1714932 (Refugee)

1714932 (Refugee) [2021] AATA 2785 (26 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714932
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Mila Foster
DATE:26 May 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 26 May 2021 at 8:08pm
CATCHWORDS
REFUGEE – protection visa – Myanmar – stateless Rohingya – experience of harm and violence – verified as genuine Rohingya by community members – real chance of detention and harm in Myanmar – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a stateless person from Myanmar, applied for the visa on 12 November 2015. The delegate refused to grant the visa on the basis that the applicant was not a refugee or owed complementary protection.
CRITERIA FOR A PROTECTION VISA
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, which are extracted in the attachment to this decision.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT published such a report in relation to Myanmar on 18 April 2019 (DFAT Report).
ISSUE IN THE REVIEW
The issue in this case is whether the applicant is a stateless Rohingya from Myanmar who would be persecuted or suffer significant harm for reasons of her ethnicity if she returned to Myanmar. Rohingyas are an ethnic minority group in Myanmar. Having considered the evidence the Tribunal has concluded that the matter should be remitted for reconsideration.
SUMMARY OF CLAIMS AND EVIDENCE
The evidence presented by and on behalf of the applicant includes, but is not limited to, the Department file relating to the applicant’s protection visa application,[1] oral evidence the applicant gave regarding her identity at an interview with an officer of the Department, oral evidence the applicant gave about her protection claims at an interview with the delegate, a pre-hearing written submission presented to the Tribunal by the applicant’s solicitor which includes two statutory declarations made by the applicant, and oral evidence given by the applicant and a witness at a Tribunal hearing on 7 May 2021.
[1] Department file number [deleted].
The applicant claims that she is a stateless Rohingya from Myanmar. She claims she was born [in] the Chin state of Myanmar to Rohingya parents on [date].[2] She claims to have two names – [Name 1],[3] a Rohingya name she was given by her parents at birth, and [Name 2], a Burmese name her parents gave her because Rohingya names cannot be used for official purposes.[4] She claims she lived in Myanmar until she arrived in Australia [in] August 2015 (except for two months she spent in [another country] in 2012). She claims she is stateless because the Myanmar government stripped Rohingyas of their citizenship from 1982.
[2] Protection visa application, email sent by applicant to Department officer on 29 November 2016, Department interviews and evidence at hearing.
[3] At the hearing the applicant stated that her Rohingya name was [Name 1] but had been misspelt on [occasions].
[4] Protection visa application, email sent by applicant to Department officer on 29 November 2016, Department interviews.
The applicant claims she and her family experienced various forms of discrimination, harm and violence from the authorities in Myanmar and members of ethnic groups because of their Rohingya ethnicity and Muslim religion. For example, she claims that in 1997 her father’s land was taken; in 2000/2001 Rakhine people attacked Muslims in her village and burned down their houses with the support of the authorities; in early 2001, her eldest brother fled Myanmar when the police came to arrest all the Muslim youth in her village and her father was detained at a police station for 7 days and tortured; in subsequent years, she and other members of her family would escape from their village in the Rakhine state to locations in Yangon, and as a result they were arrested, detained, physically abused and sentenced to prison by the authorities; and her father was killed in September 2012 following vigilante attacks carried out against the Rohingya community with the support of the authorities.[5]
[5] ‘Personal Bio’ in protection visa application, oral evidence at Department interviews.
The applicant claims she came to Australia to escape being gaoled after being arrested in June 2015 for fleeing from her home town of Sittwe to Yangon.[6] She claims she paid an agent to obtain and produce bogus documents and apply for the visitor visa she was granted to come to Australia. [7] Those documents include a household list and a Myanmar passport. The applicant claims that household list not genuine and the information it contains about her family is false. In particular, she and her family are not ethnic Kaman as stated in the household list. She also claims that the year of her birth in the passport and bogus documents is not correct. The Department had the passport examined for authenticity. The document examiner was of the opinion that the passport was genuine but could not comment on the legitimacy of its issue.[8]
[6] First interview with Department officer, applicant’s statutory declaration of 8 February 2021, email sent by applicant to Department officer on 29 November 2016.
[7] Copy of applicant’s visitor visa application provided to the Tribunal by the Department and the applicant on review.
[8] Document Examination Report, Department of Immigration and Border, 26 May 2016, p.3.
In support of her protection visa application the applicant submitted a photocopy of what she says is her genuine household list and a partial English translation of that document. According to the translation, the household list was issued [in] September 2000. The section of the household list which identifies the ethnicity of household members was not translated. At the Tribunal hearing the applicant stated that the ethnicity of the applicant and her family members was listed as Bengali.
In support of her protection visa application the applicant submitted a letter from the Australian Burmese Rohingya Association (ABRO)[9] which certified that she was a Rohingya from Myanmar and spoke the Rohingya language. On review the Tribunal sought further information from ABRO.[10] In response,[11] ABRO stated that the applicant’s ability to speak the Rohingya language indicated she was Rohingya, Kaman people did not speak Rohingya, there were members of the Rohingya community in Melbourne[12] who knew members of the applicant’s’ family in Myanmar, and she was the sister of a well-known leader of the Rohingya community and the founder of ABRO. On review the applicant stated that after arriving in Australia she found that the brother who had fled Myanmar was here, but she had not disclosed that before due to an estrangement.[13]
[9] Dated [November] 2015.
[10] Letter dated [April] 2021.
[11] Letter dated [April] 2021.
[12] Where ABRO is located.
[13] Applicant’s statutory declaration declared on 25 April 2021.
The pre-hearing written submission included evidence to support the applicant’s claim that the documents and passport she used to obtain her visitor visa were fraudulent including a statutory declaration from another national of Myanmar who used the same agent to obtain an Australian visitor visa. Also submitted were statutory declarations from the applicant’s husband[14] and two members of the local Rohingya community[15] attesting to the applicant’s Rohingya ethnicity, a membership card issued to the applicant by the Burmese Rohingya Community in Australia (BRCA)[16] and a letter from BRCA explaining the rigorous process they follow to be satisfied that a person is Rohingya before issuing them a membership card.[17]
[14] Statutory declaration of [name deleted] declared on 18 April 2021. Copy of applicant’s marriage certificate (issued by Melbourne Registry of Births, Deaths and Marriages on 13 December 2016) is on the Department file.
[15] Statutory declarations of [two named persons] declared on 13 February 2021 and 15 February 2021, respectively.
[16] Issued [in] November 2020.
[17] Letter dated [September] 2020.
The applicant’s interview with the Department officer regarding her identity commenced with a Rohingya interpreter who ‘returned the job’ shortly after the interview began because he said the applicant was using Burmese words and he was not qualified to interpret Burmese. The remainder of the interview was conducted with a Burmese interpreter. As the delegate noted in her decision, the applicant’s interview with the delegate was conducted with a Rohingya interpreter without any difficulty. The applicant gave evidence at the Tribunal hearing using a Rohingya interpreter without any evident difficulty on the part of either the applicant or the interpreter.
COUNTRY INFORMATION
The Tribunal has had regard to information in the DFAT Report and other sources, particularly reports by the Independent International Fact-Finding Mission on Myanmar (FFM),[18] about the demography of Myanmar and treatment of Rohingya people.
[18] Established by the United Nations Human Rights Council.
Demography
Myanmar is home to a large number of groups of people with various origins, languages and religious beliefs.[19] Of the estimated population of 57 million people, the Bamar are the largest ethnic group comprising about 68% of the population. [20] Estimates indicate that there are between 560,000 and 600,000 Rohingyas in Rakhine state, where most Rohingyas in Myanmar live, and about 20,000 in Yangon where most other Rohingyas live. [21] The Bamar are mostly Buddhist, as are almost 88% of the population.[22] About 4.3% of the population are Muslim including most Rohingyas.[23] Burmese [24] is the official language of Myanmar, is spoken by about two-thirds of the population and is the native language of the Bamar.[25] Many people speak a local language (such as Rohingya) or a dialect, at home, with neighbours and family.[26]
[19] Human Rights Council, Report of detailed findings of the Independent International Fact-Finding Mission on Myanmar, A/HRC/39/CRP.2, 17 September 2018, (FFM2), [84]; International Crisis Group, Identity Crisis: Ethnicity and Conflict in Myanmar, Asia Report N^o31, 28 August 2020, p.4; DFAT Report, [2.11], [2.12]; Central Intelligence Agency (United States), The World Factbook, Burma – Summary (The World Factbook), as at February 2021.
[20] DFAT Report, [2.11].
[21] DFAT Report, [3.6], [3.7], [3.35].
[22] FFM2, [84]; DFAT Report, [2.12].
[23] DFAT Report, [2.12], [3.6].
[24] Or Myanmar.
[25] The World Factbook; Translators Without Borders, ‘Languages in the Rohingya response’, undated (Translators Without Borders),
[26] Translators Without Borders.
Polices and practices affecting Rohingya people
The Rohingya people, particularly those in Rakhine state, have faced decades of State policies and practices which have resulted in what the FFM described as ‘a continuing situation of severe, systematic and institutionalised oppression from birth to death’.[27]
Denial of identity
[27] Human Rights Council, Report of the independent international fact-finding mission on Myanmar, A/HRC/39/64, 12 September 2018 (FFM1), [20].
The Rohingya people are not included among the officially recognised ethnic groups in Myanmar.[28] The government, and Myanmar society more broadly, regard Rohingyas as illegal immigrants from what is now Bangladesh who do not belong in Myanmar even though many have families that have lived in Myanmar for generations or even centuries.[29] The authorities object to the use of the name ‘Rohingya’ and official statements refer to Rohingyas as ‘Bengali’ or ‘the Muslim community in Rakhine’. Rohingyas have been issued various forms of documentation over decades, their primary proof of residence and birth are a paper-based household registration or ‘family list’ system. [30] Documentation however does not equate to recognition and has been used to control and marginalise Rohingya people further.[31]
Denial of citizenship
[28] FFM1, [12]; DFAT Report, [3.3]; Albert, E., and Maizland, L., Council on Foreign Relation Backgrounder, The Rohingya Crisis, 23 January 2020 (CFR Backgrounder), ‘Who are the Rohingya?’.
[29] Human Rights Watch, ‘An Open Prison without End’, Myanmar’s Mass Detention of Rohingya in Rakhine State, 8 October 2020 (HRW), p.28; CFR Backgrounder, ‘Who are the Rohingya?’; de Chickera, A., Migration Policy Institute, Stateless and Persecuted: What Next for the Rohingya?, 18 March 2021 (MPI), ‘The Rohingya in Myanmar’.
[30] MPI, ‘Documented but Not Authorized’; DFAT Report, [3.9]-[3.12].
[31] MPI, ‘Documented but Not Authorized’.
A succession of exclusionary laws and policies relating to citizenship and their arbitrary and discriminatory application effectively denied most Rohingyas citizenship since 1982 and hence rendered them stateless.[32]
Restrictions on freedoms
[32] FFM1, [2.1]; CFR, ‘What is the legal status of the Rohingya?’; MPI, ‘The Rohingya in Myanmar’; DFAT Report, [3.1], [3.8], [3.14].
Rohingyas in Rakhine face severe restrictions on their movements. A strict and discriminatory travel authorisation system requires them to have permits to travel between villages and townships within Rakhine and outside the state.[33] Restrictions are enforced through various means including checkpoints and curfews, are implemented arbitrarily, and often involve bribery, harassment, and the risk of arrest.[34] This has serious adverse implications for almost every aspect of the lives of Rohingyas including their ability to pursue livelihoods, and access food, healthcare and education.[35] Other discriminatory restrictions affect the Rohingyas ability to practice their religion, marry, and the number and spacing of children. [36] Those restrictions are also applied arbitrarily and abused by local officials who extract fees and bribes from Rohingyas.[37] Further, Rohingya children have been denied of access to birth registration.[38]
Human rights abuses
[33] FFM1, [23]; FFM2, [525]; DFAT Report, [3.24]; [3.32]; CFR, ‘What are the Rohingya fleeing Myanmar?’.
[34] DFAT Report, [3.28]; FFM2, [501], [508]-[511], [525].
[35] FFM1, [23]; FFM2, [500]; DFAT Report, [3.29]-[3.31].
[36] FFM1, [23]; FFM2, [589], [605]; DFAT Report, [3.34]; CFR Backgrounder, ‘What are the Rohingya fleeing Myanmar?’.
[37] FFM2, [605].
[38] FFM1, [23]; DFAT Report, [3.34]; CFR Backgrounder, ‘What are the Rohingya fleeing Myanmar?’.
Rohingyas in Rakhine state have been subjected to decades of widespread abuses by security forces including theft and extortion; arbitrary detention and arrest, forced labour, ill-treatment, and sexual violence by the authorities especially security forces has been prevalent.[39]
[39] FFM1, [23]; FFM2, [607],[610], [612], [613].
Large scale violence committed against Rohingya people
The Rohingya people in Rakhine have been subjected to episodes of large-scale violence by security forces involving injury, indiscriminate killing, torture, mass rape and destruction of property which has resulted in large numbers of Rohingyas leaving Myanmar.[40]
[40] DFAT Report, [3.15]; FFM1, [24]-[26], [29], [44], [45].
In 2012 violence between Rohingya and Rakhine groups occurred following the murder and alleged rape of a Rakhine woman, and killing of 10 Muslim pilgrims.[41] The Myanmar government reported that the violence left 192 people dead, 265 injured and 8,614 houses destroyed.[42] While it characterised the violence as intercommunal, security forces were at least complicit or active participants in the violence – injuring, killing and torturing Rohingya and destroying their property across many townships.[43] Further, the government responded to the violence with further oppressive measures against Rohingya communities. Rohingyas who had been displaced were confined to displacement sites and camps, not permitted to return to their place of origin, denied freedom of movement, access to sufficient food, adequate health care, education or livelihoods.[44] Other Rohingya communities such as the community in Aungmingalar in Sittwe, have effectively become closed enclaves guarded by police, checkpoints and barbed wire, with residents only permitted to leave for very limited reasons and then only by police escort.[45] Last year Human Rights Watch reported on the continued arbitrary and indefinite detention of 130,000 in 24 such settings in conditions described as squalid.[46]
[41] FFM1, [24],
[42] FFM1, [24].
[43] FFM1, [25]-[26]; FFM2, [629].
[44] FFM1, [29]; DFAT Report, [3.25].
[45] DFAT Report, [3.27].
[46] HRW, p.5.

Large scale violence occurred again in 2016 in the course of what was referred to by the government as ‘clearing operations’ after a Rohingya militia attacked border guard posts in Rakhine.[47] Security forces, camps, checkpoints, security patrols, houses searches, beatings, theft and extortion increased.[48] Hundreds of men and boys were arrested, many were mistreated or tortured in detention, some disappeared; women and girls were subjected to sexual violence.[49] About 87,000 Rohingya fled Myanmar.[50]
[47] FFM1, [44].
[48] FFM1, [45].
[49] FFM1, [45].
[50] DFAT Report, [2.60].
The violence Rohingya civilians were subjected to in further ‘clearing operations’ following another Rohingya militia attack against military and security forces targets on 25 August 2017 was unprecedented.[51] Rohingya villages were burned - at least 288 were partially or totally destroyed by fire, thousands of Rohingyas were injured and killed, and large scale sexual violence against women and girls was committed.[52] The violence led over 700,000 Rohingya to flee Myanmar.[53] The United Nations Secretary General described the violence as ethnic cleansing and the FFM concluded that there were reasonable grounds for concluding that there was genocidal intent against the Rohingya people.[54]
Assessment of risk
[51] FFM1, [32], [33]; DFAT Report, [3.15], [3.16].
[52] DFAT Report, [3.17], [3.20]; FFM1, [36]-[39]; CFR, ‘What’s caused the exodus?’; BBC, Myanmar Rohingya – What you need to know about the crisis, 23 January 2020 (BBC), ‘’Why did they feel their homes?’.
[53] FFM1, [33]; CFR, ‘What’s caused the exodus?’.
[54] CFR, ‘What’s caused the recent exodus?’; BBC, ‘What has the international response been?’.
In September 2019, the FFM concluded that there was a serious risk of genocidal actions by the State against the Rohingya recurring and that the return to Myanmar of the Rohingya who had fled was impossible in light of the continuing persecution of Rohingya in Myanmar.[55]
[55] Human Rights Council, Detailed findings of the Independent International Fact-Finding Mission on Myanmar, A/HRC/42/CRP.5, 16 September 2019, [667], [669].
DFAT differentiates the risk of harm faced by Rohingyas in Rakhine and outside Rakhine. DFAT assesses that Rohingya in Rakhine face a high risk of further violence especially from security forces[56] and that Rohingya who live outside Rakhine experience moderate levels of societal and official discrimination on a day to day basis.[57] DFAT reports that Rohingya who live in Yangon and other large cities generally have higher incomes and better access to resources than those in Rakhine state and are usually able to obtain documentation that allows them to live and work without facing high levels of discrimination.[58] DFAT also states that Rohingya living outside Rakhine reportedly conceal their ethnic identity by, for example, identifying either as Kaman or as other Muslims groups. [59] DFAT reports that Rohingyas in Yangon are typically registered as ‘Burmese Muslims or ‘Bamar Muslims’.[60]
CONSIDERATION OF CLAIMS AND EVIDENCE
[56] DFAT Report, [3.8], [3.23].
[57] DFAT Report, [3.37].
[58] DFAT Report, [3.36].
[59] DFAT Report, [3.35], [3.36],
[60] DFAT Report, [3.36].
Applicant’s ethnicity and identity
The evidence before the Tribunal that the applicant is Rohingya is compelling.
The applicant has consistently claimed throughout the primary and review stages, that she is Rohingya from Sittwe and has two names – a Rohingya name and a Burmese name.
The applicant demonstrated fluency in the Rohingya language at her interview with the delegate and at the hearing. Her fluency in the language has been attested to by two Rohingya organisations, her husband, who is Rohingya, and two members of the Rohingya community in Australia. The two Rohingya organisations, her husband and the two members of the Rohingya community also attested that the applicant is Rohingya and have some knowledge of her family in Myanmar. The Tribunal took oral evidence from one of the members of the community who had provided a statutory declaration and found him credible. The Tribunal has given this evidence significant weight.
The applicant has consistently stated that she was born in [a] village in the Chin state and subsequently lived for significant periods of her childhood in Aungmingala(r) in the Sittwe township in Rakhine state, and then as an adult for some periods of time in different locations in Yangon with family members and friends. The household list which the applicant claims is genuine was issued in Sittwe. DFAT reports that most Rohingya in Myanmar in smaller Rohingya communities in Rakhine such as Sittwe where Rohingyas interact with ethnic Rakhine can speak Burmese.[61] The applicant gave evidence at her interview with the Department officer in Burmese. As noted above, DFAT also reports that there are Rohingya who live outside Rakhine state, mostly in Yangon. This information and the country information referred to above regarding the Rohingya community in Aungmingalar, indicates that it is plausible that the applicant lived for significant periods in Aungmingalar and that she had some family and friends in Yangon with whom she lived with for some periods of time.
[61] DFAT Report, [3.6].
DFAT also reports as follows about the prevalence of document fraud in Myanmar:
Document fraud is highly prevalent. Fraud can take the form of fake documentation, or genuine documentation provided on the basis of fraudulent information. The prevalence of corruption in Myanmar means that fake identity documentation can be purchased with relative ease, and identity feeder documents including birth, marriage and divorce certificates; household registration lists; and NRCs, CSCs and NVCs, are all subject to significant fraud. While passports have more sophisticated security features, it is possible to obtain a genuine passport using a fake national identity card.[62]
[62] DFAT Report, [5.61].
This DFAT information indicates that the applicant’s claim that the documents provided in her visitor visa application were fraudulent and her passport was obtained on the basis of fraudulent information is plausible. Further, the Tribunal has seen similar examples of document fraud in connection with visitor visa applications made by protection visa applicants who have used agents.
In light of the above, the Tribunal accepts that the passport issued to the applicant and the documents submitted in support of her visitor visa application are fraudulent but that the photocopy of the household list she provided in connection with her protection visa application is a copy of her genuine household list. Further, the Tribunal accepts that the applicant is a Rohingya from Myanmar, her ‘official name’ in Myanmar was n[Name 2], her Rohingya name is [Name 1], she was born on [date], and lived for significant periods of her life in Aungmingalar in Rakhine state. The Tribunal also accepts that she had some family and friends in Yangon and that she lived there for some periods of time most likely without official permission to do so. The Tribunal thus finds that Aungmingalar is the applicant’s home area in Myanmar.
Receiving country
The country information indicates that most Rohingya people have been denied citizenship since 1982 as a result of changes to the law and arbitrary and discriminatory official policies and practices. The Tribunal thus accepts that the applicant is stateless as she claims and finds that Myanmar is her country of former habitual residence. Myanmar is thus the receiving country for the purposes of assessing the applicant’s protection claims.
Well-founded fear of persecution
The country information indicates that if the applicant returned to her home area of Aungmingalar she would be confined for an indefinite period in a camp in which the authorities are effectively detaining the local Rohingya community. The Tribunal finds that such a deprivation of liberty let alone the conditions in the camp amounts to persecution. The country information indicates that if the authorities permitted the applicant to relocate to another area within Rakhine, there is a real chance that the applicant would face harm by the authorities and particularly the security forces because she is Rohingya which, individually or cumulatively, would amount to persecution. The country information further indicates that even if the authorities permitted the applicant to relocate elsewhere in Myanmar such as Yangon, she would need to conceal her Rohingya ethnicity to avoid persecution. However, in determining whether the applicant has a well-founded fear of persecution, the Tribunal cannot require her to modify her behaviour in a way that would conceal her ethnicity.
The Tribunal therefore finds that if the applicant returned to Myanmar as a stateless Rohingya who did not conceal her ethnicity, she would face a real chance of being persecuted by State agents in all areas of the country for reasons of her Rohingya ethnicity. Further, her Rohingya ethnicity would be the essential and significant reason for the persecution; and the persecution would involve serious harm to the applicant and systematic and discriminatory conduct. As the persecution would be carried out by State agents, effective protection measures against the persecution would not be available to the applicant. The Tribunal finds therefore that the applicant has a well-founded fear of persecution within the meaning of s.5J and is a refugee as defined in s.5H(1)(b).
Conclusion
As the applicant is a refugee, the Tribunal is satisfied that she is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Mila Foster
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
…

[2021] AATA 2785

26 May 2021

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