1920349 (Refugee) - [2023] AATA 1607

1920349 (Refugee) [2023] AATA 1607 (22 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Galen Jaffurs
CASE NUMBER:  1920349
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Paul Noonan
DATE:22 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 March 2023 at 3.17pm
CATCHWORDS
REFUGEE – protection visa – stateless/Myanmar – citizenship – stateless Rohingya or Muslim Myanmar citizen – initially assessed as stateless and refugee before visa refused on other grounds – tribunal and judicial reviews – inconsistent evidence – passage of time, prolonged periods of immigration detention and mental stress – documentation from third country and UNHCR unavailable, discarded or lost – statements from relatives suggest citizenship – plausible to misunderstand ‘from Burma’ and ‘Myanmar citizen’ – supporting statement from Rohingya organisation – country information – high risk of harassment, arbitrary detention and violence – third country not a country of former habitual residence – arbitrary and forced deportation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2, cl 866.222
CASE
Sivalingam v MIMA [1998] FCA 1167
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 Home Affairs to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be stateless applied for the visa on 22 August 2012 and the delegate refused to grant the visa on 5 July 2019 on the basis that the applicant is a citizen of Myanmar and not stateless and that he did not have well-founded fear of persecution and did not meet the complementary protection criterion.
The applicant appeared before the Tribunal on 25 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
The applicant was represented in relation to the review.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention-stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Relevant procedural history
The applicant arrived as an unauthorised maritime arrival [in] April 2012. Since then this matter has had a lengthy and drawn out procedural history.
The applicant lodged a protection visa application on 22 August 2012. On 13 May 2013 the application was assessed as meeting the relevant criteria however it was subsequently refused on 6 February 2014 pursuant to cl 866.222 of the Regulations. This refusal decision was subsequently set aside on 31 July 2014 on appeal to the Refugee Review Tribunal (RRT) on the basis that cl 866.222 had been disallowed on 27 March 2014.
On 10 October 2014 the applicant’s Bridging E (Class WE) visa was cancelled under s 116(1)(e) of the Act. The cancellation decision was affirmed by the Migration Review Tribunal (MRT) on 31 October 2014. On 20 February 2015 the applicant was successful on judicial review of this decision however the cancellation decision was again affirmed by the MRT on 11 March 2015. [In] July 2015 the Federal Circuit Court remitted the matter back to the MRT for further consideration. On 24 August 2015 the MRT affirmed the cancellation decision. [In] May 2016 the Federal Circuit Court remitted the matter to the MRT. The decision to cancel was subsequently set aside by the AAT on 12 December 2016.
Meanwhile a notice of Intention to Consider Refusal of the protection visa under s 501 of the Act, dated 10 August 2016, was sent to the applicant, and on 13 October 2016 the Minister for Immigration and Border Protection exercised his discretion, under s 501(1) of the Act, to refuse the applicant’s application for a Temporary Protection (Class XD) visa. On appeal with respect to this decision the Minister lost [in] September 2017 in the Federal Court.
On 5 July 2019 the delegate then proceeded to refuse the applicant’s 22 August 2012 claim for a Protection XE-790 Safe Haven Enterprise Visa. The Tribunal considers this to be the incorrect visa. The effect of reg 2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa. The applicant originally applied for a Protection (Class XA) visa on 22 August 2012. However, by operation of s 45AA of the Act and reg 2.08F of the Regulations, from 16 December 2014, the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XE-790) visa, the effect of reg 2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD-785) visa. The Tribunal notes that the delegate’s decision record makes mention of a Temporary Protection (Class XD-785) visa interview having been conducted with the applicant on 10 April 2019. The Tribunal proceeded to review the matter on the above basis.
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 Tribunal has also had regard to the DFAT Country Information Report – Myanmar, 11 November 2022.
For the purposes of his application the applicant supplied the Tribunal with a copy of the delegate’s decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the applicant stateless or a citizen of Myanmar?
Article 1A(2) of the Convention states that a refugee is a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country, or a country of former habitual residence.
The Tribunal must determine therefore the country ‘of nationality’, or if the applicant does not have a nationality, the country of former habitual residence, in order to ascertain whether they have a well-founded fear of persecution in that country. Nationality is a legal bond or attachment conferred by a State and which constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.[1]
[1] Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 at 23
In international law, nationality has been described, in general terms, as:
a specific relationship between individual and State conferring mutual rights and duties as distinct from the relationship of the alien to the State of sojourn.[2]
[2] P Weis, Nationality and Statelessness in International Law, Hyperion Press, 2nd edition, 1979, at 31
In Australia, the Federal Court has described the concept of ‘nationality’ as it relates to protection visas as:
a term somewhat lacking in precision. It is generally used to signify the legal connection between an individual and a State. The primary relevance of nationality under international law is to provide a basis upon which a State can exercise jurisdiction over persons. However, the term is employed in different ways in international law, and domestic law.[3]
[3] VSAB v MIMIA [2006] FCA 239 at [48]
An assessment of nationality is made by reference to the nationality laws of the relevant State as these laws are generally determinative of nationality, as demonstrated by the approach of the International Court of Justice in the Nottebohm case.[4]
[4] Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 at 20–21
In making a positive finding that an applicant holds citizenship of a certain country, the decision-maker will need to consider whether the applicant meets the criteria for citizenship under the law and how the citizenship was acquired.[5]
[5] BNZ18 v MICMSMA [2020] FCCA 1614 at [66]
The delegate found that the applicant’s claim to be a stateless Rohingya was not credible and that in fact the applicant was a Muslim Myanmar citizen. The delegate proceeded to assess the applicant’s claim for protection on this basis.
Whether a person has a particular nationality is a question of fact for the decision-maker, based on the law of the country and the claims made. The Tribunal has considered the credibility of the applicant’s assertions and evidence about his nationality, having regard to the individual circumstances of the case and the evidence before the Tribunal.[6] Asylum cases present particular complexities in regard to fact-finding as applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[6] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]
These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family.
For these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[7] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[8] An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[9] An Australian study found that Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[10]
[7] Fox v Percy (2003) 214 CLR 118
[8] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, < Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT website, < Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11] A similar approach is taken in the Department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which provide useful guidance for this Tribunal.
[11] SZLVZ v MIAC [2008] FCA 1816 at [25].
[12] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[13] UNHCR Handbook, re-issued February 2019 at 203–204
In assessing the credibility of the applicant’s claim to be a stateless Rohingya the Tribunal is mindful that the applicant lodged his claim for protection on 22 August 2012 and he was initially assessed as meeting the relevant criteria. However ultimately the claim was refused due to the effect of cl 866.222 of the Regulations, a decision which was subsequently set aside. What followed was a lengthy set of legal actions and appeals including an application to the High Court with respect to the now unresolved protection claim. In this time the applicant was detained for some time. The applicant is recorded as making threats which resulted in the s 501 action by the Minister. After this decision was lost by the Minister in the Federal Court the Department was left to once again consider the original protection claim. This has eventually led to this review by the Tribunal over 10 years after the original claim was made. The Tribunal accepts that this is a considerable passage of time for an original claim to be heard on its merits. Further that the applicant has experienced prolonged periods of immigration detention and significant mental stress with respect to the ongoing unresolved nature of his claims.

In addition, there have been considerable changes in the situation in Myanmar during the lengthy time that this case has taken to get to the Tribunal, which have resulted in a significant overall deterioration in the security situation there. Pertinent country information in this respect will be considered later in these reasons.
The Tribunal discussed the following issues with the applicant during the hearing. The Tribunal noted that the applicant claimed that he had gained a one-year temporary work permit in [Country 1]. He confirmed that he did not retain a copy of this permit. He did not realise he needed to retain it even though, as discussed at hearing, he had no other form of identification. He had also lost a UNHCR card in [Country 2]. The Tribunal noted that he had stated to the delegate, as set out in the decision, that he had no form of identification in [Country 2]. He stated that he has previously stated that he had no Myanmar documentation and obtained the UNHCR card to assist him in dealing with the authorities in [Country 2]. The Tribunal noted the delegate’s finding that the applicant was unable to supply a household list. The applicant stated that he left Myanmar when he was very young and simply did not have any such documents.
The Tribunal put to the applicant that the delegate had set out in the decision that the Department’s Stream 2 had made a call to his brother [Mr A] in [Country 1], whom he had previously called. Further that the Department had obtained evidence from [Mr A] that the applicant had only been in [Country 1] for six months some six years ago and that he was a Myanmar national. The delegate noted that he had become agitated when the information was put to him and did not respond. The applicant submitted to the Tribunal that he had moved around in [Country 1] and his brother was just referring to the time that he had lived with him which was only for six months and the fact that they were both from Myanmar or Burma. He had lived with his brother for about six months prior to leaving [Country 1].
The delegate set out that in his interview in 2019 he had stated that he did not know what his father did for a living. However, in a subsequent 2019 interview with the Department, he had stated that he had run a [store]. The applicant stated that he really did not know much about what his father had done but had heard he was [an Occupation]. He had passed away.
The Tribunal noted that the delegate set out that a [Mr B], his biological brother, had disclosed to the Department in relation to a separate visa matter, that he was a citizen of Myanmar. By implication the delegate had concluded that the applicant is also a citizen of Myanmar. The applicant responded that he had spoken to his brother about this. His brother told him he had not said it like that and that he does not have Myanmar citizenship. He speculated that this was a misunderstanding. The Tribunal put to the applicant that it would be difficult to accept that his brother had said he was a citizen of Myanmar if he was actually Rohingya and stateless. The applicant submitted that his brother had been asked if he was Burmese to which he had stated that he was.
The delegate set out that the applicant was given an opportunity to demonstrate his proficiency in [Country 2 language] given his claim to have grown up there and that he was unable to demonstrate any [Country 2 language] proficiency. The applicant denied this and stated that he could speak [Country 2 language].
The delegate noted that the Department had checked with the [Country 1] government which had no record of him and as such it would appear he was not issued with a work permit or had spent time there. The applicant responded that the [Country 1] government may not have kept accurate records or did not wish to engage with the inquiry to make it easier for them.
With respect to his UNHCR card the applicant stated that he had it in [Country 2] but lost it when he left [Country 2]. He could not recall how he lost the card. The Tribunal put to the applicant that it may expect that it was an important document to him and that he would recall how and when he lost it. The applicant stated that he did not consider it important as the [Country 2] authorities did not respect it. The Tribunal put to the applicant that it would have expected that, given he was leaving [Country 2] with the intent to claim refugee status, and it was his only form of identification, that it would have been devastating for him to lose it. The applicant then stated that he thought he may have lost it in the months he spent in [Country 3]. He stated he spent that time in [Country 3] in 2011 or 2012.
The Tribunal put to the applicant that the delegate set out that the applicant stated, when in detention in Australia, that he would go to the Myanmar embassy and arrange for travel documents to return to Myanmar and this action would be implausible if he was a Rohingya refugee as claimed as he would plausibly be unable to arrange such travel documents or be willing to return if he had no identification and was a member of such a persecuted group. The applicant responded that he was frustrated at the time with his detention and decided it was better to return and die than continue to live that way.
The Tribunal put to the applicant that the delegate set out that he had stated that he had lived in [Country 2] with his mother in his initial application but he now stated that he lived there with his aunt. He stated that he knew his aunt as his mother. He never knew where his biological mother was.
The applicant talked about his experiences on his passage to Australia and informed the Tribunal that his refugee boat from [Country 3], as arranged by a people smuggler, was very small and dangerous and he feared for his life.
In addition to the above the Tribunal had regard to Statutory Declarations by the applicant’s brother [Mr C] who attests to the applicant’s and his own background as Rohingya and from [Mr D], who states he is a spokesperson for [an Organisation], and who also testifies that the applicant is well known in the Rohingya community and that this is his background.
The Tribunal carefully considered the third-party evidence obtained directly from the applicant’s relatives that they and the applicant are citizens of Myanmar and by implication not stateless Rohingya. However, the Tribunal accepts the applicant’s argument and considers that it is plausible that this line of questioning was misunderstood by the applicant’s relatives and confused with them coming from Burma. What is readily apparent is that the applicant’s relatives are significantly scattered around the globe. This is plausibly reflective of a mass fleeing consistent with the known situation for Rohingya as a persecuted group, of which relevant country evidence will be set out later in these reasons. The Tribunal also gives considerable weight to the manner in which the applicant arrived in Australia on a crowded and dangerous refugee boat from [Country 3]. This is reflective of a level of desperation and lack of financial resources consistent with a person who has been working in ad hoc jobs in Asia while trying to arrange passage. It is not consistent with a person who undertook well-planned and resourced travel to move from a place in which they were not suffering persecution as a citizen of that country. The Tribunal is also not convinced by the lack of records held by the [Country 1] government as evidence that he was not there. The applicant would clearly have existed on the fringes of society in [Country 1] and it is plausible that his details were not accurately or consistently recorded there. It is also plausible that the applicant lost his UNHCR identification during the course of his travels. The Tribunal also places little weight on the applicant’s language proficiency or otherwise in [Country 2 language], [Country 1 language], Rohingya or Burmese. This is because he gave evidence that he left Myanmar at a young age and did not engage in formal education in [Country 2] and was working in odd jobs from a young age. He would not be expected to be proficient in Rohingya (although it is noted that he is now claimed to be proficient) in such circumstances and plausibly may have concentrated on the Burmese language if it was more widely spoken. The past testing of his Rohingya language proficiency by the Department is therefore given little weight. Further the applicant’s lack of a household list is plausible given his claims that he left Myanmar at a young age and was separated from other members of his immediate family. The Tribunal also gives considerable weight to the third-party evidence from the [Organisation] attesting to the applicant’s known status as Rohingya. The Tribunal places little weight upon minor inconsistencies in evidence given by the applicant with respect to his father and other relatives’ situations, given the passage of time and the number of interviews, decisions and legal actions taken in this matter. The Tribunal also accepts as plausible that prolonged detention may have led the applicant to request to be allowed to attempt to make arrangements to return to Myanmar, through a sense of desperation and despair, rather than this reflecting that he had access to hidden Myanmar citizen documentation enabling him to do so.
Overall, the Tribunal finds that the balance of the weight of evidence in this matter is such that it is satisfied that the applicant is of Rohingya ethnicity.
According to DFAT, the Rohingya are excluded from citizenship in Myanmar. Further most Rohingya are undocumented and effectively stateless.[14] The Tribunal is therefore satisfied, on balance, that the applicant is not a national of Myanmar and that he is stateless.
[14] DFAT Country Information Report – Myanmar, November 2022, p.19
Does the applicant have a well-founded fear of persecution?
Myanmar has been continuously affected by conflict since its independence from Britain in 1948. In February 2021, the military once again seized control of the country in a coup. Since that time, Myanmar has been run as a military dictatorship.
DFAT reports that since the 2021 coup, a widespread armed insurgency has emerged that seeks to attack the military regime and its officials and restore democracy to Myanmar.[15] 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.
[15] DFAT Country Information Report – Myanmar, 11 November 2022, pp.2–5
There are widespread reports of extrajudicial killings being carried out by security forces in Myanmar. Before the coup these were concentrated in areas of active conflict. The UN’s Independent International Fact-Finding Mission on Myanmar reported extrajudicial killings in 2016 and 2017 in Kachin, Shan and Rakhine States. It described killings in the context of military operations, forced labour, deaths in custody and targeted killings of individuals who shared the ethnicity of ethnic armed organisations. Since the coup, extrajudicial killings have been reported throughout the country. As of May 2022, the Assistance Association for Political Prisoners listed more than 1,800 killings carried out by security forces since the coup, including of unarmed protesters (see also Protests and Civil Unrest), medical personnel, participants in the Civil Disobedience Movement, and civilians in conflict zones, especially those suspected of harbouring or supporting militants. Since the coup, ethnic armed organisations and People’s Defence Forces have carried out extrajudicial killings in the form of targeted assassinations of regime officials, Union Solidarity and Development Party members and supporters of the military regime, as well as their family members. They have also killed perceived collaborators and informants, sometimes despite flimsy or no evidence they were actually cooperating with the regime (see Collaborators and Informants).[16]
[16] Ibid, p.37
In addition to the above country information DFAT assesses that, given the high level of scrutiny of people arriving in and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries (see Political Opinion), 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.[17]
[17] Ibid. p.42
Given the above country information the Tribunal is satisfied that the applicant would face a real risk of persecution, involving serious harm amounting to systematic and discriminatory conduct, for reason of his ethnicity as a Rohingya and also for reason of his imputed political opinion as a failed asylum seeker returning from many years in a Western country. The Tribunal is satisfied that the applicant has a genuine fear founded upon a real chance of being persecuted for a Convention reason. Further that the essential and significant reason for the serious harm would be due to these reasons.
An applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The Tribunal is not satisfied that the applicant would be able to avail himself of protection given the harm he fears is from the State.
The applicant has stated that he resided in [Country 2] for many years and as such this may be considered a country of former habitual residence. However, the situation for Rohingya in [Country 2] is unstable and they are subject to arbitrary and forced deportation back to Myanmar as set out by the UNHCR.[18] The Tribunal is therefore satisfied that if he returned to [Country 2] there is a real chance that he would be forcibly deported back to Myanmar. While the laws of deportation may be regarded as a law of general application, there would still be persecution based on refoulement to an area where the applicant would face a real chance of persecution. The Tribunal is satisfied that the applicant does not have a right to enter and reside in any other safe third country.
[18] [Source deleted].
In conclusion the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his ethnicity and because of his imputed political opinion as a returnee from the West, were he to return to Myanmar in the reasonably foreseeable future.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Paul Noonan
Member