1927623 (Refugee)

[2020] AATA 403

1927623 (Refugee) [2020] AATA 403 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1927623

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:Jason Pennell

DATE:13 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

Statement made on 13 February 2020 at 4.39 am

CATCHWORDS

REFUGEE – cancellation – protection visa – Stateless – Burma (Myanmar) Rohingya – risk to Australian community – criminal convictions and community corrections orders – supervision, assessment, treatment and rehabilitation – mental health – relationship with child and former partner – best interests of the child – support from cousin – complementary protection – country information – real risk of significant harm if returned – decision under review set aside

LEGISLATION  
Migration Act 1958 (Cth), ss 36(2)(aa), (2A), 91R, 116(1)(e)
Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379

DZABG v MIAC [2012] FMCA 36

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIMA v Savvin (2000) 98 FCR 168

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 20 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s.116 of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that that the applicant presence in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.The applicant appeared before the Tribunal on 12 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.

4.The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

APPLICANTS GROUNDS FOR PRTOTECTION

Refugee criterion

6.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

7.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).

8.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.

1. 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.

2. There are four key elements to the Convention definition:

   (a)First, an applicant must be outside his or her country.

   (b)Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] 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.

   (c)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.[3]

   (d)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.

   [1] s.91R(1)(b)

   [2] s.91R(1)(c) of the Act

   [3] s.91R(1)(a) of the Act

3. 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.

4. 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

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4] 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.[5]

   [4] s.5(1) of the Act

   [5] s.36(2B) of the Act

CONSIDERATION OF PROTECTION CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicants meet the criteria set out in either of s.36(2)(a) or s.36(2)(aa).

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[6]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[7]

   [6] s.5AAA Migration Act 1958.

   [7] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[8] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [8]     Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[9] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

   [9]     The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

5. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears.

The applicant’s migration history

1. The applicant arrived in Australia [in] September 2012 by sea at an excised offshore place without having a valid visa. The applicant claimed that he initially travelled for Myanmar to [Country 1] by train and car. He stated that he stayed with his cousin in [Country 1] for approximately 8 months before traveling by boat to Australia. The applicant arrived in Australia with his cousin, [Mr A], and his cousin’s wife and children.

2. As an illegal maritime arrival (IMA), on 25 October 2017 the applicant was granted a Temporary Protection (subclass785) visa. A temporary Protection visa is granted to people who arrived in Australia without a valid visa and want to apply for Protection visa. It allows them to stay in Australia on a temporarily if they engage Australia protection obligations and meet all other visa obligations such as health, character identity and security.

Applicants claim for protection as a stateless person.

1. The applicant provided a statutory declaration dated 4 February 2012 in support of his application for review of the department’s decision to cancel his Temporary Protection Visa. The applicant claims that he was born on [date] in Yangon, Myanmar. He claims that he is an ethnic Rohingya and as such is stateless. 

2. In support of his claim that he is a stateless Rohingya the applicant provided a copy of his [Organisation] Membership card No [deleted][10] and a reference by [an official] of the [Organisation] dated [August] 2019.[11] 

   [10]  AAT File No 1927623 @ f.152

   [11] Op Cit @ f.70

3. The applicant claims that his father dies in [Country 2] in 2017. His evidence was that his father travelled to [Country 2] for medical treatment but passed away while he was there.  He stated that his mother, brother ([Mr B]) and a sister continue to live in Yangon, Myanmar while his other brother ([Mr C]) is currently lives in [Country 2]. [Mr B] works [and] his sister is a student.

4. The applicant’s evidence was that [Mr C] had a lot of trouble with the police in Yangon, as a result of having traveled to Rakhine. He claimed that [Mr C] then he traveled to [Country 1] for approximately 18 months but returned to Yangon to find work. The applicant claims that after [Mr C]’s return the police again were looking for him. He claimed that some Buddhist monks went to his house and waited for him as they wanted to kill him because of his religion.[12] The applicant did not explain, given that they are the same religion, why the monks wanted to harm only [Mr C] and not his mother and siblings.    

   [12] Applicant’s affidavit dated 4 February 2020 @ paragraph 44; AAT File No 1927623 @ f.145

5. In circumstances were the applicant mother and siblings continue to live in Yangon without any apparent immediate threat of harm and the fact that the applicant, his brother and father have all been able to travel to [Country 2] and [Country 1] without any apparent risk of being stopped or detained, the Tribunal has some concerns in relation to his claim of being a Rohingya. Nevertheless, based on the applicant’s evidence and the documentation provided by the [Organisation], the Tribunal accepts and finds that the applicant is Rohingya a claimed.

The Country Information

1. The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal has had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). In particular, the DFAT Country Information Report Myanmar dated 18 April 2019[13] (‘the DFAT Report’) notes the following:

   ‘Violence[14]

   [14] Op Cit @ f.24

   3.15 According to Human Rights Watch, large-scale violent attacks against the Rohingya have occurred repeatedly since Myanmar’s independence, and Rohingya have migrated across the region in large numbers to escape violence. Violence against the Rohingya by security forces, including torture, indiscriminate killings, and mass rapes were reported during and following the 2012 and 2016 outbreaks. However these occurred on an unprecedented scale in the August 2017 security operations. Multiple credible sources have reported the widespread, large-scale and extreme violence against the Rohingya in northern Rakhine State in 2017, by security forces, groups affiliated with the security forces and ethnic Rakhine mobs, based on interviews with victims and eyewitnesses, satellite imagery, documents, photographs and videos.

   3.16 The US Department of State reported that the security operations explicitly targeted Rohingya, while neighbouring non-Rohingya sites (for example Buddhist stupas), and critical infrastructure (including mobile phone towers) were undamaged. Other credible sources in Myanmar reported that villages with mixed Muslim and ethnic Rakhine populations were mostly unaffected. During the operations, Rohingya homes and property were destroyed, and thousands of Rohingya killed and injured. Violence typically lasted between one to four days, depending on the size of the village, and patterns of violence across locations indicated pre-meditation. In some villages, warnings about the impending violence were issued to Muslim community leaders from local Tatmadaw and police, and in others ethnic Rakhine neighbours were witnessed leaving before the outbreaks of violence.

   3.17 In March 2018, MSF estimated at least 9,400 people died in Rakhine State between 25 August and 24 September 2017 of which at least 6,700 were due to violence, including at least 730 children under the age of five. MSF reported the main cause of violence-related deaths during this period was gunshots (70 per cent), including for children under five (59 per cent). Around 9 per cent were burned to death in their homes, higher (around 15 per cent) for children under the age of five who died violently. Five per cent of people who died violently were beaten to death, three per cent from sexual violence and one per cent from landmines. MSF concluded that the estimated number of deaths was conservative given their survey methodology, and information collected by the UN Fact-Finding Mission corroborated this statement. While the month following the ARSA attacks has been described as the most violent, multiple credible sources recorded a high number of violent incidents against Rohingya in northern Rakhine State continuing until November 2017, despite the official conclusion of security operations by the government on 5 September 2017. Some violent acts constituted torture (see Torture).

   3.18 Credible sources report that Rohingya were both targeted (including community or religious leaders), and indiscriminately shot at. This was mostly while fleeing, as evidenced by the high proportion of bullet entry points in victims’ backs, and corroborated through testimony. Rohingya were also injured and killed by bladed weapons, yielded by both security forces and ethnic Rakhine. Many others were killed in arson attacks, including the elderly, persons with disabilities and young children who were unable to escape; in some villages, people were forced into burning houses, or locked into buildings then set on fire. The US Department of State described various tactics used to create mass casualties, including fencing off entire villages before shooting into the crowd.

   3.19 All of the above forms of violence were reported to be used in the mass killings in the village of Min Gyi (Tula Toli), Maungdaw Township. Human Rights Watch and the UN Fact-Finding Mission both documented the process of villagers in Min Gyi being gathered together by security forces and ethnic Rakhine, before men and boys were separated and killed. Women and girls were then reportedly taken to nearby houses, gang raped, then killed or severely injured, including from being set on fire in locked houses. Few survived this violent attack, and an estimated 750 people died in Min Gyi. Mass killings were also reported in Maung Nu, Chut Pyin, Gu Dar Pyin, and villages in Koe Tan Kauk village tract. In February 2018, the Associated Press reported on at least five mass graves in Gu Dar Pyin village, northern Rakhine State, based on interviews and footage from displaced Rohingya in Bangladesh. The government denied the existence of the mass graves and reported that ARSA militants had attacked the village on 28 August, which resulted in the killing of 19 ARSA members by security forces. The government acknowledged the existence of a mass grave in Inn Din, but claimed those killed by the Tatmadaw were terrorists (see Media and Extrajudicial Killings).

   3.20 Human rights groups have reported the deliberate use of large-scale sexual violence, including rape, by the security forces against Rohingya women and girls. Sexual assaults were reported during home searches, and mass rapes in fields, mosques and schools, by the Tatmadaw in the 12 months leading up to the August 2017 security operations. Sexual violence was reported to increase in scale during the attacks on villages as part of the security operations, and MSF reported over three per cent of interviewees had directly experienced or witnessed sexual violence between 25 August and 24 September, but acknowledged sexual violence may be underrepresented as it is typically underreported due to social stigma in Rohingya culture. The US Department of State documented a much higher number (45 per cent) of its interviewees who witnessed women and girls being raped, including 20 per cent who witnessed gang rape. The UN Fact-Finding Mission reported gang rape by Tatmadaw soldiers occurred in at least ten village tracts of northern Rakhine State.

   3.21 The UN Fact-Finding Mission reported that women and girls aged 13 to 25 were targeted for sexual violence, but MSF documented victims from nine to 50 years of age. Women were severely injured before and during rape, including by having their breasts cut off, genitals mutilated or from being raped using knives and sticks. In some cases, victims died from the brutality of the rape and accompanying violence, and in many others perpetrators were reported to have shot, hanged or stabbed victims after raping them. Rapes were often in public, including in front of families and the community. Perpetrators also reportedly left victims’ bodies, with visible signs of rape, in public view. There are also credible reports of men and boys being subjected to genital mutilation, rape, and sexualised torture.

   3.22 There are credible reports of security forces, and in some cases ethnic Rakhine, targeting pregnant women, children and babies. Soldiers were reported to attack women, and their infants, during or immediately after childbirth. Several witnesses from different villages also reported soldiers raping and killing pregnant women by slashing their stomachs and removing their fetuses. Soldiers and police were reported to remove infants from their mother’s arms and kill them through various means, including gunshot, knifing, stomping on them, beating them or throwing on the ground. Infants and children were also reportedly thrown into fires, rivers and into village wells. Most of these events occurred in August and September 2017, and were often were carried out in front of the child’s mother.

   3.23 The UN Fact-Finding Mission found sufficient evidence of violence perpetrated by the Tatmadaw in northern Rakhine State to conclude that war crimes, crimes against humanity, and potentially, genocide occurred. Given the multiple incidents of extreme violence against the Rohingya in recent years, DFAT assesses that Rohingya in Rakhine State continue to face a high risk of violence, predominantly from security forces.

   Rohingya outside Rakhine State[15]

   3.35 There are a number of Rohingya living outside of Rakhine State, particularly in Yangon, but the size of the Rohingya population outside Rakhine State is unclear. This is due to both a lack of official statistics that recognise the Rohingya as an ethnic group, and also as some Rohingya in Yangon and other large cities in Myanmar reportedly conceal their ethnic identity, including through attempts to identity as Kaman or other Muslim groups. Anecdotal evidence suggests there are approximately 20,000 Rohingya living in Yangon. Rohingya outside of Rakhine State are not subject to local orders restricting freedom of movement as Rohingya in Rakhine State, however they may choose to live in particular locations due to concern of negative societal attitudes. In February 2018, Rohingya in Yangon described Buddhist neighbours and friends increasingly expressing sympathy with the government’s approach to the Rohingya in Rakhine State.

   3.36 Rohingya outside Rakhine State generally have higher incomes and better access to resources than those in Rakhine State, and are typically able to obtain identity documentation that allows them to live and work without facing the high levels of discrimination otherwise experienced by Rohingya in their day-to-day life. Typically, Rohingya in Yangon are registered as ‘Burmese Muslims’ or ‘Bamar Muslims’. A person willing to record their ethnic group as a Burmese/Bamar Muslim is generally able to access either full, associate or naturalised citizenship (depending on their family history, see Documentation), including national identity cards and residency documents which provide a legal right to a passport. Local sources reported that Rohingya can also pay bribes to officials to obtain a Kaman identity card. University students without CSCs (see National Identity Cards), including Rohingya and some religious minorities, are permitted to attend classes and sit examinations, but are unable to graduate and receive qualifications.

   3.37 DFAT assesses that Rohingya who live outside of Rakhine State experience moderate levels of societal and official discrimination on a day-to-day basis. While they are officially denied citizenship rights, Rohingya who choose to identify as Kaman or other Muslim groups face a similar level of discrimination to that experienced by other Muslims (see Muslims).’

Country of Reference

[15]  Op Cit @ p.29

1. The applicant having been born, education and lived in Myanmar up until the time of his departure for Australia, the Tribunal finds that Myanmar is the applicant’s country of former habitual residence. Accordingly, the Tribunal finds that the applicant’s receiving country for the purposes of the definition of refugee pursuant to s.5H(1) of the Act and complementary protection pursuant to s.36(2)(aa) of the Act is Myanmar.

The applicant’s protection claims

Applicant’s Relevant Grounds

1. The applicant submits that his claims falls within the scope of Article 1A(2) of the Convention ( or s.5J(1)(a) of the Act) by reason of his ethnicity, religion and member of a particular social group. That is as a Rohingya person. The Tribunal accepts the applicant’s evidence in relation to his ethnicity and religion and finds that he is Rohingya. As such, the Tribunal accepts that his claims fall within Article 1A(2) of the Convention.

Applicant’s well-founded fear.

1. Pursuant to s.5H(1) of the Act or Article 1A(2) of the Convention an applicant will not be provided a protection visa merely because he is stateless and unable to return to their country of former habitual residence. Given the specific requirements of s.36(2)(aa), the same would apply to complementary protection.

2. In MIMA v Savvin the Full Federal Court held that Article 1A(2) of the Convention is to be construed as including the requirement that a stateless person, being outside the country of his or her former habitual residence, have a well-founded fear of being persecuted for a Convention reason.[16]

   [16] (2000) 98 FCR 168. Although the members of the Court arrived at this conclusion by slightly different paths, their ultimate position regarding Article 1A(2) was the same. See also Rishmawi v MIMA (1997) 77 FCR 421, Diatlov v MIMA [1999] FCA 468 (Sackville J, 25 October 1999) and DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)).

3. The question for determination is whether the behaviour of which an applicant complains amounts to persecution and not the circumstances or impact of an inability to return. In DZABG v MIAC, the court observed that it would be erroneous for an individual’s subsequently arising statelessness to be regarded as adding to his disadvantageous circumstances such that he or she could be regarded as a refugee rather than as a stateless person.[17]

   [17] DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) at [132] (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)). The Court further commented at [137] that it is unnecessary to consider the circumstances an individual may face because of their statelessness which might arise upon his or her return as a consequence of the absence of any necessary documents such as a passport. The Court also observed at [135] that, although statelessness may be a significant disadvantage, the absence of nationality per se is insufficient to satisfy the requirements for protection.

4. Under the Convention, whilst a stateless claimant must demonstrate a well-founded fear of being persecuted, the second limb of Article 1A(2) does not require an inability to return to their country of former habitual residence to be linked to that fear. The applicant must be either unable to return (for any reason) or, owing to their well-founded fear, unwilling to return. Although the structure of the definition of ‘refugee’ in s.5H(1) is slightly different, with the effect that the person must be unable or unwilling to return to their country of former habitual residence owing to a well-founded fear of persecution, the distinction is unlikely to be of any practical effect.[18]

   [18] The Explanatory Memorandum to the Bill which introduced s.5H(1) states that it was intended to codify Article 1A(2) as interpreted in Australian case law and provides no indication that the difference in wording was intended to have any significant effect: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014, p.169 at [1167].

5. In Chan v MIEA[19] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[20]

   [19] (1989) 169 CLR 379 at 396.

   [20] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

6. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.

7. To hold a ‘well found fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [21]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

   [21]   Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: ^[22]

   ‘’Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [22]    MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. Finally, the applicant’s fear must be owed to a present, well-founded fear of persecution for a Convention reason; and unable, or owing to such present, well-founded fear, unwilling to avail him or herself of the protection of that country.[23] This approach is applicable to s.5H(1) and to the complementary protection criterion pursuant to s.36(2(aa).

   [23] [1999] FCA 1265 (Dowsett J, 13 September 1999) at [60]. See also Diatlov v MIMA [1999] FCA 468 (Sackville J, 25 October 1999) at [32] and DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) at [134] (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012)). This point was not expressly discussed by the Full Court in MIMA v Savvin (2000) 98 FCR 168, but Dowsett J’s view is consistent with the Full Court’s construction of Article 1A(2).

3. The Tribunal accepts the country information that reports that Rohingya outside Rakhine State generally have higher incomes, better access to resources and more able to obtain identity documentation than those in Rakhine State. However, they are only able to do by choosing to identify as Kaman or other Muslim groups. The Rohingya are still are officially denied citizenship rights and continue experience levels of societal and official discrimination on a day-to-day basis.

4. The applicant claims that his school years were characterised by fear and cautious interaction of bullying and being beaten. He claims that he was witness to violence and death in Myanmar. The applicant’s description of such events was modest. As such he did not elaborate on any specific events in which he witnessed such violence or death. It’s claimed in the psychological reports provided to the Tribunal that he has difficulty in speaking about such matters. Nevertheless, based on the available country information, the Tribunal accepts that the applicant as a Rohingya holds both a subjective fear and objective fear of persecution in the event that he returns to Myanmar.

5. Therefore, based on the country information, have found that the applicant is a Rohingya as claimed, the Tribunal accepts that there is a real chance he will suffer serious harm by the authorities by reason of ethnicity and religion.

CONSIDERATION OF CANCELLATION OF THE APPLICANTS VISA

43.Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

s.116(1)(e) - risk to Australian community or individual

1. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

2. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

3. The applicant is [age] years old and born in Yangon Myanmar. He has reported a history of exposure to prolonged discrimination and exclusion due to his Rohingya ethnicity and Muslim religion. The applicant claims that his school years were characterised by fear and cautious interaction of bullying and being beaten. He claims that he did not feel free to speak his language or that he could mix freely with the majority of his peers. He claims his mother, brother and sister continue to live in Yangon. His other brother now lives in [Country 2] and his father passed away while in [Country 2].

4. The applicant claims from the time of arriving in Australia up until the time of his arrest he was living with his cousin and his family in [Suburb 1] [State 1]. He claimed that he was working full time [in] [Suburb 1] and that he was sending approximately $[amount] to $[amount] per month to his mother in Myanmar.

5. He claims that soon after arriving in Australia at about the age of [number] years of age he became involved with alcohol. At about the age of [number] years of age he commenced taking synthetic cannabis. He claimed that it helped his mood. He then started using methamphetamine about once per week. He claims that the charges he was convicted of were as a result of his alcohol and rug use.

6. The applicant claimed that he had several relationships. The longest relationship was for a period of approximately two years with the mother of his [daughter], [Ms D]. His daughter was born on [date]. The applicant’s relationship with Ms [D] broke down soon after [their daughter] was born. She now lives with her mother.

7. The applicant claims that if his visa is restored he will continue to seek treatment from [Service provider 1] and look to re-establish his relationship with his daughter. His evidence was that he had received some counselling while in prison and that he had learnt that drugs are damaging to his brain and have detrimental effect on his life and others around him.  He claimed that he has the support of his cousin [Mr A] and that he intends to return to live with his cousin and his family in the event he is released for detention. Mr [A] provided a letter of supported dated [February] 2020[24] confirming that the applicant would receive accommodation and support from him and his family in the event he is released for detention.

   [24] Letter from [Mr A] dated [February] 2020; AAT File No 1927623 @ f.153

8. The applicant provided a Psychological Report by Dr [E] dated [May] 2019[25] who reports that the applicant presented as a person with Post Traumatic Stress Disorder (PTSD) as a result of having been exposed to violence and death in Myanmar.

   [25] Psychological Report by Dr [E] dated [May] 2019; AAT File No 1927623 @ f.73

9. The applicant has been charged and found guilty of the following offences:

Date	Offence	Result
[June] 2019	Sexual Activity Directed at another Person (2 Counts)	[September] 2019 Magistrates Court of [State 1] found the applicant guilty and sentenced him to a Community Corrections order.
[January] 2018	Possession of Methylamphetamine	[In] June 2019 the Magistrates of Court convicted the applicant of the four charges and, without conviction, sentenced him to a Community Corrections Order.
[November] 2018	Sexual exposure in Public Place	As above
[March] 2019	Sexual Activity –intended ex fear/distress	As above
[March] 2019	Commit Indictable offence whilst on Bail.	As above

1. The conditions of the Community Corrections Orders made [in] June 2019 and  [September] 2019 are:

   (a) That the applicant be supervised by the Secretary commencing on the applicants release from imprisonment for a period of 18 months.

   (b) The applicant to undergo the following treatment and rehabilitation:

   (i)Assessment and treatment (including testing for drug abuse or dependence as directed.

   (ii)Assessment and treatment (including testing) for alcohol abuse or dependency as directed.

   (iii)Mental Health assessment and treatment as directed.

   (iv)Applicant to attend offending behaviour program as directed.

   (v)The applicant be receive a SOATs referral.

2. The applicant provided the Tribunal with a letter from [Service provider 1] dated [January] 2019[26] (but should read [January] 2020). [Service provider 1] is a specialist non-profit government organisation that provides relevant psychological treatment and psychosocial support for refugees and asylum seekers from any country who have fled persecution torture and war related trauma. The letter reports that the applicant initially accessed the services of [Service provider 1] at its office in [Suburb 2] in July 2019. [In] October 2019 the applicant was referred for torture and trauma counselling. The applicant saw [Ms F] of [Service provider 1] on two occasions ([November] 2018 and [December] 2019). The letter reports that Ms [F] was not able to complete her assessment of the applicant as a result of him being transferred to [a] detention centre in [State 2] [in] December 2019. As a result, Ms [F] made a referral to [Service provider 2] for further psychological support to alleviate the applicant symptoms of depression. The applicant s evidence was that he has had one consultation with [Service provider 2] with in detention in [State 2].

   [26] [Service provider 1] Letter dated [January] 2019 by [Ms F]; AAT File No 1927623 @ f.82

3. The applicant submits that the Tribunal should exercise its discretion in this matter to allow the applicant to retain his visa due to a number of factors. Firstly, while not attempting to minimise the seriousness of the offences,  it is submitted that the applicants offending was influenced by his drug and alcohol abuse and that is on the lower end of the scale of sexual offending. While the Tribunal does concede that the offences are on the lower end of the scale and have been affected by the applicant drug and alcohol abuse, the Tribunal is of the view that the applicant, in committing the offences has acted in an opportunist and predatory manner. As a result, the Tribunal is concerned that the applicant’s behaviour displays a course of conduct that may, if unchecked or treated, lead to more serious offences. The applicant submits that there are various protective factors which operate to significantly reduce the likelihood of the applicant re offending. These are:

   (a)The applicant remains subjected to the Community Corrections Orders dated [September] 2019 which are valid for a period of 18 months. The conditions attached to the Community Corrections Orders require the applicant to undergo assessment and treatment for drug and alcohol abuse and mental health assessment and offending behaviour programs. It is submitted that these orders will operate as a significant inhibitor to any further offending by the applicant.

   (b)The applicant will be under the supervision of Corrections [State 1] and will be required to comply with the Community Corrections Orders.

   (c)The imposition of the orders with such conditions suggests that the Court (which it is submitted is in the best place to assess the risk to the community) was of the view that a therapeutic response to the offending was the most appropriate. Accordingly, the applicant submits that he should be given the opportunity of serving his Community Corrections Orders in the community and to receive the appropriate treatment. While the Tribunal concedes that the Court has concluded that therapeutic response to the applicants offending was the most appropriate response, the Tribunal notes that its considerations pursuant to s.116(1)(e) of the Act and not the same as those considered by the Court. The Tribunals discretion under s.116(1)(e) of the Act is broad than that considered by the Court in making its orders.

   (d)The applicant does not have the opportunity to complete his treatment while he is in immigration detention. It is submitted that the continued time in detention is likely to further exacerbate the applicants underlying mental illness and further hinder his recovery and return to society. The Tribunal concede that an extended time in detention will deny the applicant the opportunity of receiving the treatment ordered by the court and as such may exacerbate the applicants underlying mental illness and further hinder his recovery and return to society

   (e)The applicant would be returning home to [State 1] with the help and support of his cousin, Mr [A]. The letter by Mr [A] indicates that the applicant would receive the help and support from his cousin as claimed and as uh the Tribunal accepts that this would be case. 

4. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.

1. The applicant travelled to Australia as an asylum seeker. He was granted a Temporary Protection Visa on the basis that he was owed protection obligations by Australia as a stateless Rohinyga by reason that he would face harm in the event he was returned to Myanmar. The applicant submits that there has been no change to the applicant’s status as a stateless Rohingya and that he would be harmed in the event that he is returned to Myanmar. 

1. The applicant states that he has a compelling need to remain in Australia as a result of him wanting to maintain a relationship with his infant daughter [who] is [age] years old. 

2. The Tribunal places some consideration on this matter in the applicant’s favour.

The extent of compliance with visa conditions

1. The Tribunal is not aware of any information to indicate that the applicant had not complied with any previous visa conditions. As a result, the Tribunal places some consideration on this matter in the applicant’s favour.

Degree of hardship that may be caused.

1. The applicant claims that he will suffer extreme psychological hardship and emotional hardship if the decision of the department to cancel his visa is upheld by the Tribunal. His continued detention will have a devastating impact on his already fragile mental health. The applicant states that he has been in detention since [September] 2019, and after he arrived in Australia for around 19 months.[27] The applicant claims that he will not be able to receive the adequate medical attention if he remains in detention or is returned to Myanmar.

   [27] Applicant’s submission , [State 1] Legal Aid dated [February] 2020 AAT File No 1927623 @ f.150

2. It is submitted that the applicant has a history of self-harm and is currently on medication for depression. Records obtained from [Service provider 3] detail the applicant’s mental health concerns while he has been in detention. An incident from [April] 2014 reports that the applicant was banging his head on the walls, sobbing and distraught. More recently records show that the applicant has continued to access mental health support. The following documents were specifically drawn to the Tribunal attention:[28]

   (a)GP Consultation [in] October 2019 – confirmed that applicant lowered mood, reported history of drug abuse and relationship breakdown. Reports that he sometimes hits head against the wall and that he has concerns about his mother. Confirms that he is on medication for depression.

   (b)[October] 2019 – torture and trauma disclosed, counselling recommended.

   (c)[October] 2019 – mental health consultation. Reported history of self-harm running into wall banging head.

   (d)Referral to [Service provider 1] by [Service provider 3] [in] October 2019 for counselling.

   [28] ibid

3. The Tribunal accepts that the applicant will not necessarily receive the appropriate medical care in the event that he is to remain in detention or returned to Myanmar. The conditions that apply to the Community Corrections Orders have not been continued during the applicant period in detention. As a result it is argued that he needs to be released from detention to be able to receive the necessary care and supervision. The Tribunal has considered the issue of the applicant’s mental health and accepts that he will not necessarily receive the appropriate level of care while held in detention. In the event that he is released from detention and returns to [State 1] he will once again be subject to the conditions attached to the Community Corrections Orders. As a result the Tribunal gives this consideration some weight in the applicant’s favour.

4. In addition the applicant claims that he will suffer emotional hardship by being separated from his daughter. The Tribunal notes that his daughter is currently residing with her mother. Ms [D] did not give evidence to the Tribunal. Given the nature of the applicant’s offences and his past addiction to alcohol and drugs, the Tribunal has reservations about the prospect of the applicant establishing a lasting and meaningful relationship with his daughter. In any event the Tribunal is prepared to give the applicant the benefit of the doubt and accepts his desire to re-establish contact which his daughter as claimed. As such, it accepts he will suffer some hardship in the event his visa is cancelled by reason of not being able to re-establish contact with his daughter. 

5. Accordingly, the Tribunal gives some weight to this consideration in the applicants favour.

Circumstances in which ground of cancellation arose.

1. The applicant has been convicted of various offences of a sexual nature. The applicant claims that he is deeply ashamed of his actions and that he finds it difficult to speak about. Having fled a country where is has been subjected to torture and violence and in which he had no rights as a citizen and having been granted a Temporary Protection Visa by Australia the applicant has every reason to be ashamed of his actions of placing the   health, safety and good order of the Australian community at risk.

2. The applicant claims that his offending was caused by his addiction to multiple substances including alcohol, synthetic cannabis, ice and heroin. He claims that his drug use increased after the breakdown of his relationship with his daughter’s mother and the loss of custody of his daughter.

3. The Tribunal notes that the report of Dr [E] has diagnosed the applicant with PTSD on account of his exposure to violence and threats of death in Myanmar. The applicant did not provide any detail as to the violence and threats of death he claims to have received.  Nevertheless Dr [E] is of the opinion that the applicants risk of further offending relates to the untreated mental health issues, drug abuse and social isolation. Dr [E] notes that the applicant would benefit from engaging with the workforce to provide stability, maintaining contact with his cousin and ceasing his use of drugs and alcohol. As such, it is submitted that the applicant should be allowed to complete his assessment and treatment under the Community Corrections Orders. 

Past and present behaviour of the visa holder towards the department

1. The Tribunal notes that the applicant has been co-operative and prompt in his dealings with the department and the Tribunal.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Whether there are mandatory legal consequences to a cancellation decision.

1. In the event that the applicant’s visa is cancelled, he will be subjected to section 48 of the Act which provides that he can only apply for another visa if it is prescribed under regulation 2.12 of the Migration regulations 1994.

2. In the event that the applicant’s visa is cancelled he will become an unlawful non-citizen and detained under section 189 of the Act and removed for Australia pursuant to section 198 of the Act. As the applicant has had his Temporary Protection Visa cancelled he is barred pursuant to s.46A and s.48A of the Act from applying for nearly any other type of visa, including protection visa, unless the minister exercises his personal non-compellable powers to lift either of the statutory bars. There is no request to the Minister by the applicant in relation to these powers, nor is the Tribunal aware that any such request has been made by the department. In addition, there is no indication that the Minister is likely to exercise any of his non-compellable discretions including those pursuant to s.195A (the grant of a Bridging Visa) or s.1987AB (making a a residence determination).

3. In the event that the Tribunal affirms the departments decision to cancel the applicant’s visa, it is unlikely that the applicant will be removed from Australia due to its non- refoulement obligations to the applicant under the Refugee Convention, the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT). While s.197C of the Act does not preclude the removal of a non-citizen from Australia even when they are owned protection obligations, in circumstances where the applicant has been found to be a stateless person and where his country of former habitual residence is unlikely to accept him, then there is no practical effect to s.197C of the Act

4. As a result the cumulative operation of these sections of the Act and the ICCPR means that in the event the Tribunal affirms the department’s decision to cancel the applicant’s visa the applicant will remain in prolonged immigration detention. This will result in the applicant effectively being detained for a period of time well beyond the sentence imposed for the crimes for which he was convicted.

5. Tribunal gives this consideration a considerable weight in favour of the applicant.

Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. The Tribunal has found that as a stateless Rohingya person there is a real chance the applicant will be seriously harmed in the event he is returned to Myanmar. As such his removal for Australia to Myanmar would be in breach of the Refugee Convention the ICCPR and the CAT. In such circumstances the Tribunal is of the view the applicant would be held in detention for a prolonged period of time. Accordingly, the hardship suffered by the loss of his liberty for an extended period of time far outweighs the consideration in relation to the risk to the Australian community under on s.116(1)(e) of the ACT.

2. In relation to the applicant’s daughter the tribunal has considered Article 3.1 (best interests of the Child), 9 (nonseparation of Children from their parents) and 16 (freedom of interference with family) of the Convention on the Rights of the Child (CRC). While the Tribunal has accepted that the applicant would suffer some hardship as a result of the cancellation of his visa, Ms [D] did not give any evidence to the Tribunal. While on its face the Tribunal accepts that it is in the interest of the Child for the applicant to be present in her life the tribunal was not provided any evidence as to the likely reconciliation between the applicant Ms [D] and their daughter.

3. As such the Tribunal gives this matter some weight in the applicant’s favour.

4. The applicant has considered the risk to the community pursuant to s.116(1)(e) of the Act in light of the other considerations a detailed above. In the Tribunals view the hardship that the applicant would suffer as a result of his loss of liberty by being held in detention for a prolonged period of time outweighs the concerns the Tribunal has in relation to the risk he applicant presents to the health, safety and good order of the Australian community.

5. Therefore having considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

Jason Pennell
Senior Member

[13] DFAT Country Information Report Myanmar (18 April 2019).