1713285 (Refugee)

[2021] AATA 2952

1713285 (Refugee) [2021] AATA 2952 (25 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1713285

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:James Silva

DATE:25 June 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.

Statement made on 28 June 2021 at 9:32am

CATCHWORDS

REFUGEE – protection visa – Myanmar – race – Rohingya – Bamar – religion – Muslim – political opinion – opposition to the government – political protests – detention – employment – disappearance of husband – accessing identity documents – fundraising for refugees – illegal departure – protests in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 424
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia [1999] HCA 14
Kopalapillai v MIMA (1998) 86 FCR 547
Guo Wei Rong v Minister for Immigration and Ethnic Affairs [1995] FCA 29; 38 ALD 38
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

1. The applicant is a woman in her [age range] from Myanmar (Burma). She arrived in Australia [in] August 2015, as the holder of a visitor visa.

2. The applicant applied for a protection visa (class XA, subclass 866) visa on 5 November 2015. On 19 June 2017, 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).

3. This is an application for review of that decision.

4. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Criteria for a protection visa

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. The relevant law is set out in the attachment to this decision.

   CLAIMS AND EVIDENCE

   Claims

6. The applicant is a Muslim woman from Myanmar, who claims to have been married to a stateless Rohingya. She claims that her father-in-law was [an occupation 1] who was well-known among Rohingya; this led people to also trust her husband. In June 2013, the applicant and her husband visited his relatives in Rakhine State, after bribing military officials to allow the visit and escort them. The applicant’s husband was upset by the appalling conditions there and, on his return to Yangon, started raising funds to help Rohingya and to press for better rights. In April 2014, intelligence officers arrested the applicant and her husband. They detained the applicant for three days. Her husband’s whereabouts were unknown. The applicant claims to have been more or less in hiding from that time, while conducting a small [product] business (which also required her to travel to [Country 1] on several occasions). In about April 2015, she decided to depart Myanmar after intelligence officers started asking after her. She fears the Myanmar authorities will arrest, detain and physically mistreat her if she returns there, due to her political opinion (including an imputed opinion through her association with her husband and father-in-law, and their Rohingya ethnicity).

7. The applicant also claims to have experienced discrimination as a Muslim, having experienced discrimination, harassment and property damage in the past. She also claims that in mid-2019, her husband was released from detention, but was in poor health and died in [year].

8. More recently, the applicant has joined protests in Australia against the February 2021 military coup, and posted anti-government material on a [social media] page that uses an alias but includes a photograph of herself. Her daughters in Yangon have also attended some protest activities. She claims that the Myanmar authorities have the means to identify her using technology, and that her future encounters with them – for instance, when seeking a new passport, and/or upon her attempted re-entry into Myanmar – will result in added scrutiny, and potentially detention and mistreatment.

   Background

9. The applicant is [an age] year old woman from Yangon, Myanmar’s largest city and its commercial capital.

10. The applicant lived in [a named] Township in central Yangon ([location specified]) from around 2006. She wrote on her application form that from April 2015 until her departure in August 2015, she lived at an address in [another town in] Yangon. At hearing, she did not mention this at first, but she then added that she stayed with a friend there in response to government harassment.

11. The applicant attended primary and high school in Yangon up to [year], and then went on to complete a degree in [subject] at the [named] University in [year]. She initially worked in a friend’s [business A] [in specified years], and then worked as a sole trader, selling [product] that she purchased in [Country 1] (2008-2015). In 2012 and 2013, she also worked as [another occupation] in [another business]. The Tribunal accepts the applicant’s account of her past employment, except that it has some reservations about her claim to have run a small scale [product] business.

12. The applicant is married and has [daughters, with ages]. She said at hearing that her husband used to trade in [products]. (His background and circumstances are central to the applicant’s protection claims, and the Tribunal examines them in more detail below.) Her daughters are students, although the school is currently closed due to Covid-19. They live with the applicant’s parents, in the [specified] property. The applicant is in regular contact with her daughters. She told the Tribunal that she did not contact them for the first year or so in Australia, fearing that it might cause them problems.

13. The applicant’s father is a retired government official and her mother worked in [a business]. She has [number] siblings. They completed high school; she is the only one to have received a tertiary education.

14. The applicant holds a Myanmar passport issued in [2013], valid for five years. Prior to her travel to Australia, she visited [Country 1] in December 2013, February 2014 and December 2014, for the purpose of buying [product] for her business. She stated that she had an earlier passport, issued in 2010. She used this passport to visit [Country 1], and also her sister in [Country 2]. The applicant said that her sister fled Myanmar after the 1988 uprising (the 8888 nationwide popular pro-democracy protests), and married a [Country 2 national].

    Evidence

15. The evidence before the Tribunal includes the following relevant material:

    Department file

    §  The applicant’s protection visa application, including Forms 866B and 866C, lodged on 5 November 2015. Attached to it was a detailed statutory declaration signed on 4 November 2015, which contains her statement of claims.

    §  The applicant provided two further statutory declarations, signed on 12 November 2015 and 21 January 2016.

    §  The applicant provided a partial photocopy of her (latest) Myanmar passport, issued in Yangon in [2013] and valid for five years.

    §  The applicant provided other supporting documents to the Department:

    -   A photograph of a person identified as her father-in-law, who she claimed had been working as [an occupation 1] in the period [between specified years].

    -   A family photograph from about 2014, showing the applicant, her husband and their [daughters].

    -   An old identity card with the applicant’s image, said to have been issued [in] 1986, untranslated.

    -   A letter of support from [Community Organisation 1], signed by [named leader] on 1 November 2015.

    -   The file includes a ‘true copy’ of the applicant’s birth certificate (in English only, original text not provided); a copy of her marriage certificate (in Burmese with translation), and a copy of the NSW driver licence for a [named person] (whose link with the applicant is not apparent).

    §  Recording of the applicant’s protection visa interview held on 2 June 2017.

    §  Post-interview submission of 7 June 2017, from the applicant’s representative.

    §  The protection visa decision record (‘delegate’s decision record’) of 19 June 2017.

    Tribunal file

    §  The applicant attached to her review application a statutory declaration dated 16 July 2017, addressing some issues in the delegate’s decision record. She later provided the Tribunal with a copy of the decision record.

    §  More recently, she has provided a statutory declaration on 5 February 2021, and supplementary statements dated 6 January 2021 and 25 February 2021.

    §  The Tribunal received detailed submissions on 11 January 2021, 9 February 2021, 1 March 2021, 31 March 2021, 7 April 2021 and 21 April 2021. Attached to these were various supporting documents, the key ones of which are listed below.

    §  The Tribunal has before it statements of support addressing aspects of the applicant’s protection claims:

    -   [Mr A] (26/6/2017, 18/12/2020 and 21/12/2020).

    -   [Mr B] (26/7/2017).

    -   [Mr C] (22/12/2020).

    -   [Mr D] (5/1/2021).

    -   [Mr E] (22/2/2021).

    -   [Mr F] (24/2/2021).

    -   [Leader A] [of Community Organisation 1] (4/1/2021).

    -   [Leader B] [of Community Organisation 2] (26/7/2017).

    -   Statements from [two other named persons, dated] appear to be more general in nature.

    §  The Tribunal has received a number of photographs, including:

    -   Photographs of the applicant at Muslim events, wearing Muslim garb.

    -   A photograph of the applicant’s wedding.

    §  Evidence relating to her husband’s death, namely a purported death certificate; and photographs purporting to show his body, and of his grave (with translation of the text).

    §  Evidence relating to the applicant’s political activities in Australia, such as photographs taken by her and others, in Sydney and Canberra; and receipts and evidence of a donation.

    §  Photographs purporting to show the applicant’s daughters holding protest banners in Yangon, recently.

16. The Tribunal has before it the applicant’s visitor visa application, which includes documents relevant to her protection claims, such as her family composition list; her household members list; her husband’s household members list; her nikah marriage deed; and her citizenship scrutiny card (which gives her religion as Buddhist).

17. The Tribunal received a statutory declaration from [Ms A], dated 8 February 2021, which provided details of her travel with the applicant from Myanmar to Australia, and the role of a ‘broker’ in providing false documents. The representative submitted copies of [Ms A’s] visitor visa application and personal, property and similar documents that resemble those that the applicant submitted with her visitor visa application.

18. The Tribunal has before it an AUSTRAC record showing the transfer of [amount] from [Mr B] to the applicant’s husband, [named], on 12 January 2017. The applicant later provided receipts for two transfers made to her husband, on 12 January 2017 ([amount]) and 8 February 2017 ([amount]).

19. The applicant appeared before the Tribunal to give evidence and present arguments on 18 January 2021 and 16 February 2021. The Tribunal held a second hearing on 8 April 2021, in light of new claims that the applicant presented after the first hearing. The hearings were conducted with the assistance of an interpreter in the Burmese and English languages. At the hearings, the Tribunal took oral evidence from several witnesses, and unsuccessfully attempted to contact others (although they had provided written statements). The applicant’s representative, [Representative A] of [agency], attended the hearing. His colleague [named] attended the first hearing session via telephone.

20. On 29 January 2021, the Tribunal sent a s.424A letter to the applicant, inviting her comments/response to adverse information concerning her personal and family circumstances in Myanmar, and her husband’s whereabouts in 2016 and 2017. Her written reply, supporting documents and oral evidence addressing these issues are incorporated into the list above.

21. 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[1], which it drew on at hearing.

    [1] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Myanmar, 18 April 2019

22. The applicant provided an expert opinion from [Academic A], dated 19 April 2021. [Academic A] addressed issues arising from the applicant’s activities in Australia (such as the Myanmar authorities’ adverse interest in and capacity to monitor protest activities abroad, and their scrutiny of returnees), the current treatment of Muslims, and the level of risk for participants in street protests (based on a recent UK Home Office Assessment).

    Country of reference

23. The applicant claims to be a national of Myanmar. She has presented copies of her Myanmar passports. Her use of the Burmese language, and her documentary and oral evidence, support this claim. There is nothing to suggest she holds the nationality of any other country. Myanmar is therefore the country of reference when assessing her protection claims.  

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility

24. 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[2] 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 their 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.[3]

    [2] 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

    [3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 (per Beaumont J); Selvadurai v MIEA & Anor

25. The Tribunal accepts, for the reasons set out below, some basic aspects of the applicant’s claims, including that she is Muslim and that she was married to the son of a renowned Rohingya [occupation 1]. Beyond that, it has comprehensive concerns about the credibility of her claims and evidence, and the reliability of the witnesses that she presented. The following factors have made the Tribunal’s assessment challenging:

    §  First, it is well-established that document fraud and corruption are rife in Myanmar. ‘Brokers’ play a prominent role in such practices, including to overcome bureaucratic inertia and/or discriminatory practices. By the applicant’s own account, she relied on such practices in her visitor visa application. The Tribunal is concerned that she continues to present material that is unreliable.

    §  Second, the Tribunal found much of her evidence to be evasive and lacking in candour. Her recent claims of past political activism compounded the Tribunal’s concerns. She and [Representative A] suggested that she had failed to mention past political activities in 1988 and 2007 because they did not seem relevant, but that the recent coup and political resistance reignited her ‘long-held beliefs and convictions’. For the reasons set out in detail below, the Tribunal does not accept that the applicant has any such past profile, or overlooked such matters when preparing her case at the primary stage. It is satisfied that she does not have a reasonable explanation for her failure to raise this claim or present such evidence at the primary state. It therefore draws an inference adverse to the credibility of this claim under s.423A.

    §  Third, the applicant claimed that the Myanmar authorities arrested her husband in 2014 and detained him until mid-2019. Fund transfers made by the applicant’s friend [Mr B] to the husband at their home address in (at least) 2017 undermine these claims. The applicant’s attempts to explain the circumstances of these transfers were inconsistent and unpersuasive, and compound the Tribunal’s doubts about her credibility.

    §  Fourth, the applicant’s witness [Mr B] gave what the Tribunal considers to be untruthful written and oral evidence about the transfers of funds (including how he obtained the family’s details in Yangon, and the timing of the transfers). The applicant’s and [Representative A]s] comments that he was distracted and careless in his oral evidence do not adequately explain the inconsistencies in his and the applicant’s evidence, orally and in writing, over time. The transactions strongly suggest that the applicant sent money to her husband through [Mr B], so that Australian authorities would not learn of the husband’s continued residence in Yangon (and instead accept that he was detained).

    §  Finally, the Tribunal has broader concerns about the objectivity and reliability of the applicant’s other witnesses. Overall, it found their evidence to be vague and lacking in supporting detail, and focused on how they could assist the applicant. As a general observation, it found them of little value as independent corroboration for her claims.

26. In the Tribunal’s view, the applicant did herself few favours during this review. The assessment below reflects both the significant human rights concerns in Myanmar as a whole, and the Tribunal’s view that the applicant’s claims and evidence are in large part untruthful, exaggerated and/or misleading.

    The applicant’s Muslim faith 

27. The applicant claims to be a Muslim. At the primary stage, she submitted among other things a copy of her birth certificate and her nikah (Muslim) marriage certificate, and she gave some instances of the discrimination she experienced. At the Department interview, her descriptions of her religious practice in Myanmar and Australia were only basic, and she struggled to provide observational details such as the appearance of the mosque in Yangon that she attended, or the name of any clerics at the mosque in Sydney. Against a background of broad credibility concerns, the delegate did not accept that she was a Muslim.

28. The material before the Tribunal strongly suggests that the applicant is indeed a Muslim.

    §  First, the applicant provided with her visitor visa application copies of her and her husband’s household members lists, both of which record their religions as Muslim. 

    -   Given the applicant’s claim that the broker fraudulently arranged most of her documentation for that application, such as the employment, property and bank statements, the Tribunal considers it possible that all of the documents are false. Also, the applicant’s citizenship scrutiny card (CSC) issued in January 1998 identifies her as a Bamar Buddhist. Asked about the CSC at hearing, the applicant was evasive and merely referred to the broker’s role.

    -   Nonetheless, the documents identifying the applicant as Muslim clearly risked attracting scrutiny during the processing of the visitor visa application, if only because it was inconsistent with the information on the CSC that she is Buddhist. As such, the Tribunal cannot rule out the possibility that the household member lists and the marriage certificate are genuine.

    §  Second, the applicant provided a number of statements and photographs to the Tribunal, to demonstrate her Muslim faith. These include statements from [Community Organisation 3], [Community Organisation 1], [Community Organisation 2], several witnesses from the Burmese community (some of whom mention the Muslim faith in passing) and two Australian colleagues who attest to her ongoing practice. The applicant also provided photographs showing her wearing Muslim garb at a [Community Organisation 3] function.

    §  Third, there is a range of incidental information to tends to support this claim. For instance, a wedding photograph shows the applicant’s and her husband’s Muslim names (the applicant adds the name ‘[name]’ to her own). She lived in an area of central Yangon with a sizeable Muslim minority, many of whom are involved (like her) in small businesses such as the [product] trade.

1. The Tribunal accepts on the available evidence that the applicant is a Muslim.

   Mistreatment as a Muslim

2. In her original claims, the applicant claimed that she had experienced official and societal discrimination as a Muslim. For instance, she had had to pay higher school fees and employers declined to offer her work after finding out about her faith. She also had difficulties obtaining an ID card after she turned 18. At hearing, she gave other instances of discrimination, such as once being denied service at a medical clinic, and enrolling her daughters in private school because the public school did not want to enrol them.

3. There are consistent reports of historic and ongoing discrimination against Muslims outside Rakhine, including Bamar Muslims. 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 issuance of identity documents is a recurrent problem. The DFAT report notes: ‘Muslims outside of Rakhine State can generally access a similar level of government services to other religious minorities, however local sources told DFAT 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.’[4]

   [4] DFAT report, supra, paras 3.71-3.75, esp. 3.71.

4. The applicant’s claims are broadly consistent with this, and her claimed work as a [product] trader accords with the profile of many Muslims in Yangon who may face restrictions on government or similar employment. Nonetheless, the applicant completed and was awarded a university degree, she had various jobs such as in a [business A], and her parents had positions in the public service and a [business]. While the Tribunal accepts that the applicant may have experienced some degree of discrimination, it is not satisfied that this involved serious harm amounting to persecution, or significant harm.

5. In her statement of claims, the applicant wrote that she experienced no problems with the neighbours before 2013, which the Tribunal understands her to mean targeted, sustained harassment or violence. However, the neighbours were influenced by anti-Muslim sentiment whipped up by the media, 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).[5]

   [5] International Crisis Group 2013, The Dark Side of Transition: Violence Against Muslims in Myanmar, Asia Report N°251, 1 October,  p.24:

6. The applicant wrote that the neighbours turned on the family after they came to know of the government’s adverse interest in them. (This appears to have been a reference to the claimed arrests of the applicant and her husband in April 2014, following their visits to Rakhine.) The neighbours were physically abusive, threw things at the applicant, and started to ‘ruin’ her property. They also spat at the children. The applicant was already avoiding her home (following the arrest); this was another reason to stay away.

7. At hearing, the applicant claimed that the neighbours threatened to burn her house, and she was forced to move to another place, temporarily.

8. The Tribunal found the applicant’s vague and uncertain. She variously suggested that the neighbours’ actions were part of the anti-Muslim violence from early 2013, or perhaps around mid-2014, after the authorities’ (claimed) pursuit of her and her husband. She also seemed uncertain about the nature of the threats and abuse. And finally, the fact that her family remains in that area reinforce the Tribunal’s view that she was not speaking from personal lived experience at all. The Tribunal accepts that the anti-Muslim violence in 2013 caused the applicant and her family worry, but it does not accept that she or they were subject to any specific threats or abuse; or that they had to leave their home.   

   Rohingya links through husband

9. The applicant claims that her husband, [named], is a stateless Rohingya, and a Muslim.

10. The applicant provided some limited evidence relating to her husband, such as a photograph of him at their wedding; photographs of his body following his death in mid-2019; and a purported death certificate. The death certificate identifies his race as ‘Bengali/Bangladesh + Bamar’. Recent reports[6] indicate that that the Myanmar authorities record the identity of Rohingya as ‘Bengali’ and variants of that (such as Bengali Rakhine) in official documents. Taken at face value, then, the certificate would suggest that the applicant’s husband is of mixed Rohingya/Bamar ethnicity.

    [6] '2019 Report on International Religious Freedom: Burma', US Department of State, 10 June 2020, Sect. II, 20200707104420

11. With her visitor visa application, the applicant also provided a copy of her husband’s household members list that recorded his ethnicity as Bamar and his faith as Islam. Significantly, this document contains another clue, in that his father’s name is recorded as [Relative A] ([with a Muslim name added])[7], with his occupation stated as ‘[Employer name]”.  She also provided a stock copy photograph of [Relative A]. The Tribunal has found this image in numerous sources online, confirming that [Relative A] or [his Muslim name] was a Rohingya from [a named town], Rakhine.[8]

    [7] Also written [as names] and with similar variations.

    [8] [Source deleted.]

12. The Tribunal also has several statements which attest to the husband’s Rohingya background, including from [Mr C] (on behalf of his wife, [named]), [Mr D] and [Leader A] of [Community Organisation 1].

13. The Tribunal accepts as plausible that the applicant’s husband was at least part-Rohingya, based on the available evidence. It bases this on the apparent match between the information provided in the visitor visa application (household members list), the death certificate, the supporting statements and the online references to his father [Relative A]. The Tribunal notes that there remain inconsistencies (such as the reference on the household members list to all family members as ‘Bamar’), and that the applicant’s propensity to pick and choose snippets of information makes it difficult to evaluate or rely on any documents.

14. In sum, the Tribunal accepts that the applicant’s father-in-law was Rohingya, and that her husband is at least part-Rohingya, and perceived as such.

    Imputed race

15. The applicant claims that her marriage to a Rohingya leads her to be viewed as one. [Leader A], [a leader] of [Community Organisation 1], wrote on 4 January 2021 that the applicant’s marriage to a Rohingya means that she ‘would be regarded as Rohingya in Myanmar’. At hearing, the applicant could give no real insight as to the consequences of intermarriage between Rohingya and Bamar, other than to refer vaguely to longstanding oppression of the Rohingya, and to the alleged events of 2013, when she and her husband visited Rakhine.

16. The Tribunal accepts that intermarriage between Rohingya and other Muslims occurs. However, the applicant has presented no persuasive evidence to support her or [Leader A’s] assertions that marriage to a Rohingya leads a person being regarded as of that ethnicity. On the contrary, country information also indicates that Rohingya in Yangon and other places often conceal their ethnic identity, for instance, to make it easier to obtain documentation, to secure citizenship and to avoid or reduce bureaucratic hassles. The Tribunal accepts that some people may learn that she was married to a part-Rohingya, in part due to her father-in-law’s profile, but it is not satisfied that she would be perceived as such.

    Father-in-law

17. The applicant also claims that her father-in-law was [an occupation 1] with [a government employer][9], who delivered [services] in the Rohingya language, [between specified years].[10] For the reasons stated above, the Tribunal accepts as plausible that her father-in-law was indeed [Relative A].

    [9] [Employer name deleted].

    [10] [Details deleted.]

18. The applicant relied on this in part to demonstrate her husband’s ethnicity, but also claimed that her father-in-law was well-known and trusted by Rohingya in Rakhine State, and this in turn led people to trust and seek help from her husband.

19. In the statutory declaration of 12 November 2015, the applicant wrote that her father-in-law presented information indicating that the Rohingya had been in Myanmar for a long time. She wrote that the government discontinued the program that her father-in-law [worked in], and assigned him to other tasks. She added that ‘the government wants [to remove these services], and are ‘afraid that we might have access to the [material of] his [father’s work]’. [sic] In other words, the applicant claims that her father-in-law had an adverse profile due to [his projects], and that they suspect the family of having Rohingya language material that could be damaging to its interests.

20. At hearing, the applicant said that her father-in-law died in [year]. She thought that, after the Rohingya language [project] stopped, he may have continued work for the [employer] in another capacity, but was unsure. As for any other work, she commented vaguely that he was always helping the community, but had long since retired. The applicant did not identify any specific adverse consequences for the father-in-law or others, as a consequence of his work in the Rohingya language in the [time period].

21. The Tribunal accepts that the applicant’s father-in-law did [projects] in the Rohingya language in [this period], and that he continued working for the (then) [named employer] for many years after the Rohingya language [project] ceased. It accepts that his name is well-known among older Rohingya and that they look back on this period favourably. However, it does not accept that he had an adverse profile (for instance, by making critical comments) or that the Myanmar authorities have any interest in his family or people associated with him. This claim, relating to events in [this period] and at odds with the lived experiences of the applicant’s and her husband’s family, lacks credibility and was ill-advised.

    Visit to Rakhine State

22. The applicant claimed that in about June 2013, she and her husband visited Rakhine State for four days. The purpose of the visit was for her husband to check on relatives, in the wake of the violence in 2012 and 2013. They also visited a refugee camp in [Town 1].

23. In her written claims and evidence at hearing, the applicant claimed that her husband was concerned at the suffering of his relatives in Rakhine, and arranged to travel there by bribing some government officials. She told the Tribunal that they went there in a group of about seven people, who likewise wanted to visit relatives. She has had no further contact with those people. The applicant said that they drove there, escorted by military vehicles that were delivering supplies.

24. The applicant described the route from Yangon to Sittwe, and from there to [Town 1], a further [distance] or so away. There was also a refugee camp in [Town 1]. The following day, the military collected the applicant and her husband, and took them to [Town 2], where his relatives were staying. That was a day trip. The submission of 9 February 2021 clarified the location of some of these locations, including a Google Map link for [Town 2], showing that it is approximately [short distance] from Sittwe. The submission acknowledges that this does not appear to sit well with the applicant’s account of the time taken from Sittwe to [Town 1], and from there to [Town 2], although it notes that the travel times may have been longer due to poor infrastructure and military checks.

25. The applicant said that her husband’s relatives in the refugee camp lacked shelter, food and clothing, and she and her husband tried to find out how they could help. Asked what assistance they were actually able to provide, she replied that she gave them some money.

26. In the Tribunal’s view, the applicant presented the basic outline of a claim, and had some limited knowledge of places around Sittwe. However, she struggled to give precise information about the logistics of the visit or their activities, and was vague about the people they travelled with, despite her original claim that these were her ‘husband’s friends’. Moreover, while DFAT and other sources note travel restrictions to Rakhine, particularly for Rohingya and during periods of tension, the applicant’s reference to a military escort is difficult to reconcile with her claim that the visit itself was a source of subsequent concern to the Myanmar authorities.

27. Given these concerns, and in light of its adverse view of the applicant’s credibility, the Tribunal is not prepared to accept at face value that she and her husband undertook any such trip. The Tribunal addresses this in more details, and makes findings, below.    

    Events following the visit to Rakhine

28. The applicant wrote that the miserable conditions her husband saw in Rakhine motivated him to start raising money for the homeless in Rakhine, from family, friends and the community. She wrote that this was ‘not political’. At the same time, however, she claimed that he also organised meetings to discuss Rohingya rights, and met with a government official to raise these issues. She implied that some of his responsibilities and drive came from her father-in-law [Relative A’s] stature in the Rohingya community.

29. At hearing, the applicant said that there was discussion of what could be done to protect the Rohingya, and the only real option was to raise funds to provide material assistance. Discussion at hearing about these activities was laboured, and the applicant did not appear to be speaking from direct experience at all. She said that her husband used to gather some people at his parents’ home to discuss these issues. She attended just one such meeting; they were held in Rohingya and she could not follow what was being said. She also recalled her husband contacting government officials to talk about the situation.

30. The Tribunal had difficulty eliciting any other meaningful detail from the applicant about these activities. She variously explained this by stating that the discussions were mainly in Rohingya; that her husband led the way (she observed them only infrequently, and on the margins); and that they were secretive in nature.

31. The Tribunal found the applicant’s account lacking credibility, and does not accept that her husband raised money for Rohingya, or engaged in any other activities (such as discussions with friends, or contacts with government officials) that were political in nature, or perceived as such. These concerns and this finding also lead it to positively disbelieve that she and her husband visited Rakhine in 2013, as claimed.

    Authorities’ pursuit of the applicant and her husband

32. In her statement of claims, the applicant wrote that in about October 2013, she and her husband learned that special intelligence officials were looking for them. They learned this from some of the people who had travelled to Rakhine with them, and from relatives in Rakhine. Officials suspected that the husband was trying to stir up political trouble. The applicant also sensed that she was being monitored at this time.

    Arrests in April 2014

33. The applicant claimed that four officers arrested her and her husband in April 2014, at their home. They showed their identification. One was in uniform; the others were in plain clothes. They said that they had some questions for the applicant and her husband, and took them away in separate cars.

    The applicant’s and her husband’s arrests

34. The applicant claims that the officers detained her for three days, at the [named agency]. They questioned her about the trip to Rakhine, her husband’s financial and other support for the Rohingya; and her husband’s motivations. During this period, they physically abused her, by kicking and pushing her around; they denied her food and adequate water; they prevented her from sleeping; and they threatened to detain her indefinitely.

35. The applicant also claimed that her husband remained in detention. At the time of her protection visa application, her Department interview and her lodgement of the review application, his whereabouts were unknown. She has since stated that he was released in July 2019.

    The applicant’s release and subsequent experiences

36. April 2014 – August 2015: The applicant claimed that upon her, she had to sign a paper agreeing to present herself for further questioning, on demand. She stayed with her parents the first night after her release, but then moved around to stay with relatives and friends. She did not stay in one place for long, fearing that she would endanger her hosts. During the applicant’s continued stay in Myanmar, her daughters stayed with her parents; the applicant returned there briefly, from time to time, to see them.

37. Meanwhile, the applicant had to start her [product] business again, to earn some income. She managed to keep a low profile during this period. She suggests that the nature of the business, selling [products], helped her keep a low profile.

38. April 2015 on: The applicant claims that intelligence officers came to the family home in April 2015, asking after her. Her parents told them the applicant had just left. There were three such visits. The applicant feared that they were coming to detain her.

39. Travel to [Country 1]: The applicant held a Myanmar passport issued in [2013]. According to her protection visa application, she visited [Country 1] in December 2013, February and December 2014, and April 2015, all allegedly for business reasons (buying [product] for her business). The applicant claimed that she had to resume her [product] trade to earn income, and this necessitated her travel to [Country 1] to buy [product]. She did not adequately explain why she saw this as her only source of income, or why she risked international travel and scrutiny by Myanmar officials if, as claimed, she had been arrested and her husband had disappeared. She commented that a trusted agent arranged these trips, and that he could ‘effectively evade border checkpoint security’ for her. It is not clear what exactly he arranged (particularly on the return trips), or how he was able to persuade the applicant that it was safe for her to depart and re-enter Myanmar (if, as claimed, she had been arrested and her husband was presumed to be in military detention).

    Husband’s circumstances: The applicant told the Tribunal that from the time of her release in April 2014 until her departure from Myanmar in August 2015, she was trying to get information about her husband, including by paying people such as government officials.

40. The Tribunal finds the applicant’s claims lacking in credibility, and does not accept them. First, it has already rejected her claims that she and her husband went to Rakhine, and engaged in any welfare or political activities on behalf of the Rohingya. It follows that the Myanmar authorities’ claimed motivation for targeting them does not exist. Second, the applicant’s conduct – in particular, her vague evidence about her efforts to find her husband, and her willingness to travel in and out of Myanmar, for unrelated reasons – adds significantly to the Tribunal’s doubts. Finally, evidence that she sent money to her husband in Myanmar in 2016 and 2017, and her unsatisfactory account of his ‘reappearance’ in July 2019 (see full assessment below), reinforce the Tribunal’s view that the applicant has given a wholly unreliable account of her experiences in Myanmar.

    Departure from Myanmar

1. The applicant claims, and the Tribunal accepts, that she relied on a ‘broker’ to organise her travel to Australia, in particular, to obtain a visa using fraudulent documents.

2. The Tribunal has before it a copy of the visitor visa application, which includes copies of the applicant’s and her husband’s ‘household members lists’, a CSC issued in [2018]; a police clearance; and numerous documents showing the applicant’s position on the board of a [business A], land purchases, and a bank account (which she claimed that she had withdrawn money from to pay the agent). The applicant claimed that the broker who had arranged her travel had prepared these fraudulent documents. In support of this, the applicant submitted a statutory declaration from [Ms A], who had travelled from Myanmar with the applicant, and copies of similar fraudulent documents that she had submitted in support of her fraudulent visitor visa application.

3. The Tribunal addresses the identity documents elsewhere in this decision (especially insofar as they are relevant to the applicant’s religion and ethnicity, and those of her husband). It accepts on the available evidence, and in light of general country information about document fraud in Myanmar, that the employment and similar documents were fabricated.

4. The Tribunal finds on the available evidence that the applicant departed Myanmar legally, as indicated on her protection visa application form (Form A, question 51), using a Myanmar passport that was lawfully issued to her, and which she had used for previous lawful travel (including in February and December 2014, and April 2015).

5. While the Tribunal accepts that the applicant relied on fraudulent documents to obtain an Australian visitor visa, it rejects the claim in the submission of 9 February 2021 that she ‘employ[ed] bribery and false documentation [also] to transit the airport in Yangon’, and the implication that the Myanmar authorities regard her as having crossed the border illegally. It finds that the Myanmar authorities have no adverse interest in the circumstances of her departure from Myanmar. The claim and [Academic A’s] opinion relating to her ‘irregular’ departure are therefore not relevant to this decision.

6. In light of the above findings, and in particular given her trips to [Country 1] during 2014 and 2015, the Tribunal does not accept that the applicant fled Myanmar in response to particular incidents involving her or her husband (including her now-rejected arrest, her husband’s disappearance or the authorities’ renewed pursuit of her). It finds that the applicant left Myanmar for reasons unrelated to her protection claims directly, although it considers that the broad economic outlook, political uncertainty and social tensions (including some level of discrimination against Muslims) may have played a role in her decision to move to Australia.

7. The applicant wrote in her original statement, in November 2015, that en route to Australia, she contacted her parents and told them to leave their home, cut all their connections to her, and destroy all trace of her. She stated that she does not know where they are, and cannot contact them. She has since advised that they continue to live in the family home. At hearing, she stated that she initially had no direct contact with her family, but instead relied on [Mr B] (she made this comment in the context of explaining how it was that he had his family’s direct telephone number).

8. Given its factual assessment above, and its adverse view of the applicant’s credibility, the Tribunal does not accept that the applicant feared contacting her family for their or her own safety. As discussed below, the Tribunal finds that the applicant only took the precaution of not sending money to her husband directly, to avoid undermining her protection claims in Australia.

   Husband’s prolonged detention

9. The applicant claims that her husband’s whereabouts were unknown from April 2014 (when the arrests allegedly took place) until July 2019. She told the Tribunal that her father informed her of his release, and she had little additional information. At that time, her husband was in poor physical and mental health, due to his experiences in prison, and he required medical treatment.

10. The transfer of funds from a person in Australia to [the applicant’s husband], at the family residential address, casts doubt on his claimed disappearance.

    §  As noted in the delegate’s decision record, the delegate alerted the applicant to the regular transfer of funds to her husband from someone in Australia. The applicant explained that she sent the money to her brother, for her children’s benefit (as her parents were old and could not access the transferred funds). She sent the money in her husband’s name so as to not endanger her brother (she did not explain how this lessened the risk for the brother if, as claimed, her husband was in detention).

    §  In a statutory declaration of 16 July 2017, she gave a different account. [Mr B] had asked the applicant for her husband’s name and address, and he sent money to her husband twice, in August/September 2016 ([amount]) and in mid-September 2016 ([amount]). He did so without the applicant’s prior knowledge. On each occasion, [Mr B] gave the applicant the [reference] and she forwarded it to her brother to collect.

    §  In his statutory declaration of 26 July 2017, [Mr B] wrote in similar terms about the transfer of two sums, at the same periods, and in the same circumstances.

    §  As discussed at hearing, and set out in the Tribunal’s s.424A letter, the Tribunal has found a single written record for a remittance of [one amount] on 12 January 2017. This suggests that there were more transfers than the two referred to in the applicant’s and [Mr B’s] statutory declarations.

    §  The submission of 9 February 2021 contended that [Mr B] had simply been mistaken as to the dates. As for whether [the transfer service] allows for third parties to collect funds (that is, the applicant’s brother in place of her husband), the submission claims that other family members used her husband’s ID to collect the money and adds that in some countries, [this transfer service] offers ‘Pay without ID’ options for sums under $[amount].

    §  At hearing, the Tribunal explored how [Mr B] obtained the husband’s full name and street address. The applicant said that she gave him her family address because she was close to him, confirming that he took the initiative to send the money. However, [Mr B] gave evidence that the applicant gave him one of her daughters’ telephone number in Yangon, and it was this daughter who gave him the father’s name and other details. He added that he actually knows nothing about the husband.

    §  When the Tribunal put this information to the applicant under s.424AA of the Act, she initially commented/responded that she dared not telephone her daughters directly after arriving in Australia, but instead had [Mr B] call on her behalf. The submission of 1 March 2021 provided some more considered comments/responses. These suggest that [Mr B] had been distracted and careless in his recollections, and mistaken as to the dates of the transfers, which were in fact January and February 2017. The Tribunal received copies of two receipts, for [amount] on 12 January 2017 and [amount] on 8 February 2017.  The submission of 1 March 2021 has a number of rhetorical questions, such as why, if the applicant were seeking to deceive the Australian authorities, she would send money in her husband’s name or rely on someone as unreliable as [Mr B].

11. The Tribunal considers these explanations unpersuasive. It does not believe that both the applicant and [Mr B], writing in July 2017, were confused as to when the funds were transferred, or the exact amount. Rather, the evidence indicates that there were transfers in mid-2016, as well as two in early 2017, and perhaps others. It finds the various versions of how [Mr B] obtained the necessary information and affected the transfer to be inconsistent and lacking credibility.

12. The Tribunal finds on the available evidence that the applicant sent funds to her husband through [Mr B], having calculated that if she sent them directly, there was a greater risk of the Australian authorities discovering that her husband was still living in the family home during 2016 and 2017, and disbelieving her protection claims.

13. Taken together with the Tribunal’s other concerns – such as the applicant’s weak evidence about her efforts to locate her husband, and her return trips to [Country 1] after her release and before her departure for Australia – that the husband remained living in the family home.

    The husband’s ‘reappearance’ in July 2019

14. In her statutory declaration of 6 January 2021, the applicant wrote that in late July 2019, she learned from her parents that her husband had been released from prison, and went to live with them and her children. The applicant claims that he was in poor health. Although she had no details about the timing of his release from prison, she related that he been treated poorly in prison, with insufficient food and water, and that he had been stressed.

15. The applicant claims that her husband died in early September 2019. She provided a copy of a death certificate stating that he died [in] September 2019, from [a medical condition][11]. This certificate gives his race as ‘Bengali/Bangladesh+Bamar’ (i.e. Rohingya and Bamar) and his occupation as ‘[business A]’. She also provided a photograph of a tombstone which has his name and address engraved on it.

    [11] [Deleted.]

16. The applicant attributed the husband’s death to the treatment he allegedly received in prison. Given the Tribunal’s finding above that the husband had not been imprisoned and taking into account the stated cause of death, a heart attack associated with chronic lung disease, the Tribunal finds that this concerns a death by natural causes.

17. The Tribunal finds it far from certain that the husband has died at all.

    §  First, the death certificate raises a number of questions. It gives the husband’s ethnicity as mixed Rohingya/Bamar, whereas the household members list records it as Bamar. At hearing, the applicant reiterated that he is Rohingya, and thought that the certificate records his mixed ethnicity as it may have been ‘easier’ that way. As to his stated occupation as a [business A], the applicant wrote in the statutory declaration of 6 January 2021 that, when reporting the death, her sister must have just made ‘up a random occupation to help them fill in the form […]’ since her husband had been imprisoned, and not working. At hearing, thought that he might have done that work some time ago. The Tribunal does not believe that the applicant is uncertain as to whether or not her husband worked in that field. Her comment also does not sit well with the suggestion that the occupation on his death certificate was chosen ‘randomly’. It also striking, as the Tribunal noted in its s.424A letter, that the applicant relied on fraudulent documents relating to her employment in a [business A]. In sum, the applicant’s past reliance on fraudulent documents, the irregularities in this document, and the applicant’s propensity to pick and choose snippets of information that advance her case, give rise to significant doubts about its genuineness.  

    §  Second, the single photograph of the tombstone also raises questions. It is not possible to tell whether the text, which appears to be placed asymmetrically, is genuinely engraved into the stone, or has been digitally manipulated. The appearance of the husband’s last address on the tombstone is also striking; it is unclear whether this is a common practice in Myanmar, or whether it reflects efforts to show her husband’s death.

    §  Finally, the Tribunal flagged its surprise that [Mr C], writing on 22 December 2020, had ‘heard from friends’ about the applicant’s and her husband’s visit to Rakhine State, and his subsequent arrest and detention, yet did not know ‘what happened to him after this’. It is difficult to believe that he would learn about the couple’s activities in Myanmar, through friends, yet be unaware of his subsequent death (whether through friends or through the applicant herself, since they evidently made contact in Australia). Furthermore, his statement that the applicant visited his home for Ramadan in (May) 2019, and that she works with a good friend of his, suggests some degree of ongoing contact.  

    -   At hearing, [Representative A] gave evidence that he approached [Mr C] on the applicant’s behalf, to provide an independent statement (in other words, without her input). The Tribunal was unable to contact [Mr C] to clarify the situation. While it accepts that [Representative A] (or a colleague) may have contacted [Mr C] to ask for a statement, it does not accept the suggestion that [Mr C’s] statement was without input – directly or indirectly – from the applicant or someone acting on her behalf. [Representative A’s] evidence does not adequately explain [Mr C’s] lack of knowledge about the applicant’s (claimed) widowhood.

    -   In the Tribunal’s view, [Mr C’s] statement in December 2020 that he does not know what happened to the applicant’s husband casts further doubt on the applicant’s claim, first made in her statutory declaration in January 2021, that her husband has died.

18. Despite these serious misgivings, the Tribunal accepts on the basis that it is plausible though far from certain, that her husband died in September 2013. It finds that he died of a heart attack, for reasons unrelated to the applicant’s protection claims. The chronic nature of this illness suggests that the applicant’s husband was unwell at the time of her departure for Australia, but it is unnecessary for the Tribunal to reach any conclusions on this point.

    Political claims

    The applicant’s recent participation in protest activities

19. Towards the end of the hearing on 16 February 2021, the applicant mentioned in passing that she had attended protests in Australia against the military coup on 1 February 2021, and the announcement of a state of emergency. She did not articulate any claims based on this activity, and her representative sought instructions on this following the hearing.

20. The applicant has since provided a range of information to show her participation in various protest activities in Australia, in response to the military coup on 1 February 2021. These include photographs of her at protests in Sydney ([on specified dates]) and Canberra ([date]), a ticket for a [named] event (presumably in the form of a donation), and a receipt for a [specified] donation to the [a project]. The submission of 7 April 2021 refers to these materials as evidence of the ‘consistent, genuine and heartfelt nature of [the applicant’s] political opinion and expression in opposition to the coup.’ 

21. The applicant also provided screenshots from a [social media] account in the name of [Alias A], which shows her image on the profile page. The earliest of these appears to show the applicant streaming live from a protest on 3 February 2021.

22. The Tribunal accepts that the applicant joined the upswell of protest activities among her compatriots and friends here in Australia. It finds she engaged in this activity because she disapproves of the military coup, and as an act of solidarity with citizens in Myanmar as well as contacts here in Australia. It is therefore satisfied that she did so otherwise than for the purpose of strengthening her claim to be a refugee. This conduct therefore does not fall within the scope of s.5J(6) of the Act. However, the Tribunal is also of the view that the applicant’s activities – particularly in travelling to Canberra, documenting her activities and posting material on [social media] – were largely motivated by her wish to strengthen her refugee claims.

    New claims: past political activism and profile

23. The applicant’s statutory declaration of 25 February 2021 and the submission of 1 March 2021 present a new claim, namely that she had a history of political activism in Myanmar, as a supporter of Aung San Suu Kyi and the NLD. The gist of these claims are:

    §  The applicant was committed and active during the 1988 protests, as part of the 8888 movement. She attended the protests every day, and got caught up in the violent military reaction. One day, she broke both legs while fleeing the violence, and was unable to continue her activities. Eventually, the protests died down. The Tribunal notes that the applicant was aged 13 at the time,

    §  She also participated in the protests in 2007.

    §  In 2012[12], she felt unable to protest due to rising anti-Muslim sentiment which would have put her in added danger.

    [12] The applicant initially wrote 2011, but corrected this at hearing.

24. The submission of 1 March 2021 presents new claims based on the applicant’s actual political opinion as expressed by these political activities, and posits that she would likely wish to continue such activities if she returns to Myanmar. It refers to ‘her historical pro-democracy protest activities’. Although these did not form part of her original claims for protection, the recent coup has re-ignited her political activism. It states that her protest activity ‘has been a natural outgrowth of her historical views’, and that she is now ‘genuinely motivated by a concern for governance and democracy in Burma, and opposition to the Burmese military’. The submission reasons that ‘given the genuine and deeply-held nature of [the applicant’s] political views and propensity to participate in mass protests… it is likely that she would continue to do so in Burma.’

25. Section 423A requires the Tribunal to draw an inference adverse to the credibility of a claim or evidence if an applicant raises a claim or presents evidence that was not put forward before the primary decision was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation. In her statutory declaration, the applicant stated that she did not raise this with the Department because it was not part of the reasons she left Myanmar, and her past political activities were not a reason for her fear of returning (at that time).

    §  The Tribunal notes, however, that the applicant’s political profile, actual and imputed, formed an important part of her primary application. The detailed submission of 7 June 2017, prepared by her current representative, describes her political profile ‘in support of rights and aid to the Rohingyan people’, through her links with her husband’s family, and through her travel history. Given her statements about the Myanmar authorities’ political oppression, it would have been obvious to the applicant and/or her representative that any past political activism on her part (even going back to 1998 or 2007) was a relevant part of her political profile. The reasons given for the omission are, in the Tribunal’s view, contrived and unpersuasive.

    §  In these circumstances, the Tribunal is satisfied that the applicant does not have a reasonable explanation for her failure to raise claims and present evidence about her past political activism in Myanmar. It draws an adverse inference, namely that this claim should not be accepted at face value.

26. At hearing, the applicant acknowledged that she was just [age] years of age at the time of the 1988 Uprising. She spoke in general terms about her activities, and said that she destroyed any material associated with it. She stated that an x-ray would confirm her past leg fractures, but she had no other evidence because the hospitals were shut at the time and she relied on Chinese traditional medicine administered locally. At the first hearing session, the applicant also mentioned in passing that her older sister (born in [year]) married a [Country 2 national] and moved there, having ‘fled’ Myanmar after the 1988 protests. She commented only that her sister ‘maybe’ had some issues, but apparently had no real insight into these.

27. In relation to the 2007 protests, she said that she had limited involvement as her child was young. Asked how this meshed with her work from 2002 to 2008 as [a business A] salesperson, the applicant replied briefly that the protests did not last long.

1. The Tribunal received written statements and oral evidence from the applicant’s former classmates in Yangon, [Mr F] and [Mr E]. Both of these recalled the applicant from school, and saw her at recent protests in Canberra and Sydney respectively.

   §  They attested to the applicant’s role in the 1988 protests as a ‘very active and passionate protestor’, and described some of the activities that student undertook at the time. Both witnesses spoke in general terms of the protest activities at the time, and reiterated that the applicant was actively involved throughout.

   §  However, they were unable to provide much detail about the applicant personally; for instance, they did not know that she broke her legs during the protests. These witnesses suggested that various factors - the political turmoil at the time, the students’ dispersal to other places, and the general need for caution and privacy in Myanmar – could explain this. The Tribunal finds this unpersuasive if, as claimed, the applicant and these men had attended the same school and worked together politically.

   §  The Tribunal formed the impression that both witnesses, and [Mr F] in particular, are motivated to assist the applicant (and other Myanmar citizens). Their descriptions of the applicant’s political profile, at the age of [age], were vague, generous and, in the Tribunal’s view, of little probative value.

2. The Tribunal accepts that the applicant was in Myanmar during the 1988 Uprising and the Saffron Revolution in the period of August to October 2007; that she was sympathetic to and moved by the protests; and that the economic and security climate (including the disruption to her schooling in 1988) following the military crackdowns affected her (like all Myanmar citizens). However, the Tribunal does not accept that the applicant was an active participant in any protest movements; that she had a political focus or drive relating to these issues; or that the Myanmar authorities have attributed to her any kind of adverse political profile.

   Daughters’ participation in protests

3. The applicant presented four photographs of her daughters holding political posters, in the company of other protestors in Yangon. They appear to have been taken on two occasions. There is little context for the photographs, such as who took them and in what circumstances. The applicant claims that her daughters continue to protest, but are increasingly afraid of taking photographs or other records, for fear of being apprehended and punished.

4. The Tribunal accepts as plausible that the applicant’s daughters attended protests and had their photographs taken.

100.   The applicant presented claims based on ‘her links to her daughters’ (in the submission of 31 March 2021), suggesting that the authorities’ monitoring of the street protestors could put her daughters and her in harm’s way. Given the Tribunal’s adverse view of the applicant’s credibility, her propensity to present unreliable and misleading evidence, and the lack of any other demonstrated political activism in the family, the Tribunal places no weight on these photographs as evidence of ongoing political activism on the daughters’ part; or of the applicant’s political views or profile.

Summary

101.   The Tribunal accepts that the applicant disapproves of the military government, including for reasons arising from her Muslim background, her Rohingya links and her general political outlook. It does not accept that she has ever participated in any political protests or similar activities in Myanmar (in 1998, 2007 or any other time). It also does not accept that she has a political opinion or interests that motivate her to engage in political activities, but where she has felt inhibited to do so due to safety concerns, including from 2012 on (as anti-Muslim sentiment rose).

102.   In relation to Australia, the Tribunal accepts that the applicant has engaged in some political protests following the February 2021 coup. It finds that she has done so, in part because these activities reflect her own views, including her disapproval of the coup. Other factors have included the social connections with the Myanmar community in Australia, and her wish to obtain evidence in support of her protection claims. The Tribunal does not accept that the February 2021 coup or any of the surrounding events have had any marked effect on the applicant’s low level of political interest or engagement.

ASSESSMENT: REFUGEE CRITERIA

103.   The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1). The Tribunal takes into account the findings above, its assessment of her future conduct in Myanmar and, most importantly, relevant country information.

104.   The applicant relies on, among other things, her recent participation in protest activities in Australia and social media posts (on a [social media] account in the name [Alias A]), which includes her image. The Tribunal is satisfied that this activity does not fall within the scope of s.5J(6), on the basis that the applicant did not engage in this conduct solely for the purpose of strengthening her claims to be a refugee (although this has been a strong motivating factor).  

105.   The Tribunal’s assessment is based on the totality of the circumstances, including specifically its findings that she is a Muslim; that her husband was a Rohingya; and that he died in 2016 (in other words, that the applicant is widowed). For the reasons stated above, the Tribunal finds that he died of natural causes, for reasons unrelated to his Rohingya ethnicity, of any political or family profile.

106.   The available evidence suggests that, if she returns to Myanmar, the applicant will live in her parents’ home with her daughters, and resume some kind of small scale business such as trading [product]. At hearing, she stated emphatically that she would participate in political protests. The Tribunal has found that the applicant has never been politically engaged in Myanmar in the past; that her current involvement in protest activities in Australia has been limited and motivated in large part by her wish to obtain evidence to support her protection claims; and that she has only a broad political preference rather than genuine political interests or motivation. As such, the Tribunal does not accept that the applicant will seek out opportunities to participate in any large scale protests (if these continue), or in the more recent guerrilla tactics that [Representative A] alluded to in the submission of 21 April 2021.[13]

[13] He highlighted at hearing protestors’ shift towards guerrilla tactics, as referred to in recent reporting in The Irrawaddy, ‘Myanmar Military Regime Troops Killed in Confrontation With Civilians’, (19 April

107.   An overarching factor in this assessment is the violence that is currently playing out in Myanmar. As noted in recent articles in The Economist[14] and other sources, the military coup on 1 February 2021 ended a ten-year experiment with democracy, and prompted an outpouring of public protests. While the army initially responded with water cannons, rubber bullets and tear gas, its response has become increasingly brutal. To date, more than 850 people have died and more than 6,000 have bee arrested. The civil-disobedience movement has organised strikes of key workers, including teachers, doctors, transport workers and bureaucrats, resulting in economic paralysis and signs of state instability. Although the army’s crackdown has stymied large scale protests, ethnic militias and more recently Bamar civilians have taken up arms and started to attack army units. And, as the New York Times recently reported,[15] the security forces have responded with searches, arrests and assaults, as well as intensified surveillance, intended to intimidate opponents and restore the army’s primacy.

[14] The Economist, 6 March 2021: The army’s response to protests in Myanmar is growing more brutal: and 20 June 2021: Myanmar sinks deeper into civil war, as anti-army groups multiply:

[15] New York Times, May 6, 2021: Three Months After Coup, Myanmar Returns to the ‘Bad Old Days’,

108.   At the time of this decision, the situation remains fluid and complex. Restrictions on reporting add to the difficulty of making any authoritative assessment of either the current state of play, or the outlook into the reasonably foreseeable future.

109.   Against this background, and taking into account the findings of fact above, the Tribunal finds that the applicant faces a small but real chance of serious harm amounting to persecution arising from the cumulative effect of the following:

§  Her Muslim identity;

§  Her husband’s Rohingya background (given the authorities’ likely assessment that she will have sought protection on the basis of this, and that he has died and will not be available to assuage any concerns they may have about him; and

§  Her participation in recent, documented political activities in Australia, and her daughters’ activities in Myanmar.

110.   The Tribunal briefly addresses each of the factors that form part of the cumulative assessment, in order to clarify its view on some of the positions in the submissions and [Academic A’s] opinion.

111.   Muslim: In relation to the applicant’s Muslim identity, the Tribunal notes historical discrimination against the Muslim community, including ethnic Bamars such as the applicant. According to DFAT’s most recent report[16]:

[16] DFAT report, paragraph 3.71

Muslims outside of Rakhine State can generally access a similar level of government services to other religious minorities, however local sources told DFAT 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 (see Household Registration Lists). As the periods of time and payments vary depending on the individual applicant and township officer processing requests, DFAT assesses that these incidents generally represent informal discrimination by mostly Bamar Buddhist public officials, rather than formal policy. Like the Rohingya outside of Rakhine State, other Muslim university students without CSCs (see National Identity Cards) are only permitted to attend classes and sit examinations, and are unable to graduate or receive qualifications.

112.   The applicant completed a tertiary education and her father was a government official. Despite her references to some social discrimination, for instance at school and when applying for ID cards, this did not involve serious harm. Although anti-Muslim surged after 2013, the Tribunal found the applicant’s account of her neighbours’ conduct to be unreliable, and, particularly taking into account her travel history, does not accept that she or her family were subject to sustained, aggressive conduct.

113.   As discussed at hearing, the Tribunal has found minimal reference to Muslims’ participation in the recent unrest; or any interest on the part of the Myanmar authorities’ or the protestors’ part to involve them in the conflict; or indeed any change to the low-level discrimination against Muslims. Overall, reports indicate protestors have united across religious and ethnic lines, and Muslims have for the main been on the sidelines. The Tribunal has found one reference to possible targeting of Muslims in this context. An Australian report[17] on the killing of a Muslim politician in early March 2021 and the disappearance of the father of another, speculates that: ‘Brutalising Muslims now may be an attempt to bolster support within the few remaining parts of society that still back the military.’ In the Tribunal’s view, there is insufficient evidence to indicate one way or the other whether the Myanmar army might seek to target or scapegoat Muslims, even in a bid to win back support from some Bamar critics.

[17] The Conversation, Adam Simpson and Nicholas Farrelly: As killings, beatings and disappearances escalate, what’s the end game in Myanmar?, 11 March 2021

114.   In her opinion, [Academic A] comments on the military’s historic hostility towards Muslim protestors, including recent efforts to ‘sow fear and hatred’. She extrapolates from this that ‘the military will single out Muslim protestors for particularly violent treatment’. The Tribunal accepts the general thrust of [Academic A’s] view, namely that the authorities have in the past tended to target and scapegoat. However, having regard to the breadth of ethnic and religious participation in the protests, and the limited reporting, it does not share her certainty that the military will single Muslims out (irrespective of their profile, or in preference to other religious or ethnic groups).

115.   Muslims have not featured much in the reporting on the protests, which may reflect to some degree their integration into the society. The Tribunal accepts that the applicant may face a somewhat higher degree of scrutiny, as a Muslim, during the process of obtaining a Myanmar passport or travel document, or in any questioning about her activities in Australia. However, it is not satisfied on the available information that Muslims in general, or even Muslims who participate in large scale protests, have a well-founded fear of persecution on those grounds alone.

116.   Rohingya links: Having accepted that the applicant’s father-in-law was a Rohingya speaker and [an occupation 1] many years ago, and that she married a mixed Rohingya/Bamar person, the Tribunal also accepts that this may come to the attention of the Myanmar authorities during the applicant’s future interactions with them. For instance, it is apparent from the husband’s death certificate, and consistent with his household members list. While the Tribunal does not accept [Leader A’s] assertion that the applicant’s marriage to a Rohingya leads her to be perceived as a Rohingya in Myanmar, it does accept that these family circumstances add to the likelihood that the Myanmar authorities will investigate her circumstances, including her political activities in Australia, and more readily adopt an adverse view of her.

117.   Political protests: The Tribunal’s survey of recent reports on the post-coup protests in Myanmar indicates that they have been well-attended, in Myanmar and abroad; and that, following the brutal crackdown, they have now tended to shift gear towards armed attacks and skirmishes. The military’s violent response; the reported numbers of deaths, arrests and disappearances; and more recent reports of military intimidation, all call for the need for caution. As discussed at hearing, the UK Home Office nonetheless noted in March 2021[18] that ‘many thousands of people have been involved in the protests and a person is unlikely to be able to establish a well-founded fear of persecution or serious harm simply by virtue of participating in the protests’ (implicitly protests conducted abroad), unless they have some further profile, such as a prior adverse profile.

[18] UK Home Office: Country Policy and Information Note – Myanmar: 2021 coup and protests, Myanmar - 2021 Coup and Protests - CPIN - v1.0 - March 2021 (publishing.service.gov.uk)

118.   The use of the UK Home Office comment: The submission of 21 April 2021 urged caution in relying on this comment, arguing that it is only a policy statement as to whether such claims can meet UK legal requirements; that there has been criticism in the reliance on these reports; and that, in any events, it fails to take into account the escalation of violence since late March 2021. The Tribunal agrees that the UK Home Office comments are not based on a thorough assessment, and it does not rely on them. Nonetheless, the protests in Myanmar and abroad have involved large numbers. The available evidence suggests that the Myanmar security forces have clashed with those at the frontline, and that the authorities have pursued those in positions of influence and/or who are of prior adverse interest to them. In the Tribunal’s view, this falls short of indicating that a person’s mere presence at a demonstration puts them at risk of persecution.

119.   The accuracy of the UK Home Office comment: [Academic A’s] advice addressed two questions, namely whether the UK Home Office ‘assessment’ was accurate and reasonable’, and more specifically, whether the comments applied to ‘protestors heavily involved in demonstrations against the military’. In her advice, [Academic A] stated that the UK statement fails to reflect the fact that the Myanmar military is ‘excessively antagonistic’ to citizens with links to foreign powers’. She gave the anecdotal example of an activist who had been arrested and assaulted for having rallied large crowds in Myanmar, and targeted in particular because he had had contacts with the foreign media. She goes on to highlight the military’s sensitivity to foreign intervention, particularly from the United States and its allies, and concludes that ‘the military will treat anyone about whom it harbours suspicion with extreme brutality’.

120.   The Tribunal accepts [Academic A’s] advice, as it relates to protestors with a ‘heavy involvement’ in the demonstrations, and those who had aroused the military’s suspicion. It is not satisfied that the applicant is either of these. In relation to persons with foreign links, the example she provided, of a man who was engaging with the foreign media in Myanmar,  is far removed from the applicant’s situation, as a person who has lived and protested abroad. While [Academic A] voices concern that the UK Home Office comment overlooks the risks for certain kinds of protestors (such as those who are heavily involved in the protests, or those with specific foreign links), she does not contend or demonstrate that any participation in protests (including abroad) would motivate the Myanmar authorities to target an individual.

121.   The Tribunal appreciates the need for caution in assessing the protection needs of any Myanmar citizen involved in political protests, whether in Myanmar or in Australia. However, it is not satisfied on the available material – including [Academic A’s] opinion – that the mere fact of participating in protests, including in Australia, gives rise to a real chance of persecution at the hands of the Myanmar authorities.

122.   In sum, the Tribunal does not accept the suggestions that the applicant’s presence in Australia, her Muslim faith, her Rohingya links or her participation in protests in Australia and online individually give rise to a well-founded fear of persecution. Rather, it is the cumulative effect of these, and the applicant’s particular circumstances, that lead the Tribunal to find that there is a small but nonetheless real chance of her being subject to serious harm amounting to persecution at the hands of the Myanmar authorities.

123.   Other factors: The detailed submissions contend that other factors also give rise or contribute to the applicant having a well-founded fear of persecution, e.g. her past arrest and detention, her perceived involvement in Rohingyan politics, and her illegal departure from Myanmar. The Tribunal does not accept these claims as truthful, and they therefore play no role in the Tribunal’s assessment of her eligibility for protection.

124.   The Tribunal accepts that the applicant genuinely fears persecution if she returns to Myanmar: (s.5J(1)(a)). It also accepts, for the reasons set out above, that there is a real chance of persecution: s.5J(1)(b). Given that the Myanmar authorities are the persecutors, the Tribunal is satisfied that the real chance of persecution relates to all areas of the country:s.5J(1)(c). The Tribunal finds that the applicant meets s.5J(1).

125.   The Tribunal accepts that the applicant’s fear of persecution is for the reasons of her political opinion, actual and imputed (associated with her response to the recent coup, and her Rohingya links); and her Muslim faith. The Tribunal is satisfied that these grounds are the essential and significant reason for the feared harm: s.5J(4)(a). It is also satisfied that the applicant faces a real chance of one or more of the following forms of harm: arrest, detention, and/or physical and mental abuse while in custody. The Tribunal finds that such harm constitutes serious harm amounting to persecution, having regards to the instances cited in s.5J(5); and it finds that this involves systematic and discriminatory conduct on the part of the Myanmar authorities. The applicant therefore meets s.5J(4).

126.   Section 5J(2) provides that person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. As the Myanmar military are the perpetrators of the harm, and in the absence of any other organisations to provide protection, the Tribunal finds that there are no effective protection measures available to the applicant, within the meaning of s.5J(2).

127.   Section 5J(3) provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. The Tribunal considers that any requirement for the applicant to conceal her Muslim faith would fall within the scope of s.5J(3)(c)(i), and that efforts to dissociate herself from past political activities in Australia, or the activities of her daughters in Myanmar, would fall within the scope of s.5J(3)(c)(iii), and/or not be reasonable steps, and/or would not, in the reasonably foreseeable future be effective in avoiding a real chance of persecution. 5J(3) therefore does not apply to his circumstances.

128.   Section 36(3) provides that, subject to certain exceptions, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia. There is no evidence that the applicant has a right to enter and reside in any country apart from Myanmar.

129.   In sum, the Tribunal is satisfied that the applicant has a well-founded fear of persecution within the meaning of s.5J, based on her Muslim faith, her political opinion (actual and opinion) and her links with the Rohingya community, when considered together with her personal circumstances.

130.   It finds that she is outside her country of nationality, Myanmar, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country. She is therefore a refugee within the meaning of s.5H.

CONCLUSION

131. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

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

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, he or she 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.

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 because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.  

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

receiving country,  in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H   Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:    For the meaning of well-founded fear of persecution, see section 5J.

…

5J    Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:    For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

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

(b)   significant physical harassment of the person;

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

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

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

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

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K   Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.

5L   Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)    protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)    the person can access the protection; and

(b)   the protection is durable; and

(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36    Protection visas – criteria provided for by this Act

…

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

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

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

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

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

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

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

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

(2A)A non‑citizen will suffer significant harm if:

(a)    the non‑citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non‑citizen; or

(c)    the non‑citizen will be subjected to torture; or

(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

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

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