1838195 (Refugee)

[2022] AATA 4884

1838195 (Refugee) [2022] AATA 4884 (16 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Noeline Dilhara Harendran (MARN: 1680817)

CASE NUMBER:  1838195

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:Sheridan Lee

DATE:16 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act 1958.

Statement made on 16 November 2022 at 12:19pm

CATCHWORDS

REFUGEE – protection visa – Myanmar – Federal Circuit Court remittal – race – Rohingya – particular social group or group – single mothers – failed asylum seekers – attacks on homes – domestic violence – employment – decision under review remitted

LEGISLATION

Migration Act 1958, ss 36, 45AA, 65, 424, 499
Migration Regulations 1994, Schedule 2; r 2.08

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

STATEMENT OF DECISION AND REASONS

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

2. The first named applicant, [named], is [an age]-year-old woman from Myanmar. She self-identified as a Sunni Muslim and claimed to speak the Burmese and Hindi languages. The applicant claimed to be of Rohingya ethnicity and originally claimed to be stateless. However, she later acknowledged that she had previously been issued a Citizenship Scrutiny Card issued to full citizens and may be recognised as a citizen of Myanmar. The second named applicant is the primary applicant’s [age]-year-old son, [Son A] .

3. The first named applicant (the applicant) completed secondary school in Myanmar and attained a [degree] from [a named] University in Yangon. Before travelling to Australia, she was employed [at] a [shop] in Yangon.

4. The applicant was married in 2009 to [Husband A]. The couple had a son, [Son A], on [date]. The applicants first arrived in Australia with [Husband A] by boat [in] March 2013. The applicant gave evidence that they travelled to Australia via [Country 1] and Indonesia.

5. The applicants and [Husband A] applied for Protection (Class XA) visas on 31 July 2013, claiming that they would be persecuted in Myanmar on the basis of their ethnicity as Rohingya, religion as Muslims and as stateless persons. By operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the applications were taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas. The applications were taken not to be, and never to have been, valid applications for Protection (Class XA) visas.

6. The applications were refused by a delegate of the Minister on 30 April 2015 and the applicants applied to the Tribunal for merits review of that decision. Whilst in Australia, [Husband A] was charged with domestic violence perpetrated against the applicant on two occasions. On at least the second occasion, he was found guilty with no convictions recorded. No Court records were provided by the applicant in respect of the first charges. [Husband A’s] bridging visa was cancelled and he was taken into immigration detention. [In] October 2016, [Husband A] was removed from Australia and returned to Myanmar. His application was separated from that of his wife and son.

7. On 21 June 2016, the Tribunal (differently constituted) affirmed the decision to refuse to grant Protection visas to the applicants. The applicants applied to the Federal Circuit Court for judicial review and [in] December 2018 the matter was remitted by consent to the Tribunal for reconsideration.

8. The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicants are persons to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.

9. The applicants were represented in relation to the review.

   CLAIMS AND EVIDENCE

   Application for protection

10. Following her arrival by boat, the applicant was interviewed (entry interview) by the department on 19 May 2013. The information the applicant provided in connection with the interview is contained in a form (the entry form) signed by the applicant. The interview was conducted with the assistance of an interpreter in the English and Burmese languages.

11. During the entry interview, the applicant said she left Myanmar because it was unsafe. Groups sent by the government burnt down her neighbour’s house and broke into her house in 2006 and again in 2011.

12. A statement of claims was prepared on 9 July 2013 with the assistance on an Immigration Advice and Application Assistance Scheme (IAAAS) provider using an interpreter in the English and Burmese languages. The statutory declaration contained the following information:

    ·The applicant’s father worked [in] the public service. Her mother was a housewife.

    ·The applicant was persecuted in Myanmar because she is Rohingya and Muslim. She could not recall all of the incidents because there were many and she was young.

    ·An example of the type of incidents that occurred was provided. Persons from the government would dress as monks with concealed weapons. They would sneak up and attack mosques.

    ·From around 2006, the government would send groups into the area where the applicant lived and burn down houses. The applicant’s neighbour’s house was burned down. The applicant’s door was broken down and her house was ransacked. Her family escaped through the back and stayed with neighbours.

    ·Also around 2006, Buddhist monks started to protest against the government. Many Muslims supported their cause and provided food and clothing.

    ·The applicant was married in 2009 and lived with her husband and his family from that time. When she fell pregnant she moved back in with her parents so her mother could help with the child.

    ·The applicant’s parents felt it was unsafe for her to have a child in Myanmar and urged her to leave.

    ·In 2011, ethnic conflict started in Rakhine state and spread down to Yangon. The applicant decided to flee Myanmar with her husband in 2012. They used an agent but did not have any documents. They travelled overland to [specified countries] and then Indonesia. They travelled from Indonesia to Australia by boat.

    ·[Son A] was born while they were in [Country 1].

    ·The applicant expressed fear that they would not be allowed back into Myanmar if returned, or they would be detained and beaten.

13. The applicant was interviewed by the delegate on 11 November 2014. In addition to the evidence previously outlined, the applicant’s representative submitted that:

    ·The United Nations High Commissioner for Refugees (UNHCR) handbook for determining refugee status states that refugees are vulnerable and should be given the benefit of the doubt in regards to their claims. It was submitted that this applies to the applicant’s claims of harassment and fear of harm.

    ·The 2013 US State Department Burma Country Report on Human Rights Practises states that Rohingya people are an ethnic minority who face persecution by the Myanmar Government and other parties. They are not recognised as citizens. They face restrictions in their daily life including access to food, healthcare and places of worship. There are laws restricting freedom of religion and movement for Rohingyas. There are credible reports of extrajudicial killings, torture, detention, forced labour and mistreatment of the Rohingya people. These are carried out by the police and military. There are government forces involved in widespread violence and discrimination of Rohingya and Muslims.

    ·The applicant has faced domestic violence. This started about one year after she was married. Whenever she argued with her husband, he would hit her. There is a lack of protection from the government to domestic violence in Myanmar. The applicant would be in danger and there would be no assistance available to her.

    ·The applicant witnessed the Myanmar military attacking Muslims and taking over mosques.

    ·Buddhist extremists visited the applicant’s family’s home to threaten her with physical and sexual abuse.

    ·The applicant would be persecuted in Myanmar because she sought asylum in a western country. Her education would not prevent her from being harmed.

    ·In light of the country information and the applicant’s claims, it was submitted that if she returned to Myanmar she would face harm due to her religion, ethnicity and the domestic violence.

14. Further information was provided by the applicant’s representative in writing on 13 February 2015 in response to a request from the delegate.

15. The delegate was not satisfied that the applicant was a witness of truth. The delegate found that the applicant was prepared to embellish, if not entirely fabricate most of her material claims where she believed it would enhance her prospects of being determined to invoke protection obligations in Australia.

16. The delegate was not satisfied that the applicant is of Rohingya ethnicity as claimed or that she is stateless. The delegate found that the applicant is a citizen of Burma. He based these findings on the applicant’s evidence that she has a Burmese name, cannot speak Rohingya, that her father worked in the public service, that she completed a university degree and worked full-time. The delegate also did not accept the applicant’s evidence regarding how she departed Burma.

17. On 30 April 2015, the delegate found that the applicants were not persons in respect of whom Australia had protection obligations.

    Primary review

18. The applicants applied to the Tribunal for merits review of the delegate’s decision. Throughout the review process, the applicant’s representative made numerous written submissions and provided copies of news items, articles, reports and papers. Of note, a letter from the Burmese Rohingya Community in Australia and membership cards in the name of the applicants issued by the Burmese Rohingya Community in Australia.

19. The letter, dated [in] 2016, states that the applicant is a ‘Rohingya descendent born in [a named] Township, Yangon’. Although she is a Rohingya descendent, she has very limited Rohingya language because she was born in and grew up in an environment where the spoken language is Burmese. Further, the letter notes that Rohingya rarely have any legal documents to prove their identities.

20. On 26 February 2016, the applicant submitted a statutory declaration to provide further information and withdraw certain claims made to the Department. In particular:

    ·The applicant claimed to be stateless, however she held a Myanmar National Registration Card (NRC). Her NRC number was used to enrol in university. The card was lost in 2016 when the applicant lost her handbag. The applicant believed the card was obtained using a bribe.

    ·The NRC identified that applicant as ‘Rakkhine, Mon, Bengali’. The registration number was [number].

    ·The NRC was used to obtain passports for the applicant and [Son A] in [2012]. The applicant paid a bribe to obtain the passports.

    ·[Son A] was born in Myanmar, not [Country 1] as previously claimed. The applicant lied because she thought it would be less likely for [Son A] to be returned to Myanmar if he was not born there.

    ·The family travelled to [Country 1] by plane, not overland as originally claimed. They stayed in [Country 1] for 40 days.

    ·Although the applicant is Rohingya, [Husband A] is of [another specified ethnicilty]. They lied on the application for the safety of [Husband A] and [Son A].

    ·The applicant did not witness her neighbour’s house being burnt and her house was not ransacked.

21. Scanned extracts of various ID documents were annexed to the statement along with a certified translation.:

    ·Citizenship Scrutiny Card, issued [in] 2012, in the name of [an alias].

    ·[Husband A’s] Household Members List.

    ·Extract from Citizenship Scrutiny Card, issued [in] 1991, in the name of [another alias].

    ·Extract from Citizenship Scrutiny Card, issued [in] 2005, in the name of [another alias].

22. The applicant participated in a hearing before the Tribunal on 4 March 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages. Post-hearing submissions were made on 29 March 2016. The submissions highlighted that the fabrication of some significant aspects of the applicant’s claims should be considered in the context of the deteriorating situation in Myanmar in 2012 and 2013.

23. The Tribunal had significant concerns in relation to the applicant’s overall credibility. In its decision of 21 June 2016, it was noted that the applicant presented blatantly false information to the Department in relation to her citizenship status, her ethnicity, her circumstances and how she had departed Myanmar, as well as other matters. Ultimately, the Tribunal did not find many aspects of the applicant’s evidence to be credible or reliable.

24. It was accepted that the applicant is Muslim and a Rohingya descendent. However, the Tribunal was not satisfied that the applicants would be exposed to violence at the hands of the authorities or Buddhists in Yangon. It was accepted that there is anti-Muslim sentiment throughout Myanmar, but the Tribunal was not satisfied that the applicants would be subjected to discrimination at a level that amounts to serious or significant harm.

25. The applicants applied for review of the Tribunal’s decision with the Federal Circuit Court [in] July 2016. [In] December 2018, [a named Judge] made a remittal order (by consent) on the grounds that the Tribunal failed to consider the applicant’s risk of harm from domestic violence from her husband.

    Current review

26. The applicant was invited to appear before the Tribunal on eight separate dates throughout 2021 and 2022. The early hearing dates were cancelled as a result of travel restrictions imposed to prevent the spread of COVID-19. Later hearing dates were cancelled at the request of the applicant’s representative. In April 2022, the representative requested that the matter be heard by a female Member with the assistance of a female interpreter. The Tribunal was able to accommodate this request on 26 July 2022.

27. In addition to the information outlined above, the applicant advised that her marriage with [Husband A] formally ended when he was removed from Australia in 2016. At first he tried to contact her via [a messaging service] but she changed her number and hadn’t spoken with him since. [Husband A] wanted the applicant to send [Son A] to Myanmar.

28. The applicant’s mother, father and brother all moved to [Country 1]. Her mother passed away in 2021 in [Country 1] because of COVID-19. The rest of the family remain in [Country 1]. The applicant was unsure if they reside in [Country 1] legally.

29. The applicant married for a second time in Australia. There was no record of the first marriage with [Husband A], so the Australian Government did not require evidence that the marriage had ended. The applicant’s second marriage lasted for one year.

30. The applicant connected with her second husband, [Husband B], through social media. He was friends with her first husband, and they had previously met in Sydney. [Husband B] is also from Myanmar. The applicant received a marriage certificate and a divorce certificate from the Australian authorities.

31. A domestic violence order was issued to the applicant’s first husband [in] July 2013. The applicant gave evidence that at first she tried to reconcile with [Husband A] because she wanted her son to have a father. In the end, she was unable to remain in the relationship. The applicant didn’t feel safe and didn’t think it would be good for her son to see the violence.

32. The applicant gave evidence that the abuse started after the birth of her son. She had a caesarean and [Husband A] kicked her in the back several times and hit her in the face.

33. The applicant said she tried to talk to one of the officers in detention in Australia about the abuse. However, she told the applicant not to make a big thing of it. When the family were held by immigration in [a hotel] the applicant called the police. She said the police took [Husband A] and he was released after 2 or 3 years. She recalled that they went to court and he got a good behaviour order.

34. The family later moved to Melbourne and the abuse continued. The applicant went to a women’s shelter in Melbourne and then travelled to Sydney to stay with a friend whom she met in detention. The police were not involved in Melbourne.

35. The applicant said that [Husband A] followed her to Sydney and they got a place together in [Suburb 1]. During Ramadan he was talking to girls at night on his phone. After he ate in the morning he would sleep during the day. The applicant confronted [Husband A] about the phone calls and asked him to leave. He would not leave and wouldn’t let her leave either. [Husband A] strangled the applicant and threatened to kill her.

36. The police and the ambulance attended. They asked if the applicant wanted to report [Husband A]. The applicant said she just wanted him to leave her alone. She didn’t want him to go to jail, but the police encouraged her to report him. The police took [Husband A] and after a few days immigration came and took him to detention.

37. The applicant said she received criticism from within the Burmese-Australian community. Multiple people visited the applicant to ask how she could do such a thing and asked her to drop the charges. The applicant said she went to the court and told them she didn’t want [Husband A] to go to jail or be deported. She begged for the Magistrate not to sentence him to jail. The Magistrate gave him another two-year good behaviour bond. The applicant believed that the New South Wales court was unaware of [Husband A’s] good behaviour bond in Queensland. No one mentioned it to them.

38. The applicant understood that [Husband A] had agreed to his removal from Australia. She said that his family are in Yangon. She was unsure where he was but felt he may be with family. The applicant expressed a fear that [Husband A] would try to take custody of their son. He last threatened to take [Son A] one year before the hearing, prior to the applicant changing her phone number.

39. The applicant said that situation is very bad in Myanmar since the military coup. The military can do anything to people. They monitor social media. The applicant said she posts whatever she can about the situation. She provided some examples to the Tribunal in January 2022 and said she had continued to post material since that time.

40. In relation to her name, the applicant said that [her name] was the name given to her at birth. [This] is a Muslim name, not a Burmese name. Both her parents had Muslim names too. The applicant said she started to wear the hijab during university and had worn one since.

41. Following the Tribunal hearing, the applicant’s representative made a number of submissions. Of note, on 29 July 2022, the applicant’s representative provided the Tribunal with a document titled ‘Advice of Court Result’ issued by Local Courts of New South Wales in respect of [Husband A] [in] July 2022. The document reports that [Husband A] was found guilty of common assault and stalking or intimidating. No conviction was recorded and [Husband A] was issued a good behaviour bond for 2 years.

1. On 10 August 2022, the representative provided a divorce order issued in the Federal Circuit and Family Court of Australia [in] March 2022 in relation to the marriage between [the applicant] and [Husband B].

   CRITERIA

2. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

3. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

4. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

5. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

6. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   ANALYSIS AND FINDINGS

7. For the reasons given below, I am satisfied that the applicants are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s.36(2)(a). I have concluded that the matter should be remitted for reconsideration.

8. I accept that the applicant is a single woman and mother from Myanmar and would return to Myanmar as a failed asylum seeker from a Western country. For these reasons, I find that she belongs to a particular social group or groups, consisting of single women, single mothers, and failed asylum seekers from Western countries.

9. Myanmar has been continuously affected by conflict since its independence from Britain in 1948. In February 2021, the military once again seized control of the country in a coup. Since that time, Myanmar has been run as a military dictatorship.

10. The Department of Foreign Affairs and Trade (DFAT) reports[1] that since the 2021 coup, a widespread armed insurgency has emerged that seeks to attack the military regime and its officials and restore democracy to Myanmar. Within this context, the Myanmar military remains the principal armed actor in post-coup Myanmar and is overwhelmingly the main violator of human rights and international humanitarian law.

    [1] Department of Foreign Affairs and Trade, Country Information Report Myanmar, 11 November 2022.

11. The DFAT Report on Myanmar goes on to say that the military regime has no direct control over large parts of the country, with sections of the country in the hands of ethnic rebel groups. Armed groups operate along Myanmar's borders with China, Thailand, Laos, Bangladesh and India. The ‘Bamar heartland’, including Mandalay, Yangon, Sagaing and Magway, was once relatively peaceful, but since the coup this region has seen a sharp rise in violence.

12. Considering the current situation in Myanmar, DFAT assess that a failed asylum seeker returning to Myanmar from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left. It was noted that there is a high level of scrutiny of people arriving and departing the country, and severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries.

13. Based on the evidence before me, I accept that the applicant is a citizen of Myanmar who sought asylum in Australia. The applicant held a National Registration Card and an official passport. She was able to obtain a university education and freely depart the country through an international airport with her ex-husband and child in 2012. Further, I accept that the applicant is a single mother and would return to Myanmar as an unaccompanied woman. I accept that her first marriage was religious in nature and not officially documented in accordance with Australian law. The relationship dissolved as a result of domestic violence perpetrated by the applicant’s ex-husband and ultimately ended when [Husband A] was detained and removed from Australia. I accept that the applicant was married for a second time under Australian law for approximately one year. She provided a copy of her divorce certificate for her second marriage. I accept that these characteristics would place the applicant at risk of serious harm in Myanmar.

14. I consider that the applicant would face a real risk of persecution for reasons of her imputed political opinion as a failed asylum seeker returning from a Western country. The risk of harm would be exacerbated by the applicant’s gender and responsibilities as a single mother. I accept that the second named applicant would be at risk of serious harm because he is a minor in the care of the first named applicant. I consider that he would be at risk of separation from his mother, detention and violence on arrival in Myanmar.

15. I note that I had some concerns in respect of the credibility of the applicant’s evidence in relation to other claims put forward to the Department and the Tribunal. Nevertheless, the attributes listed above have been accepted and it is not necessary to make findings of fact in respect of the remaining claims.

16. 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

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

    Sheridan Lee
    Member