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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1902600 (Refugee)

Details

AGLC: 1902600 (Refugee) [2024] AATA 2682
Case: [2024] AATA 2682
Decision Date: 18 March 2024

CaseChat Overview and Summary

The case involved an applicant seeking a protection visa for Australia, claiming a well-founded fear of persecution upon return to Myanmar. The applicant asserted persecution based on his statelessness, Muslim religion, Rohingya ethnicity, and status as a failed asylum seeker. The decision under review was made by the delegate, and the applicant sought review by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the refugee criterion) or the complementary protection criterion under section 36(2)(aa). This involved determining the applicant's nationality, ethnicity, and religion, and assessing the risks he would face if returned to Myanmar, considering his past experiences, including detention and imprisonment for lacking identification.

The Tribunal found the applicant to be a credible witness and accepted his claims that he is a stateless Muslim of mixed Rohingya and Karen ethnicity from Myanmar. It also accepted his past experiences of detention and ill-treatment in Myanmar due to his lack of identification. The Tribunal considered country information, including a DFAT report, which indicated that stateless persons in Myanmar are denied fundamental rights and basic services. The Tribunal concluded that the decision under review should be remitted for reconsideration, implying that the applicant may be owed protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 3.1–3.3Claims, evidence and findings 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. 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. 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. 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. 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. Given these findings the Tribunal has considered country information about the situation in Myanmar for someone with the applicant’s past experiences and profile. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. 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 APPLICANTNationality and ethnicity 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. 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. 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].