1902600 (Refugee)

[2024] AATA 2682

1902600 (Refugee) [2024] AATA 2682 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Sanmati Verma (for 2103248)

CASE NUMBERS:  1902600 and 2103248

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:Nicole Burns

DATE:18 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal:

a. Remits matter 1902600 (Safe Haven Enterprise visa application made on 22 March 2017) with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

b.    Sets aside the decision in matter 2103248 to refuse the applicants protection visas (Safe Haven Enterprise visa application made on 25 June 2020) and substitutes it with a decision that the visa application was not valid.

Statement made on 18 March 2024 at 10:44am

CATCHWORDS

REFUGEE – Protection Visa – Burma (Myanmar)– stateless – race – mixed ethnicity (Rohingya/Karen) – religion – Burmese Muslims – imputed political opinion – persons opposed to the military regime – membership of a particular social group of failed asylum seekers on return to Myanmar – additional fears of sexual violence as a Muslim woman – applicant has a well-founded fear of persecution –sets aside the decision in matter 2103248 and substitutes it with a decision that the visa application was not valid – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 48, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first and second named applicants are husband and wife, both originally from Burma (Myanmar) who met and married in [Country 1] on 6 May 2010.[1] The third named applicant is their daughter, born in Australia on [date].[2] They applied for the protection visas on 22 March 2017.

   [1] An untranslated copy of their Islamic marriage certificate (nikah) is on the Departmental file.

   [2] A copy of the third named applicant’s Australian birth certificate is on the Departmental file.

   Procedural history

3. There is an extensive procedural history to these cases now before the Tribunal, as follows.

4. According to Departmental records, the first and second named applicants (the applicant parents) arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] October 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicant parents are not ‘fast track applicants’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

5. The applicant parents were granted a Temporary Safe Haven (Subclass 449 – Humanitarian Stay (Temporary)) visa on 9 April 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

6. The applicants applied for a Safe Haven Enterprise visa on 22 March 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa on 6 December 2017. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on s 5H(2), 36(1B) or (1C) or s 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.

7. Following this, the applicants purported to make a second application for a Safe Haven Enterprise visa on 25 June 2020 (the second visa application). However, the applicants’ first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicants because they were not within the class of persons specified in the then Minister’s s 48B determination.

8. The first visa application for a Safe Haven Enterprise visa on 22 March 2017 was refused by the delegate on 6 December 2017. The delegate refused to grant this visa because they were not satisfied the applicants were refugees or that complementary protection provisions applied. An application for review of that decision was made on 5 February 2019: AAT Number: 1902600.

9. The second visa application was refused by a delegate on 26 February 2021 because they were not satisfied the applicants were refugees or that complementary protection provisions applied. An application for review of that decision was made on 15 March 2021: AAT Number: 2103248. (A copy of the delegate’s decision record was provided to the Tribunal on review.) However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

10. Nonetheless, the Tribunal has considered the information, evidence and submissions provided in relation to both visa applications, set out below where relevant.

11. The applicant parents appeared before the Tribunal in a joint hearing on 4 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

12. The applicants were represented in relation to the review in respect of the second visa application.[3] The representative attended the Tribunal hearing.

    [3]AAT Number: 2103248

13. The Tribunal notes the applicant parents came to Australia by boat from [Country 1] along with the second named applicant’s parents and her brother, arriving on [date] October 2012. They also applied for protection visas, which were refused, and sought reviews at the Tribunal separately, determined by the same Member. On 1 February 2024 the Tribunal remitted those matters to the Department for reconsideration, satisfied they were all owed protection under s 36(2)(a) of the Act.[4]

    [4] AAT Number: 2103226 (second named applicant’s parents) and AAT Number: 2103387 (second named applicant’s brother).

    CRITERIA FOR A PROTECTION VISA

14. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

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

17. 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–5LA, which are extracted in the attachment to this decision.

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

    Mandatory considerations

19. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent report on Myanmar from DFAT was published on 11 November 2022.

20. The issue in this case is whether the applicants are owed protection either under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    FIRST NAMED APPLICANT

    Nationality and ethnicity

21. An issue before the delegate (and the Tribunal on review) relates to the first named applicant’s (hereafter the applicant) purported statelessness status and ethnicity.

22. According to information contained in the delegate’s decision record in relation to the first visa application, at that stage the applicant claimed[5] to be stateless of Rohingya ethnicity and Muslim born on [date] in [Pathein], Irrawaddy Division, Myanmar. He claimed he never obtained identity documentation including a household registration list (HRL), apart from a student card issued in the name of [name] (his Burmese name) from when he studied at [University 1]. Before university he states he went to school and was able to do so because his family paid. He claimed his father [is] a stateless Muslim of Rohingya ethnicity from Rakhine state and his mother [a] stateless Muslim of Karen ethnicity from Pathein. He claimed he has a brother ([name]) and four step siblings. He left Myanmar on [date] January 2003 (for [Country 1]).

    [5] In his written claims and at interview with the delegate on 7 July 2017.

23. The delegate notes as evidence of the applicant’s identity he provided a copy of his UNHCR card issued [in] January 2012 in [Country 1]. However the delegate gave the card no weight in relation to the applicant’s identity given DFAT had advised there are significant problems with corruption of UNHCR’s registration processes in [Country 1].

24. The applicant also provided to the Department a translated copy of the applicant’s marriage certificate – nikah – showing he married the second named applicant in [Country 1] on 22 Jamadul 1431 (6 May 2010 in the Gregorian calendar). However the delegate was not satisfied it was reliable evidence of his identity given no information was provided about how it was obtained, whether it was registered or certified by any authority, and because the document lacks security features.

25. The delegate accepted the applicant was a Karen Muslim from Pathein but did not accept he was stateless or undocumented. The delegate reached this conclusion taking into account the following considerations:

    a.The applicant’s claims to have been undocumented (apart from a student visa) are not credible given country information indicates HRLs in Myanmar are mandatory for all residents including stateless Rohingya and other ethnic minorities. Without a HRL individuals are deemed illegal migrants and subject to arrest and deportation.

    b.The applicant’s purported level of education is inconsistent with someone who claims to be a stateless and undocumented Rohingya Muslim. Country information indicates only 14 percent of Myanmar’s population undertakes tertiary education indicating it is a privilege and unlikely to be afforded to a person without any legal status. Also that the government frequently denies access to education to undocumented Rohingya children, including higher education, which is at odds with his claims to have undertaken primary, secondary and tertiary education. This also suggests he would have required a birth certificate and HRL to enrol.

    c.The applicant’s claims about his mother’s lack of documentation appears improbable, given he advised his maternal grandfather was also born in Pathein and is Karen, which is a recognised ethnic group in Myanmar, who are eligible for citizenship. This suggested to the delegate that his mother (and brother) are likely to be Burmese citizens.

    d.The applicant’s claims to have been arrested after high school for lacking correct documents and detained for almost two years before being released after signing a blank document authorising to use him as forced labour any time lacked credibility for several reasons. This includes because normally this claim is made in relation to not having a HRL; he provided no evidence to support his claims despite claiming to have been convicted in a court of law and imprisoned for almost two years; and it is odd the authorities would release him into the community two years later without confirming or regularising his status.

    e.At interview the applicant’s understanding and knowledge of the Rohingya language, culture and history was limited, despite claiming that his father was ‘strongly Rohingya’.

26. The applicant addressed some of these issues during his second visa application interview on 17 November 2020 (as set out in that delegate’s decision record). Nonetheless whilst the (second) delegate accepted the applicant was born and raised in Pathein, Ayeyarwady Region, was Muslim and his father may have been Rohingya, and his mother Karen Muslim, they did not accept he was a stateless Rohingya, but a Muslim citizen of Myanmar. The second delegate reached that conclusion relying on similar reasons as the first delegate as well as expanded upon and/or added considerations, summarised as follows:

    a.The applicant provided an exact date of birth (DOB) which may indicate his birth was officially recorded by the authorities in Myanmar. Stateless and undocumented persons from ethnic minorities usually do not know their exact DOB because they are denied issuance of a birth certificate and usually are born at home.

    b.Karen do not have family names whereas the applicant provides his mother’s Muslim first name [followed] by what looks like joined Burmese names ([name]). This suggests his mother and brother are most likely Burmese citizens and ethnic Burmese rather than Karen Muslims.

    c.Country information indicates that 135 ethnic minorities in Myanmar are eligible for full citizenship, including Karen. The applicant said his mother held a three-folding, red-coloured ID card in the past. Country information indicates that pink cards were given to full citizens, after the promulgation of the 1982 Citizenship Law when all residents were required to reapply for new identification in recognition of their citizenship status. Citizenship Scrutiny cards (CSC, more commonly known as National Registration Cards) are colour coded with pink cards given to full citizens, blue to associate citizens and green to naturalised citizens. This suggests his mother holds full Myanmar citizenship.

    d.Even if the applicant’s father is not recognised as a citizen, having a citizen mother qualifies him at least for citizenship by naturalisation because children can apply for full or naturalised citizenship depending on their parentage, as per the conditions and qualifications set out in Chapters II and IV of the Citizenship Law.

    e.The applicant’s claim that his father paid bribes to stay on an illegally occupied parcel of land where they built their own accommodation is illogical as registering HRL (instead of bribes) would have saved money and provided benefits. The delegate believed the applicant’s family’s HRL did exist and contains information he wanted to conceal.

27. In support of the second visa application the applicant provided several letters of support from members of the [Community Organisation 1] in Australia (and [Country 1]) to verify his and his father’s Rohingya ethnicity. The second delegate noted country information that the Burmese community in Australia appeared to have a fairly generous approach to establishing who is Rohingya yet did not consider they were falsified or counterfeit and ultimately accepted he has a Rohingya father. The delegate also found ‘that the applicant is a person of mixed ethnicity for whom the Rohingya part of his background played a less significant role’.

28. On review the applicants’ representative provided to the Tribunal:

    ·A translated copy of the applicant’s family’s HRL

    ·A translated copy of the applicant’s mother’s and brother’s citizenship scrutiny cards (CSC)

    ·A translated copy of the applicant’s student card from [University 1] issued in 2001

    ·A statement from the applicant’s cousin, [name], dated 22 November 2023. In it he states he is a stateless Rohingya from Rakhine state, who arrived in Australia in 2013 (and was granted a Safe Haven Enterprise visa in 2018 (he provided a copy of his visa grant). He confirmed the applicant’s father is his paternal uncle who moved to [Country 1] from Myanmar a long time ago and his mother (the applicant’s father’s sister) – [Ms A] – currently resides in [a] refugee camp as a Rohingya refugee from Myanmar.

    ·A copy of [Ms A]’s UN identity documents.

29. In a letter[6] and statement[7] provided to the Tribunal the applicant details his and his parents’ backgrounds and addresses concerns raised by the previous delegates as to his identity, nationality and ethnicity, addressed where relevant in the Tribunal’s findings on this issue.

    [6] Undated; received on 22 March 2021.

    [7] Dated 27 November 2023.

30. The applicant also explains why he has now produced several key documents – specifically the HRL (which initially he said he did not have), student card (which earlier he said he had lost), and his mother’s and brother’s CSCs. With respect to the HRL he explains he only found out about its existence after his mother and brother fled Myanmar and were in [Country 1], post-coup. His mother explained to him that she had obtained it by bribing [Mr B], head of their ward, in around 2000 (when the applicant was in jail), along with the CSCs for herself and his brother. She never told the applicant before because she was afraid if his application failed the Australian government would tell the Burmese government the documents were fake, placing her and the applicant’s brother in danger.

1. With respect to his birth certificate – which he had not mentioned before – the applicant explains in his statement that it was the only genuine identity document he had in Myanmar, which he took with him when he left but was taken by the smugglers; it contained both his parents’ names, their ethnicities (his father as ‘Rohingya’) and his ethnicity as ‘Rohingya – Karen – Muslim’. He added that he was stateless because his father was not a citizen and both parents need to be citizens in order to transmit their citizenship to their children.

2. With respect to his mother, the applicant states in his statement that as a citizen she had a range of identity documents that he and his brother could not access. He recalls she had a three-folding card of pink colour which listed her as a Karen Muslim. At hearing he clarified that she is a Karen Muslim who used to have a three-folding card but was refused a (new) pink card when they were introduced in around 1999. Instead she was offered a white one for foreigners at the time, which she refused. That is why she subsequently obtained a fake CSC with the help of [Mr B].

3. In a written submission provided to the Tribunal dated 27 November 2023 the representative contends, among other things, that the (second) delegate’s position about citizenship laws on paper for people with Karen parentage is incorrect, given administrative and bureaucratic barriers in doing so, particularly for Muslims (with reference to relevant country information).

4. The Tribunal discussed the issues about his background including his nationality and ethnicity with the applicant at length at hearing. In response he reiterated that he is a stateless mixed Rohingya (from his father’s side) and Karen (from his mother’s side) born in Pathein, Ayeyarwady Region in [year]. He had a birth certificate which he took with him when he left Myanmar in 2003 (to [Country 1]) but the smugglers took it off him en route. The only other identity documentation he had (that he was aware of) was a student card from studying [a] course for a year via distance learning in Pathein in around 2001/2002. He took that card with him to [Country 1] – it went undetected by the smugglers, hidden in his underwear. He used that when he registered with UNHCR in [Country 1] and thought he had then lost it however later on discovered his father – who had been residing in [Country 1] since 1993 – had it: his father then sent him a copy.

5. The applicant explained he was able to enrol in school and university in Myanmar because the latter was distance education and in both cases his mother paid [Mr B]. [Mr B] also arranged his family’s HRL and his mother’s and brother’s CSCs through his mother paying a bribe. The applicant provided translated copies of these documents to the Tribunal, explaining he was not aware of their existence until his mother told him when she (and his brother) fled Myanmar after the military coup in February 2021 (as noted). She had not disclosed to him the documents beforehand, in case that resulted in her and her son who remained in Myanmar facing problems and possible harm. His mother sent him copies of the documents from [Country 1], where she and his brother presently reside.

6. The applicant said his mother also told him that their family had an ‘original’ HRL which showed his, his brother’s and his father’s ethnicity as Rohingya which is why his mother kept it hidden, then lost it. His mother replaced it with the fake one obtained with [Mr B’s] help, as noted.

7. The applicant said his father is Rohingya from Rakhine state, as were his paternal grandparents. His father never obtained identity documents in Myanmar, which is why he left in 1993. He married another woman from Myanmar in [Country 1] where they currently reside, along with their children. In Myanmar the applicant said his father used to work selling goods at a market.

8. The applicant said when he was in [a grade] in Myanmar he tried to obtain a national identity card (NIC) through his mother, however, was unsuccessful because his father was Rohingya and the immigration officials told him he must have evidence of citizenship from his grandparents, which he did not have.

9. The applicant said growing up they spoke Burmese in the family home, and occasionally his father spoke to him in Rohingya which he understands to some extent but has difficulty speaking.

10. The applicant said when he was around [age] (in 2000) he was arrested and imprisoned for around 17 months because he did not have any identity documents, apart from his student card and the authorities were generally suspicious about the movements (and origins) of him and some of the other young men he was travelling with at the time.

11. The applicant said the main reason he decided to leave Myanmar in 2003 was because he lacked a NIC which meant he would not be able to get a professional job or receive a certificate of graduation from university. He emphasised that he had also been sent to jail for no reason: just because he did not have a NIC.

12. In the representative’s oral submission at hearing she submits, in summary that:

    ·The level of detail the applicant provided at hearing is consistent with what he told the Department previously, although more elaborately before the Tribunal. This is not an indication of inconsistencies (and credibility concerns) but more him defending his claims and responding to the delegate’s concerns.

    ·The applicant’s imprisonment as a teenager in Myanmar is consistent with him not having citizenship status there.

    Findings about the applicant’s nationality and ethnicity

13. The Tribunal has considered the concerns raised by both delegates, the applicant’s responses, the submissions and supporting documents in determining his citizenship status (or lack of) and related matters.

14. The Tribunal accepts the applicant is a Muslim from Pathein, Ayeyarwady Region in Myanmar. This is not in issue as he has consistently claimed as such, both delegates accepted that was the case, and a copy of his Islamic marriage certificate was provided to the Department.

15. The Tribunal also accepts the applicant’s father is of Rohingya ethnicity from Rakhine state originally, and his mother is of Karen ethnicity from Pathein, Ayeyarwady Region, making him of mixed ethnicity. This was ultimately accepted by the second delegate as noted, despite some concerns.

16. The Tribunal also notes the letters of support provided by members of the Rohingya community in Australia and [Country 1] to the Department, and from his cousin in Australia attesting as such.

17. At issue is whether the applicant is stateless as claimed. There are concerns about his claimed statelessness (and related lack of identity documents) for several reasons, including due to the applicant’s inconsistent and changing evidence at times about what Myanmar identity documents he and his family members had and/or were entitled to, as well as whether or not he was entitled to Myanmar citizenship more broadly based on his mother’s status. The Tribunal has considered these specific concerns below.

    (Lack of) identity documents

18. As noted, the first delegate was concerned about the applicant’s claims to have been undocumented (apart from a student ID) in Myanmar given country information indicates HRLs in Myanmar are mandatory for all residents including stateless Rohingya and other ethnic minorities, and without it individuals are deemed illegal migrants and subject to arrest and deportation. The delegate suspected he was concealing his identity, as his family was entitled to such a document and would have been able to obtain it, rather than having to pay bribes to maintain their presence in Pathein.

19. The applicant explains the only genuine identity document he held in Myanmar was his birth certificate, which was taken by the smuggler when he left Myanmar in 2003. He had a student ID given he was able to study at school and university after his mother paid bribes to their village administrator, [Mr B]], which he used in [Country 1] to register with UNHCR. With respect to a HRL, he explains that according to information his mother has only recently disclosed to him, their family had an original one which she kept hidden and in around 1999/2000 – around the time when the applicant was in jail – his mother fraudulently obtained another one via [Mr B] (along with CSCs for herself and the applicant’s brother). She did not let him know until she had left Myanmar after the February 2021 coup out of fear of potentially dangerous repercussions for herself and the applicant’s brother if the authorities discovered the documents were fraudulent.

20. On one view the applicant’s provision of his family’s HRL now, after the delegate had raised concerns about the lack of such a document being at odds with country information, is problematic and may indicate he has been untruthful about his family’s ID documents,  citizenship status and related matters. However, the explanation provided that it was fraudulently obtained and the applicant was unaware of its existence until after his mother fled Myanmar after the February 2021 coup due to concerns for her and her other son’s safety is plausible, particularly given country information about the difficulties people in Myanmar face obtaining official documents. For example DFAT note that ‘the specific documents a person holds may depend on their class of citizenship (full, naturalised or associate), as well as their capacity to negotiate Myanmar’s complicated, inefficient and frequently corrupt bureaucracy’. They report that the situation has worsened since the coup, as large numbers of people have had to flee their homes, often carrying limited documentation, and attacks on ward administration offices, office closures and a general reluctance to interact with representatives of the regime mean many people have been unwilling or unable to apply for new documents or renew existing ones since the coup.[8]

    [8] DFAT Country Information Report: Myanmar, 11 November 2022 at 5.26

21. In addition, DFAT state Muslims in Myanmar are frequently denied basic rights and services including access to citizenship cards.[9]

    [9] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.28, 3.29

22. Given these considerations the Tribunal considers it plausible the applicant’s mother sought to hide the existence of their family’s fraudulently obtained HRL from the applicant until after she (and his brother) had left Myanmar. Whilst both delegates considered the applicant was deliberately trying to hide his family’s HRL, inferring that it may contain information that undermines his claim to be stateless, the evidence before the Tribunal was that his mother hid its existence from the applicant until recently, for safety reasons, which the Tribunal accepts.

23. As noted, the applicant has provided a translated copy of that HRL to the Tribunal as well as copies of his mother’s and brother’s CSCs. In the HRL his and his brother’s ethnicity is recorded as ‘Pakistan + Bamar Kayin’, which the applicant states is incorrect and likely included to explain their (physical) appearance. The Tribunal notes DFAT state that some Rohingya outside Rakhine are able to improve their situation by obtaining documentation identifying them as ‘Bamar Muslim’ or Kaman, but they still face significant discrimination on the basis of their skin colour and religion.[10] The Tribunal also notes this HRL was fraudulently obtained.

    [10] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.11

24. The applicant’s evidence before the Tribunal that his family had a HRL a long time ago which his mother largely kept hidden then disposed of, is also new. In his written statement provided to the Tribunal the applicant explained that when he spoke to his mother after she arrived in [Country 1] she also told him when he was born they had an old ‘Family Registration Certificate’ that listed his father as ‘Bengali’, the same as him. However his mother said she never showed it to anyone and disposed of it, so that if the army came they would not know he and his brother were Rohingya.   

25. The representative submits the applicant’s evidence about his family’s HRL is not because it is untrue, but because of information the applicant has only found out from his mother more recently and being given the opportunity to address this issue.

26. Although not without doubt, the Tribunal considers the applicant’s explanation for the late disclosure of an ‘original’ HRL plausible, particularly given country information indicates difficulties some people in Myanmar face obtaining verifiable identity documents (as noted earlier) and noting country information about risks Rohingya face and have faced in Myanmar (considered later in the decision record).

27. The applicant’s evidence about whether or not he had a birth certificate has changed, which is also a concern. That is, initially he appeared to indicate to the Department that he did not have one, yet his evidence before the Tribunal was that he had a birth certificate in Myanmar which he used when trying to obtain a NIC in [a grade], and which the smugglers took from him en route to [Country 1] . Having listened to the interviews with the delegates in respect of both visa applications, the Tribunal notes in the first interview the applicant was not asked specifically about whether or not he had a birth certificate. He was asked by the delegate whether he had a birth certificate in the second interview to which the applicant’s answer was somewhat equivocal: saying that he does not know but he did not think so. Having regard to the overall credibility of the applicant, the Tribunal is of the view that this is more in line with the applicant elaborating on his evidence in this regard, after discussing it further with his mother more recently (post interviews with the delegates), instead of deliberately trying to mislead.

28. The second delegate considered the applicant’s purported arrest in around 2000 raised contradictions as he claimed to have presented his student card to police, but stated he was arrested for travelling without authorisation. Before the Tribunal the applicant has described the circumstances of his arrest and detention in his written statement and oral evidence, which was detailed and generally consistent with his earlier evidence to the Department. He has elaborated and provided more detail in some respects, which is understandable given the opportunities to do so, and to address some concerns raised by the delegates. For example that he was attempting to flee Myanmar at the time as his mother was worried for his safety after he finished high school. Also that when caught by the authorities and questioned they became suspicious when he said he did not have a CSC and also because he was vague about his background, in particular his father being Rohingya from Rakhine state, out of fear of repercussions if this was discovered. The Tribunal accepts his evidence in this regard. In such a context the Tribunal doubts it would have made a difference even if the applicant showed his student ID card (and permission to travel) to the authorities at that time: they were still suspicious about his identity and background given his lack of a NIC and vague responses during questioning.

29. Given these considerations, including country information about the difficulties people in Myanmar face obtaining verifiable identity documents (particularly Rohingya), and some risks in doing so (as noted earlier), the Tribunal accepts the applicant’s explanations for producing some documents now, as discussed.

    The applicant’s mother’s status

30. As noted, the first delegate found the applicant’s claims that his mother did not have documentation improbable, given he advised his maternal grandfather was also born in Pathein and is of Karen ethnicity, which is a recognised ethnic group in Myanmar, who are eligible for citizenship. This (among other things) suggested to the delegate that his mother (and brother) are likely to be Burmese citizens. The second delegate was of a similar view, finding based on country information that the applicant’s mother would have transmitted citizenship to him and his brother based on Chapters II and IV of the Citizenship Law.

31. As noted, the representative in her submission to the Tribunal argues that the delegate’s position about citizenship laws on paper for people with Karen parentage is incorrect, given administrative and bureaucratic barriers in doing so, particularly for Muslims (with reference to relevant country information). She also notes the applicant tried to get citizenship based on his mother’s documents in around 1999 when in [a grade] but was unsuccessful because his father was Rohingya.

32. The applicant’s evidence to the Tribunal is that his mother was a Karen Muslim who had a range of identity documents that he and his brother could not access, including a pink three-folding ID card. However when she tried to obtain a NIC/CSC (pink coloured card) in 1999 (on expiry of the three-folding card) she was told to apply for a white one (for foreigners), she suspects because she was Muslim, and her husband was Rohingya. The applicant’s evidence is that even though Karen Muslims were entitled to a CSC his mother was not issued one.  At the time she refused and instead fraudulently obtained a CSC through the help of her local ward administrator, [Mr B].

33. The Tribunal notes the changes in the applicant’s evidence about his mother’s status before the Department and Tribunal, from initially indicating that she was undocumented to now claiming she had documentation as a Karen Muslim but was forced to fraudulently obtain a CSC in around 1999 because the authorities would only issue her with a card for foreigners at the time. Although a concern, the Tribunal is of the view the applicant’s changing evidence in this respect can be explained in part due to his limited knowledge about his mother’s situation in these respects – noting he was only [age] when he left Myanmar in 2003 – and the fact that his mother has only disclosed the full picture of her circumstances relatively recently.

34. The Tribunal has considered whether the applicant may have been eligible to apply for naturalised citizenship pursuant to the provisions of the Burma Citizenship Act of 1982, given his claims to have had one ethnically Karen parent and one ethnically Rohingya parent.

35. Country information indicates that the Burma Citizenship Act of 1982 provides for three categories of citizenship: full citizenship, associate citizenship; and citizenship by naturalisation. Individuals are automatically considered full citizens at birth if they are among the 135 groups of identified or national ethnic groups, including Karen. Section 43(a) of the Act stipulates that a person born of parents, one of whom is a citizen and the other a foreigner, may apply for naturalised citizenship.[11]

    [11] ‘Rohingyas – Insecurity and Citizenship in Myanmar’, TSU Press, T. Gibson, H. James & L. Falvey, 1 August 2016, p 41

36. However in this case there is no evidence the applicant ever was granted naturalised citizenship, and his evidence was that when he tried to obtain a NIC [he] was unsuccessful because his father was Rohingya Muslim. Also that his mother was not issued a NIC in 1999 despite being eligible and instead had to obtain a CSC via bribery. His claims in this and related respects are supported by country information that indicates the authorities in Myanmar are known to restrict access to citizenship from those of mixed ethnic parentage, even where they are eligible for it by law (as also submitted by the representative):

    Those who are of mixed ethnic parentage are at risk of statelessness. Often, they do not fit into the rigid ethnic criteria set out in the citizenship law which does not always reflect demographic realities or self-ascribed identities within the country. As a result, those of mixed ethnic or religious parentage frequently have ethnic categories imposed on them by state authorities that exclude them from access to full citizenship. Those who have at least one parent who does not belong to one of the recognised national ethnic groups of Myanmar do not qualify for automatic citizenship. Although children with a parent who is a citizen not belonging to the national ethnic groups can, in certain circumstances, apply for citizenship, in practice they often do not receive it due to poor or discriminatory implementation of the law.[12]

    [12] European Network on Statelessness and the Institute on Statelessness and Inclusion, ‘Statelessness in Myanmar: Country Position paper May 2019’ (May 2019) Stateless Journeys:  

1. Such country information indicates that not everybody from Myanmar is able to acquire the documents that they are eligible to acquire under law, particularly displaced persons, and that failure to possess these documents should not be taken to affect the validity of their story. It notes that Myanmar has a recent history of arbitrarily removing and destroying identity documents held by members of minority groups.[13]

   [13] European Network on Statelessness and the Institute on Statelessness and Inclusion, ‘Statelessness in Myanmar: Country Position paper May 2019’ (May 2019) Stateless Journeys:  p 14

   Education history

2. As noted both delegates found the applicant’s claimed level of education inconsistent with being a stateless, undocumented, Rohingya Muslim, particularly given country information indicates only 14 percent of the population undertakes tertiary education and the authorities frequently deny access to education to documented Rohingya children. Also because enrolling in school would require a birth certificate and HRL.

3. The applicant has explained because he was not a citizen in order to go to school (and university: for a year only by distance education) in Myanmar his mother had to pay bribes to [Mr B]. Whilst he did not identify [Mr B] by name to the Department (including at the interviews with the delegate) the applicant has consistently claimed his mother was assisted in such matters by an older man in a position of power in their home area, which the Tribunal accepts.

4. There are other reasons why the Tribunal accepts the applicant is stateless (and Muslim, of mixed (Rohingya/Karen) ethnicity), as follows:

   a.The applicant has consistently claimed to be stateless. He has given a generally consistent account of his life growing up in Pathein (capital of Ayeyarwady Region), raised by his mother, with his younger brother, as his father – a Rohingya with no identity documents – left the country when he was around [age]. They primarily spoke Burmese at home, encouraged by his parents to do so (and more broadly to act as other Burmese, not Rohingya or Karen given risks in so doing). This is why he does not remember much about his father or his father’s (Rohingya) heritage and why he does not speak Rohingya (although he understands a reasonable amount).

   b.The applicant’s evidence in these respects was corroborated by his wife’s oral evidence at hearing, and the oral evidence of his parents-in-law and brother-in-law (at a separate hearing before the same Member, held on 26 October 2023).

   c.The applicant’s mixed (including Rohingya) ethnicity is supported by letters attesting as such from members of the Rohingya community in [Country 1] and Australia provided to the Department and Tribunal, as noted. He has also provided a copy of his membership card of the [Community Organisation 1] in Australia issued on 27 January 2019.

   d.The applicant’s paternal cousin has provided a statement to the Tribunal attesting that the applicant’s father – who is his mother’s brother – is Rohingya and his mother presently resides at a refugee camp in Bangladesh (evidence of such from the UNHCR has been provided).

5. The additional concerns the second delegate had which led to them concluding the applicant was not stateless and not an ethnic minority included his provision of an exact DOB. This is not, in the Tribunal’s view, enough to cast significant doubts on his claimed statelessness and/or mixed (Rohingya/Karen) ethnicity, particularly given the other strong aspects of his case in these respects, as discussed.

   PROTECTION OBLIGATIONS: FIRST NAMED APPLICANT

   Country of reference

6. The Tribunal accepts the applicant is a stateless Muslim of mixed Rohingya and Karen ethnicity, formerly resident in Myanmar and [Country 1].

7. The Australian courts have held that when assessing the claims of a stateless person who has more than one country of former habitual residence, their claims should be assessed against the country from which they left owing to a well-founded fear of persecution, rather than against a country of subsequent habitual residence in which they have no fear of persecution.[14] Accordingly, the Tribunal has assessed the applicant’s claims against Myanmar.

   [14] Al-Anezi v MIMA (1999) 92 FCR 283 at [22]

8. DFAT report that stateless persons in Myanmar are denied fundamental rights and basic services including access to health care and education, employment opportunities, freedom of movement, freedom to choose the timing and number of their children, freedom to marry whom they choose and freedom to run for political office.[15]

   [15] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.1–3.3

   Claims, evidence and findings

9. In summary the applicant claims to fear persecution from the authorities on return to Myanmar as a stateless Muslim of Rohingya ethnicity, and failed asylum seeker.

10. The applicant set out his background and protection claims initially in a statutory declaration provided to the Department in support of the first visa application dated 16 February 2017. Material provided in support of the second visa application included an additional statement of claims.

11. On review the applicant provided to the Tribunal a statement dated 27 November 2023 as well as supporting documents as noted earlier in the decision record. The representative provided a comprehensive written submission also dated 27 November 2023 in which she sets out the applicants’ backgrounds, procedural history, protection claims and future fears on return to Myanmar, with reference to country information (including the most recent country information report from DFAT) about the situation there for persons of the applicants’ background and profiles.

12. She submits the applicant faces a well-founded fear of persecution on return to Myanmar on account of his Muslim religion, Rohingya ethnicity and stateless status, as well as being a failed asylum seeker from a Western country.

13. At hearing the applicant gave evidence about his past experiences in Myanmar that led to his decision to leave there in 2003, his experiences and circumstances in [Country 1] and Australia, and his current circumstances and fears if he had to return to Myanmar. The Tribunal found him a credible witness and accepts his claims in large part. That is, in summary it accepts the applicant is a stateless Muslim of mixed Rohingya and Karen ethnicity from Pathein. It accepts in Myanmar he completed high school and a year of distance education at university before he left Myanmar in 2003. It accepts when he was around [age] (in 2000) he was apprehended by the authorities whilst trying to leave the country and detained and sentenced to two years imprisonment for not having a NIC. It accepts his evidence as detailed in his statement to the Tribunal of the ill treatment he received in prison for 17 months before he was released.

14. Given these findings the Tribunal has considered country information about the situation in Myanmar for someone with the applicant’s past experiences and profile.

15. By way of context and background the Tribunal notes Myanmar has had a history of military coups since independence from Britain in 1948, most recently on 1 February 2021, after the National League for Democracy (NLD) won the November 2020 election in a landslide. At the time Aung San Suu Kyi and other NLD leaders were detained, arrested and a state of emergency declared. The coup sparked large-scale, nationwide protests which were severely suppressed by security forces.[16] In response the NLD and ethnic party representatives formed a government in exile known as the National Unity Government (NUG) including representatives from the NLD, which since November 2021 has launched an armed revolutionary struggle against the military regime. Fighting has continued since, with renewed fighting between the military and various ethnic armed organisations.[17]

    [16] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary.

    [17] DFAT Country Information Report: Myanmar, 11 November 2022 at 2.5, 2.19 and 2.22; Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary, p 10.

16. In their report DFAT chronicle the impact of the February 2021 coup on Myanmar’s citizens and government and other administrative architecture, as well as the decline in the security situation as a widespread armed insurgency has emerged since that seeks to attack the military regime and its officials and restore democracy. DFAT state that the military remains the principal armed actor and is ‘overwhelmingly the main violator of human rights and international humanitarian law’.[18]

    [18] DFAT Country Information Report: Myanmar, 11 November 2022 at 2.30.

17. Within this context DFAT identify several at-risk groups and individuals, including opponents of the military regime ranging from senior political leaders to casual participants in street protests, who have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearances.[19]

    [19] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.47.

18. DFAT assess that anyone opposing or perceived as opposing the military regime (and their family members) is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty.[20]

    [20] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.51.

19. Furthermore, participants in the widespread Civil Disobedience Movement (and their family members) that emerged after the coup are assessed by DFAT as at high risk of official discrimination in the form of job losses, property seizures, threats and arbitrary arrests and at moderate risk of violence in the form of extrajudicial killings, beatings and torture in custody.[21]

    [21] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.54.

20. In a report about the human rights situation of Rohingya Muslims and other minorities in Myanmar by the UN Secretary General published on 14 August 2023 it is noted that all states and regions across Myanmar continued to be affected by armed clashes involving the Myanmar armed forces, ethnic armed organisations and resistance forces, including People’s Defence Forces (PDFs).[22]

    [22] United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraph 32.

21. DFAT report that since the coup, torture has been reported throughout the country, especially against political prisoners and suspected members of PDFs and ethnic armed groups. Torture is common in places of detention, in particular military interrogation centres, but also prisons, police stations and military bases. Bodies of people who have been forcibly disappeared often show signs of torture.[23]

    [23] DFAT Country Information Report: Myanmar, 11 November 2022 at 4.6.

22. With respect to the situation of Muslims in Myanmar, DFAT state there are a number of distinct Muslim communities living throughout the country, including the Kaman, Pantay, Pashu, Rohingya and Zerbadee and that whilst the majority live in northern Rakhine state, there are also Muslim communities in Yangon, Ayeyarwady, Magway and Mandalay.[24]

    [24] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.27

23. DFAT state Muslims in Myanmar experience discrimination and restrictions on their ability to practise; are unrepresented in the public sector; are reportedly excluded from a range of government jobs; and are frequently denied basic rights and services including access to citizenship cards.[25]

    [25] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.28, 3.29

24. Additionally they report that anti-Muslim sentiment is prevalent and circulated via social media, state institutions and mainstream news websites; Muslims are often called racial slurs and subject to hate speech; and that since 2011 ultranationalist Buddhist movements such as Ma Ba Tha (The Association for the Protection of Race and Religion) and the 969 Movement have been influential in fomenting anti-Muslim hatred and violence. Further, DFAT report that there are strong links between ultranationalist Buddhism and the military, with soldiers indoctrinated to see Islam as an existential threat to the Union of Myanmar.[26] Overall DFAT assess that:

    Muslims in Rakhine State, regardless of ethnicity, face high levels of official and societal discrimination and a moderate risk of violence on the basis of their religion and perceived association with the Rohingya (who face specific, higher risks). DFAT assesses that Muslims outside of Rakhine State face moderate levels of official and societal discrimination and a low risk of violence on the basis of their religion.[27]

    [26] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.28–3.31

    [27] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.32

25. DFAT assess members of non-Bamar (minority) ethnic groups in Myanmar face a moderate risk of societal and official discrimination on the basis of their ethnicity, although for some groups (such as Rohingya) the risk is much higher, and that minority ethnic groups including the Chin, Karen, Karenni and others ‘suffer frequent violence at the hands of the state, largely on the basis of actual or perceived association with armed resistance movements’.[28] DFAT assess that all Rohingya in Myanmar:

    are at high risk of official discrimination, including denial of basic rights and services, on the basis of their ethnicity and Muslim religion. Within Rakhine, Rohingya face a high risk of societal discrimination from other ethnic groups and a high risk of violence from security forces and ethnic militias. Outside Rakhine, Rohingya face a high risk of societal and official discrimination but a lower risk of violence. Undocumented Rohingya outside Rakhine remain at high risk of abuse and exploitation and are subject to arrest and detention by the authorities for ‘illegal’ movements.[29]

    [28] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.4

    [29] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.12

26. Given this country information the Tribunal accepts the applicant – who would be returning to Myanmar as a stateless Muslim of mixed ethnicity (including Rohingya) and as a failed asylum seeker who has come to the adverse attention of the authorities in the past – faces a real chance of serious harm from the military authorities on return to Myanmar in the foreseeable future.

27. Accordingly the Tribunal finds there is a real chance the applicant will face serious harm at the hands of the military authorities if he returns to Pathein, Ayeyarwady Region in the form of being subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are due to his actual or imputed political opinion, membership of a particular social group of failed asylum seekers, Muslim religion and mixed ethnicity (including Rohingya) in Myanmar as required by s 5J(4)(a).

28. Additionally, the Tribunal is satisfied that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his (actual or imputed) political opinion and/or membership of a particular social group of failed asylum seekers and/or Muslim religion and/or mixed ethnicity.

29. In this case the applicant fears serious harm at the hands of the military dictatorship in Myanmar. Although reports indicate that since the February 2021 coup, the military has lost control of large parts of the country, it is also reported that Myanmar’s military maintains a significant level of control over Yangon, Mandalay, Naypyidaw and other major urban areas.[30] Given this, and DFAT’s advice that the military remains the principal armed actor and is ‘overwhelmingly the main violator of human rights and international humanitarian law’[31] in Myanmar as noted, the Tribunal is not satisfied that the effective protection measures as per s 5LA are available to the applicant in Pathein city, Ayeyarwady Region in Myanmar provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Myanmar for the purposes of s 5LA(2).

    [30] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, p 14.

    [31] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2), at 2.30.

30. For similar reasons and based on such country information (as well as noting the changeability of the situation) the Tribunal is not satisfied that there is any part of Myanmar in which the applicant would be safe from the persecution that he fears based on his actual or imputed political opinion, Muslim religion, mixed ethnicity and/or membership of a particular social group of failed asylum seekers. The Tribunal accepts the applicant would face a real chance of persecution in all areas of Myanmar and therefore he satisfies s 5J(1)(c).

31. The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to ‘alter his or her political beliefs or conceal his or her true political beliefs’, and/or ‘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’, and/or conceal an innate or immutable characteristic which is impermissible as per ss 5J(3)(a), 5J(3)(c)(i) and 5J(3)(c)(vi).

32. For these reasons the Tribunal finds that the applicant faces a well‑founded fear of persecution from the authorities due to the combined reasons of his imputed or actual political opinion, membership of a particular social group of failed asylum seekers, mixed (Karen/Rohingya) ethnicity and/or based on his Muslim religion if he returns to Myanmar, now or in the reasonably foreseeable future. The Tribunal finds that the applicant has a well-founded fear of persecution for the purposes of s 5J.

33. In considering whether he comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant.

34. As well, there is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

101.   Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.

SECOND NAMED APPLICANT

Nationality and ethnicity

102.   In their decision record the delegate for the first visa application records that the second named applicant claimed to be a stateless Muslim of Karen ethnicity born in Thingyanguyn, Rangoon who had never obtained identity documentation including a HRL. Her father is mixed ethnicity (having a Rohingya father and Karen mother) and mother Karen (who also had a Rohingya father and Karen mother). The second named applicant never went to school (nor did her siblings). She left Myanmar along with her family in 2006, aged [age] and left [Country 1] along with her parents, brother and husband in 2012 to Australia.

103.   The delegate notes the second named applicant provided to the Department a translated copy of her marriage certificate – nikah – showing she married the applicant in [Country 1] on 22 Jamadul 1431 (6 May 2010 in the Gregorian calendar) and her UNHCR registration card, issued [in] June 2011. However the delegate was not satisfied the nikah was reliable evidence of her identity given no information was provided about how it was obtained, whether it was registered or certified by any authority, and because the document lacks security features. They were also not satisfied the UNHCR card was reliable evidence of her identity given it was based on verbal information provided by her father. Nonetheless the delegate accepted her name and DOB as indicated for the purposes of assessing her protection claims.

104.   Given the second named applicant arrived in Australia as part of a family group the delegate cross referenced information provided to the Department from the second named applicant’s parents’ and brother’s Departmental files.[32] This raised several concerns about the second named applicant’s claimed statelessness and background, including about her parents’ background, leading the delegate to accept she was Karen and Muslim but not stateless, Rohingya or undocumented. The delegate reached this conclusion based largely on concerns about the second named applicant’s parents’ claimed statelessness/lack of documentation/mixed ethnicity, as set out in detail in their Tribunal decision record.

[32] In their arrival interviews, visa applications and interviews and other Departmental records.

105.   The delegate with respect to the second visa application accepted the second named applicant was Muslim, possibly with mixed Burmese/Karen background however did not accept she was stateless or undocumented, or that she could be identified as Rohingya. The delegate shared some of the concerns raised by the first delegate in particular about the second named applicant’s parents. They accepted the second named applicant was young when she left Myanmar with her parents and may not know the full story of their life or their circumstances. However, the delegate did not believe her parents’ evidence about their background and considered it likely her parents are citizens of Myanmar.

106.   In her oral evidence to the Tribunal the second named applicant said she was born in Yangon and lived in Karen state for some time before she departed Myanmar in 2006 along with her parents, brother and two sisters. She never went to school in Myanmar and never had identity documents, nor did her parents. Presently she lives with her parents and brother in Australia (along with her husband and [daughter]). Her two sisters were resettled to [Country 2], where they currently reside.

107.   The Tribunal notes the second named applicant’s oral evidence about her background and circumstances in Myanmar and that of her parents (including in respect of identity documents, for example) was somewhat vague. However given she was [young] when she left Myanmar, and had no education, this is not surprising. The Tribunal notes her evidence was similarly vague when interviewed by the delegates in relation to the first and second visa applications, which the Tribunal is satisfied can be attributable to her young age at the time and limited education and knowledge of such matters. She was generally consistent with what she said.

108.   In his oral evidence to the Tribunal the applicant confirmed he met his wife in [Country 1] and they married in 2010. He said she also had a difficult situation in Myanmar, as she did not attend school and did not have any identity documents.

109.   On review the representative provided to the Tribunal a copy of [Country 2] visa grant notice for the second named applicant’s sister, [name].

110.   For the reasons set out in detail in the Tribunal’s decision record[33] pertaining to the second named applicant’s parents’ case, the Tribunal accepted her parents were stateless, undocumented Muslims of mixed (Rohingya/Karen) ethnicity. Relying on the same reasoning (and country information about citizenship laws and barriers to accessing identity documents, among other things) detailed in that decision record, the Tribunal also accepts the second named applicant is a stateless, undocumented Muslim of mixed (Rohingya/Karen) ethnicity.

[33] AAT No. 2103226.

111.   The Tribunal notes a reference by the delegate in respect of the first visa application to the second named applicant’s mother indicating she was a Burmese citizen who had given birth to her son (the second named applicant’s brother) in hospital where she was issued a pink birth certificate for him. However it is unclear to the Tribunal where this information came from, as having listened to both delegate interviews, and having regard to the evidence provided in the second named applicant’s mother’s case, and her brother’s case, she does not appear to have said as such. The Tribunal notes there is no reference to the second named applicant’s mother claiming to be a citizen whose son was born in hospital and issued a pink birth certificate in the second delegate’s decision. The Tribunal is therefore of the view this may be a mistake on the part of the first delegate. For the reasons set out in their respective decision records the Tribunal has accepted the second named applicant’s mother and brother are stateless and of mixed Rohingya ethnicity.

PROTECTION OBLIGATIONS: SECOND NAMED APPLICANT

Country of reference

112.   The Tribunal accepts the second named applicant is a stateless Muslim of mixed Rohingya and Karen ethnicity, formerly resident in Myanmar and [Country 1]. The Tribunal has assessed the second named applicant’s claims against Myanmar.

Claims, evidence and findings

113.   The second named applicant has her own protection claims, set out initially in her statutory declaration dated 16 February 2017 provided in support of the first protection visa application, and a further statutory declaration dated 16 January 2018 in support of the second protection visa application.

114.   In summary she claims to fear serious harm on return to Myanmar from the authorities or others as a Muslim with mixed (Rohingya/Karen) ethnicity, whose husband is a Rohingya Muslim. She has additional fears of sexual violence as a Muslim woman (possibly imputed as a Rohingya) for herself and young daughter.

115.   On the basis of above country information and relying on the same reasoning with respect to the applicant’s case, the Tribunal finds as a stateless Muslim of mixed ethnicity and failed asylum seeker the second named applicant faces a well-founded fear of persecution. There is a real chance of this occurring regardless of her history and therefore it has not been necessary to make findings about her specific protection claims.

116.   Accordingly, the Tribunal finds that if the second named applicant returned to Myanmar there is a real chance that she would be subjected to threats to her life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied such treatment amounts to serious harm under s 5J(4)(b) of the Act and that the essential and significant reason for the harm feared by the second named applicant are her imputed political opinion, mixed (Rohingya/Karen) ethnicity, Muslim religion and her membership of the particular social group of failed asylum seekers in Myanmar as required by s 5J(4)(a). Also the Tribunal is satisfied that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c).

117.   Further, the Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar and that she would not be able to access effective protection if returned to Myanmar, as required by s 5J(1)(c) and s 5LA(2). The Tribunal is also satisfied behaviour modification is impermissible in the second named applicant’s case.

1. There is no evidence before the Tribunal to suggest that the second named applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

119.   The Tribunal therefore finds the second named applicant has a well-founded fear of persecution on return to Myanmar for the purposes of s 5J.

THIRD NAMED APPLICANT

120. The Tribunal accepts the third named applicant is the child of the applicant parents. For the reasons above the Tribunal is satisfied her parents are owed protection under s 36(2)(a) of the Act.

121.   Accordingly the Tribunal finds the third named applicant faces a real chance of serious harm on return to Myanmar from the authorities for the essential and significant reasons of her membership of a particular social group consisting of her family (as per s 5K) and membership of the particular social group of failed asylum seekers in Myanmar. It is satisfied the persecution she fears involves systematic and discriminatory conduct. Further, relying on the same reasoning (and country information) as in respect of her parents, the Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar and that the third named applicant would not be able to access effective protection if returned to Myanmar. The Tribunal is also satisfied behaviour modification is impermissible in the third named applicant’s case.

122.   The Tribunal therefore finds the third named applicant has a well-founded fear of persecution on return to Myanmar for the purposes of s 5J.

1. There is no evidence before the Tribunal to suggest that the applicants have a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

124. 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

125.   The Tribunal:

a.Remits matter 1902600 (Safe Haven Enterprise visa application made on 22 March 2017) with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

b.Sets aside the decision in matter 2103248 to refuse the applicants protection visas (Safe Haven Enterprise visa application made on 25 June 2020) and substitutes it with a decision that the visa application was not valid.

Nicole Burns
Member

ATTACHMENT – Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

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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.

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5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

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36     Protection visas – criteria provided for by this Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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