1820416 (Refugee)

[2023] AATA 3201

1820416 (Refugee) [2023] AATA 3201 (8 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Josh Le Vay

CASE NUMBER:  1820416

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:Shahyar Roushan

DATE:8 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 08 June 2023 at 5:55pm

CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – stateless Rohingya – Muslim – obtained Pink Card through the payment of bribes to a broker – does not speak the Rohingya language – applicant’s father involved in pro-Rohingya activities – applicant’s arrest and confiscation of National Registration Card (NRC) – political opinion – opposed to the military rule – participation in protest activities and demonstrations in Australia – financial contributions in support of the National Unity Government (NUG) – particular social group – failed asylum seeker – children in Myanmar – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91W
Migration Regulations 1994 (Cth), r 2.08; Schedule 2

CASES
Al-Anezi v MIMA (1999) 92 FCR 283
FER17 v MICMA (2019) 269 FCR 580
Koe v MIEA (1997) 78 FCR 289
SZEOH v MIMIA [2005] FMCA 1178

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

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicants are husband, wife and their son. The first named applicant (the applicant) claims to be a stateless Rohingya and the second named applicant (the applicant wife) is an ethnic Kaman and a national of Myanmar. They are both Sunni Muslims and resided in [Country 1] before arriving in Australia [in] July 2015 as holders of Student visas (Class TU) (Subclass 573).

2. On 2 September 2015, the applicant lodged an application for a Protection visa and included his wife as a member of the same family unit. The applicant wife did not put forward her own claims for protection before the Department and sought to rely on the applicant’s claims.

3. On [date], the third named applicant (the applicant son) was born in Australia. On 13 December 2016, the Department received a Protection visa application for the applicant son, putting forward his own claims for protection. As the applicant son’s parents had made a valid application for a Protection visa and no primary decision had been made on that application, under reg 2.08 of the Migration Regulations 1994 (Cth) (the Regulations), the applicant son was deemed to have applied for the same visa as his parents on the date of his birth.

4. On 2 July 2018, a delegate of the Minister for Home Affairs refused to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

5. According to his Protection visa application, the applicant, who was also known by his Muslim name of [Alias 1], was born in [year] in [City 1], Rhakine State, Myanmar. He claimed to be a Sunni Muslim of Rohingya ethnicity and stateless. He also claimed his father to be stateless and a White Card holder (as was his deceased mother). He has a younger sister and a brother who, together with their father, reside in Myanmar.

6. From 1980 to 1991, he resided in Yangon, where he completed his schooling. He subsequently travelled to [Country 2] to continue his studies and lived in [City 2] until 1996. He returned to Yangon in 1996, but in 2003 he again travelled to [Country 2], residing in that country until 2008. He then relocated to [Country 1]. He returned to Yangon for a period of eight months in 2011 before going back to [Country 2]. In 2013, he again relocated to [Country 1] where he remained until he came to Australia. During this period, the applicant obtained educational qualifications in [Discipline 1] and [Discipline 2] in [Country 2] and [Country 1], and worked in [Industry 1], as a [Occupation 1] in [Industry 2] and as an [Occupation 2].

7. The applicant stated in his application form that he had also travelled to [Country 3] and [Country 4] and that he had visited Myanmar for short periods in 2012 and 2014. He noted that during his visit to Myanmar in December 2014, ‘the police forced me to enter a bond for me to help them with their investigation against my father's political activism. By fleeing Myanmar, I am in breach of that bond.’ He further stated that he ‘used a genuine passport which was obtained from false documents used to hide my ethnicity.’

8. In Part C of her 866C application form, the applicant wife stated that she was born in [City 1], Rhakine State. She stated that she is a Myanmar citizen of Kaman ethnicity and that both her parents are also citizens of Myanmar.

9. In a statement attached to his Protection visa application, the applicant made the following claims.

10. He was born in [City 1], Rhakine State and he is of Rohingya ethnicity and a Sunni Muslim.  He is also known by his Muslim name of [Alias 1]. At the time of his birth, he had a National Registration Identification Card due to his father’s government employment. As a child, he moved to Yangon with his grandmother and aunt. He was able to adopt a different ethnic identity (Pathi and Bamar) to live safely away from the problems facing the Rohingya.

11. His father used a Burmese name and was employed as a [Occupation 2] in Rhakine State until 1988, when he commenced his political activism on behalf of the Rohingya people. He is unaware of his father’s current location, but he was previously in Yangon. His mother died in December 2013 and many factors contributed to her death, including his family’s escape from the [named] Camp in [City 1] to Yangon in December 2013. His brother and sister are currently hiding in Myanmar, and he is unaware of their whereabouts.

12. [In] May 2014, he married his wife in [Country 1]. She is a Sunni Muslim of Kaman ethnicity. Whilst in [Country 1], he lodged an application for a Student visa to study in Australia, which was granted on 13 May 2015.

13. His family have experienced persecution as Rohingya. In 1978, the military launched operation ‘Naga Min’, which resulted in violence, arrests, harassment and displacement of many Rohingya from the region. Due to this violence, he fled to Yangon in 1979 with his grandmother and aunt as per his father’s request. His parents and sister remained in [City 1], and his brother was born after his departure.

14. Following the 1988 anti-government riots, his father was fired from his government role due to his ethnicity. In addition, his father’s National Registration Identity Card was revoked, and he was issued with a temporary White Card, which was the only way the government recognised the Rohingya. At that time, the government prohibited Rohingya people from leaving Rhakine State, so he communicated with his parents and siblings by telephone.

15. Between 1992 and 2013, he studied, worked and travelled in and between [Country 2], [Country 1] and Myanmar. During this period, his family told him that they had lost their rights and had failed in their attempts to flee Rhakine State, which resulted in his father’s arrest and detention.

16. In 2012, during riots in Rhakine State, his family was directly targeted. He was living in [Country 2] at the time but maintained regular contact with his family by telephone. He was told by his father that they had been attacked by Buddhists, who had also destroyed their property. They were forced to live in a makeshift camp known as the [named] Internally Displaced People Camp (IDP) near [City 1]. The applicant advised his family to escape to Yangon and that he would wait for them there. In December 2012, he returned to Yangon and stayed with his aunt. He waited for his family, but he did not hear from them, so he returned to [Country 2] at the end of the month.

17. In mid-December 2013, he received a telephone call from his aunt that his family had successfully fled to Yangon. He was working in [Country 1] at the time, and he made arrangements to return to Yangon. However, his mother died before he could return to Yangon, and he could only spend time with his siblings as his father was in hiding. He was told by his siblings that his father was involved in gathering information about the persecution of Rohingya and he shared this information amongst other activists. His father was also involved in discussions with delegates of the Organisation of Islamic Co-operation (OIC) in Myanmar. His father had been informed by an IDP camp guard that the authorities were aware of his activities and were planning to arrest him. Consequently, his father made arrangements with a broker to flee the IDP. The applicant returned to [Country 1] in January 2014 after his mother’s funeral.

18. On 12 December 2014, he returned to Yangon to meet with his father. His father contacted him on 22 December 2014, and they made arrangements to meet that night at a mosque. During this meeting, the applicant and his father were ‘grabbed’ by two men, who identified themselves as the Special Branch of the police. His father managed to escape, but he was apprehended, blindfolded and put in the back seat of a car. He was taken to a government building and questioned about his father. He was beaten and threatened with imprisonment if he did not reveal his father’s whereabouts.  He was subjected to further ‘torture’ and mistreatment. Eventually, he was released after he offered his interrogator approximately AUD$1,000. However, he was asked to report to the police station a week later and to sign a ‘bond’, undertaking to assist the authorities with their investigation of his father. His National Registration Card (NRC) was also confiscated, and he was threatened with arrest if he did not cooperate.

19. After he returned to his aunt’s house, she urged him to leave the country and paid a broker to help him leave Myanmar. The broker bribed an airport officer, and the applicant was able to leave Myanmar [in] December 2014 to return to [Country 1].

20. He is now in breach of the ‘bond’ he was forced to sign. If he were to return to Myanmar, he would be arrested, interrogated and mistreated. Although he is not involved in the type of activism his father was involved with, as his son he would be sought by the authorities as a means of locating his father.

    Applicant son’s Protection visa application

21. In the Protection visa application lodged on behalf of the applicant son following his birth, it was stated that he was born on [date] in Australia. His father is ethnically Rohingya, and his mother is ethnically Kaman. His birth has not been registered with the Myanmar Embassy as the applicant and the applicant wife fear harm from the Myanmar authorities on account of the applicant’s ethnicity and because the applicant escaped Myanmar while on a bond. The applicant son will be at risk of harm, including psychological harm, at the hands of the authorities and society generally in Myanmar due to his Rohingya ethnicity.

    The interview

22. The applicant attended an interview with the Department on 19 May 2017. The applicant’s then representative, Ms Louisa McKimm of Immigration Advice and Rights Centre, also attended the interview.

23. The following is a summary of the applicant’s oral evidence to the delegate.

24. He was about [age] years old when he moved from Rakhine State to Yangon with his aunt. He understands that his aunt bribed officials to conceal his ethnicity in official documents, including his birth certificate, which indicates that he was born in Yangon to Muslim parents of Myanmar nationality and Bamar ethnicity. As a result, his passport did not indicate he is of Rohingya ethnicity. All other details, including his date and place of birth were accurately recorded. His most recent passport was issued by the Myanmar Embassy in [Country 1] to replace a previous one issued in Myanmar in 2011. He had to bribe officials in Myanmar to obtain his initial passport. He first departed Myanmar in 1992 and returned to that country on five or six occasions. His passport reflected both his Bamar name and his Muslim name, which were given to him by his parents. He used his Muslim name to enrol at the Islamic University in [Country 2].

25. His parents and siblings had Burmese and Muslim names, which he recorded in his Protection visa application. Rohingya parents give all their children both Burmese and Muslim names.

26. Until December 2014, he was considered a Myanmar citizen as this was indicated on his birth certificate and his NRC. However, he ceased to be a citizen after the authorities realised that his father was Rohingya when he was detained by the Myanmar authorities in December 2014 and his NRC was confiscated. As a Rohingya he is stateless and not entitled to an NRC.

27. Whilst he came to Australia on a Student visa, his real intention was to seek protection. He has been working as an [Occupation 2] since 2008 and he is now employed as a [Occupation 2] with [Employer 1]. He speaks, reads and writes Burmese and English, but he does not speak the Rohingya language. According to the applicant, both his parents spoke Burmese and Rohingya, but spoke Burmese to him as he does not speak Rohingya, having been raised as a Burmese Muslim by his paternal aunt in Yangon. He has only met his father on the one occasion, in December 2014. This was to avoid the authorities or the schools becoming suspicious that he is Rohingya.

28. The applicant met his wife in [Country 1]. She is a Myanmar national of Kaman ethnicity and Muslim faith. In his Student visa application, he provided information reflecting the details recorded in his NRC.

29. If he were to return to Myanmar, he would be arrested and detained by the authorities at the airport because he breached the bond that he had signed. The authorities have now discovered that he is an ethnic Rohingya, and he would be interrogated, tortured, mistreated and imprisoned. His son would also be considered as stateless by the authorities and would consequently be denied education and access to medical care. He would be denied citizenship and would be targeted by Buddhist extremists in Yangon.

30. The applicant submitted to the delegate a letter of support from [Mr A], [office bearer] of the Burmese Muslim (Sunni) Association dated [in] November 2015. [Mr A] stated in his letter that the applicant is an active member of the NSW Burmese Muslim (Sunni) Association (BMA). He confirmed that the applicant is a Muslim from Rakhine State and that he has been involved in the BMA’s community activities.

    Post-interview submissions

31. On 26 May 2017, Ms McKimm provided the Department with a translation of the applicant’s birth certificate, a copy of which was provided at the interview. Ms McKimm submitted that the applicant does not assert the birth certificate is genuine evidence of his identity, nationality or citizenship.

32. On 5 June 2017, Ms McKimm made a further submission to the Department in support of the application, providing the following information.

33. The applicant’s passport, original ‘false’ birth certificate and original translation of the birth certificate, which were provided to the Department, are not offered as genuine evidence of the applicant’s identity, nationality or citizenship. The documents were provided in order to comply with the delegate’s request under s 91W of the Act.

34. The applicant has held five passports. The two passports referred to in his Protection visa application are his current and most recent expired passports.

35. The applicant was required to provide his birth certificate and NRC to apply for a passport in Myanmar. When applying for his NRC, he was instructed by the authorities to register as Pathi and Bamar because he is a Muslim.  The applicant was only required to surrender his old passport to obtain a new passport in [Country 1]. The applicant surrendered his most recent expired passport from Myanmar to obtain a new passport in [Country 1].

36. The applicant’s passport is a bogus document because it is a genuine passport obtained using fraudulent documents which misrepresent the applicant’s identity, ethnicity and citizenship.

37. The applicant does not have a record of his birth due to the upheaval surrounding the persecution of Rohingya. He relies on his aunt’s oral account of how he came to live in Yangon and how she facilitated his ability to conceal his ethnicity. The applicant’s aunt arranged for a birth certificate to be issued for him, which records his ethnicity as ‘Bamar.’ With this document, the applicant obtained an NRC or ‘Pink Card’ identifying him as ‘Pathi + Bamar.’ 

38. The applicant did not learn the Rohingya language because his aunt and grandmother feared for his safety. He communicated in Burmese with his family by telephone.

39. The applicant has worked overseas for the last 20 years, and he has used the money he earned to support his family. During his conversations with his family, he learnt of the mistreatment of Rohingya Muslims in Rakhine State.

40. Ms McKimm reiterated the information previously provided in relation to the applicant’s father’s activism in 2013, his family’s escape to Yangon, the applicant’s account of his meeting with his father in 2014, the latter’s escape and his own arrest.  It was submitted that the applicant can no longer conceal his identity in Myanmar because of the incident in December 2014 and the subsequent confiscation of his Pink Card. The applicant has now lost his citizenship and is at risk of harm due to his ethnicity. The applicant is also concerned for the safety of his son, who is currently stateless without any right to enter Myanmar or any other country.

41. In support of her submissions, Ms McKimm referred to the available country information at that time, including the Department of Foreign Affairs and Trade (DFAT) Country Information Report in relation to Myanmar, dated 10 January 2017, and other news reports and articles regarding the situation of Rohingya and other Muslims in Myanmar.

42. Ms McKimm also submitted a number of supporting documents, including:

    ·Letter of support from [Mr B], [office bearer] of the [City 3] Muslim Association, dated [in] May 2017. [Mr B] stated that the applicant is a practising Muslim from Myanmar. The applicant moved from [Suburb 1] to [Suburb 2] ([City 3]) in March 2018 and he attends the [City 3] Mosque for worship and congregational prayers.

    ·Copy of a certificate from Jamiat Ulama-el-lslam, Myanmar, dated [in] March 2014, confirming that the applicant wife is a Sunni Muslim. The certificate was issued for the purpose of the Registry of Muslim Marriages.

    ·Copy of certificate issued to the applicant by the International Institute for Muslim Unity for his participation in the [specified] Forum held [in] December 2006.

    ·A further letter of support from [Mr A], [officer bearer] of the Burmese Muslim (Sunni) Association, dated [in] May 2017. [Mr A] stated that the applicant and the applicant wife are active members of the BMA, and that they joined it [in] July 2015. [Mr A] listed the community activities and events the applicant and his wife have been involved in.

    ·Undated letter of support from [Mr C] of the Qur’anic Society, certifying that the applicant is a Muslim.

    ·Receipt issued in the names of the applicant and his wife for payment of membership to the BMA dated [in] March 2017.

    ·Photographs depicting the applicant participating in the BMA’s activities.

    The delegate’s decision

43. The delegate accepted that the applicant and his wife are Sunni Muslim and that they use and identify with their Muslim names. The delegate also accepted that they both had Burmese names. The delegate, however, was not satisfied the applicant and the applicant son are ethnic Rohingya. The delegate noted that the applicant does not speak the Rohingya language, his first language is Burmese, he received an education in Myanmar comparable to other Myanmar citizens and he had led a relatively privileged life in Myanmar, as evidenced by his educational history both in Myanmar and abroad. He also noted that the applicant had returned to Myanmar on several occasions and had never approached the United Nations High Commissioner for Refugees (the UNHCR) in [Country 2] to seek refugee status in order to avoid returning to Myanmar.  The delegate found that the applicants are citizens of Myanmar. The delegate was of the view that whilst it’s possible that the applicant may have come from a family of mixed race, he is a Burmese Muslim, born and raised by his parents in Yangon. The delegate did not accept that the applicant’s parents are ethnic Rohingya, that the applicant was born in Rakhine State and that his father was involved in Rohingya activism in Rakhine State. As such, the delegate did not accept that the applicant is stateless. On the basis of these findings, the delegate rejected the applicant’s claims and found that the applicant son is also not ethnic Rohingya and stateless, and that he is a Myanmar citizen. The delegate found that if the applicants were returned to Myanmar, they would not face a real chance of serious harm or a real risk of significant harm.

    The review application

1. On 13 July 2018, the applicant applied for a review of the delegate’s decision and, on 13 June 2019, he appointed Ms Jacinta Harris of Playfair Visa and Migration Services as his representative in connection with his application for review.

2. On 31 October 2019, the following documents were submitted to the Tribunal in support of the review application.

   ·Copy and translation of a letter of support from [Ms D] from Rakhine State, dated [in] December 2018. [Ms D] stated in her letter that the applicant is Rohingya by race and Muslim by religion. [Ms D] noted that she knew the applicant’s aunt as she assisted with the transfer of funds from the applicant’s aunt to the applicant’s father in the [City 1] IDP camp in 2013. [Ms D] asserted that the applicant’s aunt and his father are Rohingya Muslims.

   ·Copy and translation of a letter of support from [Mr E] from Yangon, dated [in] July 2019. [Mr E] stated that he knew the applicant’s father when he visited [named] Refugee Camp with UN officials in early 2013. The applicant’s father was a Rohingya refugee, who escaped with his family from his village and ended up in the IDP camp. The applicant’s father told [Mr E] of the atrocities committed against Rohingya people and asked [Mr E] to pass this information to UN officials. The applicant’s father also told [Mr E] that one of his sons had been brought up in Yangon and works in [Country 1]. [Mr E] stated that he knew the applicant’s father to be Rohingya.

   ·Employment reference letter from [Mr F], Company Director of [Employer 1], dated 24 May 2019, in relation to the applicant. [Mr F] also provided a statutory declaration, declaring that he has known the applicant for two years and nine months through his employment. During this time, he has known the applicant to be a stateless Rohingya Muslim through the conversations they have had.

   ·Employment reference letter from [Mr G], Director of [Company 1], dated 21 May 2019, in relation to the applicant wife.

3. On 20 November 2019, Ms Harris submitted a statutory declaration, declared by the applicant on 19 November 2019, in which he provided the following information.

4. He cannot speak the Rohingya language because he moved to Yangon to live with his aunt and grandmother when he was [age] years old. His aunt and his grandmother did not speak Rohingya to him for his and their own safety. Instead, he was taught to speak Burmese. His family can speak some Burmese as can most Rohingyas living in Myanmar. His telephone calls with his family were short and his family did not ‘waste time’ teaching him a new language over the telephone.

5. He did not lead a privileged life in Yangon. His aunt paid bribes to allow him to gain primary and secondary education. He was discriminated against in school due to his religion and forced to participate in Buddhist prayers and activities.

6. He was not able to complete his tertiary studies in Myanmar and attend a government technical college as the enrolment process required him to provide details of his parents’ heritage, as well as an NRC. As he, his aunt and grandmother were not citizens, they could not obtain a family household census card, which made it difficult to rent property without paying bribes. Without a census card, they also found it difficult to access healthcare. His aunt operated a business as a wholesaler and used the income to support him and his grandmother and to pay the necessary bribes. As his aunt was not a citizen and she did not have a census card, she was not able to register her business and she paid bribes to the municipal tax collector in order to run her business.

7. Many stateless Rohingya living in Yangon hold identity cards and passports which were obtained fraudulently. To his knowledge, his aunt obtained his birth certificate by paying a bribe to an agent or broker. His aunt also paid a bribe to a broker and an officer to obtain a Pink Card for him while he was an adult living in [Country 2]. His aunt told the authorities that the applicant is a Muslim, and she was told that he could register as a Bengali, Indian or Pathi (Burmese Muslim). The authorities recorded him as ‘Bamar + Pathi’ without looking at him or sighting any documentation to prove his identity. He returned from [Country 2] with the help of a broker when he was [age] years old in order to collect and sign the Pink Card. His aunt also paid a bribe to an officer at the passport office in order for him to obtain a passport. When his passport was due to expire, he used it to obtain a new passport.

8. To obtain his diploma of [Discipline 1] in [Country 2], he was only required to show a passport with a valid visa and a high school certificate, and to sit an entrance exam.

9. After completing his diploma, he returned to Yangon and worked in a [business] owned by a foreign company. He then worked in an offshore [company] owned by a French company. He used his income to support his family and returned to [Country 2] to complete a Bachelor of [Discipline 1].

10. He did not approach the UNHCR in [Country 2] because at that time he did not have issues with the Burmese government. He feared the Burmese government would be informed he was not a Burmese citizen if he registered with the UNHCR. It was also important for him to return to Myanmar to see his family.

11. When he completed his Bachelor of [Discipline 1] degree in 2008, he moved to [Country 1] and began working as an [Occupation 2]. He transferred money to his aunt, who then sent the money to his family in [City 1] via a broker, [Ms D].

12. He last spoke to his aunt in January 2015 while he was living in [Country 1]. He has not been able to reach his aunt since and he does not know where she is living or her contact information. The applicant wife’s mother lives in Yangon and he has sought her assistance in locating his aunt and other family members, but the attempts have so far been unsuccessful.

13. His most recent Burmese passport, which he obtained in [Country 1] from the Myanmar Embassy [in] 2014, has expired. If he returns to Myanmar, he will not have a travel document. The applicant wife and applicant son also do not have travel documents. The Burma Immigration Act prohibits anyone from returning to Myanmar without a valid passport. He fears that if he returns to Myanmar without a passport or a Pink Card, he will be detained and mistreated.

14. He also fears the authorities will know he is Rohingya because he was caught in Yangon with his father, who is known to be a Rohingya and an activist. In addition, his Pink Card was confiscated because he was told he is not entitled to it as he is Rohingya. He also fears being arrested by authorities because he is in breach of the bond he entered into [in] December 2014, which will be flagged upon his re-entry. In addition, he fears harm upon returning to Myanmar as a Muslim and for having applied for protection in Australia. 

15. On 5 August 2022, the applicant appointed Mr Josh Le Vay, also of Playfair Visa and Migration Services, as his representative.

16. On [date] 2022, the Tribunal was notified of the birth of the applicant and the applicant wife’s second son on [date]. 

17. On 31 March 2023, the applicant provided further submissions to the Tribunal, referring to the military coup in Myanmar in February 2021 and his participation in demonstrations against the Myanmar military regime in Canberra and Sydney. The applicant stated that there is a record of his attendance at these rallies on his [social media] profile under his Muslim name [Alias 1]. The demonstrations were organised via [social media] by the National Unity Government (the NUG) and Action Against Myanmar Military Coup (Sydney). Through his [social media] page, the applicant has voiced opposition to the military regime and has added comments. He also follows and ‘likes’ the Committee Representing Pyidaungsu Hluttaw (CRPH)/NUG Support Group NSW, the Civil Disobedience Movement (CDM) in Myanmar and other People’s Defence Force (PDF) groups on [social media].

18. The applicant stated that he has financially donated to various organisations and groups opposing the military regime in Myanmar. In support of this claim, he submitted photocopies of receipts for various donations made to the Burmese Community Support Group, the NUG, the PDF in Mon and Sagaing States, the Tanintharyi Military Region Command Group (TMRC) and Pancake Dada, an activist in Australia opposing the military regime in Myanmar. In addition, the applicant submitted the following documents:

    ·Photographs depicting his participation in rallies against the Military Coup.

    ·Screenshots of [social media] posts.

    ·Copy of a letter from the [City 3] Muslim Association, confirming that the applicant is a Rohingya Muslim residing in [City 3].

    ·Receipts and evidence of financial contributions to various anti-military causes.

    The hearing

19. The applicant appeared before the Tribunal on 18 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages. Mr Le Vay also attended the hearing. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

20. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

21. Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

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

24. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

25. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, findings and reasons

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

27. Having carefully considered the applicant’s detailed written and oral evidence throughout the process, the Tribunal found him to be a credible and reliable witness who has attempted to provide a detailed and consistent account of his claims.

    Nationality, ethnicity and religion

28. It has been claimed and the delegate accepted that the applicant wife is a full citizen of Myanmar. The Tribunal also accepts this claim. The Tribunal further accepts that the applicant wife is a Muslim and of Kaman ethnicity.

29. The Tribunal does not share the delegate’s concerns relating to the applicant’s evidence regarding his nationality and ethnicity. The applicant has consistently stated that he is an ethnic Rohingya and stateless. He has repeatedly provided a consistent account of his life story as a Rohingya, born into a Rohingya family in [City 1], Rhakine State, and how he was able to obtain national identification documents and a passport.

30. The Tribunal accepts the applicant’s evidence that he was taken to Yangon by his aunt and his grandmother when he was [age] years old due to safety concerns. In Yangon, his aunt was able to obtain a birth certificate and subsequently a Pink Card for him through the payment of bribes to a broker. In these documents, his ethnicity was recorded as Bamar. According to DFAT:

    Some Rohingya outside Rakhine are able to improve their situation by obtaining documentation identifying them as ‘Bamar Muslim’ or Kaman, but they still face significant discrimination on the basis of their skin colour and religion.[1]

    [1] DFAT, DFAT Country Information Report – Myanmar, November 2022 (version 2).

31. The Tribunal accepts that it was due to having procured these fraudulent documents that the applicant was able to acquire a passport, to which he was not entitled, and to receive an education in Myanmar and abroad. The Tribunal accepts the applicant’s explanations in relation to why he did not speak the Rohingya language. The Tribunal further accepts that the information he had provided in his Student visa application was based on what is stated in his birth certificate. On the basis of the evidence before it, the Tribunal accepts that the applicant is a stateless Rohingya and a Muslim.

32. With regard to the applicant son, both in the application lodged on his behalf and in the evidence given by the applicant, it was claimed that, like his father, he is stateless.

33. As discussed with the applicant at the hearing, Myanmar has very complex laws regulating citizenship. The Burma Citizenship Law of 1982 (also called the Pyithu Hluttaw Law No. 4 of 1982, herein after the Citizenship Law),[2] provides three categories of citizenship: full citizenship; associate citizenship; and citizenship by naturalisation. Individuals are automatically considered full citizens at birth if they are among the 135 groups of identified or national ethnic groups, including Kaman.[3]

    [2] Burma Citizenship Law of 1982, 15 October 1982, CX75226.

    [3] 'Rohingyas - Insecurity and Citizenship in Myanmar', TSU Press, T. Gibson, H. James & L. Falvey, 01 August 2016, CIS38A80121535, page 41.

34. The term ‘foreigner’ is defined in the Citizenship Law to mean ‘a person who is not a citizen, or an associate citizen or naturalised citizen’.[4] The sources consulted by the Tribunal suggest that this term extends to stateless migrants, and persons of unknown or undetermined citizenship.[5] The Tribunal finds that the term applies to stateless Rohingya.

    [4] Section 2(e), Burma Citizenship Law of 1982, 15 October 1982, CX75226.

    [5] 'Navigating with a Faulty Map: Access to Citizenship Documents and Citizenship in Myanmar', Institute on Statelessness and Inclusion, October 2021, 20220329183921, page 18; and 'Myanmar's Citizenship Law: An Analysis', Centre for Diversity and National Harmony, 01 August 2018, 20190723140406, page 41.

35. According to the available sources, as the child of a full citizen and a ‘foreigner’, the applicant son would appear to be entitled to citizenship by naturalisation, either upon birth if he was added to his parents’ Citizenship Certificates at birth, or if not, then upon attaining the age of 18, and satisfying the other requirements imposed by s 44 of the Citizenship Law. 

36. The established procedures relating to demonstrating each of the three types of citizenship are closely associated with questions of documentation.[6] As noted by the Centre for Diversity and National Harmony in its 2018 report, which summarises these procedures, ‘it is through the acquisition of documentation that the procession of citizenship is confirmed, and evidence of this status is acquired.’[7]  These procedures include the following:

    1)Notice of the birth must be provided to the relevant authority (the Ward of Village Tract Administrator) within seven days of the birth by providing the birth certificate.

    2)The Ward of Village Tract Administrator issues a birth registration form.

    3)The birth registration form, along with the parents’ Certificates of Citizenship and Household Lists, and for associate and naturalised citizenship, proof of payment (30 Kyats) are provided to the Township Administrator’s Office requesting the child be included on the parents’ Citizenship Certificates.

    4)The application is reviewed and sent to the Department of Immigration and Population and the State or Region Administration.

    5)The Department of Immigration and Population reviews the application, and for associate and naturalised citizenship forwards it to the Central Body.

    6)The Central Body (or for full citizens, the Department of Immigration and Population), decides whether or not the child should be included on the Citizenship Certificate and Personal Record Forms.

    7)The documents are returned to the Township Administration with a copy sent to the State or Region Administration.

    8)The Township Administration issues the updated Citizenship Certificate and Personal Record Forms to the parents and updates the Household List.[8]

    [6] Procedures Relating to Myanmar Citizenship Law: Procedures relating to Associate Citizenship Notification 14/83, 1983; Procedures Relating to Myanmar Citizenship Law: Procedures relating to Citizenship Notification 13/83, 1983; and Procedures Relating to Myanmar Citizenship Law: Procedures relating to Naturalised Citizenship Notification 15/83, 1983: as set out in 'Myanmar's Citizenship Law: An Analysis', ibid.

    [7] 'Myanmar's Citizenship Law: An Analysis', ibid.

    [8] Ibid.

37. Where a child is born overseas, the procedures for registration are largely similar, except that the application for inclusion of the child on the parent’s Citizenship Certificate is submitted through the relevant consular office, rather than the Township Administration, and is forwarded directly to the Department of Immigration and Population.[9]

    [9] Ibid.

38. The Tribunal accepts the applicant’s evidence that none of these procedures were followed after the birth of the applicant son in Australia and that the notice of birth was never submitted through any consular officer or provided to any relevant authority in Myanmar. The fact that the applicant son may be entitled to Myanmar nationality (by naturalisation or otherwise) or may have the capacity to become a national under the Citizenship Law at the age of 18 is insufficient to establish nationality under the Act.[10] On the basis of the evidence before it, the Tribunal is not satisfied that the applicant son is a national of Myanmar. The Tribunal finds that the applicant son is stateless and of mixed Rohingya/Kaman ethnicity.

    The applicant’s country of reference

    [10] In FER17 v MICMA (2019) 269 FCR 580 the Full Federal Court confirmed that the terms ‘national’ and ‘nationality’ in the Act do not extend to someone who is not presently a national but has the capacity to become one: at [78].

1. As the Tribunal has found the applicant to be stateless, his claims have been assessed as a stateless person.

2. The applicant was born and resided in Myanmar until the age of [age] when he travelled to [Country 2] to continue his studies. He returned to Myanmar in 1996 and resided in Yangon for seven years before going back to [Country 2] for further studies in 2003. In 2008 he travelled to [Country 1] for work. Other than a period of two years (2011-2013) when he was working in [Country 2], he lived and worked in [Country 1] until his arrival in Australia. The Tribunal finds that the applicant has formerly resided in Myanmar, [Country 2] and [Country 1].

3. It is generally accepted that a stateless person may have more than one country of former habitual residence.[11] Australian courts have held that there is no obvious reason why a claimant could not have more than one country of former habitual residence.[12] However, it is not necessary for an applicant’s claims for recognition as a refugee to be assessed in relation to each such country. In Al-Anezi v MIMA Lehane J held that:

   … a stateless person may have more than one country of former habitual residence … but it does not follow that a stateless person who has had more than one country of former habitual residence is necessarily to be assessed, in relation to a claim for recognition as a refugee, by reference to each of those countries. … A person who has a nationality, who has left the country of nationality owing to persecution for a Convention reason and is, as a result of a fear of such persecution, unwilling to return or is unable to avail himself or herself of the protection of that country, remains a refugee no matter in how many intermediate countries he or she may have resided and however many of them may correctly be described as countries of former habitual residence. It would be surprising if a stateless person who, owing to a well-founded fear of persecution for a Convention reason, had left (was outside) a country of former habitual residence and was unable or, due to such a fear, unwilling to return to that country, ceased to be a refugee merely because of subsequent habitual residence in another country in which he or she had no fear of persecution.[13]

   [11] See for example UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR, reissued 2019); A Grahl-Madsen, The Status of Refugees in International Law, Vol.1 (AW Sitjhoff‑Leyden, 1966), at 160–161.

   [12] Al-Anezi v MIMA (1999) 92 FCR 283 at [22] and Taiem v MIMA [2001] FCA 611.

   [13] (1999) 92 FCR 283 at [22].

4. The Tribunal is of the view that this applies equally to the definition of ‘refugee’ in s 5H(1) and has been held to apply to the complementary protection criterion in s 36(2)(aa).[14]

   [14] See SZUNZ v MIBP [2014] FCCA 2256 at [45].

5. As already noted, the applicant was born and spent his childhood and early years in Myanmar. Until the time when he lost contact with his immediate family, his father and two younger siblings, as well as his aunt and grandmother, continued to reside in Myanmar and the applicant returned to Myanmar on several occasions. Importantly, the applicant’s claims for protection are made solely against Myanmar. For these reasons, the Tribunal finds that Myanmar is a country of former habitual residence.

6. Whilst both [Country 2] and [Country 1] must also be considered as countries of former habitual residence as the applicant spent a number of years in both countries studying and/or working, the evidence before the Tribunal does not support a finding that he has a right to enter and reside in either country or that he could access any level of protection from either [Country 2] or [Country 1] (see further below).

7. The Tribunal has therefore proceeded to assess the applicant’s claims against Myanmar.

8. The Tribunal accepts the applicant’s detailed written and oral evidence provided to the Department and the Tribunal, indicating that his family were targeted and attacked by Buddhists during riots in 2012. As a consequence, the family were displaced and forced to relocate to an IDP camp near [City 1]. The Tribunal accepts that the applicant’s father was involved in pro-Rohingya activities, including gathering information about the persecution of Rohingya and discussing these issues with OIC delegates, which brought him to the attention of the authorities. The Tribunal further accepts the applicant’s account of his visit to Myanmar and his ill-fated meeting with his father in 2014, which led to the applicant’s arrest and confiscation of his NRC. The Tribunal accepts that the applicant was released and left the country after he offered his ‘interrogator’ a bribe and signed a ‘bond’, undertaking to assist the authorities with their investigation of his father.

9. The Tribunal accepts that the applicant is genuinely opposed to the military rule in Myanmar and has expressed his views through participation in protest activities and demonstrations in Australia following the military coup in Myanmar in February 2021. The Tribunal also accepts that he has made financial contributions in support of the NUG. The Tribunal is satisfied that the applicant’s activities in Australia represent a genuine expression of his political views and that he has engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee.

10. According to DFAT, following the February 2021 coup, when the military once again seized power by rejecting the results of the elections held in November 2020, in which the National League for Democracy (NLD) won in a landslide:

    Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.[15]

    [15] DFAT, n1, above.

11. In a recent report on the situation of human rights in Myanmar in the two years after the coup, the United Nations High Commissioner for Human Rights stated:

    …the military has brought the country into a perpetual human rights crisis through the continuous use of violence, including killings, arbitrary arrests, torture, forcible disappearances and the prosecution and sentencing of anti-coup opponents…[16]

    [16] UN Office of the High Commissioner for Human Rights (OHCHR), Report of the United Nations High Commissioner for Human Rights, Situation of human rights in Myanmar since 1 February 2022, 2 March 2023, A/HRC/52/21.

12. The report referred to the ‘catastrophic’ human rights situation that continues to fester and noted that conditions have worsened during the second year since the military coup was launched. It stressed:

    People throughout the country are exposed to continuing violations of their rights and to crime, including killings, enforced disappearances, displacement, torture, arbitrary arrests and sexual violence. There are reasonable grounds to believe that the military and its affiliated militias are responsible for most of such violations, some of which may constitute crimes against humanity and war crimes.

    Forces opposing the military have also committed human rights abuses, in particular in the targeting of non-combatant officials, their family members and others whom they believe to be assisting the military in some way…[17]

    [17] Ibid.

13. In its most recent Country Information Report in relation to Myanmar, DFAT also provided a grim and alarming assessment of the prevailing conditions in the country. Regarding political opinion, DFAT stated:

    Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in antiregime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest)… Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[18] (Emphasis added.)

    [18] DFAT, n1, above.

14. DFAT assessed:

    …anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.[19]

    [19] Ibid.

15. With regard to Rohingya, DFAT has assessed that:

    [A]ll Rohingya in Myanmar are at high risk of official discrimination, including denial of basic rights and services, on the basis of their ethnicity and Muslim religion. Within Rakhine, Rohingya face a high risk of societal discrimination from other ethnic groups and a high risk of violence from security forces and ethnic militias. Outside Rakhine, Rohingya face a high risk of societal and official discrimination but a lower risk of violence. Undocumented Rohingya outside Rakhine remain at high risk of abuse and exploitation and are subject to arrest and detention by the authorities for ‘illegal’ movements.[20]

    [20] Ibid.

16. The Tribunal has found that the applicant is a Rohingya from Myanmar and effectively stateless. As the applicant is stateless, he cannot be removed to Myanmar. Even if, hypothetically, the applicant was removed to Myanmar, he would be returning as a failed asylum seeker, and it would be reasonable to assume that the Myanmar authorities would be aware that he was returning in this capacity.

17. According to DFAT:

    given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries…, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[21] (Emphasis added.)

    [21] Ibid.

18. Having considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Myanmar as his country of former habitual residence, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his ethnicity, religion, political opinion and his membership of the particular social group of failed asylum seekers in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar. As the applicant fears harm by the Myanmar authorities, the Tribunal finds that effective state protection against the harm he fears is not available to him. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar.

19. As already noted, it is not necessary under the Convention, s 5H(1) or s 36(2)(aa) to show a well-founded fear of persecution or real risk of significant harm in respect of each country of former habitual residence. In any event, the applicant has made no protection claims against [Country 2] and/or [Country 1] and the Tribunal finds that he does not have a well-founded fear of persecution, nor does he face a real risk of significant harm in either of those countries. The Tribunal has also considered whether the applicant has access to protection in [Country 2] and/or [Country 1].

101.   As noted above, there is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in either country. The Tribunal has accepted the applicant’s evidence that he had fraudulently obtained a genuine birth certificate and an NRC, which had enabled him to obtain a passport and the requisite residential permits in [Country 2] and [Country 1]. The Tribunal accepts the applicant’s evidence, as expressed in his post-hearing submissions: that he first entered [Country 2] on a Student visa; that he then resided in [Country 1] on an ‘employment pass’ from 2008 to 2011; that he returned to [Country 2] in 2011 on an employment pass; and that he returned to [Country 1] (in 2013) on [specified Pass] (and then an employment pass), which is for workers. The applicant’s passport has now expired, and he is no longer in possession of an employment pass for either [Country 2] or [Country 1]. Further, as a stateless Rohingya he is not entitled to any form of official documentation that would allow him to enter and reside in [Country 2] or [Country 1]. The Tribunal finds that the applicant does not have a lawful right to enter and reside in [Country 2], [Country 1] or any other country either temporarily or permanently. It follows that he cannot access any level of protection from either [Country 2] or [Country 1]. As such, the Tribunal finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country, and that s 36(3) does not apply.

The applicant son’s country of reference

102.   The Tribunal has found the applicant son to be stateless. The fact that he was born in Australia and has never left this country gives rise to difficult questions in relation to the country of reference. On one view, in these circumstances, either there is no country of ‘former’ habitual residence, or alternatively the only possible relevant country for the purposes of the assessment must be Australia.[22]

[22] See for example SZEAM v MIMIA [2005] FMCA 1367.

1. However, having regard to the humanitarian purpose of the Convention, the refugee definition in s 5H and the criterion in s 36(2)(aa) of the Act, the Tribunal is of the view that the preferrable approach is to assess the applicant son’s claims against the country of nationality or former habitual residence of his parents. In adopting this approach, the Tribunal has been guided by the views of Tamberlin J in Koe v MIEA that individuals should not be denied the protection of the Convention by an unnecessarily narrow reading of the definition of ‘refugee’.[23] That approach was endorsed in SZEOH v MIMIA, where Nicholls FM held that, where the applicant daughter was born in Australia and had no nationality or country of former habitual residence, it was appropriate, sensible, practical and fair for the Tribunal to consider her claims against a return to [Country 1], that being her mother’s country of nationality and the country against which her claims of fear of harm were made.[24] As the applicant wife is a national of Myanmar and the Tribunal has found Myanmar to be the applicant’s country of former habitual residence, the Tribunal has proceeded to assess the applicant son’s claims against Myanmar.

   [23] Koe v MIEA (1997) 78 FCR 289 at 296.

   [24] SZEOH v MIMIA [2005] FMCA 1178 at [8]–[9].

104.   The Tribunal has found that the applicant son is of mixed Rohingya/Kaman ethnicity and that both his parents are Muslims. The country information referred to above in relation to the situation of Rohingya in Myanmar is also applicable to the applicant son. The Tribunal has accepted that the applicant son’s parents (see further below in relation to the applicant wife) have both been involved in protests in Australia against the military rule in Myanmar.

105.   DFAT’s Country Information Report suggests that the situation of children in Myanmar is dire. According to the report:

Many children and young people were involved in the anti-coup protests of 2021, both as bystanders and active participants. Children ranging in age from 9 months to 18 years were arbitrarily detained in the subsequent crackdown. In June 2022, the UN Special Rapporteur on the situation of human rights in Myanmar reported that at least 142 children had been killed and over 1,400 arbitrarily detained since the coup. Many have been held in Insein prison, an adult facility in Yangon with limited capacity for juveniles, in some cases alongside adults. There are widespread reports of children being held as hostages to coerce relatives into giving themselves up to authorities. A number of sources told DFAT that because large numbers of young people were involved in the protest movement and armed opposition, they were a specific focus of regime surveillance and repression. There are reports of authorities rounding up young people at random following PDF attacks, as well as online hate-speech directed at young people by pro- government social media users, describing them as ‘GZ (Generation Z) terrorists’ or ‘Taliban GZ’. Young people in detention for political crimes are at risk of torture and sexual violence.

The UN Country Task Force on Monitoring and Reporting (CTFMR), a UN body mandated to monitor and report on grave violations committed against children in times of armed conflict, reported multiple grave violations against children in Myanmar in its June 2022 report, including 382 instances of the killing and maiming of children, 142 cases of torture against children, 61 cases of children detained as hostages, and 260 attacks against schools and education personnel. There are well-documented reports of the forcible use by the military of children in dangerous roles such as human shields and human mine detectors, before and after the coup, as well as instances of the recruitment of child soldiers and use of children in non-combatant support roles by ethnic armed organisations.[25]

[25] DFAT, n1, above.

106.   DFAT assessed that children of opponents of the regime face a high risk of official harassment and arbitrary detention, including as hostages, but this is generally on the basis of their parents’ political affiliation, rather than their age alone.[26]

[26] Ibid.

107.   On the basis of the evidence before it, the Tribunal finds that if the applicant son were to be removed to Myanmar, there is a real chance that he would be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution referred to are the applicant son’s ethnicity, religion, imputed political opinion, and his membership of the particular social group of children in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar and that effective state protection against the harm he fears is not available to him. The Tribunal therefore finds that the applicant son has a well-founded fear of persecution in Myanmar. The Tribunal further finds that s 36(3) does not apply as the applicant son does not have any presently existing right, however expressed, to enter and reside in any other country.

The applicant wife

108.   The applicant wife did not put forward her own claims for protection before the Department and sought to rely on the applicant’s claims. In the evidence submitted by the applicant, however, there is a clear suggestion that the applicant wife is also opposed to the military rule in Myanmar. The Tribunal accepts this to be the case. The Tribunal further accepts that she has expressed this opposition by attending demonstrations in Australia against the Burmese military rule. As in the case of the applicant, the Tribunal is satisfied that her activities in Australia represent a genuine expression of her political views and that she has engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee.

109.   On the basis of the country information set out above, the Tribunal finds that the applicant wife would be imputed with an anti-regime political opinion if she were to be removed to Myanmar as a failed asylum seeker. This would occur regardless of her history, profile, or the exact nature of her political views.

110.   Accordingly, the Tribunal finds that if the applicant wife were to be removed to Myanmar, there is a real chance that she would be subjected to threats to her life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are her political opinion, Kaman ethnicity, Muslim religion and her membership of the particular social group of failed asylum seekers in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar and that effective state protection against the harm she fears is not available to her. The Tribunal therefore finds that the applicant wife has a well-founded fear of persecution in Myanmar.

111.   The Tribunal is satisfied that the applicant wife lived, studied and worked in [Country 1]. The Tribunal accepts that prior to her departure from [Country 1], the applicant wife was the holder of a [Country 1] [specified Pass], valid [from] January 2014 [to] January 2016. The Tribunal accepts that she entered [Country 1] for study and work purposes and that any right she may have previously had to enter [Country 1] has now lapsed. The Tribunal finds that s 36(3) does not apply as the applicant wife does not have any presently existing right, however expressed, to enter and reside in any other country.

112. For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).

DECISION

113. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Shahyar Roushan
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

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36     Protection visas – criteria provided for by this Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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