid [until] 2015);
-   An undated copy of certificate of achievement from [University 1], Yangon, in English; and
-   An English translation of a text indicating that the applicant achieved a degree certificate from the [University 1] (no original), which the applicant submitted at hearing.
§ Letter of support from [Mr A], [office holder] of the Burmese Rohingya Community in Australia dated [in] November 2015.
§ Undated Department of Immigration and Border Protection Identity Assessment Report.
§ The applicant attended a protection visa interview (‘Department interview’) on 27 January 2015, a recording of which is on the Department file.
§ A post-interview submission by his (then) representative, dated 4 February 2015[3].
§ The delegate’s protection visa decision record (‘delegate’s decision record’) of 23 June 2016.
§ Review application form, lodged on 20 July 2016. The applicant attached to this a copy of the delegate’s notification letter, but not the decision record.
§ The applicant also sent a further statement dated 9 September 2016, which includes comments on some of the delegate’s analysis in the decision under review. He also attached this to several other emails to the Tribunal.
[3] The submission is dated 4 February 2014, but this appears to be a typographical error, as it refers (among other things) to the interview held on 27 January 2015.
The Tribunal has before it a range of country information, including the most recent country information report from the Department of Foreign Affairs and Trade (DFAT), dated 18 April 2019[4], which it drew on at hearing.
[4] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Myanmar, 18 April 2019
The applicant appeared before the Tribunal on 10 May 2019, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Burmese and English languages. The applicant is unrepresented in this matter. The applicant provided brief email submissions on 16 May 2019 and 3 June 2018.
With the applicant’s agreement, the Tribunal telephoned his brother in [Country 1] and took oral evidence from him. The quality of the line was poor, and the exchange managed to cover only a few rudimentary points. The Tribunal has received no further statement from the brother, or comments to supplement his evidence.
Non-disclosure certificate
On 17 May 2019 (hence following the Tribunal hearing), the Department issued a certificate under s.438(1)(a) stating that it is in the public interest not to disclose certain information contained in documents on the Department file [number]. The certificate stated that folios 124-127 contain information, the release of which would ‘impact the effective operations of the Department’.
These pages contain a five-page Identity Assessment Report. In it, a Department officer set out a range of information – drawn from the applicant’s initial interview, his family circumstances, his documentation, language(s), residential history, education, employment and social footprint. The officer used this to assess whether the applicant was a stateless Rohingya, as claimed; and/or a Myanmar citizen; and/or permanent resident of Myanmar. The report concluded: ‘At this time, [the applicant]’s claimed identity as a stateless Rohingya is refuted’.
The Tribunal formed the view that the certificate was at least potentially valid, in that it may be in the public interest that the Department’s techniques and sources of assessing identity not be disclosed, to avoid compromising future its investigations. In the present case, however, the Tribunal considered that the document did not contain such information, and that the certificate is therefore not valid.
The Tribunal considers some of the information in the Identity Assessment Report to be relevant to the applicant’s claims. However, this was addressed at both the Department interview and the Tribunal hearing, and in the applicant’s own submissions. The Tribunal therefore considered that it was not necessary to disclose the document or information to the applicant separately.
The Tribunal wrote to the applicant to alert him to the existence of the non-disclosure certificate, and to invite his comments on its views. It also noted that the Tribunal would, in any event, draw its own conclusions as to his identity, statelessness and/or nationality. In a brief response dated 3 June 2019, the applicant restated that he has given an honest account of his circumstances.
Country of reference and receiving country
The applicant claims to be a stateless Rohingya, and a former habitual resident of Myanmar. He speaks Burmese; he has provided a drivers licence and some academic certificates; and he has shown his familiarity with that country.
A key issue in this case is whether the applicant is stateless, as claimed; or whether he has Myanmar citizenship (whether as a full citizen, an associate citizen or a naturalised citizen). The delegate, in the decision under review, found that the applicant was a Myanmar citizen. The Tribunal’s assessment of the applicant’s ethnicity, and citizenship or statelessness, is below. It is satisfied, nonetheless, that Myanmar is the country of reference for assessing his refugee claims (irrespective of whether he is a citizen or a former habitual resident of that country), and the receiving country when assessing whether he is eligible for complementary protection.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Credibility
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. It is guided by the relevant authorities[5] and is mindful of the difficulties faced by refugee applicants, and the need to give the benefit of the doubt should an applicant be generally credible but unable to substantiate all his claims. However, it is also well-established that the Tribunal is not required to accept uncritically any or all claims made by an applicant. Nor is it required to have rebutting evidence available to it before finding that a particular factual assertion made by an applicant has not been made out.[6]
[5] In particular, 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
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 (per Beaumont J); Selvadurai v MIEA & Anor
The applicant’s circumstances make the task of assessing his credibility difficult.
§ First, his travel to Australia by boat as an undocumented person (that is, after he disposed of his Myanmar passport) means that the most obvious means of establishing his identity and nationality, or at least examining his passport, are not available.
§ Second, the applicant’s case rests in large part on the absence of documents, or at least genuine documents, as he was allegedly denied these as a Rohingya. It is inherently difficult for a decision-maker to assess this claimed absence of documents, other than to consider what documents (genuine or fake) the applicant and his family must have had in order to navigate daily life in Myanmar, including their residential and business arrangements, and their internal travel.
The Tribunal notes claims relating to stateless Rohingya raise additional questions. As noted in the most recent DFAT Report, Rohingya in Rakhine State are subject to ‘official and societal discrimination on the basis of ethnicity [that is] high, endemic and severe’.[7] DFAT also reported, in relation to Myanmar as a whole, that ‘the vast majority [of Rohingya] remain undocumented – or holding a white card receipt – and are effectively stateless’.[8] However, other information indicates that the situation for Rohingya outside Rakhine State is in fact more nuanced and complex. Country reports, including DFAT, note the following: (a) a lack of official statistics about the size of the Rohingya population and their circumstances; (b) the fact that many Rohingya in Yangon and other cities conceal their ethnic identity, for instance by avoiding the use of the Rohingyan language in favour of Burmese; and (c) common practices to secure documents and full, associated or naturalised citizenship, such as officially identifying as Kaman or another Muslim group, and the use of bribery (often through ‘agents’).
[7] DFAT, DFAT Country Information Report Myanmar, 18 April 2019, para.3.8.
[8] DFAT, DFAT Country Information Report Myanmar, 18 April 2019, para.3.14.
An overriding concern in this case, in the Tribunal’s view, is that the applicant did not appear engaged in trying to substantiate his claims and provide further details. It is apparent from his and his family’s residence in various parts of Myanmar, their business activities, the applicant’s education and his ability to obtain a passport that they have held at least some documents in the past, and used them extensively. The Tribunal considers much of the applicant’s evidence to have been unforthcoming. This raises questions about his (and his family’s) background, documentation and legal status in Myanmar, and ultimately, the credibility of his claims.
The applicant wrote in a statement accompanying his review application that he had communication problems when preparing his original claims, and at the Department interview. He invited the Tribunal to take into account that he was therefore unable to give a full account of his circumstances.
§ He expressed concerns that his original statement had been prepared through a Rohingya interpreter who had limited Burmese. His representative arranged a Burmese interpreter by telephone, but the applicant claims to have also had difficulty communicating through this person. As a result, he omitted ‘a lot of things’ (although he did not claim that there was actually any incorrect information).
§ He also wrote that at the Department interview, the interpreter made errors, for instance when explaining aspects of Islam. As a result, the interviewing officer ‘told’ the applicant to use English. During the subsequent exchange, the applicant felt that he was being asked ‘yes/no’ questions, and not given a full opportunity to explain himself.
The Tribunal has some concerns that the applicant has exaggerated the extent of any communication problems, in order to avoid scrutiny of his prior statements. Nonetheless, it accepts the need for caution in drawing any adverse inferences from interviews held in such circumstances. It is, in any event, satisfied that he had a full opportunity at the Tribunal hearing to clarify and provide further detail on salient matters.
Rohingya ethnicity
The applicant has consistently stated that he is of Rohingyan ethnicity, and linked this with his Muslim faith (although, as he acknowledged, there are other groups of Muslims in Myanmar). Although the applicant speaks minimal Rohingya, country information indicates that Rohingya outside Rakhine State often lose their language (in part, concealing it to avoid discrimination). The applicant’s own evidence regarding perceptions of him as Rohingya has varied. At some points, he suggested that local people in Hsipaw identified him as Rohingya. For instance, he claimed that he was subject to anti-Muslim slurs when growing up, ‘as our family was one of the few Rohingya families in the area’. On other occasions, however, he claimed that he was virtually indistinguishable from other Muslims. For instance, he claimed that the broker who arranged his Myanmar passport[9] ‘would not have known that [the applicant was] a Rohingya’. He attributed this to his use of Burmese, his knowledge of Yangon, and his knowledge of ‘the cultural behaviours and customs of the broader, non-Rohingya community’.
[9] The applicant’s submission of 9 September 2016 addressed the issue in the delegate’s decision as to why the bribe he paid for his passport

Birthplace and family background: Country information indicates that the Rohingya are Muslim, and from Rakhine State, although there are now communities in other parts of Myanmar, particularly Yangon. The applicant told the Tribunal that he and all his siblings were born in Shan State. In his separate evidence, the applicant’s brother, who was born in [month year], said that he (the brother) was born in [Town 3] and moved to Hsipaw with his parents when he was still very young. If correct, this puts the timing of the family’s move from Rakhine State in the early 1970s.
In his statutory declaration of 30 August 2013, the applicant wrote that his family ‘fled’ Rakhine State ‘because of religious and ethnic persecution, and to have better opportunities’. At hearing, he vaguely recalled that a maternal uncle first went there, and his parents followed. He did not offer further details and, despite the importance of this to his case, he appears to have made no further enquiries. The limited available information suggests that any family move from [Town 3] to Hsipaw in the early 1970s was for family and economic reasons, and not to escape religious or ethnic persecution.
The applicant’s and his family’s strong association with Shan State, where there is no established Rohingya community, and their moves between there and the cities of Mandalay and Yangon, raise questions about his claimed Rohingya ethnicity. At hearing, he said that there were very few Rohingya in Hsipaw, but there were Muslims, some of whom were Shan (or mixed with the Shan) and some of whom were Indian. These comments accord with country information that there is a small Muslim community in Shan state. The International Crisis Group wrote that the Muslim population in Lashio, the state capital, consists for the main part of ‘Shan Muslims’, ‘most of whom have partial Indian ancestry but are culturally Shan and speak the Shan language’. Smaller numbers are of Indian or Chinese origin.[10]
[10] International Crisis Group, 1 October 2013, The Dark Side of Transition: Violence Against Muslims in Myanmar,
Language skills: The applicant has consistently stated that his first language is Burmese, and that he has only limited ability in Rohingya. In his submission of 9 September 2016, he clarified that his parents used to speak in Rohingya at home, but he and his siblings replied in Burmese. At hearing, the applicant was able to name a number of household items in Rohingya, and count part-way to ten.[11] Although he struggled, the Tribunal formed the view that his recall was consistent with at least some exposure to the Rohingyan or another South Asian language, possibly in a family setting.
[11] The Tribunal referred to a basic online glossary of Rohingya.
Brother’s evidence: As noted above, the Tribunal contacted the applicant’s brother in [Country 1], at short notice. Speaking on a poor quality line, he told the Tribunal that he was born in [Town 3] (not Hsipaw, as the applicant had thought), and moved with the family to Hsipaw when he was very young. He confirmed that their parents used to speak Rohingya at home. He had held a National Registration Card (NRC, which he referred to as a ‘trifold card’)[12], and later obtained a passport in another person’s name, which he used to travel to [Country 1] in 2006. The applicant’s brother said that he applied for refugee status in [Country 1], on the basis that he is stateless and has no ID documents. Asked for further details (given his evidence that he had held a NRC and obtained a passport), he said that he tried to apply for another card to replace his NRC, but the government refused this because he is Rohingya. Although the poor connection did not permit the Tribunal to investigate further, the brother appeared to be stating that he had held an NRC. Country information indicates that although the NRCs were issued to citizens (including Rohingya) from 1962, the citizenship status of Rohingya became increasingly perilous, and the NRCs came to be seen as proof of identity rather than citizenship. Although the applicant’s brothers’ oral evidence was vague, and the Tribunal did not receive any further written submissions or supporting documents, his mention of the government having refused to give him an ID appears to refer to the citizenship scrutiny exercise in the late 1980s, when the government issued non-Rohingya citizens new cards, and often refused to re-register even those Rohingya who did qualify for citizenship.[13] Such people became effectively stateless.[14] In sum, the evidence of the applicant’s brother tends to support the applicant’s claims about the family’s Rohingya origins and, potentially, their statelessness.
[12] See, for instance, Frontier Myanmar, December 29, 2017, For Muslims across Myanmar, citizenshjp rights a legal fiction: . NRCs were registration cards issued to citizens aged over 12, from 1951 on.
[13] ‘How in Myanmar “national races” came to surpass citizenship and exclude Rohingya’, Nick Cheesman, Journal of Contemporary Asia, Vol. 47:3, 15 March 2017,, p.472; ‘Rohingyas - Insecurity and Citizenship in Myanmar’, T. Gibson et al (eds.), 1 August 2016, p.6; ‘Rohingyas with NRCs Might Have Suffrage in Upcoming Elections’, Rohingya Vision TV, 17 September 2015.
[14] ‘Rohingyas - Insecurity and Citizenship in Myanmar’, T. Gibson et al (eds.), 1 August 2016, p.91.
Community recognition: The applicant presented a letter from [an office holder] of the Burmese Rohingya Community in Australia (BRCA), [Mr A], dated [in] November 2015, describing the applicant as a ‘Rohingya descendant’. [Mr A] states that BRCA members ‘investigated his background through the references’, and satisfied themselves as to his origins’.
The Tribunal explored with the applicant how [Mr A] satisfied himself about his Rohingya background and the family’s links with Rakhine State. The applicant replied that [Mr A] interviewed him in person, and two persons with connections to [Town 3] – he gave the names approximating ‘[Mr B]’ and ‘[Mr C]’ – were there to vouch for him. He said that he did not know these men before coming to Australia, but they know his parents from [Town 3]. They have since visited his parents in Yangon, on return trips to Myanmar. In response to questions, the applicant said that he has not seen these men for a long time, as they live in [Suburb 1] and he lives in [Suburb 2] (which is some 11km away). The applicant did not request the Tribunal to take evidence from these men, or indicate that he had their personal details. The Tribunal therefore did not press the matter.
The applicant also provided a reference from [Mr D], an Australian citizen originally from [Town 3], Rakhine State, whom he describes as a ‘relative’. At hearing, the applicant said that [Mr D] is from [Town 3], and was his (the applicant’s) case manager with [named organisation]. General information indicates that this is a community organisation and social business to support newcomers to Australia. Asked whether [Mr D] is a relative or family friend, the applicant replied vaguely that he does not know his family much. The applicant did not present [Mr D] as a witness. The Tribunal accepts that [Mr D] satisfied himself that the applicant’s parents are from [Town 3], and that they are Muslims and Rohingya; but it finds that they are only distantly related, if at all.
The Tribunal asked the applicant about other contacts with Rohingya since his arrival in Australia.
§ He said that he has Rohingya friends in Australia, including a friend named [Mr E], from [Town 3]. The applicant did not provide his friend’s details or ask the Tribunal to contact him.
§ The applicant said he attends the Burmese Muslim Association (BMA) in Australia, ‘often’; some Rohingya are involved in the BMA. Asked whether any of these people could vouch for his Rohingya identity, the applicant initially said that they would not know of his ‘background details’, but thought that some BMA officers (he named ‘[Mr F]’, who is also a Rohingya) and maybe some others were aware of his parents’ origins.
§ He said that he attends mosques in [Suburb 3] and sometimes [Suburb 4], but he did not know of any Rohingya who go there.
§ The applicant said that he has a [social media] account. He only uses this to keep abreast of news; his profile reveals only his name and that he is from Yangon, i.e nothing relating to his Rohingya origins.
The applicant’s account of his life in Myanmar and Australia strongly suggests that, while his parents are Rohingya from Rakhine State, he is well-integrated into and identifies with the broader Burmese Muslim community. The Tribunal now proceeds to examine the closely related questions of his documentation and citizenship.
The applicant’s documentation and citizenship
The applicant claims that, as a Rohingya, he lacks Myanmar citizenship and (genuine) documentation. He claims that, for the main part, he (and his family) relied on bribes and fraud to obtain essential documents.
§ He produced a copy of his Myanmar driver’s licence, issued in 2010; and several academic records which are undated, but appear to be from around 2003/2004 (as they are from the religious school the applicant was attending in that period). Relevantly, the driver’s licence includes an NRC (national registration card) number, and a code indicating that it was issued in [Town 1], part of Yangon. The applicant claimed that an agent obtained the licence fraudulently; hence, the incorrect address.
§ The applicant departed Myanmar on a passport in his own (Burmese) name, and claimed that an agent (people smuggler) took that document from him in [Country 3]. He did not have a copy of or any details relating to the passport. He claimed that he paid a broker to obtain it, fraudulently.
- In his statutory declaration of 9 September 2016, the applicant addressed the delegate’s concern as to how he was able to obtain a passport by paying a broker about 100,000 Burmese Kyat ($A 110 at current rates), when DFAT had advised in 2006 that the reported going rate for Rohingya was 1 million kyat. Leaving aside the question of whether the country information that the delegate relied on was outdated, the applicant accepted that he had paid a much lower price for his passport (allegedly obtained fraudulently) than would be expected for a stateless Rohingya.
- The applicant explained his ability to obtain a Myanmar passport mainly by the fact that he is not recognisable as a Rohingya. He wrote: ‘It is not possible to differentiate Rohingya based only on their physical appearance. Muslims in Myanmar usually look different from Buddhists but it is not easy to tell different types of Muslims apart just because of their physical appearance.’ The applicant also mentioned that he had been unable to provide the broker with his National Registration Card (NRC), because he did not have one; and that the broker was simply interested in getting his money.
§ At hearing, the applicant stated that he had held a TRC (temporary registration card) bearing his correct name and photograph, and he thought that all his family members might have these. In an email dated 16 May 2019, responding to the Tribunal’s letter advising that he may wish to provide copies of his or any family members’ TRCs, the applicant advised that his family destroyed his TRC (and all documents bearing his name), for their safety. He did not indicate any efforts to obtain copy of any TRCs held by family members.
The questions of citizenship and documentation, as they apply to Rohingya in Myanmar, are complex. Country information indicates:
§ A key identity card in Myanmar is the National Registration Card (NRC), which were issued from 1951 to citizens over the age of 12. A majority of Rohingya obtained these cards, as citizens, and many retain them as a matter of practicality. These cards do not record ethnicity or religion.[15] Nowadays, the NRC serves as proof of identity and permanent residence, but not citizenship.[16]
§ The 1982 Citizenship Act established ‘national races’ as the main basis for nationality, and the government’s list of 135 national races omitted the Rohingya.[17] Nonetheless, the Act provided various avenues for Rohingya to seek full, associated or naturalised citizenship (for instance, on the basis of ancestral settlement prior to 1823; a citizenship application lodged before 1948; and parental residence in Myanmar before 1948).
§ Successive measures have, in effect, required people to re-apply (and re-qualify) for citizenship, and at different times, identity cards. Official implementation has been haphazard. Problems that can affect Rohingya include delays or inaction; and the confiscation, failure to return and/or destruction of previously held documentation. Over time, Rohingya have found themselves with cards that served as proof of identity and allowed them limited rights; but that did not amount to citizenship. Others did not obtain individual documentation at all.
§ For instance, from 1995, the government started issuing Rohingya with Temporary Residence Cards (TRCs)[18], and by 2014, a large majority of Rohingya held these. For those who did not obtain a TRC – for instance, due to cost or as a matter of principled objection – the household registration served as an alternative form of identification.[19]
§ There is limited, mainly anecdotal information about the situation for Rohingya in Yangon; and minimal information about those in other cities. As noted above, the established Rohingya community in Yangon (and other places outside Rakhine State) have tended not to disclose their identity. This is attributable in part to the risk of adverse attention from the authorities and Buddhist nationalists; and also in part because Rohingya often opt to describe themselves as ‘Burmese Muslim’ as a means of securing documentation and citizenship.
§ Rohingya in Yangon may obtain passports, for instance if they hold a NRC (even though this document does not serve as proof of citizenship).[20] This is often done through brokers and/or by bribing officials. In Yangon, a majority of Rohingya register as Burmese Muslims and, if they hold a national card and ID documents, have a legal right to a passport.[21] Other sources indicate, more generally, that the level of document fraud in Myanmar is high and that, as such, it is possible to obtain passports and other documents fraudulently. For instance, DFAT wrote in its most recent report: ‘While passports have more sophisticated security features, it is possible to obtain a genuine passport using a fake national identity card.[22]
[15] See DFAT Country Information Report, April 2019
[16] ‘Email to DIBP, Re: Information request from the Australian Department of Immigration & Border Protection’, Chris Lewa, 13 June, CISEC96CF12736
[17] US Department of State, 3 March 2018, Country Report on Human Rights Practices 2016 – Bangladesh’, sect.2, p.31
[18] See, for instance, DFAT Country Information Report, April 2019
[19] ‘Rohingyas - Insecurity and Citizenship in Myanmar’, T. Gibson et al (eds.), 1 August 2016, p.91
[20] CIS Request No. BUR13329 Rohingya in Yangon’, (Australian) Department of Foreign Affairs and Trade, 15 June 2012, CX289305
[21] DFAT Country Information Report, April 2019, paragraph 3.36.
[22] See DFAT Country Information Report, April 2019, paragraph 5.62.
In sum, the country information indicates that some Rohingya outside Rakhine State have, under the 1982 Citizenship Act and subsequent measures obtained full, associate or naturalised citizenship; and at the other end of the spectrum, others are stateless and have no documentation at all (sometimes having lost them during successive government programs). The evidence points to there being many persons of Rohingya background in Yangon who have some or all of the following attributes: (a) they no longer speak Rohingya or limited exposure to Rohingya culture; (b) they have typically identified officially as other ethnic groups (eg. Burmese Muslims); (c) those who do have documentation and/or identify as other ethnic groups may have certain rights (such as access to passports and, in the past, voting rights), and indeed have citizenship; and (d) they may obtain the documents through ‘brokers’ and the payment of bribes, or in some instances, legitimately as a result of their ethnic identity or personal/family background.
In relation to family documentation, country information discussed at hearing indicates that all residents in Myanmar must be entered on a household registration list, sometimes called a family list.[23] These are required to obtain services, and must be presented to the authorities when required.[24] In the decision under review, the delegate noted the applicant’s claim that the authorities had never been to their house, and that his family had tried to apply for a household registration list once, without success. In his statutory declaration of 16 September 2016, the applicant reiterated that his family had never had a household register because they are from Rakhine State, and they are not issued in that area. He then went on on to state that whenever his family moved to a new house, they ‘used to go to the authority [implicitly, the ward office] and tell them that [they] have moved into the area, the length of the lease on the house and who was living in the house.’
[23] Stateless Journeys; Country Position Paper: Statelessness in Myanmar: PfNNw==&bcsi_scan_filename=StatelessJourneys-Myanmar-final.pdf
[24] T Gibson et al (eds), Rohingyas – Insecurity and Citizenship in Myanmar, 1 August 2016, p. 99 and 106.
At hearing, the applicant referred to these as ‘Form 10’ (which is another term for the household registration certificates). He explained that his family did not have any permanent documentation, but had to present to the ward office each time they moved to a new place and prepare a list. He described this list as containing the names of each family member, their gender, age, their NRC or TRC number, and other columns. He said that local officials often used to come to their home, inspect the household, and check the Form 10 and the lease. The applicant’s description matched that of a household registration certificate. He told the Tribunal that he would try to obtain a copy of his family’s current certificate. On 16 May 2019, the applicant confirmed that his family had had these documents (he used the terms ‘ward list’ or ‘family list’), and went on to say that they had destroyed all the documents bearing his name (implicitly, also the household registration certificate).
The Tribunal is satisfied that the applicant’s varying references to Form 10, ward list and family list all refer to the household registration certificate, which each household in Myanmar must hold.[25] As noted above, the applicant’s evidence about his background and (claimed lack of) documentation was unforthcoming. The Tribunal disbelieves the claims that his family never held household registration certificates, but only ever registered temporarily/ Nor does it accept the more recent claim that they had a certificate, but destroyed it after the applicant left Myanmar. Individuals must present this to officials on demand, and the Tribunal does not accept that the family destroyed this document because it bears the applicant’s name. While the Tribunal accepts that the applicant’s family had to present to the ward office when they moved home, and show a copy of their lease, it does not accept that this process explains their lack of a household registration certificate. The Tribunal’s finding, and the applicant’s failure to produce his family’s household registration certificate is relevant, as the list records not only the name of each family member, but also their race and religion, and details of their NRC (or in the case of foreigners, their Foreigner Registration Card). The Tribunal finds that the applicant’s family has a household registration certificate, and that the applicant opted not to submit a copy. It is concerned that he declined to do so because it contains information that he perceives to be unhelpful to his case.
[25]See, for example, the reference to ‘family list’ in Statelessness, Chris Lewa: North Arakan: an open prison for the Rohingya in Burma, type="1">
In sum, while the Tribunal notes that the applicant has consistently claimed to be a stateless Rohingya and that his brother’s oral evidence tends to support this, there are strong indicators that he is of Rohingya origins, but in fact holds Myanmar citizenship. First, country information indicates that a majority of Rohingya held NRCs from the outset, and many continue to have these. As a result, many Rohingya or persons of Rohingya descent outside Rakhine have been able to obtain passports; and some have Myanmar nationality. Second, his family’s ability to travel between Hsipaw, Mandalay and Yangon – for economic and other practical reasons (rather than any fear of harm) – further suggests that they all had ID documents; that they were not undocumented, or reliant on substitute or fraudulent documents; and that they indeed identified as other than Rohingya. Third, the applicant stated at hearing that he in fact used to have a TRC, but his family destroyed it. The Tribunal’s efforts to explore whether he could show documents to support that – for instance, a copy of the household registration list, or copies of his siblings’ TRCs (which would presumably contain details similar to his) – were not fruitful. And finally, the Tribunal notes that there are inconclusive references to the NRC in two of the documents that he produced. The undated certificate from the [University 1] in Yangon bears the applicant’s name, and a blank next to the NRC number. The driver licence has an NRC number. In relation to the latter, the applicant claimed that he paid a broker to obtain it, and this person included a fake NRC number and residential address where the applicant had never lived. However, the applicant did live in [Town 1] from 2001 (hence, about the age of [age]), albeit at a different street address. Given the extent of document fraud in Myanmar, and the lack of corresponding documents and details to support the applicant’s claims, the Tribunal finds that neither the university certificate nor the driver licence is of probative value in determining whether the applicant held an NRC or other ID documents.
The material before it points to a complex array of legal requirements, social practices and informal arrangements that affect Rohingya in Myanmar, and those of Rohingya origin. Outside Rakhine State, there are opportunities and incentives for Rohingya to overcome discrimination by presenting as another ethnic identity and engaging agents to obtain documents and overcome other problems. In the present case, however, the applicant’s and his family’s conduct (travel and residence throughout Myanmar), his presentation as a non-Rohingya in both Myanmar and Australia, his past possession and use of a Myanmar passport, and his lack of candour concerning his and his family’s documentation – considered cumulatively – lead the Tribunal to make the following findings:
§ The applicant is of Rohingyan descent, namely through his parents who were both born in [Town 3], Rakhine State.
§ The applicant identified as a Burmese Muslim (or other non-Rohingya Muslim community) when growing up in Shan State; he and his family registered as Burmese Muslims; and on that basis, he lawfully obtained documents, including an NRC, driver licence and passport. He holds Myanmar citizenship.
§ The applicant identifies as Burmese Muslim in Myanmar and Australia, for official and social purposes; although family and other confidants know that he is of Rohingya background (and ethnicity).
§ The background to the applicant’s identity as a Burmese Muslim is that in the early 1970s, his parents settled and integrated into the broader Muslim community in Hsipaw (where there are very few Rohingya). In later years, there were increasing questions about Rohingya citizenship, particularly following the passage of the 1982 Citizenship Act, and hence added reason for them to identify as members of the Burmese Muslim community in Hsipaw and other places in Myanmar. The applicant, born in [year], is aware of his Rohingya origins, but identifies as a Burmese Muslim. This is the product of the environment he grew up in, his minimal knowledge of Rohingya and his assimilation with the Burmese Muslim community. He does not identify or present as a Rohingya, or actively conceal his origins.
Discrimination as a Rohingya descendant
The applicant claims that he faced some discrimination as a Rohingya in Hsipaw, such as verbal abuse. The Tribunal accepts that locals in Hsipaw may have readily identified the applicant’s parents as Rohingya from Rakhine, i.e. by word-of-mouth, their language (such as an accent as Rohingya-speakers and/or from Rakhine) or other attributes. On this basis, the Tribunal accepts that the applicant’s background as a Rohingya may have been known locally (through his association with his parents, and in part through his Muslim faith), and that he may have faced some discrimination such as teasing. However, it does not accept that this involved serious or significant harm in Hsipaw, as a person known to be of Rohingyan origin; that he feared such harm; or that he left Hsipaw in response to such fears. The Tribunal places weight on the fact that his parents continued to run a [business] in Hsipaw, and that the applicant returned there to live and work on several occasions.
The Tribunal also does not accept that the applicant had to conceal his ethnicity, or undertake any other modifications, to avoid potential discrimination or other harm. Rather, it finds that the applicant’s lack of Rohingya language skills, cultural identity and other attributes are due to his having grown up in a broader Muslim community in Shan state. The applicant’s parents, in integrating into the local Burmese Muslim community in Hsipaw, may have been motivated in part by their wish to conceal their Rohingya ethnicity, for official purposes and to reduce the risk of discrimination. However, the Tribunal finds on the available material that the family’s integration into the Burmese Muslim community was well-advanced by the time the applicant went to school; and that he has not had to modify his conduct or conceal his Rohingya ethnicity, for any reasons.
Discrimination as a Burmese Muslim
The applicant’s claims as a Muslim related to the practice of his faith and, from early 2013, anti-Muslim violence at the hands of Buddhist extremists (and the tacit approval by the authorities and local communities). These were closely linked with his claimed Rohingya identity.
Country information indicates that there is an overlap between ethnic and religious identity in Myanmar. The Tribunal notes DFAT’s comments in its most recent report: ‘There are several distinct Muslim communities living throughout Myanmar, with different cultural and ethnic backgrounds.’ As noted above, the applicant claimed (in the context of explaining how he obtained an allegedly false Myanmar passport through the payment of an unusually low ‘fee’ or bribe), that Muslims are physically distinct from the Buddhist majority, although it is not always possible to distinguish Rohingya from other Muslims. The Tribunal has some concerns that this is a generalisation, and not an accurate reflection of the diverse Muslim community. However, it does suggest that the Buddhist majority’s perceptions of the Muslim community relate not only to faith, but also implied race and affiliation. The Tribunal’s assessment of the applicant’s claim, as a Muslim, takes this into account.
Muslim: Religion and (implied) race
The applicant is a Sunni Muslim. This is apparent from his name, his accounts of Muslim practice in Myanmar and Australia, his Muslim study certificates and his knowledge of Urdu.[26] Country information[27] indicates that Muslims comprise about 4 percent of the overall population, with over 345,000 in the Yangon Region (4.7 percent of the population there). While Rohingya form the largest Muslim group in Myanmar, they are mostly concentrated in Rakhine State. Other groups include ‘Indian Muslims’, Bamar converts (‘pure Bamar Muslims’) and persons of mixed Indian Muslim/Burman origins.[28]
[26] Urdu is the language of religious instruction for many Muslims in Myanmar. See
[27] Including the Department of Foreign Affairs and Trade’s (DFAT) Country Information Report – Myanmar, 18 April 2019
[28] Different Myanmar Muslim groups:
The applicant claims to have undertaken religious studies in private boarding schools, as follows: 1993-1997 (ages [age]-[age]) in Maymyo (Pyin Oo Lwin); 1997-2001 (ages [age]-[age]) in another location in Mandalay; 2001-2002 (ages [age]-[age]), in Yangon ([University 2] in [Town 1]); and 2002-2004 (ages 19-21), also in Yangon ([University 1], [Town 2]). The Tribunal has found references to the two religious schools (madrasahs) in Yangon, indicating that they are well-known Islamic schools, although not formally recognised as ‘universities’.[29]
[29] [Source deleted]
The applicant submitted two documents purportedly from [University 1], one in English and the other an English translation of an original that he has not presented. The documents indicate that he passed certain religious subjects. Both show a photograph of him, clean-shaven and wearing Muslim headgear, with the title ‘[specified title]’, indicating that he is a religious scholar. The Tribunal accepts that the applicant undertook religious studies, completing them in 2004.
The applicant claims that after completing his religious education, he worked as a teacher or itinerant preacher for at least some period. According to his protection visa application, he initially returned to Hsipaw in 2004 and worked in the family’s [business]. From 2006 to the beginning of 2007, he was unemployed, but travelled around Myanmar teaching children the Koran and preaching, in places such as Mandalay and Yangon (which, according to Google Maps, are some 630km apart). He wrote that during this period, he lived off savings and received financial support from family. In early 2007, he returned to Hsipaw, where he worked in the family [business] and, as noted above, he moved between there, Mandalay and Yangon in the years before coming to Australia.
In other evidence, the applicant suggested that, alongside this paid work, he continued to give religious instruction to children in various places, and that he held some status as a ‘molavi’, or religious teacher. For instance, the record of his entry interview states that from 2004 to 2013 he was ‘teaching children Koran in Yangon’ (although this also overlapped with other activities, such as [working in a certain role] in various villages). At hearing, the applicant explained that in 2006, he was enrolled in a religious program. After his return to Yangon in 2008, he used to teach in various areas. He received fees for this work, but did not have any documentary record (such as correspondence or photographs).
The Tribunal accepts that the applicant is a Sunni Muslim who undertook religious studies in Myanmar, and who gave some religious instruction in the following years. The limited available material suggests that he did volunteer work for a religious foundation or charity from 2006, for twelve months, during which he taught local children to read the Koran. The Tribunal accepts that the applicant attended local mosques in the neighbourhoods where he lived. It also accepts as plausible, and in keeping with the applicant’s religious studies, that he was occasionally involved in giving religious classes to local children. Given the extent of the applicant’s relocation to different parts of Myanmar, and his paid work in the informal sector (in his family’s business [and/or] as an [another occupation], the Tribunal does not accept that the applicant acquired a profile as a ‘molavi’ (religious scholar) or that his religious work was other than occasional.
ANTI-MUSLIM DISCRIMINATION AND VIOLENCE
The applicant wrote in his original statement of claims that ‘Muslims in Myanmar do not have the freedom to practice [their] religion. Muslims are [persecuted] in the form of abuse, attacks, rape, forced labour, extreme discrimination and land confiscation’.’ He went on to claim that, growing up in Hsipaw, people targeted him with anti-Muslims slurs (the word ‘kala’), particularly because his was one of the few Rohingya families in the area.
At hearing, the applicant gave some examples of religious discrimination, such as Muslims not being permitted to use microphones during religious practice (unlike Buddhists or Hindus), and not being permitted to conduct religious studies.
As noted In DFAT’s April 2019 report, discrimination against Muslims in Myanmar is longstanding and pervasive, and has become more pronounced in recent years. DFAT cited some examples of this discrimination, including general anti-Muslim sentiment, particularly outside the main cities; their underrepresentation in the public sector; and that Myanmar officials have put obstacles in the way of the Muslim community, for instance, by refusing or delaying building permits for religious buildings, and through laws preventing Muslim men marrying outside their religion.
The Tribunal accepts that the applicant may have experienced some official and social discrimination as a Muslim. However, it is not satisfied, given his religious education, his work as a religious teacher in 2006/2007, and his involvement in other religious activities (such as attending mosques and occasionally teaching children the Koran), that he was in fact deprived of the freedom to practice Islam in Myanmar. It is also not satisfied that his references to violence such as rape, forced labour and land confiscation are any reflection of his personal lived experience.
Country information indicates that (non-Rohingya) Muslims outside Rakhine State face discrimination that goes beyond the conduct of religious activities. This applies in particular to the provision of government services. DFAT gave as an example[30] that Muslims in Yangon and Mandalay often ‘experience delays and are required to pay informal fees for routine government processes, such as updating household lists.’ It assessed ‘that these incidents generally represent informal discrimination by mostly Bamar Buddhist public officials, rather than formal policy.’ As noted above, the applicant stressed – in the context of claiming to be a stateless Rohingya – that he and his family managed to obtain some documents, through brokers and the payment of bribes. Although the Tribunal has rejected that claim, it accepts on the basis of country information that the applicant and his family did occasionally face delays and have to pay ‘fees’ to update household lists and obtain other documents, and that they may have relied on Burmese brokers to smooth the path. The Tribunal is not satisfied, however, that this and similar discrimination involves persecution or significant harm,
[30] DFAT Country Information Report, April 2019, paragraph 3.71.
The Tribunal accepts that the applicant and his family operate small businesses in the informal sector, and that their business interests and paid work were at a modest level, like a large portion of the Myanmar population. (In this context, the Tribunal appreciates the applicant’s concern that the delegate’s description of his work as a ‘[Occupation 1]’ and his sisters as ‘[deleted]’ may have conveyed the wrong impression as to their social standing and income levels.) However, it does not detect in this level of work and income, or in the applicant’s travel within Myanmar to look for economic opportunity, any discrimination involving persecution or significant harm.
Anti-Muslim violence
The applicant claimed the anti-Muslim violence that swept across Myanmar from early 2013 occurred close to him, and affected family and friends. He increasingly came to fear for his personal safety, and this was a key factor in his decision to leave Myanmar. In brief, he claimed the following in his original statement:
§ Near Mingala Taungnyunt (the Muslim-dominated Yangon suburb where the applicant was living), Buddhist extremists burnt down mosques and Muslims’ homes. As of April 2013, numerous Muslim schools were set on fire, and the remaining ones had to close.
§ 50 local men armed with sticks used to patrol his street at night, with the aim of preventing arson attacks.
§ The applicant’s family had a [business] in Mandalay at the time, and they also had to shut it for fear of it being attacked.
§ An aunt in Sittwe (Rakhine State) had her house and belongings destroyed in an arson attack, and many of the applicant’s friends and classmates lost their homes.
In his statutory declaration of 9 September 2016, and at hearing, the applicant gave a more expansive account of his personal role and profile during this period. The statutory declaration asserts that, contrary to the delegate’s finding that the violence did not affect him directly, he faced imminent threats and played a key role in the local response.
The applicant described the unrest in his area of Yangon at the time. He said that groups of Buddhist men, in cars or on foot, used to descent on the area, verbally abusing residents and trying to set houses and buildings on fire. In response, the locals constructed barriers and set up barbed wire to protect their community.
§ As the ‘molavi’ or religious leader of his community, the applicant helped organise and led the patrols conducted by the 50 men in his street (or area). Regularly – sometimes twice or three times a night – the applicant and other men used to chase away would-be attackers.
§ One night in February 2013, the applicant was present when a Buddhist mob (the 969 Movement) tried to set his former school on fire (in the Kandawlay district of Yangon, i.e. not the applicant’s home area). The applicant and his friends managed to put out the fire. A few nights later, extremists set a Muslim school on fire in [Town 1], near the applicant’s home area. The applicant and a friend sped to the area by car, but they were too late to avoid the complete destruction of the school and death of 13 children who boarded at the school. The incident terrified the applicant, and left him fearing for his life. A few nights later, the applicant and his friends managed to prevent another attack in their area.
§ The applicant claimed that he was ‘the main person’ who reported the attacks to the police, and he asked them why they would not help. Meanwhile, he learned that the police were arresting Muslims ‘for no reason’. Recalling the arrest and imprisonment of a cousin in Mandalay some years earlier, the applicant feared that he too might be arrested,
§ During this period, the applicant’s parents overnighted with an uncle in a non-Muslim part of Yangon, as it was no longer safe in [Town 2]. The applicant suggested they actually moved there temporarily.
§ The applicant claimed that due to his profile – as a local molavi, an organiser and leader of the night patrols, and a person who had complained to the police about the 969 Movement, he feared that he would be targeted. He then made his plans to depart Myanmar.
Country information indicates that there was a surge of anti-Muslim violence in Myanmar in early 2013. For instance, an October 2013 International Crisis Group (ICG) report notes numerous outbreaks of violence against Muslims in Myanmar. The majority of these attacks occurred in Rakhine state, however anti-Muslim incidents took place through the country. According to the ICG:
clashes have followed a similar pattern: an apparently random incident between a Buddhist and a Muslim sparks attacks by Buddhist mobs on Muslim shops, homes and religious buildings, with the security forces often caught unprepared and arriving too late (however, as noted below, the police have more recently shown the intent and ability to intervene promptly to good effect).[31]
[31] International Crisis Group 2013, The Dark Side of Transition: Violence Against Muslims in Myanmar, Asia Report N°251, 1 October, p.24:

A fire in an orphanage next to a mosque in Yangon on 1 April 2013 killed 13 children. Reports indicate that, although the police ‘quickly put the blaze down to an electrical fault’, Muslims suspected the fire was deliberately set. Commentators noted that it would likely add to communal tensions following sectarian tensions in the central city of Meikhtila in March 2013, in which dozens had died and more than 10,000 displaced.[32]
[32] See, for instance: Guardian on-line, 2 April 2013: Burma mosque fire kills 13 children,
At hearing, the applicant said that at the time he had been mainly working [in a particular role], but he also helped guard his local neighbourhood. As for his new claim to have had a personal profile, he reiterated that he played a key role in organising the patrol. He claimed that the police recorded his personal details (along with those of two or three others). They told him not to provide security against the Buddhist attackers, warning that he could face prison. They have recorded his details, and have an ongoing adverse interest in him.
The Tribunal queried why, if he was of adverse interest to the police, he opted to leave Myanmar using a passport bearing his names (Muslim and Burmese) and date of birth. The applicant replied that the authorities check the ID number (in other words, the NRC number), and in his case, the broker had inserted a false NRC number. Asked how he knew that the Myanmar authorities checked the identity of passport holders not via their names or dates of birth, but rather their NRC numbers, the applicant replied that from his personal observation, officials checking documentation for internal travel typically focus on the NRC numbers.
The Tribunal accepts the anti-Muslim violence in Myanmar in early 2013 unsettled all Muslims in the country; that local communities took security precautions such as night patrols; and that the school fire in Yangon in early 2013 heightened fears that the violence could flare up there (whereas the focus had previously been on Rakhine State, Meiktila and isolated incidents elsewhere). The Tribunal is unable to determine with confidence whether the applicant has an aunt in Sittwe, or many friends who lost their homes and property, and whose problems may have added to the applicant’s own fears. In any event, it accepts that the applicant’s general concerns about the safety of Muslims influenced his decision to leave Myanmar.
However, the Tribunal finds unconvincing the applicant’s recent claims that he not merely participated in the night patrol, but gained a profile as a religious leader, organiser and/or spokesperson to the police. It does not accept that he organised night patrols, or had any leadership role in the Muslim community, as a molavi or in any other capacity; that he personally fended off attempted attacks; or that he has any profile with Buddhist extremists, the police or anyone else. It also does not accept that, despite being of adverse interest to the police (because he defied their orders not to organise security), he left Myanmar on a passport in his own name, yet with a fake ID number that he believed would help him avoid detection and possible detention as he departed.
The Tribunal accepts that the anti-Muslim violence in early 2013, and broader concerns about the treatment of Muslims and persons of Rohingya/Burmese Muslim background, influenced the applicant’s decision to leave Myanmar. However, it does not accept that he is stateless; that he feared persecution or significant harm as a person of Rohingyan origin or Burmese Muslim identity; or that he was personally affected by the anti-Muslim violence in Yangon in April 2013, as the leader of night patrols, a person who directly witnessed the aftermath of violence, and/or as a person whom the local police or Buddhist extremists viewed as an agitator. The Tribunal accepts, however, that attitudes in Myanmar to Muslims (including Rohingya and Burmese Muslims) and the surge of anti-Muslim violence in early 2013, influenced the applicant’s decision to leave the country.
ASSESSMENT – REFUGEE CRITERIA
The Tribunal now assesses whether - having regard to the findings of fact above, the applicant’s future conduct if he returns to Myanmar, and relevant country information – the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future. He claims that the Myanmar authorities will target him as a Rohingya (and perceived ‘Bengali’), a Muslim, a molavi (religious teacher and local leader) and as a failed asylum seeker. He also claims that Buddhist extremists, members of the 969 Movement will pursue him because of his role in fending off their attacks in early 2013, and that the police may also target him for defying them. The applicant claims that his statelessness will add to his risk of persecution (implicitly, because he will lack genuine documentation and access to State protection).
The Tribunal has found that the applicant identifies as a Burmese Muslim, and that he has Myanmar citizenship and corresponding documentation. Accordingly, the Tribunal does not accept that he is stateless, or that he faces a real chance of persecution as a stateless Rohingya (that is, being denied documentation and basic government services, and being subject to discrimination and potential violence at both an official and societal level).
As noted above, the Tribunal accepts that the applicant is of Rohingyan descent (ethnicity), but finds that decades ago, he and his family came to identify themselves as Burmese Muslims (or a similar non-Rohingya Muslim group). While the applicants’ parents may have done so in part to avoid discrimination, the Tribunal finds that the applicant presents as a Burmese Muslim because that corresponds with his upbringing, language and cultural affinity, with its heavy emphasis on his Muslim identity.
Looking ahead to the reasonably foreseeable future, the Tribunal finds that the applicant will continue to identify as a Burmese Muslim for the same reasons. As for his future dealings with the Myanmar authorities – in particular, in the process of obtaining a replacement passport – the Tribunal accepts that the applicant will have to provide personal details (although it is not clear whether consular authorities will require him to declare his ethnicity) and copies of relevant documents, such as his household registration certificate, which the Tribunal has found records his ethnicity as one of the (non-Rohingya) Muslim groups. In these circumstances, the Tribunal finds that the applicant will state his identity as Burmese Muslim (or similar), in keeping with his and his family’s long-term practice and documentation. It does not accept that the applicant will be forced to conceal his Rohingyan origins, in order to avoid being denied documents and, in effect, to avoid consequent persecutory harm (such as being denied entry into Myanmar and reuniting with his family, or mistreatment upon his arrival at the border).
The Tribunal accepts that Muslims in Burma face longstanding discrimination, in relation to their religious practices and their overall treatment as a community. In relation to his religious practice, the Tribunal finds that the applicant has practised in Hsipaw, Mandalay and Yangon in the past, including as a religious scholar and occasional teacher. The Tribunal notes the comment in DFAT’s April 2019 report that Muslims said they decided to practice ‘a less conservative form of Islam, including changing their dress and beards, to avoid visibly demonstrating elements of Bangladeshi or Indian Islam’, i.e. to avoid inciting Buddhist nationals. The photographs attached to the applicant’s religious certificates, which go back to around 2004, show him clean-shaven and with a Muslim cap. While the Tribunal accepts the applicant’s evidence that he is devout and also readily recognisable in Myanmar as Muslim, it finds nothing in his appearance or manner that he would need to modify in order to avoid persecution, while still practicing Islam.
The Tribunal notes DFAT’s assessment in April 2019 that ‘Muslims outside Rakhine state face moderate levels of official and societal discrimination’. The examples given include frequent demands by Bamar Buddhist officials for ‘informal fees’ (bribes) for the performance of routine government processes, and delays in processing; discriminatory regulations (eg. on travel to Rakhine State); and various forms of harassment (such as nationalist monks encouraging the police to investigate illegal residents in Mingala Taungnyunt in May 2018, as referred to in the DFAT report, paragraph 3.73). The Tribunal appreciates that such actions, cumulatively, undermine the Muslim community’s sense of security. However, it is not satisfied that they give rise to a real chance of serious harm within the meaning of s.91R(1)(b), and as illustrated by the (non-exhaustive) examples in s.91R(2).
The applicant also claimed to fear anti-Muslim violence, at the hands of extremists in the 969 Movement, in part due to his profile with them from April 2013 (which the Tribunal has rejected above) as well as anti-Muslim sentiment. In relation to State protection, the applicant claimed that in April 2013, the police declined to assist his community, but rather threatened him and his friends not to take defensive action. The Tribunal has also rejected these claims. Accordingly, the Tribunal finds that there is no real chance of Buddhist extremists or the local police targeting the applicant as a result of his presence in Yangon in early 2013.
Country information indicates that there is a generally reduced tolerance for Islamic activities in Myanmar, which has occasionally resulted in violence against Muslims. Overall, DFAT assessed in April 2019 that Muslims outside Rakhine state face ‘a low risk of societal violence on a day-to-day basis’, on account of their religion.[33] Reports indicate that this tends to be sporadic and localised. Overall, the applicant’s account of his experiences (including as a religious scholar and teacher), and his family’s business interests in Hsipaw, Mandalay and Yangon, convey the sense that they do not live with any fear of imminent harm. On the available information, the Tribunal finds that there is no real chance of the applicant facing serious harm – including physical assault and/or associated psychological harm – as a Muslim.
[33] DFAT Report, paragraph 5.75
The applicant claimed in his statutory declaration of 9 September 2016 that he fears persecution as a failed asylum seeker, and appeared to link this with his role in the events of April 2013. The Tribunal accepts that, if the applicant returns to Myanmar, the authorities will likely come to know that he applied for protection in Australia, and is a failed asylum seeker. They may infer this from his personal circumstances (as a young Muslim male who has no proof of travel to Australia, or holding a substantive visa), his need for a replacement Myanmar passport, and any communications from the Australian authorities regarding his return travel (although the Tribunal is satisfied that the Department will not reveal either the fact of the applicant’s protection visa application, or its contents).
Asked at hearing about his fears as a failed asylum seeker, the applicant said that if the Myanmar government learns that he is in Australia, they will arrest him on his return and imprison him, due to their hatred of Muslims and the applicant’s activism in early 2013. For the reasons stated above, the Tribunal does not accept that the applicant had any profile in Yangon in early 2013, including as a religious teacher or night patrol organiser, or as a person who defied the police.
The Tribunal has considered whether the applicant faces a real chance of persecution as a failed asylum seeker for any other reason, including his membership of any associated particular social group, or an imputed political opinion (such as opposition to the Myanmar government). For the reasons stated above, the Tribunal finds that the applicant departed Myanmar legally, on a passport in his own name. He therefore did not breach the law against illegal border crossings, and is not liable to punishment for that reason. The applicant has not claimed, and the Tribunal has nothing before it to suggest, that the Myanmar authorities target returnees – or Muslim returnees – for the mere fact of them having sought protection abroad. The most recent DFAT report indicates that they are not aware of voluntary returnees being questioned or treated adversely following their return to Myanmar[34]. On the material as a whole, the Tribunal finds that there is no real chance of the applicant being persecuted as a failed asylum seeker, including for any imputed political opinion.
[34] DFAT Report, paragraph 5.41
Summary
The Tribunal has considered the applicant’s claims and evidence individually and cumulatively. For the reasons set out above, the Tribunal does not accept that the applicant is a stateless Rohingya, but rather that he is a Myanmar citizen and a person who identifies as a ‘Burmese Muslim’. It does not accept that, if he returns to Myanmar now or in the reasonably foreseeable future that there is a real chance he will face serious harm amounting to persecution in Yangon, as a Muslim, as a self-identified or perceived ‘Burmese Muslim’; as a former Muslim scholar or teacher; as a failed asylum seeker; or for any other Convention reason (including imputed political opinion). The same findings apply in relation to the applicant’s place of birth Hsipaw, and Mandalay, where he lived for some years. As such, it is unnecessary for the Tribunal to assess whether he would need to rely on State protection or whether he could reasonably relocate to another area of the country.
In sum, the Tribunal does not accept that he has a well-founded fear of persecution for any Convention-related reason.
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Myanmar.
The Tribunal refers to the findings of fact above (including that he is not stateless, and that he identifies as a Burmese Muslim, not a Rohingya), and the country information that relates to the applicant’s claims that he would be at risk of harm – including potentially ‘significant harm’ – as a result of his Muslim faith, attitudes towards the Muslim community generally (including persons of Rohingya origin, and persons who identify as Burmese Muslims), and his having sought protection in Australia. Relevantly, the Tribunal does not accept that the applicant faces the prospect of being detained, questioned and imprisoned on his return to Myanmar, including for the (now-rejected) reasons that he is a stateless Rohingya and that he defied official orders not to defend Muslims during the 2013 violence.
Having regard to the applicant’s circumstances and relevant country information, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Myanmar, there is a real risk that he will suffer significant harm: s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative 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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
James Silva
Member

ATTACHMENT: RELEVANT LAW
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.
Refugee criterion
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. 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. 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.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
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.
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. 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. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
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. 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.
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
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’).
‘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.
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.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –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.

(1994) 34 ALD 347 at 348 (per Heerey J) and Kopalapillai v MIMA (1998) 86 FCR 547

[2020] AATA 1502

30 April 2020

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