1712570 (Refugee) - [2021] AATA 508

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1712570 (Refugee)

Details

AGLC: 1712570 (Refugee) [2021] AATA 508
Case: [2021] AATA 508
Decision Date: 29 January 2021

CaseChat Overview and Summary

This matter concerned an application for a Protection visa by a stateless Rohingya individual who claimed to have been born in Myanmar. The applicant asserted he had suffered severe discrimination and persecution in Myanmar due to his race and religion, including the forced labour and murder of family members. He also claimed to have experienced mistreatment and torture in Bangladesh, where he had resided temporarily using a fraudulently obtained passport. The applicant feared returning to either country, alleging he would face persecution in Myanmar and torture and deportation from Bangladesh.

The court was required to determine whether the applicant had established a real risk of significant harm if returned to his country of former habitual residence, specifically Bangladesh, and whether he met the criteria for a Protection visa under section 36 of the Migration Act 1958 (Cth). This involved assessing the applicant's claims of statelessness, his experiences in Myanmar and Bangladesh, and the availability of protection or reasonable relocation options within Bangladesh. The court also considered the application of Ministerial Direction No. 84 and relevant guidelines.

The court reasoned that the applicant did not have a right to enter and reside in Bangladesh, and therefore section 36(3) of the Act was not applicable. The court found that the applicant satisfied section 36(2)(a) of the Migration Act. Consequently, the Tribunal remitted the matter for reconsideration with the direction that the applicant meets the criteria under section 36(2)(a).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEEvidence 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.

Decision

Reasons for decision

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 SripathyMember

Ratio Decidendi

Legal Principle Established

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 EVIDENCEEvidence 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.