1729912 (Refugee)

Case [2022] AATA 2848

1729912 (Refugee) [2022] AATA 2848 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Etienne De Villiers Hugo

CASE NUMBER:  1729912

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Brendan Darcy

DATE:30 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2022 at 11:04am

CATCHWORDS
REFUGEE – protection visa – Stateless – Rohingya from Myanmar – land confiscated by Myanmar officials – lived in Bangladesh prior to seeking asylum in Australia – credibility issues – significant discrepancies in claims – sister’s previous travel to Australia as Bangladeshi national – site visit by officials from Australia to the family residence in Dhaka – wealthy family with properties in Bangladesh – attendance at prestigious high school – siblings’ post-secondary qualifications – father’s claim that applicant had held a Bangladeshi passport in the past – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 45AA, 46A, 91R, 91S, 91W(1), 424A, 499
Migration Regulations 1994, schedule 2, rr 1.12(4), 2.08F

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZJSS (2010) 243 CLR 164
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Taiem v MIMA [2001] FCA 611

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant, who claims to be a stateless Rohingya and who was usually residing in the Republic of the Union of Myanmar (Myanmar), applied for the visa on 13 August 2013 and the delegate refused to grant the visa on 3 November 2017.

  3. The applicant applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

  4. The Tribunal notes that the delegate made a decision to not grant a Class XD Subclass 785 temporary protection visa.

  5. The applicant appeared before the Tribunal on 16 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages.

  6. The applicant was represented in relation to the review by his legal representative.

    Relevant law

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AGLC
1729912 (Refugee) [2022] AATA 2848
Case
[2022] AATA 2848
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who claimed to be a stateless Rohingya from Myanmar. The applicant arrived in Australia in May 2013 as an undocumented maritime arrival and subsequently applied for a protection visa. The core of the dispute revolved around the applicant's claimed identity and nationality, and whether he faced persecution or significant harm based on his Rohingya ethnicity from Myanmar, or if Bangladesh was the relevant country of reference. The decision under review was made by a delegate of the Minister.

The legal issues before the Tribunal were whether the applicant had credibly claimed to be a stateless Rohingya from Myanmar, and consequently, whether he had a well-founded fear of persecution for a Convention reason or faced a real risk of significant harm based on Myanmar as the country of reference. Alternatively, the Tribunal had to consider whether another country, such as Bangladesh, was the relevant country of reference for assessing the applicant's claims against the provisions of sections 36(2)(a) and 36(2)(aa) of the Act. The Tribunal was also required to consider the circumstances under which there is not taken to be a real risk of significant harm, as outlined in section 36(2B) of the Act, including the possibility of reasonable relocation within a country or the availability of protection from a country's authorities.

The Tribunal affirmed the delegate's decision, finding that the applicant was a national of Bangladesh and not a stateless Rohingya from Myanmar. This conclusion was based on significant discrepancies and credibility issues identified in the applicant's claims. Evidence considered included country information assessments and departmental guidelines. The Tribunal noted that the applicant's family appeared to be wealthy, with properties in Bangladesh, and that siblings had post-secondary qualifications. Furthermore, the applicant's sister had previously travelled to Australia as a Bangladeshi national, and a site visit to the family residence in Dhaka revealed a well-appointed home. The father had also claimed the applicant had previously held a Bangladeshi passport. These factors, among others, led the Tribunal to conclude that the applicant's claims of systematic discrimination and blackmail due to fraudulent Bangladeshi identity documents were not accepted, and that the applicant did not face a real risk of significant harm in Myanmar or Bangladesh that would warrant the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The delegate found the applicant to be a national of Bangladesh, as opposed to the claim of being a stateless Rohingya from Myanmar, and did not accept claims of being harmed in the past through systematic discrimination and blackmail on account of having obtained Bangladeshi identity documents by fraudulent means. The issue in this case is whether the applicant has credibly claimed to be a stateless Rohingya from Myanmar and whether the applicant has a well-founded fear of persecution for a nexus reason set out in the Convention or faces a real risk of significant harm based on Myanmar as the country of reference or whether another country is the relevant country of reference for purposes of assessing the applicant’s claims and circumstances against ss 36(2)(a) and 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant entered Australia’s migration zone at Darwin in Australia’s Northern Territory [in] May 2013 as an undocumented and irregular maritime arrival. The vessel[on] which the applicant directly entered Australia was codenamed [deleted]. The applicant was allocated ‘[deleted]’ as his ‘Boat ID’. The applicant was able to make a valid visa application for a protection visa without the s 46A bar being lifted and without the liability to be transferred to an offshore processing centre. The applicant was interviewed by Australian officials [in] July 2013. A record of that interview is maintained in the Departmental file as an ‘Irregular Maritime Arrival Entry Interview’. The Tribunal notes the applicant was assisted by an interpreter in the Rohingya and English languages. The applicant made an application for a Class XA Subclass 866 permanent protection visa on 13 August 2013. The applicant did so under the name ‘[applicant name]’. The application was converted into an application for a Class XB Subclass 785 temporary protection visa due to recent legislative amendments under s 45AA in the Act and reg 2.08F in the Regulations. In a statutory declaration signed on 29 July 2013, the applicant claimed his date of birth was [date] in Maungdaw in Myanmar’s Arakan region (Rakhine State) and to be a stateless Rohingya from Myanmar. He claimed to be born a Sunni Muslim. He claimed that life was very difficult for Rohingyas in Myanmar where his family was denied residency rights and denied the right to any identity documents; education; participation in the political process, including voting; access to the legal system; and to buy or sell land and motor vehicles.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant entered Australia’s migration zone at Darwin in Australia’s Northern Territory [in] May 2013 as an undocumented and irregular maritime arrival. The vessel[on] which the applicant directly entered Australia was codenamed [deleted]. The applicant was allocated ‘[deleted]’ as his ‘Boat ID’. The applicant was able to make a valid visa application for a protection visa without the s 46A bar being lifted and without the liability to be transferred to an offshore processing centre. The applicant was interviewed by Australian officials [in] July 2013. A record of that interview is maintained in the Departmental file as an ‘Irregular Maritime Arrival Entry Interview’. The Tribunal notes the applicant was assisted by an interpreter in the Rohingya and English languages. The applicant made an application for a Class XA Subclass 866 permanent protection visa on 13 August 2013. The applicant did so under the name ‘[applicant name]’. The application was converted into an application for a Class XB Subclass 785 temporary protection visa due to recent legislative amendments under s 45AA in the Act and reg 2.08F in the Regulations. In a statutory declaration signed on 29 July 2013, the applicant claimed his date of birth was [date] in Maungdaw in Myanmar’s Arakan region (Rakhine State) and to be a stateless Rohingya from Myanmar. He claimed to be born a Sunni Muslim. He claimed that life was very difficult for Rohingyas in Myanmar where his family was denied residency rights and denied the right to any identity documents; education; participation in the political process, including voting; access to the legal system; and to buy or sell land and motor vehicles. The applicant further claimed he stayed in Myanmar until about 2000 (when the applicant and his family left Myanmar), when he was about [age] years old. The applicant lived in Bangladesh until March 2013 when he embarked on a journey to Australia. While in Bangladesh the applicant claims he lived in constant fear. He limited his movements and kept a low profile to avoid the attention of the authorities and the community more generally. In or around 2010, the applicant claimed to have been severely beaten and tortured by Bengali men. The applicant was unable to seek treatment for his injuries on account of his status in Bangladesh. After this incident he decided to leave Bangladesh for his safety. By early 2013, the applicant and his brother saved enough money and sought to improve their prospects by departing Bangladesh to seek asylum in Australia. Without any documents, they travelled through [Country 1], [Country 2] and [a third country]. Whilst in [Country 2], they registered with the United Nations High Commissioner for Refugees (UNHCR) but did not complete the process. On 4 February 2015, the applicant was interviewed by the Department, at which he reiterated that his name was [applicant name], his date of birth was [date], his place of birth was Maungdaw in the Rakhine State, that he was a follower of Islam and that he was a stateless Rohingya from Myanmar. The applicant also claimed not to have been in possession of Bangladeshi documents.

Ratio Decidendi

Legal Principle Established

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The delegate found the applicant to be a national of Bangladesh, as opposed to the claim of being a stateless Rohingya from Myanmar, and did not accept claims of being harmed in the past through systematic discrimination and blackmail on account of having obtained Bangladeshi identity documents by fraudulent means. The issue in this case is whether the applicant has credibly claimed to be a stateless Rohingya from Myanmar and whether the applicant has a well-founded fear of persecution for a nexus reason set out in the Convention or faces a real risk of significant harm based on Myanmar as the country of reference or whether another country is the relevant country of reference for purposes of assessing the applicant’s claims and circumstances against ss 36(2)(a) and 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant entered Australia’s migration zone at Darwin in Australia’s Northern Territory [in] May 2013 as an undocumented and irregular maritime arrival. The vessel[on] which the applicant directly entered Australia was codenamed [deleted]. The applicant was allocated ‘[deleted]’ as his ‘Boat ID’. The applicant was able to make a valid visa application for a protection visa without the s 46A bar being lifted and without the liability to be transferred to an offshore processing centre. The applicant was interviewed by Australian officials [in] July 2013. A record of that interview is maintained in the Departmental file as an ‘Irregular Maritime Arrival Entry Interview’. The Tribunal notes the applicant was assisted by an interpreter in the Rohingya and English languages. The applicant made an application for a Class XA Subclass 866 permanent protection visa on 13 August 2013. The applicant did so under the name ‘[applicant name]’.