1729912 (Refugee) - [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

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).
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.
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.
The Tribunal notes that the delegate made a decision to not grant a Class XD Subclass 785 temporary protection visa.
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.
The applicant was represented in relation to the review by his legal representative.
Relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Convention).
Australia is a party to the Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act, as in force at the relevant time, qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (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.
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.
In the applicant’s Departmental file is an identity assessment report which assessed the applicant’s claims about his national identity against various sources of information. It indicates that the specialists and officials located the applicant’s family residence in Dhaka and that they interviewed family members at that residence on 4 June 2016.
Following the site check, the applicant’s sister, [Sister A], who was residing in Dhaka, forwarded an email on 12 June 2016 in which she stated:
·     The family are ethnically Rohingya and had inherited land in Myanmar; however, it was confiscated by the authorities;
·     The applicant’s father travelled to various places including Rangoon, [named country], [Country 1], [Country 3] before finally moving to Bangladesh in 1984;
·     In 1990, the applicant’s family moved to Bangladesh and introduced themselves as Chittagonian, due to the similarities between the Chittagonian and Rohingya dialects;
·     The father was continuously threatened in relation to his identity and bribes were paid to avoid threats and harm and exposure to the authorities;
·     The applicant’s sister graduated from [a] college in 2006 and she requested her father return to Bangladesh due to his poor health. The applicant’s sister was hopeful that she would join the Bangladeshi [government agency].
·     In 2006 or 2007, the applicant’s other sister, [Sister B], began a relationship with a Bangladeshi national who she married in 2012;
·     When the Awami League came to power, the applicant and his brother were pursued by political parties to enlist them in their respective groups; and
·     The sister required the entire family in Bangladesh be permitted to live in Australia.
On 3 April 2017, the Department wrote to the applicant under the combined authority of s 57 regarding adverse information and of s 91W(1) seeking documentary evidence of his identity. The letter outlined the following adverse information:
·     The applicant’s sister, [Sister B], had previously travelled to Australia as a Bangladeshi national prior to the applicant’s arrival in Australia;
·     The applicant’s sister completed a high level of education and attained professional employment in Bangladesh which is inconsistent with the experience of stateless Rohingya from Myanmar; and
·     Information before the Department suggested the applicant’s family are long-term residents of Bangladesh and the applicant’s family possess Bangladeshi identity documents, indicating they are nationals of that country.
The letter stated that based on the evidence before the Department, the delegate may find the applicant is a citizen of Bangladesh and not a stateless Rohingya from Myanmar as claimed.
The applicant responded on 26 April 2017 in a signed statutory declaration. He reiterated his claims of being a stateless Rohingya and not a citizen of Bangladesh. Attached were certified copies of documents (with accompanying translations) purporting to be his father’s identity document and a household registration issued in Myanmar which included the applicant as a household member in a residence in Rakhine State.
The statement also stated the applicant had not provided accurate information in the earlier statutory declaration or at the interview because he was scared the information would be provided to the authorities in Bangladesh and that he would be removed from that country. The applicant said that he departed Myanmar in 1990, when the applicant was [age] year old. The family explained to people in Bangladesh that they were from the Chittagong area, which is close to Myanmar and the Rohingya dialect is similar to the Chittagong dialect.
On 19 June 2017, the applicant was invited to a further interview with the Department for 20 July 2017. A further invitation was issued on 19 September 2017. The applicant was interviewed by telephone on 26 October 2017. The delegate states the interview largely proceeded in English with the applicant’s consent.
In that interview the applicant responded to the adverse information and maintained that his parents’ obtained identity documents, however, he was unsuccessful in his own attempts, as outlined in the statutory declaration from April 2017. According to the decision record, the delegate discussed the officials’ site visit to his family’s residence in Dhaka and the Department’s identity assessment report. The applicant reiterated the claims outlined by his sister, [Sister A]. The Departmental notes also mentioned he had been unsuccessful in obtaining identity documents from Bangladesh while other family members had been successful. The delegate also put to him that he and his sister were able to complete high school, despite alleging their illegal status in Bangladesh. Concerns were also put to him that his father presented his own Bangladeshi passport and other identity documents. The applicant stated he did not know his father had a passport, but his mother and father received identity cards in 2007 when the government changed, but he and his brother did not have their own identity cards. The applicant further claimed his sister, [Sister B], who travelled to Australia on a Bangladeshi passport obtained her passport through marriage.
A delegate acting on behalf of the Minister refused to grant the applicant a protection visa on 3 November 2017.
It is noted the delegate, according to the decision record, was not satisfied with the lack of a meaningful explanation as to why the applicant’s parents were able to obtain Bangladeshi identity documents and the applicant was not. The delegate did not accept the applicant was denied Bangladeshi identity documents, as claimed.
Evidence before the Tribunal

A valid application for review of the delegate’s refusal decision was received by the Tribunal on 28 November 2017. A copy of the delegate’s decision record was attached to the review application.
As mentioned above, the applicant attended a scheduled hearing with the Tribunal on 16 May 2022.
During the hearing, the Tribunal explained that the matter had been constituted to the presiding Member in this matter as the applicant’s brother had appeared before the Tribunal informing it that there was a related matter (case number 1706502). The Tribunal further explained that the applicant’s brother provided original identity documents from Myanmar which the Tribunal submitted to the Department’s Document Examination Unit (DEU) for assessment. The applicant acknowledged that he was aware of these developments. At the end of the hearing, the Tribunal explained that it would write to the applicant to put any adverse information to him, sometime after it received an assessment about the original identity documents from the DEU.
During the hearing, the applicant claimed that he was able to speak, read and write in English and Bengali, that he went to [School 1] but did not obtain a tertiary degree and that he worked [in two occupations]. The Tribunal further notes the applicant had moved from Melbourne to Sydney some years ago and that he was engaged to be married later in the year.
Under the adverse information provisions in the Act (s 424A), a letter addressed to the applicant and dated 31 May 2022 was sent to the applicant. The letter raised the particulars from a number of sources of adverse information, including the DEU’s report and the applicant’s identity assessment report, and detailed the reasons the information is relevant to this decision-making including that, subject to the applicant’s responses, the information would be the reason, or part of the reason, for affirming the delegate’s refusal decision, and to respond by 14 June 2022.
After seeking and being granted an extension of time to respond, on 20 June 2022 the Tribunal received the following email in response to the s 424A letter. It relevantly states:
We are instructed by our client to respond as follows:
1.     We do not have any further evidence to place before the Tribunal, except to reiterate the evidence that was given to the Member during the hearing on 16 May 2022. This includes the evidence given by [the applicant] that he has no existing relationship with his sister. He advised that since childhood, they were not close and that they have not had contact or communication for some time. Given this reality, it has not been possible for our client to approach her in order to respond to or comment on the information that the Tribunal raised, specifically in relation to his sister.
2.     Our client maintains the claims he has made before (some of which are summarized in the Tribunal’s s 359A letter, such as his family having limited funds and education), are all true and correct to the best of his knowledge, belief and recollection.
We once more place on record our client’s claims for protection, summarised as follows: As a stateless ethnic Rohingya born in the Rakhine State in Myanmar, [the applicant] has a well-founded and legitimate fear of returning to Myanmar as he will likely be subjected to cruel or inhuman treatment, torture and even face the risk of being killed, on the basis of his ethnicity and Sunni Muslim religion, for which it is widely known and recognised that the Myanmar government provides such persons no effective protection. Our client furthermore reiterates that he has never held Bangladeshi citizenship, and that he genuinely fears and faces a real risk of harm if forcibly returned to Bangladesh, on account of being an undocumented Rohingya refugee.
3.     Given the parallel issues for the two cases, the Tribunal determined that our client’s review application should be aligned with his brother’s review application. As a result, information provided to the Tribunal by the representative for [the applicant]’s brother has apparently resulted in adverse information and findings, which are wholly outside of his control.
As has been presented before the Department and the Tribunal through oral evidence and through a range of supporting documentation, we are instructed and maintain that our client’s fears and personal circumstances are cumulatively compelling and significant reasons for the stated persecution that would result, if our client were forced to return to Myanmar or Bangladesh. We submit that this would result in serious harm for our client. It is submitted that the persecution the review applicant fears meets the legal requirements of Schedule 2 of the Migration Regulations and he should therefore be recognized as a refugee to whom Australia owes protection.
No further submissions were received in relation to this matter, right up to the time of making this decision.
There are no non-disclosure certificates attached to either the Departmental or Tribunal files.
Country information: stateless Rohingyas
Rohingyas in Myanmar
The most recent DFAT country information report for Myanmar (19 April 2019) states the following about the situation for Rohingyas in Myanmar and citizenship laws:
Rohingya
3.5 DFAT acknowledges that there is debate in Myanmar around the origins and historical validity of the term ‘Rohingya’. Many in Myanmar, including the ethnic Rakhine (mostly Buddhist) population, contest this term and claim that the Rohingya are illegal immigrants from Bangladesh and should be recognised and known as ‘Bengali’.
3.6 The vast majority of Rohingya are Sunni Muslim, and live in Rakhine State (formerly known as Arakan State), particularly the northern area that encompasses the townships of Maungdaw and Buthidaung. Prior to the 2017 violence, both Maungdaw and Buthidaung had significant Muslim majority populations (around75-90 per cent). Following the mass displacement of Rohingya to Bangladesh, population figures are no longer known. Rohingya in northern Rakhine typically do not speak Burmese, only Rohingya and sometimes Rakhine languages. There are smaller communities of Rohingya in many other townships in Rakhine State, including Sittwe, Pauktaw and Myebon. In Sittwe and other towns, Rohingya interact with ethnic Rakhine (also known as Arakanese) and can speak both Burmese and Rakhine language, though interaction is limited by a number of factors including movement restrictions (see Rohingya, Freedom of Movement). The UN Fact-Finding Mission reported that the majority of the Rohingya and Rakhine they interviewed described productive relationships between the two ethnic groups before the 2012 violence, including business interactions and friendships.
3.7 Official figures of the size of the national Rohingya population are not available, as this group was excluded from the 2014 census on the basis that their ethnicity was not recognised. However, the census used mapping data to estimate the size of the population not counted in Rakhine State. This mapping process indicated that approximately 1.1 million people were ‘not counted because they were not allowed to self-identify using a name that is not recognised by the government’. This estimate is broadly in line with most credible estimates of the Rohingya population in Rakhine State before the August 2017 violence. The UN Fact-Finding Mission estimated that at September 2018, between 200,000 and 240,000 Rohingya remained in the northern townships of Rakhine State (including around 5,000, of the former 40,000 population in Rathedaung), and 360,000 in central Rakhine (of these, 129,000 are confined in IDP camps). In addition, UN Office for the Coordination of Humanitarian Affairs (OCHA) reported more than 900,000 Rohingya remained in Bangladesh at the end of 2018 (for further information on the Rohingya population in Bangladesh, see DFAT’s Country Information Report on Bangladesh, published on 2 February 2018). Up to 6,000 Rohingya were reported to be stranded on the ‘zero line’ on the Myanmar side of the border in February 2018.
3.8 DFAT assesses that official and societal discrimination on the basis of ethnicity against Rohingya in Rakhine State is high, endemic and severe. They typically lack citizenship, face severe restrictions on their freedom of movement and are the subject of systemic extortion and harassment. These issues combine to restrict this community’s access to livelihoods and to essential services, including in education and health. Rohingya have also been subjected to extreme violence by the security forces, and to a lesser extent, the ethnic Rakhine population (see Security Situation and Rohingya, Violence). The UN Fact-Finding Mission reported episodes of violence between Buddhists and Muslims across the country in recent years, primarily in Rakhine State, and high levels of religious and ethnic tensions remain at the time of publication. DFAT assesses there is a high risk of further violence for the remaining Rohingya in Rakhine State.
Citizenship
3.9 Up until the late 1980s, all Myanmar citizens were issued formal identity documentation known as National Registration Cards (NRCs), and many residents of Rakhine State, including Rohingya, held NRCs. Non-citizens were issued Foreign Registration Certificates. In 1989, the government carried out a ‘citizenship scrutiny’ exercise as part of the implementation of the Citizenship Law. During this process, NRCs were replaced with full, naturalised or associate Citizenship Scrutiny Cards (CSCs). Under the Citizenship Law, many Rohingya are formally eligible for associate or naturalised citizenship, but very few have been issued CSCs of any type following the citizenship scrutiny exercise. While this is largely due to the unwillingness of government officials to provide citizenship to Rohingya, many Rohingya also reject the categories of associate or naturalised citizenship, on the basis that they implicitly deny the existence of Rohingya in Myanmar before 1823, and legally reinforce what Rohingya see as the inaccurate view that Rohingya are immigrants from Bangladesh. Associate and naturalised citizenship categories confer fewer rights than full citizenship (see Documentation).
3.11 From June 2015, the government began issuing a new ‘identity card for national verification’ (ICNV). DFAT understands that as few as 1,000 people were issued this card in 2015. Rohingya applicants were required to identify as ‘Bengali’ on the ICNV, and rights associated with the ICNV, including its limited two[1]year validity, were unclear. The UN Fact-Finding Mission described a campaign to coerce Rohingya to accept the ICNV, and increased restrictions on those with white card receipts in parts of northern Rakhine State.
3.10 In 1995, the government began to issue Temporary Registration Cards (TRCs) (known as ‘white cards’) to those who identified as Rohingya. However in 2015 then-President Thein Sein declared white cards invalid, thus removing the only formal identity documentation available to the Rohingya. Temporary Approval Cards (known as ‘white card receipts’) were given out in exchange for TRCs, reportedly as part of a plan to reinstate identification documents at a later date. However, these were not accepted as valid documentation for the purposes of voting in the 2015 elections, or to stand as candidates, or form political parties.
3.12 From 2016, the government restarted the process to determine who is a citizen under the Citizenship Law. Rohingya were requested to undergo a ‘citizenship verification process’ (as opposed to the ‘citizenship process’ for members of the 135 recognised ethnic groups), and issued National Verification Cards (NVCs). The NVC does not specify religion or ethnicity, it has no expiry date and it is the current form of identity documentation required for Rohingya by the government. Reports of coercion to accept the NVC increased following the October 2016 violence, however as at January 2017, only around 6,000 NVCs had been issued in Rakhine State, compared with nearly 400,000 white cards which were surrendered, in part reflecting the decreased trust in the authorities from the Rohingya population
Rohingyas in Bangladesh
The most recent DFAT country information report for Bangladesh (22 August 2019) states the following about the situation for Rohingyas in Bangladesh:
3.15 Bangladesh has a long history of hosting a minority Muslim population from Myanmar’s Rakhine state who identify as ‘Rohingya’. The ethnic Rakhine population and others in Myanmar contest the use of this term, claiming that the group should be recognised and known as ‘Bengali’ (see DFAT Country Information Report - Myanmar). This report uses the internationally recognised term ‘Rohingya’ for ease of purpose.
[…][…]
3.22 Regardless of their arrival date in Bangladesh, Rohingya are not eligible for Bangladesh citizenship (including through marriage) and are not legally entitled to work. Many Rohingya who arrived before 25 August 2017 have been able to work informally in Bangladesh using fraudulent identity documents, including National Identity Cards (NICs). Local sources have reported that law enforcement agencies generally do not actively seek to enforce legal provisions restricting Rohingya access to employment, although Rohingya generally receive lower wages and endure poorer conditions than those available to locals. Many law enforcement personnel have allegedly demonstrated a reluctance to investigate crimes committed against Rohingya by Bangladeshi citizens, including serious crimes such as rape.
3.23 People trafficking, in which Rohingya are both the traffickers and the victims of trafficking, is a common problem. Well established Rohingya (who arrived in Bangladesh before the August 2017 crisis) may be involved in trafficking newly arrived Rohingya to other parts of Bangladesh or abroad. While most trafficking routes are overland to Malaysia and Thailand, observers continue to also report attempts to traffic by water across the Andaman Sea towards South East Asia. This route is extremely dangerous, particularly when undertaken by people with no seafaring experience. DFAT understands, however, that the government has been largely successful in preventing boat launches.
3.24 Observers have reported cases of women and girls being trafficked to India using fraudulent documents (see Rohingya Documents), which may cause them difficulty when attempting to return. Some women and girls have reportedly been shut into camp tents and sheds and not allowed to leave for fear that they will be subjected to sex trafficking if they live independently. DFAT is also aware of claims that women have been taken in vans during the curfew hours in order to work in brothels in Cox’s Bazar, but is unable to provide any additional information in relation to these claims. In May 2019, police rescued 23 Rohingya girls aged between 15 and 19 who had been brought to Dhaka from Cox’s Bazar after having been promised jobs in Malaysia, and who would likely have become victims of forced prostitution. Police arrested four traffickers in relation to the case, including a Rohingya couple, and recovered more than 50 Bangladeshi passports.
3.25 Rohingya can be very difficult to distinguish from local Bangladeshis. Some Rohingya have lived in Bangladesh for decades, and this presents a particular challenge in identifying them through language or cultural differences. Local sources advise that linguistic analysis may be possible especially by locals in Cox’s Bazar. Such analysis is an inexact and unreliable method of testing, however, due to language assimilation and the existing similarities of the languages. Some Rohingya also appear visually similar to some indigenous groups. DFAT understands that Bangladeshi authorities use document verification and interviews with neighbours and other local people when trying to establish if an individual is Rohingya rather than Bangladeshi. They do not rely on appearance or clothing, and while language may be one factor, it is not necessarily solely determinative.
The same report states the following about identity documents and Rohingyas in Bangladesh:
Rohingya Documents
5.34 Approximately 33,000 Rohingya who arrived in Bangladesh in the 1990s and who are registered refugees possess several forms of identification, including UNHCR Identity Cards, birth certificates and World Food Programme Food Cards, which list primary and secondary household recipients. The government also maintains a ‘Rohingya Family Book’, which contains the details of all documented Rohingya in Bangladesh.
5.36 The government conducted a voluntary census of undocumented Rohingya in June 2016, extending the census in November 2016 to include a large number of recent arrivals. Those who participated in the census received a laminated biometric identification card. Authorities are reportedly still attempting to document the more than 600,000 Rohingya who have arrived in Bangladesh since 25 August 2017, and are issuing them the same laminated biometric identification cards. It is unclear how many of the Rohingya who have arrived since 25 August 2017 have received this identification to date. In line with an agreement with Myanmar authorities, Bangladesh has also commenced processing new verification forms submitted on behalf of family units that do not require participants to specify their nationality or provide identification documents.
5.37 A large-scale registration project was launched in June 2018 in which tens of thousands of people claiming to be Rohingya were registered. Biometric data including iris scans and fingerprints were taken alongside demographic information about family members, skills, occupations and family and migration history. Some newly arrived Rohingya have refused registration, presumably for fear of early repatriation, or because they may wish to seek informal work. Because registration brings other benefits such as food aid, however, many people claiming to be Rohingya have reportedly offered their biometric information.
5.38 As with all people living in Bangladesh, Rohingya may be able to access false passports, which ostensibly demonstrate Bangladeshi citizenship and which may be held by Rohingya abroad. These passports might be entirely fraudulent, having been manufactured by people smugglers, or be fraudulently obtained genuine documents. People smugglers might also offer false passports for other countries, particularly Pakistani, Indian or Nepalese passports. These passports may allow Rohingya to travel abroad for employment, or potentially be smuggled by people smugglers. If those passports are found to be fraudulent abroad, or are unable to be renewed at a Bangladeshi mission abroad, Rohingya may face difficulties should they be expelled from their host country.
ASSESSMENT OF CLAIMS AND FINDINGS
Identity and country of reference
In seeking Australia’s protection obligations, the applicant has claimed to be a Rohingya from Rakhine State in Myanmar and claims the authorities of that country have not provided and will deny him citizenship for the reasonably foreseeable future. That is, the applicant is a stateless person of Rohingya background, lacking any meaningful or lawful nationality arising from the laws of Myanmar.
It has been argued that his claims to have a well-founded fear of persecution or that he will suffer a real risk of significant harm should be considered against Myanmar as the receiving country as Myanmar is the country of his former habitual residence, regardless of whether it would be possible to return the applicant to that country.
Under Article 1A(2) of the Convention and s 5(1) of the Act, a person without a nationality (i.e. who is stateless) must be assessed against his or her ‘country of former habitual residence’.[1] For the purpose of the Convention definition, a person does not need to have a legal right to return to a country before that country can be regarded as a country of ‘former habitual residence’.[2] In Taiem v MIMA, Carr J suggested that the Tribunal would have been in error if it had found that a country was not considered as a country of former habitual residence simply because the applicant had no right to re-enter that country.[3] Conversely, the inability to re-enter a country where a person was habitually resident because that person has no right of entry does not, without more, constitute persecution.[4] Nor would it be likely to meet the definitions of ‘significant harm’ for the purpose of s 36(2)(aa).
[1] Note SZIPL v MIAC [2007] FMCA 643 at [12] in which the Court held that assessment may only be undertaken in relation to a country of former habitual residence once the decision-maker is satisfied on the basis of the law of the country of claimed nationality that an applicant is stateless. Statements by Kirby J in Koroitamana v Commonwealth (2006) 227 CLR 31 at [77]–[78] and [82] to the effect that a person who has not yet acquired a nationality, but who has a legally enforceable right to acquire a nationality is not stateless suggest that there is a state in between having a nationality and being stateless. However, this does not alter the relevant question for the purposes of the definition of refugee which is whether the applicant has a nationality. If the applicant does not have a nationality, the applicant is to be assessed in relation to a country of former habitual residence.
[2] Rishmawi v MIMA (1997) 77 FCR 421; Taiem v MIMA [2001] FCA 611; MIMA v Savvin (2000) 98 FCR 168. This, however, has been a controversial issue among commentators: see JC Hathaway and M Foster, The Law of Refugee Status (Cambridge University Press, 2^nd edition, 2014), at 69–71; G Goodwin-Gill and J McAdam, The Refugee in International Law (Oxford University Press, 3^rd edition, 2007), at 67.
[3] Taiem v MIMA [2001] FCA 611 at [14].
[4] BZADW v MIAC [2013] FCCA 1229 at [71], citing Diatlov v MIMA [1999] FCA 468. This judgment was upheld on appeal: BZADW v MIBP [2014] FCA 541.

In this matter, having carefully considered the evidence, the Tribunal is not satisfied that the applicant’s receiving country is Myanmar.
Credibility concerns about the applicant’s identity
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.)
The applicant presented a set of claims for protection at the time of application in August 2013 that he was a Rohingya from Myanmar and that he and his family subsequently migrated to Bangladesh as they have not and will not be eligible for citizenship under the laws of Myanmar. Due to their statelessness and the persecutory treatment of Rohingyas in Myanmar, the applicant claimed he could not return to Myanmar as his country of reference. When the applicant was interviewed by the Department in February 2015, he elaborated on these written claims.
A number of events occurred leading up to the applicant’s further statement dated 26 April 2017. This included a site visit by officials from Australia to the family residence in Dhaka on 4 June 2016; an email to the Department from the applicant’s sister, [Sister A]; followed by a combined s 57/s 91W(1) letter. In the applicant’s response to adverse information, he admitted aspects of his initial statement were inaccurate, but he maintained that his salient claims about his identity to be a stateless Rohingya from Myanmar were not altered from the earlier claims in the visa application.
In the initial statement he claimed he and his brother[fled] Myanmar for Bangladesh when the applicant was [age] years old and that his education was limited to Koranic lessons at a local madrassa and that he completed up to the equivalent of Year 6 education; but according to the 2017 statement, the applicant declared his father decided the family should move from Myanmar to Bangladesh, which they did in 1990, when the applicant was [a younger age]. The applicant initially claimed his family owned their own house, and land for rice and fish farming, that was subsequently confiscated by the Myanmar authorities in 2006. He relatedly claimed that in the three or so years before departing for Bangladesh, homes belonging to Muslims in Wabeth were targeted and burnt; in the later statement, he claimed his father worked in [Country 3] to save enough money to help the family leave for Bangladesh where he started a business. The applicant was denied the right of education in Myanmar and his father was subjected to demands for money by members of Myanmar’s authorities. The applicant relatedly claimed that he started schooling at a [particular] school in Dhaka with boarding house facilities and that his father paid for the tuition fees [from his work] in [Country 3], even though they did not have birth certificates. However, he admitted that he completed schooling at a prestigious school in Dhaka. The applicant was denied any right to any identity documents, although his parents attempted to obtain identity documents, but requests were denied. However, the applicant has submitted copies of identity documents with translations indicating family members had been issued with identity documents in Myanmar.
These are not minor but significant discrepancies that undermine the overall credibility of the applicant’s claimed identity as a stateless Rohingya and his country of reference as Myanmar.
Of particular credibility concern is not the differences in aspects of the applicant’s background. The Tribunal notes the applicant conceded and/or regretted he provided inaccurate accounts in his initial statement in 2013. What is troubling is that the applicant claims that the inaccurate or false information was advanced to protect his family residing in Bangladesh. The applicant claimed that his father was very scared that the family’s actual Rohingya identity and lack of nationality in Myanmar would arise as the Australian authorities would inform the Bangladeshi authorities. As discussed in the hearing, given the applicant’s disclosure to the Australian authorities during the initial assessment soon after arrival and at the time of application, had the applicant or other family members had a genuine, deep or urgent fear of the Australian authorities or anyone else in Australia disclosing their claimed ethnicity and statelessness, inadvertently or otherwise, he would not have advanced being a stateless Rohingya on arrival. Being a stateless Rohingya from Myanmar whose family risked removal from Bangladesh is exactly what has been consistently disclosed to the Australian authorities. Neither abandoned details in the initial statement nor corrected details in any subsequent statement were significantly relevant to the authorities in Bangladesh should they have become aware of them. It is possible the applicant and other family members thought the Australian Government might be cooperating with the Bangladeshi authorities and that there were aspects of the applicant’s circumstances they would not want to disclose. However, if they genuinely and deeply feared such an outcome, then advancing claims that they did not have a lawful reason to remain in Bangladesh as stateless Rohingyas would be the least likely set of claims to be advanced. This claim to have provided incorrect details in the initial statement to the Department to protect family members to account for the changed written evidence in the April 2017 statement is found by the Tribunal to be weak. For this reason, the applicant invited the Tribunal to consider whether there are other reasons claims about his identity and nationality, or the lack thereof, lacked credibility.
In this matter it is clear the change in claims between 2013 and 2017 was prompted by the adverse information sent to the applicant in July 2016 for comment. The adverse information arose from an investigation into the applicant’s identity.
According to the Department’s decision report, the investigation included a discussion with the applicant’s parents at their residence in Dhaka and an investigation into Bangladeshi school records. The investigation indicated there was no record of the applicant attending school at the [named] school, but he had attended a prestigious school, [School 1], in Dhaka. In the April 2017 statement and later oral evidence, the applicant conceded he attended [School 1] but it was on the basis the family were from Chittagong. The applicant had earlier claimed that his father was a fisherman in Myanmar, but later the applicant’s father said that the family had been based in Chittagong and that he (the father) had always worked as a businessperson and lived in [Country 3] for a long time. The investigation stated the parents of the applicant volunteered information about their circumstances including that they were well-established in Dhaka and were well-off. The report indicated that one of the applicant’s sisters travelled to Australia on a Bangladeshi passport, while another travelled to [Country 4], undermining the applicant’s initial narrative that his family were avoiding the authorities or had limited financial resources or were dependent on their father. The applicant claimed his sisters’ passports were obtained as a result of one of them marrying a Bangladeshi citizen and obtaining the passport without any great difficulty, while the other obtained her passport through employment at a [workplace].
The applicant’s family in Bangladesh also openly shared identity documents and his father said that the applicant had held a Bangladeshi passport in the past. As part of the response, the applicant stated in his April 2017 statement that any Bangladeshi identity documents pertaining to family members occurred because the authorities in Bangladesh had been registering national identity card applicants in 2007 without upfront background checks and that they were easily obtainable at that point in time.
Given the critical nature of the identity assessment report, the Tribunal provided the applicant with a further opportunity to respond to the information in a s 424 letter dated 31 May 2022. The Tribunal provided a copy of the identity assessment report pertaining to the applicant. Specifically the Tribunal put to the applicant in writing:
• You acknowledged that your sister, [Sister B], has travelled to Australia on a Bangladeshi passport in July 2013. It has been claimed that your sister acquired a Bangladeshi passport by virtue of her marriage to a Bangladeshi citizen in 2011; however, the identity assessment report indicates that the passport of your sister was not the first passport she had held as the passport listed a previous passport number;
• The application for a work and holiday visa lodged by your sister included a birth certificate and a vetted police clearance issued in Bangladesh. This indicated that both her parents are Bangladeshi; while it has been claimed your parents are stateless Rohingyas;
• You have claimed that your family has limited funds and limited education; however, the identity assessment indicates your family to be well off, owning property in Bangladesh, and that you and your other siblings have been well-educated. This indicates that they have been long term residents of Bangladesh and likely citizens of that country.
• Your other sister, [Sister A], had travelled to [Country 4] in 2014, indicating that she was a Bangladeshi citizen. While you have claimed that your sister acquired a Bangladeshi passport because she was employed at a reputable [workplace]; in the context of her sister having an earlier passport, this international travel indicated that the other sister was a Bangladeshi citizen and that she had not acquired a Bangladeshi passport because of her employment;
• Your father disclosed to the Department that his family were from Chittagong and that he had travelled internationally over many years, exiting and entering Bangladesh on a Bangladeshi passport. Your parents also presented Bangladeshi national identity cards. The Tribunal notes that the report does not mention that your parents were born outside of Bangladesh. These aspects of the report undermine the credibility of the claim that your parents, yourself or your siblings remained in Myanmar before departing for Bangladesh because they were stateless Rohingyas and were persecuted.
The Tribunal noted that during the hearing, you claimed you and your brother were issued national identity cards in or around 2007, when officials came to your home and issued them without doing any background checks or sighting any birth certificates or other identity documents. You also claimed that your father had been forcibly removed from [Country 3] back to Bangladesh, and that he was not sent to Myanmar as he held a fake or fraudulently obtained Bangladeshi passport. In the context of the abovementioned report, these specific claims appear to be far-fetched and lacking in credibility.
The representative’s submission dated 20 June 2022 states the applicant maintains he is a stateless Rohingya and not a citizen of Bangladesh and that the applicant addressed the matter in earlier statutory declarations. There is no specific refutation of the issues provided, except in regard to the Tribunal’s credibility concerns as to whether it was plausible that Bangladeshi authorities would issue national identity cards in an administratively loose manner that risks fraud and integrity. In this regard, the Tribunal acknowledges there is available country information indicating that the authorities in that country operated with poor practices in issuing national identity cards and even passports until around 2013 or so.
The applicant has asked decision makers in this application for a protection visa to put aside significant changes to his claims where he had admitted to providing falsehoods for no compelling reason, and to instead rely upon the accepted country information stating that Bangladeshi identity documents, including passports, were easily obtainable in the past, including for Rohingyas from Myanmar living illegally in Bangladesh, and he came to Australia on the basis of threats of extortion and fears the authorities would discover his family’s illegal status in Bangladesh. The applicant has not adequately addressed the reasons the applicant’s sister, [Sister B], held a passport prior to her marriage and that the authorities certified copies of her birth certificate for her travel to Australia. His response that he does not talk to his sister or is estranged from her is an irrelevancy. The applicant has not adequately accounted for indicating the applicant’s family had limited education, assets and income, when the evidence shows that his family members obtained post-secondary qualifications and owned substantial property in Bangladesh. The identity assessment report also indicates the applicant’s father had travelled internationally for a long period of time. However, the applicant has claimed that when he returned to Bangladesh after overstaying a visa, the authorities did not discover the applicant’s father had a fake or fraudulently obtained passport. This too was not explained in any detail. The Tribunal also notes that the applicant’s sisters were able to travel internationally but did not have any urgent or deep impetus to apply for refugee status in countries offering it.
It is not entirely implausible or far-fetched that the applicant and his family members have all fraudulently obtained Bangladeshi documents. Certainly, the prevalence of fraudulent documents from Bangladesh for migration purposes is supported by the country information. However, in the context of the applicant changing his claims and not providing convincing reasons for doing so, the applicant has not allayed the Tribunal’s reasonably held suspicions that the applicant and his family members obtained Bangladeshi identity documents because they were Bangladeshi citizens entitled to them. Particularly given the overall assessment in the identity assessment report as to the applicant being a Bangladeshi national and that this report was a multidimensional report including social media records, the travel history of other family members, and evidence about school and economic status, which led to the applicant admitting to providing considerable fabrications at the time of application.
It follows from this that the Tribunal places little weight on the written evidence of the applicant’s sister, [Sister A], that the reason for volunteering information about the applicant being a Bangladeshi citizen was due to his fears the authorities in Bangladesh would discover the family had no lawful right to remain in that country as stateless Rohingyas originally from Myanmar.
The Tribunal has considered the applicant’s accepted circumstances that he and his brother could have travelled to Australia on a genuine passport with a valid visa if they were Bangladeshi citizens and relatively wealthy. This could indicate the applicant’s identity was more plausibly stateless, as claimed. The Tribunal has considered whether the applicant had been persuaded by the power of marketing emanating from unscrupulous people smuggling operations with promises of permanent residency through irregular travel. The Tribunal would only be speculating if it addressed this and, therefore, no meaningful weight is given to this in relation to the overall adverse credibility finding that the applicant’s claimed identity is not credible.
The Tribunal has not turned its mind to the identity documents from Myanmar. In particular, it is the genuineness or authenticity of the submitted identity document and household registration card from Myanmar, claiming to be documentary evidence that the applicant was born in Myanmar and had been registered as a non-citizen living in Myanmar’s Rakhine State, that is critical. The applicant provided similar accounts that an identity document and household registration card from Myanmar had been left behind in the family’s house in Rakhine State and was recently discovered after a fire in that residence. During the applicant’s hearing, it was put to the applicant that the explanation about these identity documents being left behind and then later rediscovered in Rakhine State in the manner claimed – in the aftermath of a house fire at a relatives’ house without being damaged – was implausible. The Tribunal notes the suspicious timing of this rediscovery after the applicant had abandoned earlier aspects of claims advanced at the time of application. The Tribunal has also provided the applicant with an opportunity to provide a written response to the outcome of a requested document examination about the authenticity of the identity documents. In its s 424A letter to the applicant dated 31 May 2022, the Tribunal wrote:
The report stated about the following about the documents:
It is my opinion that the quality of the security limits the ability to determine whether this is a legitimately manufactured and issued document. The result is inconclusive.
Of particular interest is the report’s determination that the documents do not exhibit manufacturing security characteristics expected in secure documents; the security characteristics introduced during document issuing processes are operating effectively however the documents have limited security value; and there is no evidence of fraudulent alteration to the personal data.
This information is relevant as it strongly indicates to the Tribunal that the documents of this kind issued by authorities for stateless Rohingyas from Myanmar have no or little meaningful value as legitimately issued supportive documentation. Furthermore, while there is no evidence the documents have been fraudulently altered, this does not rule out the documents had been fraudulently obtained solely for migration purposes and not because your claims to be stateless and/or Rohingyas from Rakhine State are genuine, as claimed.
In the brief submission prepared by the applicant’s representative in response to the adverse information, the response does not specifically address the DEU report, and broadly maintains that the applicant is a stateless Rohingya from Myanmar and that the applicant’s claims are all true to the best of his knowledge, belief and recollection. The Tribunal notes the DEU report stated that it is the opinion of the assessor that the quality of the security characteristics limits the ability to determine whether this is a legitimately manufactured and issued document and the ‘result is inconclusive’ and that this did not rule out the identity documents being fraudulently obtained.
In the same s 424A letter, the applicant was provided an opportunity to comment on the country information indicating that the prevalence of fraud in both Bangladesh and Myanmar indicated that the identity documents were straightforwardly obtained through fraudulent means. The DFAT country information report cited on Myanmar had been issued on 18 April 2019 while the DFAT report on Bangladesh was dated 29 August 2019. The Tribunal’s s 424A letter stated:
The DFAT report on Bangladesh relevantly states:
5.39 The increasing use of biometric data collection has limited opportunities for fraud because of the greater capacity for authorities to check suspicious identity documents. DFAT assesses, however, that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread. This risk is exacerbated given that civil documentation is generally held by local issuing offices in paper-based files without networked systems.
The DFAT report on Myanmar relevantly states:
5.61 Document fraud is highly prevalent in Myanmar. 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.
5.62 DFAT is aware of reports of citizens of Myanmar and Bangladesh disposing of their identity documentation to obfuscate their identity and fraudulently apply for protection. DFAT does not have any information about the treatment by authorities of those determined to have fraudulent documents

Country information about the prevalence of fraudulent identity documents in any given country cannot be solely relied on to make an adverse credibility finding. However, in the context of other credibility concerns in the matter, it is not unreasonable for the Tribunal to hold such suspicions and to rely on it, at least, in part. The prevalence of both corruption and fraud in Myanmar and Bangladesh is deeply concerning in relation to this matter, particularly given the applicant has admitted to fabricating claims, whose admission was triggered by the applicant’s relatives presenting Bangladeshi identity and other documents and information that critically undermined the applicant’s claims to be a stateless Rohingya whose country of reference in this matter is Myanmar.
For completeness, the Tribunal makes the finding that it is satisfied that it provided the applicant a meaningful opportunity to comment on information in a manner consistent with the adverse information provision under s 424A of the Act.
Cumulative credibility findings
The credibility of the overall evidence about the applicant’s identity is a matter of central importance.
The Tribunal has raised a range of adverse credibility concerns about the applicant’s claims about being a stateless Rohingya from Myanmar and carefully considered the relevant evidence which is outlined above. The Tribunal’s credibility concerns are so deep, when cumulatively considered, that it cannot afford the applicant the benefit of the doubt about his identity claims. The Tribunal finds that the applicant, the witness and others who have provided evidence in support of the applicant being a stateless Rohingya from Myanmar lacked overall credibility and reliability. It accordingly makes the following observations and findings in this overall adverse credibility finding that the applicant is not a stateless Rohingya from Myanmar.
The credibility of the applicant’s claimed identity has been specifically undermined by the applicant having changed his testimony between his initial statement of claims and his later statement of claims. The applicant has provided the explanation that he changed testimony without abandoning his claimed identity as a Rohingya from Myanmar to protect his family back in Bangladesh who feared the authorities in that country would discover their illegal status through Australian authorities, leading to their displacement to Myanmar. This is critically and deeply undermined by the contradictory fact that the applicant and his brother have consistently claimed to Australian authorities, since arrival, to be stateless Rohingya from Myanmar, indicating that they did not have any genuine or urgent or deep fears of their identities being revealed. The changed details in the applicant’s claims about his schooling, dates of departure and economic status were not insignificant. The changes were prompted by a site visit from Australian officials and aspects of an identity assessment report which was put to the applicant which undermined those claims and claims about his identity. The identity assessment report was a multidimensional report created after sighting Bangladeshi identity documents, including travel documents, interviewing family members in Dhaka, interviewing neighbours, undertaking site visits to schools, investigating the international travel history of family members, including one to Australia, and social media posts from family members. The Tribunal placed considerable weight on the identity assessment report and its assessment that the applicant is not a Rohingya from Myanmar and that it was evident the family members were Bangladeshi nationals.
It was then advanced in subsequent explanations that the family members claimed to be Bangladeshi nationals to the Australian officials because they feared their unlawful status in Bangladesh would be revealed and that any Bangladeshi identity documents pertaining to any family member would be considered fraudulently obtained or fake. As discussed above, there were many credibility concerns about the details of these claims. However, these explanations were also critically undermined by the applicant claiming to Australian officials since arrival to be a stateless Rohingya from Myanmar. In the context of the Tribunal’s overall assessment that the applicant lacks credibility, it places no credible weight on any of the written and oral evidence from the applicant and other family members to account for the adverse information about his identity put to the applicant by both the Department and the Tribunal.
The applicant and his brother have presented identity documents they argue prove the applicant was born a stateless Rohingya from Myanmar. This was after initially claiming no such identity documents were ever issued by the authorities in Myanmar to Rohingyas. A report from the DEU concluded the authenticity of the document to be inconclusive. Furthermore, the country information indicates the prevalence of fraudulent material emanating from both Myanmar and Bangladesh had invited further suspicions about the authenticity of the document. The question of weight to be given to a document is a matter for the Tribunal.[5] In MIAC v SZJSS, for example, the plurality of the High Court found no error in the Tribunal giving ‘no weight’ to documentary evidence produced by the respondent, which it accepted as genuine, on the basis that its content was undermined by the respondent’s own evidence.[6] The High Court held that the value of the documents was a question on which reasonable minds may differ and that the Tribunal’s preference for other evidence over the documents could not be said to constitute a failure to take into account a relevant consideration, or a failure to respond to a substantial argument or to result in a conclusion that was manifestly irrational or unreasonable.[7] In the context of the Tribunal’s other credibility concerns the Tribunal finds the applicant fraudulently obtained these identity documents to augment his otherwise weak and critically undermined claims about his statelessness and ethnic identity and Myanmar being his country of reference.
[5] MIAC v SZNPG (2010) 115 ALD 303 at [24].
[6] MIAC v SZJSS (2010) 243 CLR 164) at [33]–[37].
[7] See also MZYUV v MIAC [2013] FCA 498, where the Court commented that it would have been preferable if the Reviewer had made some more detailed analysis of the documents in question, but confirmed that provided documents are not disregarded, their weight is a matter for the decision maker.
The applicant has provided oral evidence to both the Department and the Tribunal, through interpreters in the Rohingya and English languages. However, all publicly available information about Rohingya as a language or a dialect of the Bengali-Assamese branch of languages describes Rohingya as closely related to the Chittagonian language spoken in neighbouring Bangladesh and that the two languages or dialects are mutually intelligible. (In a country of 164 million, about 13 million Bangladeshis speak the Chittagonian language.) There is information arising from the identity assessment report that, while the applicant’s family have been residing in Dhaka for a substantial period of time, they migrated from Bangladesh’s second largest city, Chittagong.
In the context of the Tribunal’s considerable credibility concerns, the Tribunal places very limited weight on the linguistic evidence arising from the applicant’s capacity to understand and converse with interpreters in the Rohingya dialect or language, as supportive of him being born or raised in a stateless Rohingya family or community with any of its origins in the Rakhine State in Myanmar.
Similarly, the Tribunal accepts the applicant to be a Muslim and that he belongs to a Muslim family, it places very limited weight on the applicant and his family members claiming to be Muslims as supportive or indicative of them being Rohingya by ethnicity.
The Tribunal also acknowledges that the applicant and the applicant’s brother in another matter with very similar claims are not inconsistently posited at the time of the application and subsequently when both changed aspects of their claims with the same supportive documents. Ordinarily, the Tribunal would place favourable credibility weight on that consistency. However, in the context of the Tribunal’s overall adverse credibility findings, it has compelling reasons not to place any meaningful weight to their otherwise consistent claims.
The applicant is not credible or a reliable witness. The applicant is not a Rohingya from Myanmar and it is not accepted that he is affected by statelessness by the virtue of the laws in that country denying Rohingyas citizenship. It is not accepted the applicant was born in Myanmar or that any of his family members are Rohingya or that they have any meaningful association with Myanmar as it pertains to the applicant’s identity. He has presented false and misleading statements, fabricated claims from family members and fraudulent documents for the purpose of being granted a visa under Australia’s protection obligations. Myanmar is not the applicant’s country of reference for the purposes of the Convention and the complementary protection provisions in the Act.
Based on the findings above and with particular emphasis on the identity assessment report, there is sufficient evidence for the Tribunal to assess and find that the applicant’s actual and genuine national identity is Bangladeshi, that the applicant is a Bangladeshi national and that Bangladesh is the applicant’s country of reference for the purposes of the Convention and the complementary protection provisions in the Act.
Third country protection
There is no evidence to suggest that the applicant has a right to enter and reside in a country other than Bangladesh, and accordingly, the Tribunal finds that the applicant is not excluded from protection under the laws of Australia by s 36(3) of the Act.
Convention findings
Myanmar
As outlined above, the Tribunal is not satisfied the applicant is a Rohingya by ethnicity who was born into statelessness and has remained stateless, as claimed. It has reached this finding on the basis of the applicant’s claims about being a stateless Rohingya lacking overall credibility.
It follows from this the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reasons, including a lack of nationality as a stateless Rohingya or for any related Convention reasons, including based on religion or a membership of a particular social group or for any other related Convention or non-Convention reason, in being removed, forcibly or otherwise, from Australia to Myanmar, because the Tribunal finds that the applicant has fabricated his status as stateless and his ethnicity as Rohingya. Furthermore, it is not satisfied Myanmar is the country of reference in this matter.
Bangladesh
As the Tribunal has made findings that the applicant is a national of Bangladesh and that Bangladesh is the sole country of reference in this matter, it has made the following findings.
The Tribunal has considered whether the applicant faces a well-founded fear of persecution based on being a failed asylum seeker or forced returnee, including as one who has presented to Australian authorities as being a stateless Rohingya from Myanmar or any other related reasons.
The Tribunal notes that the applicant has made a claim that the applicant and his family members have been harmed, extorted and threatened over a number of times when persons have realised they are Rohingyas, and they feared their identities being exposed. There is also a claim the applicant had been harmed by politically motivated Bangladeshis in 2010. It was his claim that his family moved from an address in [a location] in Dhaka to an address in [another location] where they thought they were safe. Another claim included a home invasion that was not reported for fear of the authorities investigating the family’s claimed identity and migration status in Bangladesh. However, the Tribunal does not accept these incidents to have occurred in the context of the Tribunal’s adverse credibility finding that the applicant is not a Rohingya from Myanmar or that he and his family are stateless and illegally living in Bangladesh. The Tribunal is satisfied all these related claims are embellishments to augment the applicant’s fabricated claim to be a stateless Rohingya from Myanmar.
There is no suggestion in these claims that the applicant or any family members have ever been involved with any political parties, auxiliary organisations of political parties, movements, demonstrations or protests in Bangladesh. There is no claimed association between the applicant and politically motivated violence, non-government organisations or dissenting media organisations or any social media activities, sur place or otherwise. Accordingly, the Tribunal finds the applicant does not have any real chance of serious harm based on the applicant’s political opinions, imputed or otherwise, should he be returned to Bangladesh in the reasonably foreseeable future.
The most recent DFAT country information on Bangladesh indicates that authorities in that country accept both voluntary and involuntary returnees. Bangladeshi authorities have generally insisted on a case-by-case, community-level police check to verify the identity and Bangladeshi citizenship of returnees (including for Rohingya) before authorising their return and issuing travel documents. This process has caused delays in returning Bangladeshis in some cases, particularly given the large numbers of people awaiting return. The International Organization for Migration’s Assisted Voluntary Returns and Reintegration program assists Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT has no evidence to suggest that recent returnees have received adverse attention from authorities or others.

100. Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. It is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. If, however, those returning have a particular political profile, particularly with the BNP, it is likely that their entry into Bangladesh will be noted. DFAT is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad. DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.
101. Given the applicant does not have a high profile as an asylum seeker in Australia and will not be imputed with any political opinion, the Tribunal finds the applicant, who is not a person of interest to the authorities, will return to Bangladesh as a failed asylum seeker and not attract a real chance of adverse attention. He will have a real chance of returning to his family, once his citizenship of Bangladesh is verified by the authorities, as outlined in the country information above. The Tribunal does not accept the applicant, who has identified to the authorities in Australia as a stateless Rohingya from Myanmar, will face a real chance of any serious harm on the basis of him being a failed asylum seeker or forced returnee or as being Bangladeshi of Rohingya background or for being imputed as stateless or Rohingya by ethnicity.
102. At no stage did the applicant advance that he had a well-founded fear of persecution based on any Convention reasons relating to the applicant’s religion as a Muslim or any other Convention reason not addressed above. Accordingly, the Tribunal does not accept the applicant will have a real chance of serious harm in returning to Bangladesh in the reasonably foreseeable future.
103. There are no more residual claims under the Convention to consider in this matter.
104. Having considered all the relevant information, the Tribunal finds that the applicant does not face a well-founded fear of persecution for any Convention or non-Convention nexus reason anywhere within Bangladesh, including Dhaka where the applicant’s family have been long term residents, and the applicant therefore does not satisfy s 36(2)(a).
Complementary protection provisions
Myanmar
105. Based on the adverse credibility findings outlined above about the applicant’s identity and having determined that Myanmar is not the applicant’s country of reference, the Tribunal does not have any substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Myanmar, will suffer a real chance of significant harm of any kind for the purposes of s 36(2)(aa).
Bangladesh
106. Based on the same findings and country information outlined above under its Convention findings relating to Bangladesh as the applicant’s country of reference, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that the applicant will suffer harm by way of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel or inhuman treatment or punishment; or being subjected to degrading treatment or punishment, as required in s 36(2)(aa).
Member of the same family unit
107. The applicant is the biological brother of another review applicant in AAT case 1706502. Both are adults and have long been living in separate parts of Australia. They have not advanced that they are materially or psychologically dependent on each other and the Tribunal does not accept that they are. Therefore, the applicant and his brother are not members of the same family unit as required by reg 1.12(4) of the Regulations.
Conclusion
108. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act.

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION

111. The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
Member