1712570 (Refugee)

1712570 (Refugee) [2021] AATA 508 (29 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1712570

COUNTRY OF REFERENCE: Stateless
MEMBER:Meena Sripathy
DATE:29 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
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Statement made on 29 January 2021 at 4:17pm
CATCHWORDS
REFUGEE – protection visa – Stateless – race – Rohingya – religion – Muslim – country of former habitual residence – torture – family composition – killing of family members – fraudulently obtained passport now expired – forced labour – travel restrictions – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91
Migration Regulations 1994, Schedule 2
CASES
Al-Anezi v MIMA (1999) 92 FCR 283
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
SZUNZ v MIBP [2014] FCCA 2256
SZUNZ v MIBP (2015) 230 FCR 272
Tahiri v MIAC [2012] HCA 61
Taiem v MIMA[2001] FCA 611
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a stateless, applied for the visa on 30 October 2014 and the delegate refused to grant the visa on 2 June 2017.
The applicant appeared before the Tribunal on 26 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Brother A] and [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. The applicant was represented in relation to the review by his registered migration agent.
The issues in this case are:
oWhether the applicant is a Rohingya born in Maungdaw, Rakhine state, Myanmar;
owhat is the country of reference to assess his protection claims; ie. his country of nationality (determined solely by the laws of that country) or if he has no country of nationality, his country of former habitual residence;
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant arrived in Australia [in] September 2014 on a subclass FA 600 Sponsored Family visitor visa, valid to 20 December 2014. He was sponsored by his brother [Brother A] and applied for the visitor visa in July 2014 to attend [a family] wedding [in] August 2014. The visa was granted on 26 August 2014.
In his application for a Protection visa made on 30 October 2014 he claims he was born in Maungdaw Rakhine State, Myanmar and that he was of Burmese citizenship at birth but currently stateless. He claims he became stateless since the 1982 Citizenship Act. He speaks Rohingya and Burmese. He provided details of a Bangladesh passport issued [in] 2012 and valid to [2017] which he says is fake. He stated that he resided in Burma from birth to 2012 and in Bangladesh from June 2012 to September 2014. He travelled to [Country 1] from May to July 2013 (sic). The applicant provided details of his wife, [and specified family members] who are living in the border area of Burma. He is educated to [a specified] school level in Maungdaw, Rakhine State, and was self employed as [an occupation] in Myanmar and worked for [a business] in Bangladesh. In his Form 80, he provides details of [siblings] who are deceased and two brothers who reside in Australia.
The applicant provided details of his protection claims in a statement lodged with the application, providing the following information:
·As a Rohingya in Burma he has endured severe discrimination and persecution throughout his life.
·[A number of his siblings] were murdered by the brutal regime in Burma.
·His brothers [Brother A] and [Brother B] migrated to Australia as political refugees.
·He was born in [year] at the border area between Burma and Bangladesh. His late parents were born and died in Maungdaw, Burma. His mother was the second wife of his father.
·From 1982 to 2012 he endured several forms of persecution. In 1986 he was forcibly conscripted by the army to work as slave labour for one week. He was treated inhumanely and denied food and other basic needs for 3 days.
·In 1994 his brother [Sibling C] was arrested and then secretly murdered by intelligence officers. That same year his sister [Sibling D] was murdered by the regime.
·In 1997 he was again conscripted by the army to work as a slave worker for one week.
·Upon his release he married his wife, with whom he has [number] children.
·In 1998 he heard his brothers [Sibling E] and [Sibling F] were arrested and murdered.
·Upon the outbreak of the riots in 2012 he could no longer ignore the agonies and persecution of his fellow Rohingya so he decided to pass on information to some well educated Rohingya intellectuals regarding the mass atrocities. The authorities noticed his activities and stormed his house in 2012 when he was not home. He decided to flee to Bangladesh.
·In Bangladesh Rohingya suffer appalling living conditions and maltreatment at the hands of local authorities. He contacted a broker who deals with travel and passport issues and he managed to arrange a fake Bangladesh passport for him.
·He experienced several mistreatment and tortures by authorities in the camps. In June 2014 he raised with visiting charities the agonies and atrocities endured in the camps which angered the local authorities of the camps and he realised his life was at stake.
·On 26 August 2014 he was granted an Australia visa and arrived in Australia [in] September 2014. He fears for his life because he is not a Bangladesh citizen and if returned there he will be subject to torture and mistreatment and he will be deported to Burma where he will face persecution because of his race and religion.
The applicant provided with his application the following supporting documentation:
·Copy and translation of a Union of Myanmar Identity Card for himself issued [in ]1998
·Copy and translation of a Provisional Identity Card for his wife, [named]
·Copy and translations of Birth Certificates for [children] born in [specified years] and copy and translation of Marriage Certificate for himself and his wife relating to their marriage [in] 1997.
·Letter dated [in] October 2014 from [Mr A], President of [Community Organisation 1] and copy of Mission Statement about that organisation.
·Letter dated 13 November 2014 from [a named officer] of [Community Organisation 2] attesting to the applicant’s Rohingya ethnicity.
The applicant was interviewed by an officer of the Department on 1 June 2015. The Tribunal has listened to an audio recording of this interview.
On 2 June 2017, the delegate refused the application on the basis that he did not accept the applicant’s claims relating to his family composition, or any of his claims relating to his history and circumstances in Burma or Bangladesh. The delegate rejected his claim that he is a Rohingya from Rakhine State and found that he is a Bangladesh citizen. His protection claims were assessed against Bangladesh and he was found not be to owed protection obligations under the refugee or complementary protection criteria.
Evidence before the Tribunal
On 11 July 2017 the applicant submitted the following documents in support of his application:
·Statement from the applicant addressing delegate’s reasons for decision and why he disagrees with it.
·A Statutory Declaration from [Mr A], dated 2 July 2017, declaring that he came to Australia in 2003 as a political refugee. He is Rohingya. His [two named relatives] also came to Australia as a political refugees. The applicant is his [specified relative]. He believes the political and social circumstances of the applicant are identical to his as they experienced similar difficulties due to their race, religion and political activities. Copy of the declarant’s Australian passport is attached.
·A Statutory Declaration dated 2 July 2017 from [Brother A], declaring that he came to Australia in 1995 as a political refugee. He is Rohingya. His brother [Brother B] also came to Australia as a political refugee. The applicant is his brother. He lost 4 siblings who were murdered by the regime, [Sibling C], [Sibling E], [Sibling F] and [Sibling D]. He also received birth certificates for his children with the assistance of certified nurses, including [one child] born in [year]. He believes the political and social circumstances of the applicant are identical to his as they experienced similar difficulties due to their race, religion and political activities. Copy of the declarant’s Burmese ID and birth certificate for his [child] born in [year], and Australian citizenship certificate is attached.
On 16 July 2018, a letter requesting priority for the case was received from [a named agency]. The letter refers to information provided by the applicant to the author about his circumstances in Myanmar and reasons for his claims for protection
On 29 July 2020 the applicant’s newly appointed representative provided a submission and supporting documents. The submissions argue that the central issue in the matter is whether the applicant is a Bangladeshi citizen, in which case his claims must be assessed against Bangladesh, or a Burmese Rohingya. If he is found not to be a Bangladesh citizen his claims must be assessed against Burma on the basis that he is a Burmese Rohingya. It is submitted that if accepted as a Rohingya, the country information is unequivocal that he cannot be a Bangladesh citizen. The submission addresses the delegate’s reasons for decision and its flaws. Reference is made to the supporting documents and evidence provided by the applicant with his application, including identity documentation supporting his Burmese origins (marriage certificate, birth certificates for his children and his identity card), and new evidence is submitted:
·Statement dated 24 June 2020 from the applicant.
·Statutory Declaration dated 3 June 2020 from [Brother A].
·Statutory Declaration dated 2 June 2020 from [Brother B].
·Statutory Declarations from various individuals in Australia who claim to be Rohingya and claim to know the applicant from different contexts including a neighbour in his village ([named]), in law -relatives of his brother ([several names]), a nephew ([named]), a school friend ([named]), dated in February -March 2019.
On 19 and 24 November 2020 the applicant’s representative provided a further letter from [Community Organisation 2], dated 16 November 2020, certifying the applicant’s Rohingya ethnicity and a letter dated 14 September 2020 explaining the membership verification procedure for [their organisation].
Tribunal hearing 26 November 2020
The applicant gave evidence to the Tribunal at a face to face hearing, where the Tribunal questioned him at length about his family composition, life and past experiences in Myanmar and discussed with him its issues and concerns about certain of the documents he had submitted. The applicant provided explanations and showed the Tribunal originals of documents he had. The Tribunal also took oral evidence in person from the applicant’s brother, [Brother A] and [Mr A] and was shown a historical family photo album. As relevant, details of the evidence provided is included in the discussion below.
Following the hearing the applicant provided further information arising from the discussions during the hearing, including a list of his siblings and nieces and nephews and their present whereabouts to his knowledge.
CONSIDERATION, FINDINGS AND REASONS

The applicant claims he was born in Maungdaw Rakhine state, Myanmar and is of Rohingya ethnicity and Muslim. He claims three of his brothers and one sister were killed by the regime in Myanmar and his two remaining brothers, among other relatives, reside in Australia, having sought asylum or otherwise migrating here in the past. The applicant claims he endured various forms of persecution between 1982 and 2012 when he fled to Bangladesh. He suffered appalling conditions and mistreatment in Bangladesh and eventually obtained a false Bangladesh passport on which he obtained a visa to travel to Australia and arrived here [in] September 2014. He fears for his life because he is not a Bangladesh citizen and fears return there or to Myanmar where he will face persecution due to his race and religion.
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (See MIMA v Rajalingam (1993) FCR 220). However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
Is the applicant Rohingya from Myanmar?
The first and critical issue in the present case is whether the applicant is Rohingya from Myanmar as claimed or a Bangladesh citizen, as indicated in his Bangladesh passport on which he entered Australia.
In support of his identity and ethnicity to the Department, the applicant provided a Myanmar National Identity Card issued [in]1998, marriage certificate and birth certificates for his [children], a letter from [Community Organisation 1] dated [in] October 2014 and a letter from [Community Organisation 2] dated 13 November 2014.
The delegate had concerns about the above evidence and from his oral evidence at interview was not satisfied as to the credibility of the applicant and therefore concluded that the applicant is a Bangladesh citizen. In reaching this conclusion, the delegate relied on the Document Examination Unit finding that the Bangladesh passport appeared to be a genuine document. Accordingly the delegate assessed his claims against Bangladesh as the country of reference. The delegate did not accept that the applicant’s family composition was as claimed or any of his claims about his past circumstances in Myanmar or Bangladesh and was not satisfied the applicant had been forthright and truthful with the Department.
Before the Tribunal, the applicant maintained his claims regarding his ethnicity, family composition and past experiences. He also submitted substantial further evidence in support of his claims including seven Statutory Declarations from Rohingya persons in Australia who are personally known to the applicant in a variety of contexts including family members, neighbours and former school mates. He attended a face to face hearing, at which he was questioned in detail and at length by the Tribunal about his family composition, home and life past experiences in Myanmar and issues relating to the documentation presented. His half brother, [Brother A], and [relative Mr A], attended the hearing in person and gave oral evidence in support of the applicant to the Tribunal. The Tribunal also sighted original physical evidence of documents and photos at the hearing.
Having carefully considered all of the evidence now before it, the concerns raised by the delegate and independent information from a range of sources, the Tribunal finds that the weight of evidence now before it clearly supports the applicant’s claims as to his ethnicity, family composition and country of origin. On the evidence before it the Tribunal is satisfied that the applicant is related as claimed to [Brother A] and [Mr A] and that he is of Rohingya ethnicity, born in Maungdaw, Rakhine State, Myanmar. As a consequence of these findings and reliable country information, the Tribunal also concludes the applicant is not a citizen of Bangladesh. The reasons for the Tribunal’s conclusions are as follows.
The applicant was able to give a detailed and convincing description of his home village, including landmarks in the area. His evidence about his extended family composition, their names, order of birth and death and details of their children, was provided by him in a coherent and fluid manner without undue hesitation. His account was substantially consistent with that provided by his witnesses and other information before the Tribunal. In brief, the applicant told the Tribunal his parents died from illness and old age. His father had two wives, and five children from the first wife, ([Sibling C], [Brother B], [Sibling E], [Brother A] and [Sibling D]), and two children from the second wife ([including Sibling F variant] and the applicant). He has no surviving siblings in Myanmar. His only two living siblings are [Brother A] and [Brother B] who are both in Australia. The applicant gave details of the timing and manner of death of his siblings [Sibling C], [Sibling E], [Sibling F variant] and [Sibling D] between 1994 and 1998. The witness [Brother A’s] evidence about the family composition was largely consistent with the applicant’s evidence, though the Tribunal notes he provided more detail about the circumstances of the deaths of some siblings, but it considers this is plausibly explained by the context of their relative ages and education levels.
The applicant provided some documentation to support his Rohingya Myanmar origins, including a National ID card (the original of which he claims was provided to the Department,[1] but not returned), a marriage certificate, and birth certificates for his children. The applicant also provided, and the Tribunal sighted at hearing, a 2002 Household Registration document naming his mother and two others whom he identified as paternal cousins that his father took responsibility for. He explained that he is not named on this document because during the checking he was not present. He said he was scared of the authorities because of what had happened to his siblings and so he did not want to be included on the household list, although he was included on earlier lists. The Tribunal put to the applicant that independent information before it indicated that it was in fact dangerous and difficult not to have a household registration and queried how he was able to live without this documentation in Myanmar. In response he said he had an Identity card, which enabled him to get by, and he explained how he was able to get birth certificates for his children. The Tribunal sighted the original document for his eldest child, who was born in hospital and the document was issued officially after sighting the NRC card and family list. The other two children were born at home and their documents were issued after the mother showed documents. Having regard to country information before the Tribunal regarding documentation that Rohingya would usually possess and require for daily life,[2] the Tribunal is not without some doubts or concerns regarding the documentation he provided, but acknowledging the difficulties in producing reliable documentation faced by refugee applicants, on balance, and in light of other supporting material, it has decided to give him the benefit of doubt and accept that the documentation he has provided is not inconsistent with, and supports, his claimed ethnicity and origins.
[1] Receipt included in the Department file [number], folio 82
[2] DFAT Country Information Report Myanmar 18 April 2019, para 3.9; Caged without a roof: Apartheid in Myanmar’s Rakhine State’, Amnesty International, 21 November 2017, CISEDB50AD7585, p.34, Rohingyas - Insecurity and Citizenship in Myanmar’, TSU Press, 1 August 2016, CIS38A80121535, p.86;
Of particular significance in this matter, the Tribunal accepts and gives substantial weight to the evidence of [Brother A] and [Mr A] who attest to being close relatives of the applicant. [Brother A] declares he is the half brother of the applicant and [Mr A], his nephew. Both of these individuals have been recognised by Australian authorities as being of Burmese/Myanmar origin and came to Australia on humanitarian visas on that basis. [Brother A] has submitted to the Department and Tribunal numerous documents to support his Maungdaw, Burmese origins, which also name his father (common with the applicant’s father) including an identity card, marriage certificate and education documents, The Tribunal notes these were also provided to the Department when he sponsored the applicant for a visitor visa in the first instance.[3] Perhaps most convincingly, [Brother A] produced at the hearing an original historical family photo album which included photos of the applicant’s wedding sent to [Brother A] in appreciation of a gift of money he had provided the applicant at that time. The Tribunal finds this evidence strongly supports the credibility of the applicant and witness’ claimed history and relationship.
[3] [File number], folios 11-15
The evidence of [Mr A] attesting to his familial relationship with the applicant and Rohingya ethnicity is also significant and convincing. The Tribunal acknowledges [Mr A] has a prominent position and profile in [Community Organisation 2] and is an advocate for Rohingya rights. The Tribunal has no reason to doubt the credibility of [Mr A’s] evidence.
The Tribunal also accepts the verification of the applicant’s Rohingya identity and ethnicity contained in the support letters from [Community Organisation 2] and in the additional Statutory Declarations from people who know him in various capacities including other family (in law) relationships, school mates and neighbours in Myanmar. The Tribunal has considered the letter provided from the [Community Organisation 2] regarding its verification procedures undertaken prior to granting membership which refers to its interview process, endorsement from fellow community members and assessment of language and fluency. The Tribunal accepts the applicant used Rohingya language interpreters in his interview before the Department and hearing before the Tribunal and his indication of fluency in spoken Rohingya and Burmese in his application. The Tribunal finds that the applicant’s Rohingya language fluency is a strong indicator that he is of Rohingya ethnicity and his claimed knowledge of Burmese also supports his Myanmar origins.
Therefore, on the basis of all of the above, the Tribunal is satisfied that the applicant’s identity and family composition as claimed and that he is Rohingya, born in Maungdaw, Rakhine state, Myanmar.
What is the applicant’s country of reference, ie. ‘country of former habitual residence’
Having found the applicant is a Rohingya born in Rakhine (Arakan) state, Myanmar, the Tribunal also accepts he does not hold any citizenship status in that country, or any other country and is effectively stateless[4]. It accepts he left Myanmar for Bangladesh and came from there to Australia. He claims that he obtained a passport in Bangladesh by fraudulent means and has no legal status in that country, which is consistent with country information that indicates regardless of their arrival date in Bangladesh, Rohingya are not eligible for citizenship and not entitled to work.[5]
[4] DFAT Country Information Report Myanmar 18 April 2019, para 3.3; DFAT Country Report on Bangladesh, 22 August 2019, paragraph 3.22
[5] DFAT Country Information Report Myanmar 18 April 2019, para 3.9; DFAT Country Report on Bangladesh, 22 August 2019, paragraph 3.22; Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Myanmar/Burma : Muslims and Rohingya, October 2017, available at: ; Country Report on Human Rights Practices for 2016 – Bangladesh’, US Department of State, 3 March 2017, OGD95BE926872, sect.2d, p.28
Having accepted the applicant as stateless, the next question for the Tribunal to consider for the purposes of assessing his protection claims is what is his country of ‘former habitual residence’.
The Tribunal notes that the Act does not define the term ‘country of former habitual residence’ and relevant judicial authorities indicate the determination requires a broad factual inquiry, taking into account factors such as the actual and intended length of stay, purpose, strength of ties to the state and to any other state (both past and present) and the degree of assimilation into the state.[6] It is generally accepted that a stateless person may have more than one country of former habitual residence,[7] however current Australian case law supports the position that a person with more than one country of former habitual residence is not required to have a well founded fear of persecution in relation to each such country.[8]
[6] Tahiri v MIAC [2012] HCA 61 (French CJ, Bell and Gageler JJ, 13 December 2012) at [16], SZUNZ v MIBP (2015) 230 FCR 272 per Buchanan J at [30]-[31], Flick J at [53], and Wigney J at [118
[7] Al-Anezi v MIMA (1999) 92 FCR 283 at [22], Taiem v MIMA[2001] FCA 611
[8] SZUNZ v MIBP [2014] FCCA 2256 (Judge Driver, 17 October 2014) where the Court referred to Al-Anezi v MIMA (1999) 92 FCR 283. This issue was not discussed by the Court on appeal in SZUNZ v MIBP (2015) 230 FCR 272.
The Tribunal has considered the applicant’s representative’s argument that his claims against Burma as a Burmese Rohingya are well documented and established by independent reports and that he is not a citizen of Bangladesh and as the fraudulently obtained passport is now expired, he has no right to enter or reside there.
While accepting both of these propositions, the Tribunal must still determine the applicant’s country of reference for the purposes of assessing his protection claims, and specifically whether, in his case, Bangladesh can be considered a country of former habitual residence. In making this qualitative assessment the Tribunal takes the following into account relating to the applicant’s residence in Bangladesh. The evidence discloses he left Myanmar for Bangladesh in 2012 and lived there until he came to Australia in September 2014. His wife and [children] remain living there to date. While in Bangladesh he travelled to [Country 1] and returned to Bangladesh. He claims he has no other close relatives (parent, siblings or children) left in Myanmar. He provided little information to the Tribunal about his wife and children’s current circumstances, stating that he sends them some money, but his wife also works a little by sewing and the children stay at home and are not attending school. Having regard to the relevant factors referred to above (actual and intended length of stay, purpose, strength of ties to the state and to any other state (both past and present) and the degree of assimilation into the state), the Tribunal finds the evidence in this case is equivocal as to whether Bangladesh could be considered a country of former habitual residence in respect of the applicant.
On the other hand, having been born in Myanmar and having lived there for the majority of his life until 2012 and his entire family having been born there the Tribunal finds it is unequivocal that Myanmar is a country of former habitual residence in respect of the applicant.
Accordingly, for the purposes of the application, the Tribunal has assessed the applicant’s protection claims against Myanmar as his country of former habitual residence.
Does the applicant face a real chance, if returned Myanmar, of persecution for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion
The applicant fears persecution in Myanmar on the basis of his Rohingya ethnicity and Muslim religion. He claims four of his siblings were taken and killed by the authorities. These events took place between 1994-1998. He claims he was subjected to forced labour on several occasions, most recently in 1997. He fled to Bangladesh in 2012, following the outbreak of riots, when his house was stormed by authorities.
Since then, the situation for Rohingya in Myanmar has become significantly more serious and severe. The Tribunal accepts there is substantial country information from a wide range of sources to support the severity of the situation faced by ethnic Rohingya Muslims within Rakhine State in Myanmar, for example, in a recent report of Human Rights Watch published on 8 October 2020, “An Open Prison without End” Myanmar’s Mass Detention of Rohingya in Rakhine State. This report describes the plight of more than 130,000 mostly Rohingya Muslims confined in camps in Central Rakhine state that are effectively open -air detention facilities where they are held arbitrarily and indefinitely, and denied freedom of movement, dignity, and access to employment and education, without adequate provision of food, water, health care, or sanitation. The circumstances are described as amounting to a regime of apartheid.[9]
[9] "An Open Prison without End" Myanmar's mass detention of Rohingya in Rakhine State, Human Rights Watch, 8 October 2020
In its 2019 Myanmar Report[10] DFAT assesses that official and societal discrimination on the basis of ethnicity against Rohingya in Rakhine State is high, endemic and severe. DFAT states that Rohingya typically lack citizenship, face severe restrictions on their freedom of movement and are the subject of systemic extortion and harassment. These issues combine to restrict this community’s access to livelihoods and essential services, including in education and health. Rohingya have also been subjected to extreme violence by the security forces, and to a lesser extent, the ethnic Rakhine population. DFAT assesses there is a high risk of further violence for the remaining Rohingya in Rakhine State.
[10] DFAT Country Report Myanmar April 2019, para 3.8
According to Human Rights Watch, large-scale violent attacks against the Rohingya have occurred repeatedly since Myanmar’s independence, and Rohingya have migrated across the region in large numbers to escape violence. Violence against the Rohingya by security forces, including torture, indiscriminate killings, and mass rapes were reported during and following the 2012 and 2016 outbreaks. However, these occurred on an unprecedented scale in the August 2017 security operations. Multiple sources have reported widespread, large-scale and extreme violence against the Rohingya in northern Rakhine State in 2017, by security forces, groups affiliated with the security forces and ethnic Rakhine mobs.
In March 2018, Médecins Sans Frontières estimated at least 9,400 people died in Rakhine State between 25 August and 24 September 2017, of which at least 6,700 were due to violence, including at least 730 children under the age of five. MSF reported the main cause of violence-related deaths during this period was gunshots (70 per cent), including for children under five (59 per cent). Around 9 per cent were burned to death in their homes, higher (around 15 per cent) for children under the age of five who died violently. Five per cent of people who died violently were beaten to death, three per cent from sexual violence and one per cent from landmines. MSF concluded that the estimated number of deaths was conservative given their survey methodology, and information collected by the UN Fact- Finding Mission corroborated this statement. While the month following the ARSA attacks has been described as the most violent, multiple credible sources recorded a high number of violent incidents against Rohingya in northern Rakhine State continuing until November 2017, despite the official conclusion of security operations by the government on 5 September 2017. DFAT asses that some violent acts constituted torture. The UN Fact-Finding Mission found sufficient evidence of violence perpetrated by the Tatmadaw in northern Rakhine State to conclude that war crimes, crimes against humanity, and potentially, genocide occurred.

Given the multiple incidents of extreme violence against the Rohingya in recent years, DFAT currently assesses that Rohingya in Rakhine State continue to face a high risk of violence, predominantly from security forces. DFAT assesses there is a high risk of further violence for the remaining Rohingya in Rakhine State.
The movement of Rohingya in Rakhine State is limited by government-imposed regulations, informal rules implemented by authorities, and self-imposed restrictions by communities who fear for their safety outside of their townships. All Rohingya living in Rakhine State require official permission to travel between townships, and outside of Rakhine State.
Rohingya also face restrictions in travelling outside of Rakhine State. Travel permission is only granted to Rohingya holding official identity documents (mostly National Verification Cards or NVCs, though some still hold National Registration Cards), meaning very few Rohingya are able to travel legally outside of Rakhine State. The restrictions on movement for Rohingya prevent access to healthcare, education, and income-generating activities. Health services in Rakhine State are generally poor quality.
The DFAT Report indicates the situation for Rohingya returnees, whether returning from Bangladesh or otherwise, is concerning. DFAT advises that the governments of Myanmar and Bangladesh signed the ‘Agreement of Return of Displaced Persons from Rakhine State’ in November 2017. While the Myanmar Government has formally committed to repatriating the Rohingya, there has been widespread international criticism of actions taken to date, with an almost exclusive focus on physical infrastructure for returnees and no clear plans for establishing security, providing information to potential returnees, or addressing inter-communal relations. In September 2018, UNDP and UNHCR made initial field assessments in 23 villages and three village tracts of Rakhine State to inform the repatriation process, but to date UNHCR and UNDP have received only partial access to northern Rakhine State. OCHA, UNHCR and ICRC all made public statements in 2018 that the conditions in northern Rakhine State are insufficient for the voluntary, safe, dignified and sustainable return of the Rohingya to Myanmar. Freedom of movement, citizenship rights and recognition as ‘Rohingya’, and access to their own land and livelihood opportunities are priorities for potential returnees from Bangladesh, but DFAT assesses none of these conditions will be met under the current return arrangements. At the time of the DFAT 2019 Report, the repatriation process had not commenced.
On the basis of the information contained in the DFAT Report referred to above, citing information from a range of sources, including MSF, Human Rights Watch, US Department of State , UNDP and UNHCR, the Tribunal is satisfied there is a real chance that the applicant would face serious harm in the form of serious violence, deprivation of liberty, severe discrimination, torture and other forms of serious harm, for reasons of his Rohingya ethnicity and religious profile as Muslim, if he were to return to live in Arakan (Rakhine) State, Myanmar.
Having found there is a real chance the applicant would face persecution in Rahkine state, the Tribunal has considered whether it is reasonable for him to relocate in Myanmar to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. 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.
The Tribunal has considered therefore the risk of harm to the applicant outside of Rakhine state. DFAT advises that there are a number of Rohingya living outside of Rakhine State, particularly in Yangon but the size of the Rohingya population outside Rakhine State is unclear. This is due to both a lack of official statistics that recognise the Rohingya as an ethnic group, and also as some Rohingya in Yangon and other large cities in Myanmar reportedly conceal their ethnic identity, including through attempts to identity as Kaman or other Muslim groups. While the report suggests that Rohingya outside Rakhine State generally have higher incomes and better access to resources than those in Rakhine State, and are typically able to obtain identity documentation that allows them to live and work without facing the high levels of discrimination otherwise experienced by Rohingya in their day-to-day life, it is implied that this is because Rohingya in Yangon typically are registered as ‘Burmese Muslims’ or ‘Bamar Muslims’ and accordingly DFAT assesses that Rohingya who live outside of Rakhine State experience moderate levels of societal and official discrimination on a day-to-day basis. While they are officially denied citizenship rights, Rohingya who choose to identify as Kaman or other Muslim groups face a similar level of discrimination to that experienced by other Muslims. The Tribunal accepts that independent information indicates Rohingya living in Yangon are in a significantly better situation than Rohingya in Rakhine state, however it is not satisfied that the applicant would be in such a situation, given his limited education, likely inability to obtain documentation that would allow him to live and work, and it would be impermissible to require him to conceal his Rohingya ethnicity to avoid harm.
The weight of available information before the Tribunal indicates that there is more than a remote chance of the applicant facing serious harm as an undocumented Rohingya Muslim living in Yangon or anywhere else in Myanmar. The Tribunal is satisfied the applicant cannot relocate to any place where he will not face an appreciable risk of the occurrence of the feared persecution.
The Tribunal is also satisfied that the applicant would be unable to obtain effective state protection against the persecution he fears in Myanmar as the persecution is as a result of official policy and the perpetrators are in substantial part from the Myanmar armed/security forces.
For the reasons given above, the Tribunal is that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal has (above) concluded that the applicant is not a Bangladesh citizen, despite having held a Bangladesh passport in the past. It observes that his last held Bangladesh passport, on which he entered Australia has now expired. The Tribunal also found, (above) that as a Rohingya from Myanmar in Bangladesh, the applicant is ineligible for citizenship in Bangladesh.
Therefore the Tribunal finds the applicant does not have a right to enter and reside in Bangladesh, or any other country, and s36(3) does not apply in this case.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Meena Sripathy
Member

[2021] AATA 508

29 January 2021

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