1830129 (Refugee)
[2021] AATA 5066
•4 November 2021
1830129 (Refugee) [2021] AATA 5066 (4 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1830129
COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER:Deputy President J.L Redfern PSM
DATE:4 November 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration of the remaining criteria for protection with a direction that the applicant is a refugee within the meaning of subsection s 5H(1) of the Migration Act.
Statement made on 4 November 2021 at 4:46 PM
CATCHWORDS:
REFUGEE – Protection (Class XA) (Subclass 866) visa – Myanmar – application for protection on the basis of the refugee and complementary protection criterion – previously granted a humanitarian visa on the basis father has profile as a dissident – claims to fear persecution for reasons of Christian religion and Hakha Chin ethnicity – failed asylum seeker – criminal deportee convicted of a serious crime – applicant found to be a refugee – decision under review remit with direction to assess the remaining criteria
LEGISLATION:
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA 36(1B), 36(1C), 36(2)(a), 36(2)(aa), 36(2C), 411 and 499
Migration Regulations 1994 (Cth), Schedule 2CASES:
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
SECONDARY MATERIALS:
Department of Foreign Affairs and Trade, Country Information Report Myanmar, 18 April 2019.
Direction No. 75
Direction No. 84Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 October 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant was born in [year] and claims to be a citizen of Burma (Myanmar). This is not in dispute. The applicant was included as a dependant to an application for a Refugee (offshore) (XB 200) visa known as a humanitarian visa which was granted in May 2010. He arrived in Australia in July 2010.
In 2011, the applicant was sentenced to 5 years imprisonment for rape and [in] April 2015, a decision was made under s 501(3A) of the Act to mandatorily cancel his humanitarian visa. The applicant made a revocation request under s.501CA of the Act and [in] August 2016 the Minister made a decision not to revoke the decision to cancel the visa under s 501CA of the Act. The applicant sought judicial review of this decision and [in] December 2017 the Federal Court of Australia quashed the decision and ordered that the matter be remitted for reconsideration according to law.
[In] May 2017, the Minister reconsidered the application and decided not to revoke the original decision to cancel the visa under s.501CA of the Act. The applicant sought judicial review of this decision in September 2018 and [in] August 2020 the Minister withdrew from the Federal Court application.
Before these proceedings were finalised, the applicant applied for a protection visa [in] August 2018.
Ministerial Direction no. 75 is a direction made by the Minister about how protection applications are to be assessed. [1] The Ministerial Direction contemplates a decision-making process whereby protection obligations are first assessed against the refugee and complementary protection criteria under the Act and, if a positive finding is made, there is a further assessment undertaken about whether protection obligations are engaged having regard to the effect of the exclusionary provisions under the Act. Relevantly, protection obligations may not arise if an applicant is assessed to be a security risk or a danger to the Australian community. The Migration and Refugee Division does not have jurisdiction to review such decisions.
[1] Minister for Immigration and Border Protection, Ministerial Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b), 6 September 2017.
In this case, the delegate assessed the application on whether the applicant met the alternative criteria for protection in ss 36(2)(a) or 36(2)(aa) of the Act. The application was refused [in] October 2018 because the delegate was not satisfied that the applicant’s claims met the refugee or complementary protection criteria. He did not consider, because it was unnecessary to do so, whether Australia’s protection obligations were not engaged because of the applicant’s serious criminal history.
The applicant applied to the Tribunal for review of this refusal decision [in] October 2018. As the matter was identified as having an ongoing Federal Court application the review was delayed. When the Tribunal became aware that the judicial review application was no longer active, the applicant through his representative was invited to a directions hearing in February 2021. Directions were made about the filing of evidence and submissions and the review was listed for hearing on 19 May 2021.The applicant was in immigration detention and appeared by video through the MS Teams platform. The hearing was subsequently adjourned because of issues with the interpreter and a resumed hearing was held on 28 June 2021. The applicant was represented by his lawyer, who provided extensive submissions. He was also assisted by an interpreter in the Hakha Chin and English languages.
The issue for determination in this case is whether the applicant meets the criteria for a protection visa under ss 36(2)(a) or 36(2)(aa) of the Act.
For the reasons that follow I have found that the applicant is a “refugee” within the meaning of subsection s 5H(1) of the Act but I have remitted the matter for reconsideration on remaining criteria, including whether s 5H(2) or s 36(1C) applies.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Act. 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. The relevant provisions are extracted in the attachment to this decision.
Subsection 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act.
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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) of the Act, which are extracted in the attachment to this decision.
Protection obligations do not arise under the refugee and complementary protection criteria in circumstances where an applicant is assessed as a risk to security or has committed certain serious crimes (refer ss 5H(2), 36(1B), 36(1C) and 36(2C) of the Act).
Mandatory considerations
In accordance with Ministerial Direction No.84,[2] made under s 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Home Affairs (the Department) - Procedures Advice Manual 3 ‘Refugee and humanitarian - Complementary Protection Guidelines’ and Procedures Advice Manual 3 ‘Refugee and humanitarian - Refugee Law Guidelines’. The Tribunal must also take into account any country information assessment 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.
[2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
The most recent report from DFAT is the Country Information Report for Myanmar dated 18 April 2019. I have considered this report, together with other relevant country information, including country information provided by the applicant’s representative. I have also considered a Situational Update report published on 31 August 2021 by the Country of Origin Information Services Section (COISS) of the Department of Home Affairs. This report provides information on the situation in Myanmar following the overthrow of the civil government by the military in a coup d’état on 1 February 2021.
I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances. My analysis of this country information and any relevant guidelines are set out later in these reasons.
DECISION OF THE DELEGATE
As noted, a delegate of the Minister refused the application for the protection visa and in a decision record dated 9 October 2018, the delegate set out his analysis of the applicant’s claims in detailed reasons. The review before me is de novo merits review and I am required to consider the matter afresh. I must take into account all of the available information before me and make an assessment about Australia’s protection obligation at the time of my decision but having regard to matters which may occur in the foreseeable future. It is nonetheless apt to summarise the findings made by the delegate because a number of the issues raised by the applicant in these proceedings were previously considered by the delegate and some of the evidence and country information referred to is relevant to my review.
According to the decision record, a Myanmar passport was issued to the applicant in Yangon [in] 2010. A humanitarian visa was granted to the applicant [in] May 2010 and the applicant arrived in Australia [in] July 2010. While the decision record noted that there were discrepancies between some of the identity documents submitted by other family members included in the humanitarian visa, it was noted that the documents submitted on behalf of the applicant were consistent with certain information provided for him.
It is recorded that [Ms A] was identified as the main applicant for the humanitarian visa and that she was said to be the applicant’s biological mother. It is also noted in the decision record that the applicant was sentenced to 5 years imprisonment for rape and, together with other offences of which he was convicted, he was sentenced and to 6 years and 2 months imprisonment in September 2011. It is also recorded that in the reasons for the sentence, the victim was identified as the applicant’s stepmother who travelled with him to Australia. It is further recorded that in a submission made by Sarah Westwood, who acted for the applicant in the revocation proceedings, that the applicant met his stepmother in 2009 that she had married his father by arrangement following his departure from Myanmar. It was noted by the delegate that this information was consistent with information included in a report from [clinical psychologist], dated 29 August 2011. I also note that this is consistent with the evidence given by the applicant at the hearing before me, referred to in greater detail below.
According to the delegate, the applicant claimed that his biological mother left him when he was young and he did not know where she was. The delegate was satisfied that the woman who the applicant subsequently identified as his stepmother, was originally identified as his biological mother through the processing of the humanitarian visa.
The delegate otherwise assessed the applicant’s claims which were recorded in the decision record as claims that his father was targeted by the military, that he was recruited by the Burmese army and that he experienced harm and mistreatment in Myanmar, that he feared harm because he departed illegally from Myanmar, that he would face harm because he did not have sufficient identification and this was essential for nationals of Myanmar and that he would be harmed and mistreated as a criminal deportee.
The delegate accepted that the applicant was born in [Village] and that he had most recently resided with an uncle in Hakha before he left Myanmar. The delegate also accepted that the applicant’s father may have been targeted by the military in Chin state prior to [year]. The delegate did not accept that the applicant was forced to train and work in the military for a period of eight months around 2008 and found that if the applicant had served, this would have been mentioned at an earlier opportunity. The delegate rejected the applicant’s claim to have been forced to carry food and other items for the military and noted that the applicant did not advance these claims again until he was prompted at interview. The delegate found it was plausible that the applicant may have been forced to act as a porter, but he was not persuaded about these claims and concluded that they were fabricated. The delegate however found it plausible that the applicant may have witnessed the Burmese army steal produce from the Chin community and abuse local leaders.
The delegate found that the applicant’s claims that he departed Myanmar illegally to be inconsistent with his claim that he departed legally on a Myanmar passport issued [in] April 2010. The delegate found the applicant used his Myanmar passport to lawfully clear customs and immigration in Myanmar and that he therefore legally departed but may have advised that he intended to travel to Thailand without advising that he was planning to reside in Australia. The delegate accepted that the applicant no longer held a valid Myanmar passport and also accepted that the passport was no longer in the applicant’s possession. The delegate did not accept the applicant’s claims concerning harm and mistreatment that he was said to have experienced at the hands of the military, although it was acknowledged that there had been human rights abuses against the Chin population, including his father. In summary, it was concluded by the delegate that while there was evidence of ongoing conflict impacting parts of the Chin state, the delegate was not satisfied, based on the available country information, that if the applicant returned to Hakha that there was a real chance that he would be subjected to harm and mistreatment. This was because the delegate was not satisfied that the applicant, as a Chin Christian who did not have an adverse political profile, would be persecuted or targeted.
Notably, the delegate found as follows:
As outlined above country information confirms that Chin Christians face discrimination from the Buddhist government authorities and Christian religious practices are still hindered by Buddhist driven government policies. That being said the recent country information outlined above indicates a significant easing of restrictions affecting the Christian majority in Chin state. While some administrative and societal discrimination continues to occur, including the sporadic vandalism of Church property, DFAT assesses that Chin Christian groups experience low levels of discrimination on a daily basis and are unlikely to experience violence because of their religious beliefs. Having carefully considered the available evidence, I find that the applicant does not face a real chance of being targeted for serious harm on the basis of his religion if he returns to Myanmar.[3]
[3] Protection visa decision record dated 9 October 2018, p14.
The delegate further found:
As outlined in the Findings of Fact section, I am satisfied that the applicant departed Myanmar on a valid passport issued in his own name. While the applicant may have advised Myanmarese authorities at the airport that he intended to visit Thailand, I am unable to locate any information to support a finding that his departure from Myanmar would be regarded as “illegal”. Furthermore, in light of the evidence cited above concerning the recent treatment of returnees to Myanmar who departed the country illegally, I do not find that there is a real chance that the applicant would be targeted for serious harm for this reason.[4]
[4] Ibid p 15.
On the claim raised by the applicant that he would be harmed and mistreated in Myanmar because he does not have a national identity card or household registration book, the delegate accepted that this was essential for nationals of Myanmar but found:
.. the Department holds copies of Myanmarese identity documents previously submitted in association with his XB-200 visa application. Although the applicant may face some difficulties replacing identification documents in Myanmar, I do not find that this would be impossible. Consequently, I do not find that the applicant would face a real chance of being subjected to serious harm for this reason.[5]
[5] Ibid p 16.
The delegate further found that:
Information before the Department indicates that the Myanmar Embassy issues a new passport or a Certificate of Identity (COI) in order to facilitate the return of nationals without a valid passport who are being removed from Australia. Consequently, I am of the opinion that the applicant’s identity and nationality would be established, and his right to legally enter Myanmar confirmed, prior to the issue of any travel document to facilitate his return to Myanmar.
………………………
In absence of evidence that Chin asylum seekers are being systematically targeted for serious harm upon return to Myanmar, and given that the applicant is likely to return to Myanmar on a replacement passport and/or travel document issued by the Burmese embassy, I am satisfied that there is not a real chance that he will face serious harm upon return to Myanmar for these reasons.[6]
[6] Ibid p16 and 17.
On the question of what would happen to the applicant given his criminal conviction, the delegate concluded, based on the available country information from DFAT, that the applicant would be detained for questioning as part of an immigration clearance process upon return to Myanmar but that he would only be questioned for a short period of time and he would not be transferred to the general prison population. The delegate considered that it was significant that the applicant was not a political activist or criminal prior to his lawful departure from Myanmar.[7]
[7] Ibid p19.
Having assessed the applicant’s claims for protection, the delegate was not satisfied that the applicant was a refugee for the purposes of the definition under the Act and was therefore not satisfied he was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) of the Act. Furthermore, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Myanmar, that there was a real risk he would suffer significant harm.
OUTLINE OF CLAIMS AND EVIDENCE
The applicant is a [X]-year-old Christian man from [Village], Chin state, Myanmar. He claims that in [year] his father fled from Myanmar to escape from being arrested by the military regime of the time. His father was granted refugee status in [a country in Southeast Asia] and resettled in Australia.
In 2010, the applicant was granted humanitarian visa. He arrived in Australia with his ‘stepmother’ and two sisters and was sponsored by his father. The applicant’s visa was cancelled in 2015 after being convicted of sexual assault offences against his stepmother. He was sentenced for these offences to a term of imprisonment of six years and two months. The applicant served time in gaol and thereafter in immigration detention.
The Department did not provide a copy of the application for the humanitarian visa through which the applicant entered Australia and this file was not available, even though it was requested by the Tribunal and referred to in the decision record of the delegate. Ultimately this did not raise any concerns because the decision record set out the background to the application for the humanitarian visa which is not in dispute.
In his application for protection, the applicant claims that he cannot return to Myanmar as he believes he will be arrested or persecuted. He claims that he does not have a national identity and household registration card which is essential in Myanmar and he has no family members who reside there. He claims are based on his Hakha Chin ethnicity, his Christian religion, his association with his father who fled Myanmar in [year], his decision to leave military service and his illegal departure from Myanmar. He further claims that authorities in Myanmar will not protect him because the country is now under the control of the military (also known as the Tatmadaw).
According to a statement provided by the applicant before the hearing, his mother left him and his sisters when they were still very young. They lived with their grandfather and when his father left the country to travel to [a country in Southeast Asia], he and his sisters went to live in an orphanage in [city of Myanmar] (also known as [city]). After living in the orphanage, he went to live with his uncle in Hakha state. The applicant stated that his father was a known dissident and had opposed the military regime which is why he had to flee Myanmar. He was concerned that he if returned to the Chin state, the military would know he was the son of his father who had a profile. The applicant also stated that he was concerned that if the military found out that he was a failed refugee who had spent time in Australia that they would consider him to be the problem for the regime as they would see him as a potential critic. He further stated that if the regime found out about his criminal convictions, they would use this as an excuse to take action against him. According to the applicant, he left Myanmar because he was in danger as an ethnic Chin and Christian who would be targeted by the Burmese military. He would be further targeted because he had fled the military after he was forced to join. The applicant stated that he was treated very badly during his military training because of his background and that they would beat him and make him do the worst jobs. This was very hard and one of the reasons he fled. He stated that he was worried that the military would come looking for him in the Chin state.
The applicant stated that he was also concerned that if the military became aware that he had come to Australia they would persecute him as a dissident. The applicant stated that he believed they would imprison him on his return, particularly given he would be returning as a criminal deportee. The conditions in prison are bad and he does not believe that he would survive these conditions. He does not have a passport, and this would make it more difficult for him to return. He was particularly concerned about the conditions in the country with the military. He believed he would be stopped at the airport and would be detained and likely tortured. According to the applicant, the situation in the Chin state is very bad with villagers being shot. They cannot get food and cannot travel from village to village and he believes that he would “definitely” be detained and tortured or beaten to death. The applicant further stated that while Myanmar was being run by the military it would be impossible for him to return to the country.
In addition to this statement, the applicant provided a statement from a person who now lived in Australia but was originally from Myanmar but left the country in December 1979. The witness stated that she tried to return to Myanmar in 2003 but was not allowed to return until 2012. The witness stated that since coming to Australia she kept contact with some of her ex-students and her family and friends in Myanmar. In her view, anyone who the authorities consider would criticise the government will be charged, and she was aware of this happening. The witness stated that she believed people could be arrested without a judicial warrant and that the military or police would come straight into a person’s house and arrest and detain them if they were a deportee who arrived back in the country. The witness further stated that the military now has absolute control and there are many stories of the military “just shooting people”.
Both statements contain statements of opinion about the current situation in Myanmar based on third party or hearsay accounts. While I accept that both the applicant and the witness hold genuine fears about these matters and that a number of the issues raised by them are consistent with media reports and more authoritative reports about the conditions in Myanmar, I give the statements of opinion limited weight. I accept that the applicant has a genuine subjective fear of harm in returning to Myanmar and that that fear may be based on fears of persecution because of his background and current profile as a criminal deportee. However, a subjective fear of harm and an opinion about the circumstances prevailing in the country of nationality will generally not be the determinative factor to substantiate a claim for protection. Accordingly, I did not take oral evidence from the witness and accept that the statements she made represent her views but I do not accept that she is an expert on these matters or that her evidence is sufficiently authoritative to counter independent country information that is available, such as reports from DFAT, the Department of Home Affairs, international humanitarian organisations and media reporting of events occurring inside Myanmar.
Prior to the hearing, the Tribunal obtained documents under summons from the Department of Home Affairs in relation to the application for a humanitarian visa made by the applicant’s father. This information was provided to the applicant and his lawyer prior to the hearing. According to notes contained on the department file dated [2006], the applicant’s father made an application for protection based on his profile as a Christian Chin and his imputed or actual political opinion. It was recorded that the wife of the applicant’s father had three children from his second wife, [Ms A], who he married in 1988 and that his father’s wife and three children were currently in Myanmar and they intended to come to [a country in Southeast Asia] in the beginning of [2006]. It is recorded that the applicant’s father was born in [Village] in the Chin state and did not have a formal education. He became a village leader from 1992 until he left Myanmar. As a village leader it was claimed that both the Chin national army in the Myanmar military would visit him. It is recorded that between 1992 and 2001, the Chin national army asked him to collect donations from villagers. The first time was in the 1990s and the second time was in December 2001. Not all of the villagers could afford to make donations. It is also claimed that the military visited his father’s house and demanded food. [In] December 2001 is claimed that Chin national army members visited his house to collect donations made by the villagers. Shortly following this he was interrogated by the military about why he had allowed the Chin national army members into his house. It is claimed that his father was kicked punched and beaten and that he was later brought to military where he was again kicked punched and beaten and detained for four days. He was released but his father was informed that he was going to be arrested again and he therefore decided to flee the village and travel to Thailand. It is claimed that he stayed in hiding in the jungle and then travelled to [Southeast Asian country] by boat in [early] 2002. The applicant’s father did not apply for refugee status in Thailand as he did not know it was possible to apply for refugee status there. His father was detained in [a country in Southeast Asia] and deported back to Thailand [in] 2005 and after re-entering [a country in Southeast Asia] he then applied for protection.
The Department file note records that the decision-maker was satisfied that there were “compelling reasons” for granting his father a permanent visa on the basis of his claimed persecution in Myanmar.
At the hearing, the applicant gave evidence about his background and life in Myanmar. He said that he was [years old] when his father left the country. He had two siblings who are younger than him. He said that he could not recall whether his mother was alive when his father came to Australia, but he said that he and his sisters lived with his grandfather. After this, they lived in an orphanage. He lived in the orphanage with his sisters from about 1999 to 2006, at the age of [X] until [X] or [X] years old. After he left the orphanage he worked on a farm. His sisters remained at the orphanage for a few years after this. The applicant said that he was forced to join the army in 2006 and 2008. The applicant did not elaborate on what happened in 2006 but he said that in 2008 he was “forced” to join the army. When asked to provide further detail about this, the applicant said he was asked to join the military but after he joined and undertook the training, he decided that the role was not what had been “promised”. He decided to leave because the training was very difficult. The applicant said that he was badly treated because he was a Christian of Chin ethnicity. The applicant did not initially give evidence that he was beaten but said that he felt he was mistreated because the training was very difficult. He was allowed leave to visit his family and decided not to return to the military. He said that he was in the military training for about four months. After he left the army, the applicant worked in the city. His work was not regular, and he alternated between farm work and jobs in the city. When asked whether he was pursued by the military after he left and whether anybody came searching to find him, he said that they did not. The applicant said that this was because he was poorly educated, and the military didn’t care about pursuing him.
The applicant was asked how he came to Australia in 2010. He said that his uncle and father lived in Australia and that it was arranged that he would go to Thailand and then travel to Australia. He said that he came to Australia and was a dependent on the visa of [Ms A], who was his stepmother. Because there was little information before the Tribunal about how [Ms A] became his stepmother and how his father married, the applicant was questioned about these matters. The applicant said that in Burma there were arranged marriages and that this was arranged before he, his siblings and [Ms A] came to Australia. The applicant said that they did not know each other before they came together as part of the humanitarian visa application in which she was recorded as his mother. The applicant said that they could not travel to Australia from Myanmar and they flew to Thailand and then from Thailand they came to Australia. The applicant’s evidence in this regard was confusing but this happened a long time ago it is not a matter that is material to the applicant’s claims for protection.
The applicant said that when he arrived in Australia he lived in [City] for a few months and then moved to another house where he was living with his sisters and stepmother. His father was living with them at the time. The applicant said that he had a suspended sentence imposed in [late 2010] for breaching a family violence order. This is referred to in the decision record of the delegate. The applicant said there were problems in the family at that time and this is how the criminal problems started. He said that he was sentenced in [2011] and he served time in prison after this. His sisters went to school and lived in [Victoria]. The older sister has three children and the younger one lives with their father. He has been in constant contact with his sisters and father since the offences occurred and the sentencing. He keeps in touch by telephone.
The applicant said that he had a passport that was issued in Yangon. When asked why he could not return to Myanmar, the applicant said that he was a refugee when he left Myanmar and that the Myanmar government would not accept him because he had left illegally and he had done something criminally wrong in Australia. He believed that the situation in Myanmar was bad at this time and that he would be imprisoned because he was a failed refugee. The applicant was asked what he knew about his father’s claims for protection, he said that his father told him about this a long time ago. When asked about whether he was attacked by any military or government forces before he left for Australia, the applicant said that he could not remember but he only remembered the difficult time he had experienced when he was in the military training. His issue was that the military did not provide him with proper conditions, and they would sometimes hit him, although he agreed the military officers would also hit other people in the training. According to the applicant, there are many people who decided to leave the military without consent. When asked if he knew what happened to those people, the applicant responded that he did not know.
The applicant said that he was concerned he would be targeted as an ethnic Chin and a Christian. He said that when he was in training with the military, he was forced to pray in accordance with Buddhist religion and he was not allowed to practice his Christian religion. He was a Baptist. He regularly went to church every Sunday prior to travelling to Australia and said that he became a reborn Christian after he was sentenced for his crimes. When asked why he was concerned the military would come looking for him when they did not previously seek him out, the applicant said that his previous answer may have been confusing. His evidence was that he believed the military did not care about him because he was not educated but they would be concerned if he was returned as a failed refugee.
The applicant’s lawyer asked that certain aspects of the applicant’s evidence be clarified about his training during the military. The applicant was therefore asked further questions to give him the opportunity to clarify previous evidence. He said that he was kicked and beaten as part of the training and that he was pressured and forced to pray. He had difficulties with the military training because he had a different dialect and the military officers could not understand him. He would be given instructions that he could not understand and so they would beat him. He said most of the people who were training with him at the time were Buddhists and there was one ethnic Karen trainee. When asked whether there are any other instances where he felt persecuted as a person of Chin ethnicity the applicant said he was “not sure what to say”.
FINDINGS OF FACT
I found a number of aspects of the applicant’s evidence to be inconsistent and lacking in credibility. For instance, in his statement, the applicant said that he fled from the military after they made him join and that they beat him and came to look for him after he left the military. According to the submission provided by his lawyer, this statement was taken over the telephone and perhaps there was some confusion in the drafting of the statement. However, it is clear from the applicant’s evidence during the hearing that the military did not pursue him after he left in 2008. The applicant was asked this question on a number of occasions during the hearing and on each occasion, he confirmed that he had not been pursued. He also said that the reason why the army had not pursued him was because he was uneducated and was not of concern to them. His oral evidence was that he joined the army voluntarily and that was involved in four months training. He initially said that the training was very hard and not what had been promised and then later said that he was beaten and treated poorly. The applicant also gave evidence that he was not the only person who left the military. The applicant later explained the fear that he had was that the military may become interested in him if he returned to Myanmar and realised that he had left the military without permission.
This is different from the claims that the applicant made through his lawyers and from the claims made in his statement. I accept that the applicant joined the military, served with the military in training for four months and was unhappy with the conditions that he experienced. I accept that he may have been treated harshly and this may have been because he found it hard to understand instructions given his different dialect. I also accept that he may not have been able to practice his religion. I accept the applicant’s evidence that, like him, a number of new recruits left the military because they were dissatisfied and possibly because they were treated harshly. It is unclear whether this particularly related to people who were ethnic minorities and the applicant’s evidence suggested that there not many new recruits who were ethnic minorities or who were Christians. I do not accept that applicant’s claim that he feared the military because he had “fled without permission” because his evidence at the hearing is that he was not pursued by the military at any time before leaving for Australia.
A matter that is confusing is the inconsistent evidence about [Ms A]. She is the person who he came to Australia with and who is described as his “mother” in the application for the humanitarian visa. The applicant did not refer to [Ms A] in his statement, although in his evidence at the hearing and in submissions made by his former lawyer in relation to the revocation proceedings, he contended that [Ms A] is in fact his stepmother and that she married his father in an arranged marriage before coming to Australia. [Ms A] is referred to in the application for the humanitarian visa as the applicant’s mother and she is also referred to in the Department file notes about his father’s application as the father’s “second wife” and the “mother” of his children. As the applicant’s father did not give evidence in these proceedings to clarify the position, this inconsistency is difficult to reconcile with the information provided in both applications for humanitarian visas. The undisputed fact is that the applicant was convicted and imprisoned for sexual assault in September 2011. The evidence is that this sexual assault related to [Ms A]. I accept that [Ms A] is the applicant’s stepmother and that, in the absence of evidence to the contrary, she and his father were married in an arranged marriage before the family travelled to Australia.
Ultimately these matters do not impact on the credibility of the applicant’s current claims for protection. While this inconsistency raises doubt about the credibility of an aspect of his father’s evidence to the Department, his claims for protection were accepted by the Department and found to be “compelling”. In the absence of evidence to the contrary, I am satisfied that the applicant’s father was a leader in the Chin community and had a profile that a delegate of the Minister was satisfied was sufficient to engage Australia’s protection obligations.
I am not satisfied that the applicant has a particular profile as a Chin activist or as a Christian/ Chin activist or as a deserter from forced conscription. There is no evidence that the applicant was pursued by the military, by the government or by non-state actors before he left Myanmar to travel to Australia. The applicant did not make such a claim in his interview (as recorded in the decision record of the delegate) nor did the applicant make such a claim in his statement or his oral evidence before the Tribunal. The applicant claims, or has a belief, that this will happen on his return. It is possible that the applicant has a subjective fear of harm and persecution and this does not of itself establish that the fear is well-founded or that there is a real risk of harm which necessarily must have an objective foundation. It is also relevant to note that the applicant’s original claim for the humanitarian visit was based on his father’s profile as a “known dissident who opposed the military regime”.
I am not satisfied that the applicant left Myanmar illegally. The preponderance of evidence is to the effect that the applicant had a valid passport when he left Myanmar and this is consistent with the evidence that he gave to the delegate during the Department interview. The delegate found that the applicant used his Myanmar passport to lawfully clear customs and immigration in Myanmar. The evidence relied on by the delegate is the record of a Myanmar passport issued [in] April 2010 and the record that the applicant arrived in Australia [in] July 2010 using a document for travel to Australia which was issued in Bangkok [in] June 2010. This document was issued at the Australian Embassy in Bangkok. Based on this evidence, I have come to a similar conclusion as the delegate, namely I do not accept that the applicant departed Myanmar illegally. However, I accept that the applicant may not have told authorities that he intended to emigrate to Australia when he travelled to Thailand, which was his evidence. I also accept that the passport used by the applicant expired [in] April 2013 that and that the applicant does not currently hold a valid Myanmar passport. However, I also accept, as recorded in the decision of the delegate, that the Department holds copies of the applicant’s identity documents previously submitted in connection with his humanitarian visa. As such, I find that it may be possible for a new passport or certificate of identification to be generated to facilitate the applicant’s return to Myanmar, although this is not free from doubt, particularly given the current circumstances that now prevail in Myanmar.
SUBMISSIONS
The applicant’s lawyer provided three submissions in support of the applicant’s claims. The first were dated 15 May 2019 and the second and third submissions were provided on 10 May and 23 June 2021. Because it was not entirely clear whether the submissions provided in 2021 superseded the previous submissions provided dated 15 May 2019, I have reviewed the earlier submissions and have assumed that the claims made in those earlier submissions also form part of the applicant’s claims, unless specifically excluded.
In the submissions of May 2019, the claims of the applicant related to his Chin ethnicity, his Christian religion and his membership of a particular social group being deserters from forced conscription, those who have fled the country without permission and have sought protection, criminal deportees and those with imputed familial political profiles. The applicant also claimed that in addition to the refugee claims, there is a real risk of him suffering significant harm because he is likely to face extended detention during which he would be subjected to torture, inhumane and degrading treatment or punishment and that he is likely to face revenge attacks from the family of his stepmother, from which Burmese authorities would be unable or unwilling to protect him. The applicant did not provide any evidence to support the claim about fear from his stepmother’s family and at the hearing his lawyer clarified that the applicant did not seek to pursue this earlier claim.
In submissions provided in May 2021, the applicant repeated his claims in relation to his Chin ethnicity, Christian religion and his membership of a particular social group, being failed refugee claimants and or criminal deportees. In the submissions provided to the Tribunal on 23 June 2021, the claims were clarified to include a claim that he was a known deserter of the Myanmar army, he had a long absence from Myanmar without permission together with his prolonged presence in Australia having claimed asylum, claims relating to his removal from Australia as a criminal deportee and the fact that his father was a known Chin leader and target for the military, otherwise known as the Tatmadaw. It was further submitted that there was a heightened risk for the applicant given the coup d’état by the military on 1 February 2021. Since this time more than 750 people had been killed and while initially the violent crackdown was focused on pro-democracy demonstrators it had since broadened to include any group that the military saw as opposing them. This included ethnic and religious minorities who are seen as being aligned to Western governments. This would include those who have been absent from the country for extended periods of time. It is also clear that the ethnic and religious minorities are aligning themselves with the pro-democracy movement and this makes those minorities more of a target for the military. Having regard to the applicant’s profile, when considered cumulatively, there is “absolutely no doubt that he would be seen as opposing the Tatmadaw and the ruling regime and if he had to return to Myanmar he would be arrested, detained and likely tortured and possibly killed”.
In oral submissions made at the end of the hearing, the applicant’s lawyer submitted that on his return, the applicant would be likely to be detained because it would be known about the criminal offences he had been convicted of in Australia and this would bring him into disrepute. It was also submitted that the military had not expected the level of opposition and demonstrations against them and that they would now be vigilant in detaining potential critics. It was further submitted that the applicant may not have been of interest before the coup but because of his particular profile he would come to the attention of authorities and would likely be detained and questioned on his return. Authorities may then also associate him with his father and because there was a high level of sensitivity of criticism in opposition, the applicant was at risk of harm. On the question of how the applicant would be treated even though he would not be particularly identified as a pro-democracy campaigner; it is submitted that he may nonetheless be imputed as such. It was further submitted that the Tribunal should accept that the applicant’s father was a leader given the interview and original assessment undertaken of his humanitarian visa.
COUNTRY INFORMATION
Myanmar, which was formerly known as Burma, is a parliamentary republic. It achieved independence from Britain in 1948, initially as a parliamentary democracy. There has been ongoing instability and violence over the years involving the military. According to DFAT in its most recent report of April 2019, there have been ongoing conflicts between ethnic groups in the state since independence in 1948, with particular violence and instability in the Rakhine state, where there have been reported human rights violations against Rohingya and Kaman between 2012 and 2013, including extra-judicial and indiscriminate killings.[8] In August 2017 there were well-known reported human right abuses driving the Rohingya to flee across the border to Bangladesh.[9] There are also reports of conflicts in the Kachin and Shan states and DFAT reported that as at October 2018 more than 2000 civilians had been displaced in northern Shan. DFAT also reported that while some displaced ethnic minorities had returned to their places of origin as at August 2018, 97,000 people in Kachin and 9000 in Shan remained in displaced camps or in camp-like situations. Many had been displaced for prolonged periods of up to seven years.[10] There is little dispute that in 2017 the Rohingya suffered large-scale extreme violence by the security forces, groups affiliated with security forces and ethnic Rakhine mobs.
[8] DFAT Country Information Report Myanmar [2.59].
[9] Ibid [2.61].
[10] Ibid [2.73].
This contrasts with the conditions reported by DFAT in relation to the Chin state. According to DFAT, the Chin comprise around 3% of the national population and while it is a recognised ethnic group, Chin people are ethnically and linguistically diverse, with at least six primary Chin tribal groups. The majority of Chin are practising Christians.[11]
[11] Ibid [3.38].
DFAT reports that in June 2018, the UNHCR announced its decision to end the refugee status of Chin refugees from Myanmar residing in Malaysia and India. The UNHCR stated that its decision had been informed by political, social and security analysis of the Chin state over several years. The UNHCR concluded that the Chin state was stable and secure for the purposes of refugee protection and since this time, Chin refugees have been given the option of extending their existing UNHCR identity card (without interview) which provides them with UNHCR protection until 31 December 2019 or requesting an assessment of their protection needs. DFAT noted that the decision has been met with resistance by refugee and Chin rights group who have questioned the assessment of the stability and security of the Chin state. It is further noted by DFAT that in September 2018, the Chin Human Rights Organisation reported that their primary concerns related to restrictions on religious freedom, ongoing human rights abuse associated with conflict by state and nonstate actors and the lack of observance of safeguards for land, resources and communities in development year areas. In February 2019, UNHCR reported escalating violence and a deteriorating security situation in southern Chin state which had led to both internal displacement and partnership part departures to Bangladesh.[12]
[12] Ibid [3.39] to [3.41].
DFAT reports that Chin living both in and outside of the Chin state reported incidents of discrimination in accessing rights and services. Notably, at the time of its report, DFAT assessed that Chin in Myanmar faced a low level of official discrimination on the basis of their ethnicity, although Chin living in southern Chin state faced a moderate risk of forced displacement or violence due to both outbreaks of conflict and development projects.[13]
[13] Ibid [3.42].
As reported by DFAT, approximate approximately 6% of Myanmar’s population are Christians, primarily Baptists, Roman Catholics and Anglicans. Christianity is the dominant religion of the Chin, Kachin and Naga ethnic groups. DFAT reports that there are credible reports of local authorities blocking the ownership of land for Christian worship and notes that Christians reported threats, intimidation and mob violence from local communities in 2017 and 2018. Overall, DFAT assesses that Christians in Myanmar face a moderate risk of societal and official discrimination at a low risk of violence on the basis of their religion.[14]
[14] Ibid [3.49] to [3.53].
In relation to the claim that the applicant could be targeted because he left Myanmar illegally, DFAT notes that citizens who depart Myanmar illegally could potentially be imprisoned upon return, although it was not aware of any prosecutions.[15] On the question of whether Myanmar uses stop a watchlist at airports, DFAT reports that there are three international airports and the check-in and immigration procedures for Myanmar passport holders are functionally similar to standard international practices at [5.34].
[15] Ibid [5.38].
According to the country report issued by COISS in May 2021 in response to a specific question and criminal returnees, COISS referred to a 2016 DFAT advice as follows:
It is possible that a criminal deportee would be detained on arrival in Yangon for questioning to assess whether said individual’s name appeared on any ‘black-list’ or if they had violated any Myanmar laws. Assuming that no breaches were identified and that they are not on the black-list, Post assesses that the individual in question claims to have left Myanmar illegally, it is possible that s/he could face legal action for his/her illegal departure from Myanmar under existing Myanmar laws.[16]
[16] Department of Foreign affairs and Trade, Burma/Myanmar: Country Information Request: CI160719150157903: Request for update – treatment of criminal deportees, 30 August 2016.
This is consistent with the United Kingdom Home Office Country Policy and Information Note – Burma: critics of the government published January 2019. The UK Home Office reports that exit visas are not required to leave Myanmar and that citizens may legally exit Myanmar with a valid passport but they are subject to possessing a valid visa to enter the intended country as issued by the relevant embassy.[17] According to the UK Home Office, the Burma Immigration Act expressly prohibits Myanmar citizens from entering Myanmar without a valid passport. However, it is noted that a certificate of identity may be issued by the Myanmar Embassy to persons not in possession of a valid passport or possession of an expired passport. At the time of the publication of this report, the UK Home Office assessed that “a person returning to Myanmar on a certificate of identity, as opposed to a passport, were not at any enhanced risk of detention on return”.[18]
[17] UK Home Office, Country Policy Information Note Burma: Critics of the government, 1 January 2019 [9.1] – [9.4].
[18] Ibid, 2.4.14.
However, these reports pre-date the military coup in Myanmar in February 2021 and it is apparent from subsequent country reporting that much has changed in Myanmar since this time.
In his Report on the situation of human rights in Myanmar published on 4 March 2021, the Special Rapporteur stated that the military had arbitrarily detained over 1200 people.[19] It was further noted that political prisoners include members of the National League for Democracy, which won an outright majority as a result of the elections in November 2020, members of Parliament, political activists, civil society members, civil servants, journalists, lawyers, students and celebrities. The Special Rapporteur also noted that the military has issued “draconian decrees” amending existing laws to restrict the right to freedom of expression, peaceful assembly and association access to information.[20]
[19] Report of the Special Rapporteur on the situation of human rights in Myanmar, UN Doc A/HRC/46/56 (4 March 2021) [6].
[20] Ibid [61].
According to a Situational Update issued by the Department of Home Affairs on 31 August 2021:
The military responded violently to the peaceful protests, and since the coup, police and soldiers are reported to have killed over 1,000 people, forcibly disappeared over 100 persons, and tortured and raped an unknown number in custody.[21]
[21] Department of Home Affairs, Country of Origin Information Services Section, Situational update Myanmar, 31 August 2021, pg 1.
The update further notes, referring to reports from Human Rights Watch, as follows:
It is the view of Human Rights Watch that Myanmar’s military junta has committed numerous abuses against the population that amount to crimes against humanity in the six months since the coup on 1 February 2021. Human Rights Watch has also said the offences against those opposed to the military coup have been both a widespread and systematic attack against the population, and the broad- based and frequently consistent nature of the response reflects government policy rather than the actions of individual security personnel.[22]
………………
An August 2021 Human Rights Watch report indicates that the escalation of politically motivated arrests since the February military coup had corresponded with a surge in infections in the country’s overcrowded and unsanitary prisons, where access to health care was poor.[23]
[22] Ibid pg 3.
[23] Ibid pg 10.
In summary, the most recent country information available to the Tribunal suggests that the circumstances in Myanmar have changed significantly since the DFAT report was published in April 2019. The military coup has not only destabilised the country but has resulted in reported widespread human rights abuses. As such. there is considerable force in the submissions made by the applicant’s lawyers that these circumstances raise heightened concerns about the potential for the applicant to be exposed to serious or significant harm as defined under the Act. The question of whether this engages Australia’s protection obligations is considered below.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion for protection in s. 36(2)(a), or, alternatively, the complementary protection criterion set out in s 36(2)(aa) of Act.
Does the applicant meet the refugee criterion?
As already noted, to meet the criterion for protection under s 36(2)(a), an applicant must satisfy the Tribunal that they are a “refugee” within the meaning set out in the Act. Relevantly, s 5H defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail himself or herself of the protection of that country owing to a well-founded fear of persecution.
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 of the Act.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
I accept that the applicant has a subjective fear of persecution if he returns to Myanmar. The question is whether this fear is well-founded and whether the fear relates to one or more of the reasons mentioned in s 5J(1)(a) of the Act.
I do not accept that the applicant has a particular profile based on his previous activities in Myanmar. There is no evidence that he was a dissident or activist and I do not accept that he would now be identified as a deserter from the military and therefore a dissident or a person of concern. The applicant’s evidence is that he voluntarily joined the military, he was in training for four months and when he was given permission to take personal leave, he did not return. His evidence is that he was not pursued by the military after this and they were not concerned about him at this time, although the applicant submits that the military may have records of this and identify him as a potential dissident. This took place over 12 years ago and seems remote.
I am not satisfied that the applicant has a particular profile as a Christian of Chin ethnicity that would itself direct attention to him or expose him to risk of serious harm or persecution if he were to return to Myanmar. As already noted, I do not accept that the applicant would be prosecuted as a citizen who departed Myanmar illegally because I do not accept this was the case. I accept that the applicant does not have a valid passport, although I note there is a Myanmar Embassy in Australia and it is possible the applicant may be able to obtain a passport or identification documentation to allow him to enter Myanmar to facilitate his return. However, given the current position in Myanmar is unclear whether a returning citizen in the applicant’s circumstances would be able to obtain the appropriate travel documents to allow him to easily enter Myanmar and his lawyer’s submission that there would be likely to be some intervention by the military authorities at the International airport when he arrives in the country is persuasive.
I accept that there is force in the contention that if the applicant returns to Myanmar, even if he returns with a passport or travel document issued by the Myanmar embassy in Australia, there is an real risk that he will be scrutinised by authorities having regard to his profile as a failed asylum seeker and criminal deportee. As reported by the Special Rapporteur and confirmed by the Department of Home Affairs in its Situational Update, the military has engaged in widespread human rights abuses, not just focusing on individuals, and I accept that the cumulative effect of the applicant’s profile may expose him to heightened scrutiny when he arrives in Myanmar. This may involve him being detained for an extended period and questioned and perhaps identified as a potential dissident. According to the current Myanmar country brief on the DFAT website, the Australian government has made clear to Myanmar authorities “its grave concerns, particularly in relation to the shocking violence and high numbers of deaths and detentions”.[24] The position taken by the Australian government is consistent with the position of a number of governments around the world and in the region, but I accept the contention that this, together the applicant’s lengthy absence from Myanmar and living in Australia for over 10 years, may draw greater attention to him.
[24] Myanmar country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
In my view, there is a real chance that the following matters, when considered cumulatively, may cause Myanmar authorities to identify the applicant as a potential dissident. These matters include the fact that the applicant’s humanitarian visa was based on his father’s previous profile as a dissident; the fact that he is part of a religious and ethnic minority where there has been increasing alignment between minorities and the pro-democracy movement as the disruption caused by the coup has progressed; the fact that the applicant is a failed asylum seeker from a country that has been critical of the military coup and the fact that he may be removed from Australia as a failed asylum seeker and criminal deportee convicted of a serious crime. These matters fall with the refugee grounds set out in s 5J(1)(a) of the Act and would be the essential and significant reason for the persecution, in respect of which I am satisfied is well-founded.
I am therefore satisfied that the applicant is a refugee as defined in s 5H(1).
Even if a person meets the elements of the refugee definition in s 5H(1), he or she may not meet the criterion in s 36(2)(a) because of the operation of s 5H(2).
Section 5H(2) provides that s 5H(1) does not apply if the Minister has serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity, or has committed a serious non-political crime before entering Australia, or has been guilty of acts contrary to the purposes and principles of the United Nations. In this case, there is material before me to the effect that the applicant has committed and been convicted of a serious crime of sexual assault against his stepmother. However, this does not appear to fall within s 5H(2). Even though the applicant has committed a serious non-political crime, this crime was committed after he entered Australia and I have not otherwise considered whether the other exclusions in s 5H(2) apply.
Section 36(1A) of the Act provides that an application for a protection must satisfy both of the criteria in subsections (1B) and (1C) as well as at least one of the criteria in subsection (2). Relevant to the facts of this case, s 36(1C) provides that a criteria for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds, is a danger to Australia security or, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. On the material before me, it would seem that there may be a basis for the Minister, or a delegate, to decide that the applicant does not meet the criterion in s 36(1C) because he has been convicted of a particularly serious crime.
The Migration and Refugee Division of this Tribunal, when considering an application for review of a decision to refuse or cancel a Protection visa under Part 7 of the Act, has no power to determine issues relating to s 5H(2) or s 36(1C) (refer ss 411(1)(c) and (d)).
As such, while I am satisfied that the applicant is a refugee within the meaning of subsection s 5H(1) of the Act and I have not properly considered, because I have no jurisdiction to do so, whether the exclusion in s 5H(2) applies. Even if the exclusion in s 5H(2) does not apply and the applicant meets the criterion in s 36(2)(a) of the Act because he is a refugee, this is not the end of the matter and the applicant can only be granted a protection visa if he also satisfies subsections 36(1B) and (1C) of the Act. I also have no jurisdiction to consider these matters.
DECISION
I remit the matter for reconsideration of the remaining criteria for protection with a direction that the applicant is a refugee within the meaning of subsection s 5H(1) of the Act.
J.L Redfern PSM
Deputy PresidentATTACHMENT - 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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(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.(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.
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non-citizen committed a serious non-political crime before entering Australia; or
(iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non-citizen is a danger to Australia’s security; or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
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