1909307 (Refugee)

1909307 (Refugee) [2023] AATA 4469 (6 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATIONS FOR REVIEW: Applications for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection visa subclass XE-790 Safe Haven Enterprise Visa (‘SHEV’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:Unrepresented
CASE NUMBERS: 1909307 + 2202283

COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Kate Chapple
DATE:6 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal:
a.    remits the matter (bearing Tribunal review case number 1909307) for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
b.    sets aside the delegate’s decision dated 15 February 2022 to refuse to grant the applicant a SHEV (bearing Tribunal review case number 2202283) and substitutes it with a decision that the associated SHEV application was not valid.

Statement made on 06 October 2023 at 1:03pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – race – Rohingya – nationality – stateless – particular social group – failed asylum seeker – religion – Muslim – Bangladeshi citizenship – Bangladeshi passport fraudulently obtained – financial insecurity – refugee camps – repatriation to Myanmar – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 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 dependants.
BACKGROUND

These are applications for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a SHEV under s 65 of the Act.
The applicant claims to be stateless Rohingya born in Myanmar.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. 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 Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a SHEV is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 30 May 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.
The applicant applied for a SHEV on 9 May 2016. A delegate of the Minister decided to refuse to grant this visa. 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 subsections 5H(2), 36(1B), or (1C) or paragraphs 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. Following this, the applicant purported to make a second application for a SHEV on 16 November 2020. However, the applicant’s first SHEV 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 applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The first SHEV was refused by the delegate on 4 December 2017.
On 23 March 2019, the Department wrote to the applicant advising that on 7 January 2019, the Federal Circuit Court declared that the applicant was not correctly notified of the delegate’s decision to refuse the first SHEV. As a result, the Department re-notified the applicant of the refusal decision and his right to seek review under Part 7 of the Act.
The applicant made a valid application for review of the first SHEV refusal decision on 15 April 2019 (case number 1909307),
The second SHEV was refused by the delegate on 15 February 2022. The applicant made an application for review of the second SHEV refusal decision on 21 February 2022 (case number 2202283). However, the second SHEV application is, and always was, barred under s 48A. Accordingly, the second SHEV application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second SHEV and substitute it with a decision that the second SHEV application is invalid.
EVIDENCE BEFORE THE TRIBUNAL
SHEV applications
SHEV application dated 9 May 2016.
Applicant’s statutory declaration dated 26 April 2016.
Applicant’s letter to Department dated 4 July 2016 regarding evidence of identity, nationality, citizenship.
Letter from applicant’s email address dated 25 October 2016 disclosing Bangladeshi citizenship and enclosing a copy of a Bangladeshi passport in the applicant’s name.
Applicant’s statutory declaration dated 8 November 2017.
Letter from Secretary-General of [Community Organisation 1] dated [in] June 2017 confirming the applicant’s Rohingya origin.
Statement of applicant’s brother-in-law dated 28 April 2019.
SHEV application dated 16 November 2020.
[Agency 1] submission dated 7 February 2022.
Other departmental records:
19.1.Decision records relating to the delegate’s refusal decisions.
19.2.Interview audio files
19.3.Case files.
19.4.Internal records relating to the applicant.
Application for review case number 1909307
Application for review dated 15 April 2019.
The Tribunal wrote to the applicant inviting him to attend a hearing on 5 October 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal confirmation that he intended to participate in the hearing with the assistance of a Rohingya interpreter. The applicant requested that the Tribunal take witness evidence from his wife and a volunteer refugee support person. The applicant did not submit any further statements or documents in support of his case.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted in person on 5 October 2023, with the assistance of an interpreter (via video link) in the Rohingya and English languages. The applicant was unrepresented.
At the start of the hearing, the Tribunal summarised for the applicant the status of his applications for review as follows:
Your first application for review was lodged on 15 April 2019 in relation to a SHEV application lodged on 9 May 2016 and visa refusal on 4 December 2017.
Your second application for review was lodged on 21 February 2022 in relation to a SHEV application lodged on 16 November 2020, the visa being refused on 15 February 2022.
At the time of your second SHEV application, it was understood that you were in a category of applicants that were permitted to make a second application on the basis that your first SHEV application was invalid.
However, it has subsequently been determined that your first SHEV application was in fact valid, and on that basis you were never entitled under Australian law to make the second SHEV application.
Consequently your second SHEV application was and remains invalid, and on that basis the Tribunal does not have jurisdiction to review.
Today’s hearing therefore is a review of your first SHEV application. That is Tribunal case number 1909307.
The Tribunal noted to the applicant that when he applied for review of the first SHEV refusal decision, he provided to the Tribunal a copy of the delegate’s refusal decision record, and that some aspects of the contents of the decision would be referenced in the hearing.
The applicant gave evidence, summarised by the Tribunal as follows:
26.1.The Tribunal noted to the applicant that, as indicated in the delegate’s refusal decision record, the Department received verification from the Bangladeshi authorities that the passport issued in his name [in] 2012 and provided to the Department in October 2016 is a genuine document.
26.2.The Tribunal put to the applicant that this is compelling evidence that he is a citizen of Bangladesh and invited him to respond and provide evidence to refute that assertion.
26.3.The applicant said that when he decided to leave Bangladesh, he went to a people smuggler to facilitate a boat passage to [Country 1], however the smuggler wasn’t able to assist, so the applicant went to another smuggler to facilitate the transfer by plane. The second smuggler arranged for a Bangladeshi passport to be issued in the applicant’s name. The applicant said that if he were a Bangladeshi citizen, he would have produced a voter or national ID card and applied for the passport himself, however he does not have any citizenship because he is a Rohingya from Myanmar. The applicant said the passport could be genuine, he’s not sure, but it was obtained by the smuggler, not him.
26.4.The applicant’s sister-in-law’s husband got a copy of the passport from the people smuggler and sent it to the Department. The applicant did not send it to the Department.
26.5.The smuggler told the applicant not to disclose how the passport was obtained. On his arrival in Australia, the applicant was scared and did not say anything about the passport to Australian Immigration.
26.6.The applicant’s parents told him that he was born in [his home village in] Rakhine state, Myanmar in [specified year]; he doesn’t know what date, so it became [a specified date].
26.7.The applicant’s parents told him that he is Rohingya, as they are, having lived in the same village since they were born. His parents are aged [in age range] now. They were [farmers] in Myanmar with their own land.
26.8.The applicant has [specified family members]. The applicant is the [specified position] of the siblings. [Most of his family] were born in Bangladesh.
26.9.The applicant grew up practising Islam.
26.10.The applicant’s parents told him that the local Buddhists in Myanmar beat up and tortured the parents for many years, but when they confiscated their land, the parents decided to leave Myanmar. There were also floods and cyclones in Myanmar at the time.
26.11.The applicant thinks he was aged between [age range] when he left Myanmar in 1990 with his parents and siblings.
26.12.The applicant’s parents decided to go to Bangladesh because at the time many Rohingya from Myanmar were doing the same thing. His parents had no previous ties to Bangladesh.
26.13.The applicant’s parents told him the family went initially to live in a refugee camp called [Camp 1]. He thinks they couldn’t register as refugees with UNHCR because his parents lost their Myanmar documents in the floods. Previously, his mother had an ID card and his parents also had a family list. Also, he thinks there was a limit on the number of refugees who could be registered with UNHCR and they arrived too late to be included. The camp was densely populated. While there, his father worked for the NGO, [Agency 2].
26.14.After 6 or 7 years living in the camp, the applicant’s family moved to a nearby village called [Village 1] where there was a mix of Bangladeshis and Rohingya. It was in the countryside. His father continued working for [Agency 2]. His parents didn’t have any problem accessing services; they had the support of the local people in the village. The applicant never tried to conceal his Rohingya ethnicity. Maybe a thousand people lived in the village.
26.15.In 2003, the applicant’s father left his mother and children and remarried. The applicant attended the local school for 4 or 5 years, however after his father left, he felt an obligation to his mother and siblings to support the family. He started work around age 12 or 13 in a [shop] and on a [plantation]. He didn’t have any trouble getting work. He also learned about [specified products] through a person he knew who worked in a [related] shop.
26.16.The applicant is in regular contact with his mother who lives with his [sibling] aged [range] in the same village. His other siblings, all in Bangladesh, are married now and live with their own families; he talks to them every 6 months or so.
26.17.None of the applicant’s family in Bangladesh have any citizenship, including [the] siblings who were born there, although they have been issued vaccination cards.
26.18.It was hard to feed and support the family in Bangladesh because there was so little money. The applicant decided to go to [Country 1] so he could earn more money to support his family.
26.19.As described earlier in this decision record, the applicant left Bangladesh by plane in mid-2012 using the Bangladeshi passport obtained by the people smuggler. He flew first to [Country 2], and thereafter the applicant gave a detailed description of his journey by various [transport] through [Country 2] and [Country 3], and ultimately arriving in [Country 1]. He spent only days in [Country 1] because he and many others were encouraged by the people smugglers to go to Australia instead because there were more opportunities to earn money. He stayed in [one city] for a couple of months before boarding a boat to Australia.
26.20.The applicant initially went into detention when he arrived in Australia. Only a couple of weeks later he met his now wife. Their mothers had been friends for a long time. His mother (in Bangladesh) got in touch with his wife’s mother (in Australia) and arranged for the applicant and his wife to meet. His wife came to Australia in 2009 from Bangladesh on a humanitarian visa with UNHCR and has since become a citizen. She is Rohingya originally from Myanmar. They married, and now have [number] children aged [ages], all born in Australia and Australian citizens.
26.21.The applicant works as an [occupation 1] and helps with the children. Depending on his income and savings, the applicant sends $300-500 per month to Bangladesh to help support his mother and [sibling].
26.22.The Tribunal referred to the letter from [Community Organisation 1] dated [in] June 2017, in particular the statement that they had thoroughly investigated his background, identity, language and so on. The Tribunal asked the applicant how they conducted these investigations and what evidence they relied on. He said he doesn’t know; they talked to his mother and wife, and he didn’t tell them about the passport because they didn’t ask.
26.23.The applicant considers Myanmar his home country, though he lived most of his life in Bangladesh before coming to Australia.
26.24.The applicant believes that if he is sent back to Bangladesh they won’t accept him because he’s been overseas and he doesn’t have a passport. He believes that even if he did have a passport, they wouldn’t accept him and he’d be accused of something political and jailed.
The applicant’s wife gave evidence, summarised by the Tribunal as follows:
27.1.She is an Australian citizen. She came to Australia with her mother and [a sibling] in 2009 as part of a UN refugee program on a 200 visa. She was granted citizenship in 2013.
27.2.Her mother and her husband’s mother have been friends since childhood. When her husband was released from detention, her mother talked to his mother and they arranged to meet in [Australian city].
27.3.She was [age range] old when she left Myanmar with her family to live in Bangladesh.
27.4.She is a refugee and got citizenship in Australia. Her husband is also a refugee, he doesn’t have a country, and he is married here with [number] children.
The volunteer refugee support person gave evidence, summarised by the Tribunal as follows:
28.1.In 2013 she was doing voluntary work with [Agency 3] helping refugees to apply for citizenship or complete government and Centrelink forms. The applicant’s wife and her mother had been in the country for 4 years and eligible to apply for citizenship. The applicant’s wife was pregnant at the time, and her mother elderly and frail. She gave them a lift home because they would otherwise have had to take two trains, which would have been exhausting for them. They invited her into their home, and since then they have been friends.
28.2.She’s no longer volunteering with [Agency 3], however she became friends with a couple of families and she helps them with advice and support.
28.3.She is aware the applicant came to Australia by boat, he’d first known his wife when they lived in a refugee camp together, and was interested in reconnecting with her in Australia.
28.4.Over the years, she has observed the family as welcoming, warm and generous. They are very settled here, as much as they can be when the applicant is stateless. The uncertainty around the applicant’s visa status is causing extreme stress for him and his wife, and it affects the children as well. He is a very hard working person, he sees himself as the main support in the family. He has actively sought to learn English to improve his employment prospects. His job as an [occupation 1] gives him the flexibility to look after his family while earning money to support them. He is a very involved parent, and spends a lot of time with his family actively engaging with the community.
28.5.She believes the Rohingya are among the most marginalised on the planet, they’re homeless, without citizenship or rights, women and men are at risk, there are limited opportunities for schooling, there is no access to legal support.
Country information
The November 2022 DFAT Country Information Report for Myanmar states (inter alia) that:
29.1.[3.5] The Rohingya are a predominantly Sunni Muslim ethnic group, the vast majority of whom live in Rakhine State in north-western Myanmar. They speak an Indo-Aryan language closely related but not identical to the dialect of Bengali spoken in the Chittagong region of Bangladesh. The Rohingya trace their origins to Muslim traders and bodyguards who lived in north-western Myanmar since the Mrauk-U period (1430-1784), although many migrated from Bangladesh more recently, especially during the British colonial period (1784-1948). An estimated 1.2 million Rohingya lived in Myanmar before August 2017, when a military crackdown drove around 700,000 to flee to Bangladesh.
29.2.[3.6] Since the 1962 military coup, successive governments have claimed the Rohingya are illegal migrants from Bangladesh, marginalising them and progressively stripping them of their rights. Up until the late 1980s, many Rohingya held National Registration Cards (NRCs) identifying them as Burmese citizens, but following a ‘citizenship scrutiny’ exercise in 1989, these were replaced with Citizenship Scrutiny Cards (CSCs), of which very few were issued to Rohingya. In 1995, the government began issuing Temporary Registration Cards (TRCs, also known as ‘white cards’) to the Rohingya, but these were declared invalid in 2015, leaving most Rohingya undocumented and effectively stateless.
29.3.[3.7] Due to their exclusion from citizenship the Rohingya are denied fundamental rights and basic services in Myanmar, including access to healthcare 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. The Rohingya are particularly affected by the Burma Citizenship Act of 1982 and the Race and Religion Laws (see Religion), which simultaneously exclude them from citizenship and single them out for discrimination. They have been subjected to repeated waves of violence and displacement in Myanmar since independence: in 1977-1979, 1991-1992, 2012, 2015, and 2016-18. They are also frequently called by racial slurs and subject to hate speech, including on the basis of their Muslim religion.
29.4.[3.10] As of 2022, about 130,000 Rohingya were living in ‘temporary’ camps in central Rakhine, having been there since state-sponsored violence displaced them in 2012. Multiple sources told DFAT conditions in these camps were dire, shelter was inadequate and deteriorating, and residents were entirely dependent on limited outside aid for food, medical care and education. COVID-19 and the coup have both reportedly contributed to a decrease in external monitoring of these camps, as well as the withdrawal of key humanitarian donors, although some monitoring trips were taken in late 2021 and early 2022. Another 100,000 or so Rohingya live in in isolated villages in central Rakhine, surrounded by security forces and other, often hostile, ethnic communities. Rohingya living in these areas are among the most vulnerable populations in Myanmar. They are not allowed in towns and cannot access markets, schools or healthcare, except through onerous permit procedures. Employment opportunities are scarce, and workers including fishermen are required to pay bribes to be allowed to work. A further 400,000 or so Rohingya live in northern Rakhine, where they make up the majority of the population. Rohingya in these areas are not allowed to enter other townships, but they can travel within their own townships and have some access to education and healthcare.
29.5.[3.11] Throughout Rakhine, Rohingya are vulnerable to people trafficking and exploitation by criminal gangs, as well as violence at the hands of security forces and other ethnic groups. Freedom of movement is highly restricted, and land disputes between Rohingya and other ethnic groups are common. 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.
29.6.[3.12] DFAT assesses 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.
29.7.[3.27] There are a number of distinct Muslim communities living throughout Myanmar, including the Kaman, Pantay, Pashu, Rohingya and Zerbadee. Most follow the Sunni sect. According to the 2014 census, Muslims made up approximately 4 per cent of the population, although this figure undercounts Rohingya Muslims, who were effectively excluded from participating. The majority of Muslims live in northern Rakhine State, but there are also Muslim communities in Yangon, Ayeyarwady, Magway, and Mandalay.
29.8.[3.32] DFAT assesses 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.
29.9.[5.2] Sources familiar with the Myanmar military told DFAT it lacked professionalism at an institutional level, as demonstrated by its unrestrained use of violence against civilians. Before and since the 2021 coup, soldiers have been accused of human rights abuses including extrajudicial killings, torture, rape and other forms of sexual violence, arson, indiscriminate shelling and aerial attacks, and laying landmines in civilian areas. An OHCHR report in September 2020 detailed severe human rights abuses by the military against civilians in Rakhine, Chin and Shan States. In March 2022, the US Government declared that violence committed against the Rohingya minority by the military amounted to genocide and crimes against humanity.
29.10.[5.9] The Myanmar Police Force has been accused of widespread human rights violations, including beatings, extrajudicial killings, torture, sexual abuse and arbitrary detention.
29.11.[5.25] DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.
29.12.[5.29] Since Myanmar’s independence, a variety of identity cards have been issued under different laws:
·National Registration Card (NRC): Often referred to as the ‘three-folding card’, NRCs were issued under the 1949 Registration of Residents Act from 1949 to 1989. NRCs offer full access to citizenship rights and do not record ethnicity or religion. They were later replaced by CSCs. In 2017, the government launched a pilot project to replace paper-based NRCs with an electronic card in Nay Pyi Taw, Mandalay and Yangon regions, and Rakhine State. Rohingya and Rakhine Muslims who surrendered their NRCs as part of the citizenship scrutiny process in the early 1990s did not receive CSCs in return.
·Temporary Registration Card (TRC): Known as the ‘white card’, the TRC was intended as a temporary replacement for people whose NRC was lost or damaged. However, from 1995 Myanmar authorities began issuing TRCs to Rohingya and other minorities not officially recognised in the eight national races of the Burma Citizenship Act of 1982, supposedly while their citizenship status was being determined. TRCs were revoked in 2015, and replaced with a Temporary Approval Card (TAC) or ‘white card receipt’. The TAC’s legal basis is unclear, and it does not confer any citizenship rights.
·Citizenship Scrutiny Card (CSC): Introduced under the Burma Citizenship Act of 1982, CSCs were issued in accordance with the three categories of citizenship: full (‘pink card’), associate (‘green card’) and naturalised (‘blue card’). CSCs include ethnicity and religion information. Very few CSCs have been issued to Rohingya.

The Department of Home Affairs Common Claims for Bangladesh dated 6 July 2023 states (inter alia) (footnote references not included in this decision record):
30.1.Rohingya refugees from Myanmar have arrived in Bangladesh in waves since at least the 1970s. As of 31 October 2022, there were a total of 948,402 Rohingya refugees in Bangladesh registered under a Government of Bangladesh-UNHCR joint registration process. In October 2019, standardised registration procedures for marriage and divorce were introduced in all camps. In January 2020, continuous registration procedures (excluding birth unless children have been born to Bangladeshi nationals) were launched. The registration process — suspended since March 2020 due to the COVID-19 pandemic — resumed in September 2020. The Rohingya reside in almost all of Bangladesh’s 64 districts, including in Dhaka, in thirty-three congested camps formally designated by the Government of Bangladesh in the Cox’s Bazar District as well as on the island of Bhasan Char. The overwhelming majority of both new and old Rohingya arrivals live in Cox’s Bazar district, which is prone to natural disasters. Not all Rohingya who have fled to Bangladesh are Muslims. It is estimated that of all the Rohingya in Bangladesh, several hundred are Hindus and about 1,500 are Christians. Five years after the Myanmar military operations in northern Rakhine State, Human Rights Watch assessed in August 2022 that Bangladesh authorities have recently intensified restrictions on livelihoods, movement, and education that make many refugees feel unwelcome, and officials have closed community-led schools, arbitrarily destroyed shops, and imposed new obstacles on travel. Women, girls and boys, who make up the majority of the Rohingya refugee population, disproportionately affected by the crisis due to their physical, psychological, and social vulnerabilities, are at risks of abuse, exploitation and gender-based violence. The government did not sufficiently investigate and prosecute trafficking cases involving the exploitation of Rohingya refugees, and observers alleged some Bangladeshi officials facilitated trafficking of Rohingya, including by accepting bribes from traffickers to gain access to camps.
30.2.The Rohingya in Bangladesh do not have access to citizenship. Bangladesh is not a party to the 1951 Refugee Convention and its 1967 Protocol and does not recognise Rohingya as refugees or grant them citizenship; instead the Rohingya are regarded as ‘forcibly displaced Myanmar nationals’ (FDMNs). The government, however, abides by many of the established UN standards for refugees in practice. The Rohingya in Bangladesh are stateless; despite the Citizenship Act of 1951 recognising every individual born in Bangladesh as a citizen of the country by birth, and its 2009 amendment to allow anyone born in the country to either a Bangladeshi mother or father the right to claim citizenship, there were cases in which children born to one Bangladeshi parent and one Rohingya parent were not recognized as citizens. The Bangladeshi government did not register births for nor extend citizenship to Rohingya refugees born in the country, although it permitted UNHCR to register births within the refugee camps.
30.3.The Rohingya are not legally entitled to work and have limited employment opportunities. Although the government does not formally permit Rohingya the right to work, it has allowed the Rohingya to participate in limited cash-for-work activities to perform tasks within refugee camps. Despite their movement restrictions, some refugees work illegally as manual labourers in the informal economy, where some are exploited as labour trafficking victims. Some Rohingyas also work outside the camps as day labourers or as domestic help. Some Rohingya residing in camps are able to gain work with humanitarian agencies activities such as camp maintenance or mentoring and education programmes for other camp residents. Some of the pre-August 2017 arrivals used fraudulent identity documents such as National Identity Cards to access work. A 2019 UK All-Party Parliamentary Group report found that the current lack of livelihood opportunities in the camps have increased the risk of exploitation of women and girls, particularly adolescent girls, through early marriage, survival sex, and trafficking for sexual exploitation and/or forced labour. Child trafficking mostly involving girls and often relating to child marriage based on false promise of economic stability is used to lure the victims into trafficking and smuggling schemes. It has also been reported that some Rohingya earn an income through the trafficking of illicit substances such as Yaba and by trading in weapons. Since December 2021, Bangladesh authorities have shut down schools established to compensate for the lack of formal and secondary-level education in the refugee camps, and threatened to confiscate Rohingya refugees' identity documents and forcibly relocate them if they violate the ban on refugee-led schools. In April 2022, Bangladesh authorities were holding more than 300 Rohingya after police caught them working outside their refugee camps in Cox's Bazar, or while leaving their shelters for other purposes.
30.4.The Rohingya have limited access to the formal justice system but are receiving more legal assistance. Registered refugees can access the formal justice system only with the support of NGOs and when sanctioned by the Camp in Charge who can mediate disputes. Factors such as socio-cultural dynamics, host community issues, costs, corruption, and bureaucratic obstacles act as barriers to accessing the formal justice systems. Legal aid services are provided in all 33 camps including mediation, lodgement of complaints at police stations and courts, representation and advocacy. Although the government’s joint registration with UNHCR to verify Rohingya refugees was completed in 2019, the lack of formal refugee status for Rohingya and clear legal reporting mechanisms in the camps can impede refugees’ access to the justice system. Although access to justice has improved, prison visits by relatives of detained refugees remain suspended, and legal literacy sessions resumed in November 2020 on a limited scale.
30.5.The Rohingya have some access to public health care. Government authorities allow registered and unregistered Rohingya regular access to public health care, but the Rohingya needed authorities’ permission to leave the camp. Prior to the 2017 Rohingya influx, the government and the UNHCR provided temporary protection and basic assistance to approximately 33,000 registered Rohingya refugees living in two official camps (Kutupalong and Nayapara), while the government and the International Organization for Migration (IOM) provided assistance to approximately 200,000 undocumented Rohingya living in makeshift settlements in Cox’s Bazar. Aid agencies provide psychosocial (physical and mental health) support to people with special needs. Vaccination against COVID-19 has been made available to adults and children in Cox’s Bazaar camps. As of September 2022, 453,160 Rohingya refugees in Cox’s Bazar received two doses of the COVID-19 vaccine, in which 88 percent of Rohingya 12 years or older had received two doses; in Bhasan Char, 11,651 refugees had received second doses of COVID-19 vaccine.
30.6.Communal tensions exist between Rohingya and Bangladeshi locals in Cox’s Bazaar. The locals in Bangladesh were initially welcoming of the Rohingya. The influx of Rohingya particularly after August 2017 and successive delays in their repatriation have since generated tensions between Rohingya and locals, with Rohingya now outnumbering locals by around two to one. Public support in Bangladesh for the Rohingya has declined, where Bangladeshis are worried about unemployment, increased crime and conflict, price inflation, and overpopulation, all of which they attribute to the Rohingya. During the COVID-19 pandemic, tensions in the relationship between the Rohingya and the locals increased as Rohingya reported arbitrary increase of rent on land by the locals, threats of eviction from land, and harassment, physical violence, robbery, and extortion allegedly perpetrated by the locals. There is some resentment about Rohingyas who are seen as competitors for jobs and resources. There have been efforts from organisations, such as the World Bank and other NGOs, to help the Bangladesh government to scale up access to essential services such as water, energy, sanitation and disaster-resilient infrastructure for the Rohingya and the surrounding host communities.
30.7.Authorities have issued identity documentation to Rohingya refugees. Participants in a family counting exercise conducted by the Ministry of Disaster Management and Relief and UNHCR receive an RRRC-Card (Refugee Relief and Repatriation Commissioner Card); by the end of September 2019, 905,822 refugees had been identified in camps (including 34,172 registered before 31 August 2017). By December 2019, 819,787 Rohingya had been issued biometric ID cards, which are reported to be ‘fraud-proof’, and are issued to all verified refugees over 12 years of age. Following the completion of the initial registration exercise on 31 December 2019,102 the Joint Government of Bangladesh-UNHCR registration exercise entered a third phase in January 2020, focusing on updating registration data (i.e., births, deaths and changes in marital status), including biometric data, as well as the issuance of documentation to ensure that refugees can access assistance and services. The identity of 93 per cent of about 880,133 Rohingya who were counted in a joint UNHCR/Refugee Relief and Repatriation Commissioner (RRRC) in 2018 have been ‘newly verified and registered through the joint registration exercise’. The UNHCR reported that ‘while formal birth certificates are not issued to refugee children by the Government, new born children are added to the cases of their parents in the UNHCR-Government joint registration database based on the documents issued by the healthcare facilities in the camp such as antenatal card, vaccination card and birth notification’, including those born at home. As of September 2022, approximately 945,953 Rohingya refugees were registered in Bangladesh as part of the Government-UNHCR joint registration exercise.
30.8.More Rohingya arrived in Bangladesh on boats after failing to enter Malaysia or other countries in the region. In April 2020, Bangladesh rescued about 400 Rohingya who had failed to enter Malaysia and were stranded at sea. More than two dozen Rohingya had died on the boat before the rescue. The rescued Rohingya were sent to two institutional quarantine centres in Cox’s Bazar under UNHCR’s supervision as a precaution against the COVID-19 pandemic. In late April 2020, an estimated 700 Rohingya stranded at sea in two trawlers in the Bay of Bengal near Cox’s Bazar were reported. The Bangladesh government, after initially refusing the Rohingya entry despite pleas from international human rights agencies, later relocated the rescued the Rohingya to Bhasan Char. In June 2020, Bangladesh refused to accept 269 Rohingya detained by Malaysia.
30.9.The government has relocated more Rohingya from the mainland to Bhasan Char. Human Rights Watch reported that since December 2020, the government has moved nearly 20,000 Rohingya refugees to Bhasan Char, where refugees and humanitarian workers alike fear that inadequate storm and flood protection could put those on the island at serious risk. According to UNHCR’s October 2022 report, there were 28,473 Rohingya residing in Bhasan Char. On 31 May 2021, thousands of refugees gathered to try and meet with a delegation of UN officials who were visiting Bhasan Char and to protest conditions, many saying that they do not want to remain on the island, and described the inadequate health facilities on the island. It was reported that foreign donors are reluctant to fund aid on Bhasan Char, about $100 million needed, which may impact on preventing basic services from scaling up and leaving refugees in limbo. In January 2021 a majority of the first group of 3,446 Rohingya who had been relocated to Bhasan Char reportedly expressed satisfaction with new accommodation with better security and it was less crowded. By December 2022, the government relocated some 30,000 Rohingya refugees from the camps in Cox’s Bazar to Bhasan Char on a voluntary basis, and plans to continue with a total of 100,000 refugees by the end of 2023.
30.10.The repatriation of Rohingya refugees to Myanmar slated to commence in January 2018 continues to be delayed. Bangladesh and Myanmar signed a repatriation agreement in November 2017 and a Memorandum of Understanding in May 2018 but they are yet to be implemented as the Rohingya have refused to return, citing ongoing concerns around accessing identity documents, the security situation in the Rakhine State and distrust in Myanmar’s unverified assurance of improved conditions. The repatriation process continues to face challenges as the Rohingya ask for citizenship in Myanmar, safe living conditions, and voting rights as conditions prior to return, while the Myanmar government reportedly has no intention, motivation, or pressure to comply with the demands of Rohingya refugees and the Bangladeshi government. On 20 October 2022 Bangladesh Foreign Minister stated that Myanmar has agreed to take back the Rohingya refugees under the bilateral agreement signed in 2017, however criticized Myanmar’s authorities for complicating the process by demanding identity documents from the Rohingya. Meanwhile there were reports of ARSA rebels and armed criminal gangs targeting community leaders for attack, particularly those advocating for repatriation to Myanmar.
30.11.While nominally secular, Islam functions as Bangladesh’s state religion, with religious minority groups continuing to remain vulnerable. The US government estimates the total population at 165.7 million people (midyear 2022 estimate). According to the 2022 census, Sunni Muslims constitute 91 percent of the population and Hindus 8 percent. The remainder of the population is predominantly Christian (with approximately 400,000 Roman Catholic) and approximately one million Theravada-Hinayana Buddhist. The country also has small numbers of Shia Muslims, Baha’is, animists, Ahmadi Muslims, ISKCON members, agnostics, and atheists, with estimated numbers to be between a few thousand and 100,000 adherents. The constitution designates Islam as the state religion but upholds the principle of secularism. It prohibits religious discrimination and provides equality for all religions. Intense religious polarization orchestrated partly by Islamists and other political parties for political benefits has impacts on society’s cohesion.
The November 2022 DFAT Country Information Report for Bangladesh states (inter alia) that:
31.1.[3.18] The Rohingya are an ethnic group from northern Myanmar who have sought refuge in Bangladesh for decades due to periods of violence in Rakhine State. Most recently, following violence in Myanmar’s Rakhine State in August 2017, over 700,000 Rohingya people fled across the border and now reside in 33 refugee camps in Cox’s Bazar, joining an existing Rohingya population of approximately 300,000.
31.2.[3.19] Rohingya living in camps experience high rates of poverty and crime, and are almost entirely reliant on humanitarian assistance. The number of arrivals has placed immense strain on infrastructure, services, the environment and the host population. The camps are overcrowded and shelters are not made of durable materials that can resist extreme weather events. Cox’s Bazar District is prone to natural disasters, like flooding and cyclones. According to The Guardian, 21,000 Rohingya were displaced by monsoon-related floods that hit in July 2021. A massive fire at a camp in Cox’s Bazar in March 2021 destroyed hundreds of tents, health centres and other facilities and killed at least 15 people.
31.3.[3.22] Rohingya are not permitted to work. In practice some do work, for example in small shops or home-based enterprises in the camps, or through joining the local informal economy. Sources told DFAT that daily exit/entry for work outside the camps happens but there are fences and checkpoints around the camps that aim to prevent this.
31.4.[3.31] Rohingya are difficult to distinguish from local Bangladeshis, particularly by people who are neither Rohingya nor from Cox’s Bazar. There are some linguistic and cultural differences, but several local sources told DFAT some Rohingya are motivated to lessen these in order to obtain informal employment. Over time these cultural or linguistic distinctions sometimes simply diminish due to living in close proximity with Bangladeshis. Conversely, Rohingya customs can easily be adopted by non-Rohingya who are seeking aid or migration opportunities. Some Rohingya are also visually similar to some Indigenous groups in Bangladesh. Analysis of linguistic and cultural difference is not necessarily a reliable method of distinguishing Rohingya from Bangladeshis from Cox’s Bazar.
31.5.[3.32] DFAT assesses that Rohingya in Bangladesh are at high risk of violence within camps (often from other Rohingya) and in the broader community. They are also subject to a moderate risk of discrimination on the basis of both their ethnicity (noting that they are often able to blend into local communities and economies) and their lack of legal status in Bangladesh.
31.6.[3.33] According to the 2021 US Department of State International Religious Freedom Report on Bangladesh, 89 per cent of the population is Sunni Muslim and 10 per cent is Hindu. The remaining population is mostly Christian or Buddhist.
31.7.[5.25] Bangladesh is a country with a very large diaspora and a strong outward migration culture, and tens of thousands of Bangladeshis exit and enter the country for employment each year. The government does not have the capacity or interest to check or monitor each of these people. If they have a particular political profile, their entry into Bangladesh could be noted; however, this is unlikely for the vast majority of returning Bangladeshis and DFAT is not aware of any instances of returnees being detained at the country’s borders for overseas political activities.
31.8.[5.26] DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.
31.9.[5.31] All citizens aged over 18 must have a National Identity Card (NIC) issued by the Bangladesh Election Commission (BEC). NICs are valid for 15 years and are required for a wide range of transactions including voting, banking, obtaining a passport, purchasing property and other major transactions. To obtain a NIC applicants must provide their electoral roll serial number, personal particulars (parents’ names, date of birth and residential address), thumbprints, photograph, and signature. The BEC crosschecks these details against applicants’ electoral roll details. Applicants can provide proof of residence using a range of official documents, including drivers’ licences and utility bills. Cardholders are not required to update their residential addresses should they move.
31.10.[5.32] ‘Smart NICs’ have been issued since 2016. The cards are machine-readable and contain various biometric information about a citizen embedded in a microchip. Smart cards have security features including photographs and electronic chips. Many older cards without security features are still in use. People in urban areas are more likely to have a Smart NIC, but, at the time of writing, older style NICs were still valid.
31.11.[5.36] Some earlier Rohingya arrivals who have lived in Bangladesh since the 1990s were registered at the time and have several forms of identification, including UNHCR identity cards, birth certificates, World Food Programme Cards and other documents. A 2016 voluntary census registered many more arrivals and these people received a laminated biometric identity card.
31.12.[5.37] As with all people living in Bangladesh, Rohingya might be able to access false passports, which could ostensibly demonstrate Bangladeshi citizenship. Such passports are also known to be held by Rohingya overseas. These passports are sometimes entirely fraudulent, having been forged by people smugglers, rather than being fraudulently obtained genuine documents. Some applicants arrive in Australia on genuinely issued Bangladeshi passports then claim the document was fraudulently obtained before claiming to be a stateless Rohingya.
CONSIDERATION OF CLAIMS AND EVIDENCE

The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken into account the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
In particular, the Tribunal notes the following guidelines:
35.1.[6] Evidence considered by the tribunal may include written submissions, an applicant’s oral evidence, oral evidence from other persons, information about conditions and laws in an applicant’s country of origin, expert evidence in the form of written reports or oral evidence and documentary evidence provided by an applicant or the Department of Immigration and Border Protection (the department). Applicants for protection visas are often unable to support claims by documentary or other proof.
35.2.[7] The tribunal is not bound by legal forms and technicalities or the rules of evidence. The tribunal considers all of the evidence available in order to make the correct or preferable decision. Evidence is assessed in its entirety, not just in isolated parts. The tribunal assesses evidence by weighing up its probative value and relevance to an applicant’s claims. There is no requirement in law that evidence must be independently corroborated before it can be accepted by the tribunal.
35.3.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
35.4.[9] Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
35.5.[10] The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
35.6.[11] In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.
35.7.[27] Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it to assess whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.
35.8.[28] When forming a view on the credibility of claims, the tribunal should consider the overall consistency and coherence of an applicant’s account.
The Tribunal has considered the applicant’s oral and written evidence taking into account his very young age when he left Myanmar, his reliance on his parents’ narrative of his early life, the circumstances of his passage to Australia, his lack of English skills at the time, his lack of identification and other personal documentation, his detention on arrival, and the significant time that has elapsed between his departure from Bangladesh and the Tribunal hearing.
The Tribunal considers the applicant’s evidence credible overall.
The Tribunal notes the letter from [Community Organisation 1] attesting to the applicant’s Rohingya ethnicity. The Tribunal further notes the applicant was unable in his evidence to say how they conducted the investigations and the evidence they relied on. The Tribunal considers it is possible that the community group independently verified the applicant’s ethnicity, however in the absence of any further evidence, the Tribunal affords the letter neutral weight.
Directly relevant to the applicant’s claims for protection, the Tribunal accepts:
39.1.The applicant was born in Rakhine state, Myanmar to Rohingya parents.
39.2.It is likely the applicant was born sometime in [year].
39.3.The applicant is of Rohingya ethnicity.
39.4.The applicant is a Sunni Muslim.
39.5.As a very young child, the applicant relocated with his parents from Myanmar to Bangladesh.
39.6.It is likely the relocation occurred sometime in 1990.
39.7.It is likely the parents were persecuted in some way in Myanmar and decided to leave for that reason.
39.8.The applicant and his family lived for some years in a refugee camp in Bangladesh before moving to a village nearby.
39.9.It is likely the applicant and his family were not registered as refugees in Bangladesh with UNHCR.
39.10.It is likely the applicant lived in Bangladesh from sometime in 1990 to sometime in 2012, a period of around 22 years, between the ages of [approximate ages].
39.11.The applicant engaged people smugglers to facilitate his departure from Bangladesh in 2012 to [Country 1] and ultimately to Australia.
39.12.It is likely the applicant has no identification or other personal documents verifying his ethnic, citizen or refugee status.
39.13.It is likely the Bangladeshi passport issued in the applicant’s name and verified by the Bangladeshi authorities is a genuine document fraudulently obtained.
39.14.The Bangladeshi passport, which expired in [2017], is not in the applicant’s possession or control.
39.15.As a Rohingya, the applicant has no right to citizenship of Myanmar or Bangladesh.
39.16.It is likely the applicant is stateless.
39.17.The applicant fears being targeted and harmed if he returns to Bangladesh and/or Myanmar.
The Tribunal notes the applicant’s evidence that, while living in Bangladesh, he did not conceal his Rohingya ethnicity, his parents did not have problems accessing services, he didn’t have any trouble getting work, and as a family they had the support of the local people in their village who were a mixture of Rohingya and Bangladeshi.
The Tribunal notes the applicant’s evidence that it was hard to feed and support his family in Bangladesh because there was so little money, and he decided to go to [Country 1], initially, then Australia, to earn more money.
The Tribunal considers it is likely the financial hardship and insecurity the applicant and his family experienced in Bangladesh was due in part to their Rohingya ethnicity.
The Tribunal considers the witnesses’ evidence credible overall.
The Tribunal notes in particular the following most recent country information relating to the experiences of Sunni Muslim Rohingya in Bangladesh and Myanmar and relevant to the applicant’s circumstances:
44.1.The Rohingya reside in almost all of Bangladesh’s 64 districts, including in Dhaka, in thirty-three congested camps formally designated by the Government of Bangladesh in the Cox’s Bazar District as well as on the island of Bhasan Char.
44.2.Human Rights Watch assessed in August 2022 that Bangladesh authorities have recently intensified restrictions on livelihoods, movement, and education that make many refugees feel unwelcome, and officials have closed community-led schools, arbitrarily destroyed shops, and imposed new obstacles on travel. Women, girls and boys, who make up the majority of the Rohingya refugee population, disproportionately affected by the crisis due to their physical, psychological, and social vulnerabilities, are at risks of abuse, exploitation and gender-based violence.
44.3.The Rohingya in Bangladesh do not have access to citizenship.
44.4.The Rohingya [in Bangladesh] are not legally entitled to work and have limited employment opportunities. Although the government does not formally permit Rohingya the right to work, it has allowed the Rohingya to participate in limited cash-for-work activities to perform tasks within refugee camps. Despite their movement restrictions, some refugees work illegally as manual labourers in the informal economy, where some are exploited as labour trafficking victims. Some Rohingyas also work outside the camps as day labourers or as domestic help. Some Rohingya residing in camps are able to gain work with humanitarian agencies activities such as camp maintenance or mentoring and education programmes for other camp residents. In April 2022, Bangladesh authorities were holding more than 300 Rohingya after police caught them working outside their refugee camps in Cox's Bazar, or while leaving their shelters for other purposes.
44.5.The Rohingya [in Bangladesh] have limited access to the formal justice system but are receiving more legal assistance.
44.6.Public support in Bangladesh for the Rohingya has declined, where Bangladeshis are worried about unemployment, increased crime and conflict, price inflation, and overpopulation, all of which they attribute to the Rohingya. There is some resentment about Rohingyas who are seen as competitors for jobs and resources.
44.7.The government has relocated more Rohingya from the mainland to Bhasan Char. Human Rights Watch reported that since December 2020, the government has moved nearly 20,000 Rohingya refugees to Bhasan Char, where refugees and humanitarian workers alike fear that inadequate storm and flood protection could put those on the island at serious risk. On 31 May 2021, thousands of refugees gathered to try and meet with a delegation of UN officials who were visiting Bhasan Char and to protest conditions, many saying that they do not want to remain on the island, and described the inadequate health facilities on the island.
44.8.The repatriation of Rohingya refugees to Myanmar slated to commence in January 2018 continues to be delayed. The repatriation process continues to face challenges as the Rohingya ask for citizenship in Myanmar, safe living conditions, and voting rights as conditions prior to return, while the Myanmar government reportedly has no intention, motivation, or pressure to comply with the demands of Rohingya refugees and the Bangladeshi government.
44.9.Islam functions as Bangladesh’s state religion. Sunni Muslims constitute 91 percent of the population.
44.10.DFAT assesses that Rohingya in Bangladesh are at high risk of violence within camps (often from other Rohingya) and in the broader community. They are also subject to a moderate risk of discrimination on the basis of both their ethnicity (noting that they are often able to blend into local communities and economies) and their lack of legal status in Bangladesh.
44.11.DFAT assesses 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.
44.12.DFAT assesses 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.
44.13.DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.
While the applicant’s family have continued to live in Bangladesh, the Tribunal considers that the applicant is vulnerable to adverse attention from the Bangladeshi authorities as a Rohingya returning to Bangladesh after more than 10 years from a Western country for the following reasons in particular:
45.1.As a Rohingya refugee, the applicant was never issued identity documents by the Bangladeshi authorities when he lived in Bangladesh.
45.2.The applicant’s absence from Bangladesh has denied him any opportunity to have been subsequently issued identity documents by the Bangladeshi authorities, which may have improved his legal status and access to services and employment.
45.3.It is likely the acceptance the applicant experienced as a Rohingya refugee amongst Bangladeshis during the 22 years he lived in Bangladesh has been diminished or negated by his long absence in a Western country.
45.4.DFAT’s assessment that the vast majority of returning Bangladeshis, including failed asylum seekers, would not attract the adverse attention of the Bangladeshi authorities does not apply to the applicant because he is, and would be regarded as, a stateless Rohingya refugee and not a citizen of Bangladesh on his return to Bangladesh.
45.5.Public support in Bangladesh for the Rohingya has declined as Bangladeshis attribute unemployment, increased crime and conflict, inflation and overpopulation to the Rohingya.
45.6.Bangladeshi authorities have recently intensified restrictions on Rohingya refugees.
45.7.DFAT’s assessment that Rohingya in Bangladesh are at high risk of violence in the camps and broader community, and are subject to a moderate risk of discrimination for their ethnicity and lack of legal status.
The Tribunal considers that if the applicant returns to Bangladesh, there is a real chance, that is substantial and not remote or far-fetched, that one or more the following would occur in the reasonably foreseeable future due to his Rohingya ethnicity:
46.1.The applicant would be detained, questioned, penalised and punished by the Bangladeshi authorities for returning to Bangladesh from a Western country as a stateless Rohingya and failed asylum seeker.
46.2.The applicant would be sent by the Bangladeshi authorities to a refugee camp in Bangladesh.
46.3.The applicant would be denied by the Bangladeshi authorities access to basic services and the right to work and/or penalised and punished for working illegally so as to threaten his capacity to subsist.
46.4.The applicant would be relocated by the Bangladeshi authorities to Bhasan Char island where he would be at serious risk of harm from storms and floods, and denied access to adequate health facilities.
46.5.The applicant would be repatriated by the Bangladeshi authorities to Myanmar where he would also be regarded as a stateless Rohingya and failed asylum seeker from a Western country and at high risk of official discrimination, including denial of basic rights and services on the basis of his ethnicity and Muslim religion, and at high risk of official harassment, arbitrary detention and violence.
The Tribunal considers that if the applicant returns to Bangladesh, there would be no effective protection available to him from the Bangladeshi authorities as they would be the perpetrators of the targeting and harm.
The Tribunal considers that if the applicant returns to Bangladesh, he would be exposed to targeting and harm by the Bangladeshi authorities regardless of where he lived.
The Tribunal considers that if the applicant returns to Bangladesh, he would be unable to modify his behaviour to avoid being targeted and harmed by the Bangladeshi authorities as his vulnerability to targeting and harm relates to his Rohingya ethnicity and being a stateless Rohingya refugee who is also a failed asylum seeker from a Western country.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
51.1.The applicant is a stateless Rohingya and non-citizen in Australia.
51.2.The receiving country in this case is Bangladesh on the basis that the applicant has no country of nationality and his country of former habitual residence for a period of 22 years was Bangladesh.
51.3.The applicant is a member of a particular social group, being stateless Rohingya refugees who are also failed asylum seekers from a Western country.
51.4.The applicant fears being persecuted in Bangladesh for the essential and significant reason of his Rohingya ethnicity and his membership of that social group.
51.5.There is a real chance that, if the applicant returned to Bangladesh, he would be persecuted for that reason.
51.6.The persecution would involve serious harm to the applicant.
51.7.The real chance of persecution relates to all areas of Bangladesh.
51.8.There are no effective protection measures available to the applicant in Bangladesh.
51.9.The applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Bangladesh.
51.10.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.
51.11.The applicant is outside Bangladesh, his country of former habitual residence, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Bangladesh.
51.12.The applicant does not have a right to enter and reside in, temporarily or permanently, any country.
CONCLUSION
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISIONS
The Tribunal remits the matter (bearing Tribunal review case number 1909307) for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
The Tribunal sets aside the delegate’s decision dated 15 February 2022 to refuse to grant the applicant a SHEV (bearing Tribunal review case number 2202283) and substitutes it with a decision that the associated SHEV application was not valid.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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.
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).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
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).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36     Protection visas – criteria provided for by this Act
(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.

[2023] AATA 4469

6 October 2023

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