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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1920349 (Refugee)

Details

AGLC: 1920349 (Refugee) [2023] AATA 1607
Case: [2023] AATA 1607
Decision Date: 22 March 2023

CaseChat Overview and Summary

The applicant sought a protection visa, claiming to be stateless or a citizen of Myanmar, and facing a well-founded fear of persecution. The dispute centred on whether the applicant was stateless or a national of Myanmar, and consequently, whether they could avail themselves of the protection of Myanmar or a country of former habitual residence. The case was before the Tribunal, presided over by Paul Noonan.

The primary legal issue before the Tribunal was to determine the applicant's nationality, or in the alternative, their country of former habitual residence, in accordance with Article 1A(2) of the Refugee Convention and section 36(2)(aa) of the Migration Act. This determination was crucial for assessing whether the applicant had a well-founded fear of persecution in that country, a prerequisite for granting a protection visa. The Tribunal also had to consider the correct visa class to be assessed, noting that due to legislative changes, the application was to be treated as one for a Temporary Protection (Class XD) visa.

The Tribunal reasoned that nationality is a legal bond between an individual and a state, determined by the nationality laws of that state. It acknowledged the difficulties in establishing nationality due to inconsistent evidence, the passage of time, and the unavailability of documentation, including statements from relatives and a Rohingya organisation. The Tribunal also considered country information indicating a high risk of persecution in Myanmar. Despite the delegate's refusal, the Tribunal found that the applicant satisfied the criterion under section 36(2)(a) of the Migration Act, indicating Australia had protection obligations.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the purposes of his application the applicant supplied the Tribunal with a copy of the delegate’s decision.CONSIDERATION OF CLAIMS AND EVIDENCEIs 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]

Decision

Reasons for decision

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 NoonanMember

Ratio Decidendi

Legal Principle Established

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 EVIDENCEIs 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