2005486 (Refugee)

2005486 (Refugee) [2023] AATA 2271 (30 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Daniel Robert Taylor (MARN: 1464666)
CASE NUMBER: 2005486

COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER:Melissa McAdam
DATE:30 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 30 March 2023 at 11:37am
CATCHWORDS
REFUGEE – protection visa – Myanmar – religion – Muslim – nationality – stateless – political opinion – opposition to the government – interfaith peace group – fear of physical assault – fear of detention – relationship with a Rohingya man – protests in Australia – failed asylum seeker – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 on 13 March 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant applied for the visa on 5 August 2016. The second named applicant was born in Australia on [date] and was later included in the first named applicant’s visa application.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection visa application
The first named applicant is the mother of the second named applicant.
The following is a summary of the claims and information the first named applicant provided in her Protection visa application:
a.She was born in Mandalay, Myanmar in [specified year].
b.She is a Sunni Muslim and belongs to the Burmese ethnic group.
c.She completed [specified] school in Mandalay.
d.Her mother and brother are living in Mandalay. Her father died in 2013 from natural causes.
e.She departed Myanmar [in] May 2016 and arrived in Australia [later in] May 2016 on a Visitor visa, valid until [August] 2016.
f.She claimed to be stateless as she could not obtain a valid National Identity card in Myanmar.
g.She claimed she would be seriously harmed or killed in Myanmar because of her religious beliefs as a Sunni Muslim. She claimed that she may also be the target of harassment and physical violence from conservative members of local communities and radical Buddhist Monks because she is a Muslim.
h.She claimed she fears persecution from Burmese authorities in the form of arrest, detention, torture and imprisonment because she was a member of [Group 1] and participated in attempts at resolving religious conflicts between Muslims and Buddhists in Mandalay.
i.She also feared that she is known to authorities and may be targeted as she was previously arrested and interrogated in 2014.
On 29 July 2019, the applicant provided a further statement to the Department indicating that she is in a relationship with a Rohingya Muslim man in Australia and they have a child together. She fears that she and their child, the second named applicant, would face further harm in Myanmar due to her husband identifying as a Rohingya Muslim.
Departmental Interview, 29 July 2019
The following is a summary of the information provided by the first named applicant in her Department interview:
a.The Department Delegate put to the first named applicant that she was not satisfied the first named applicant would be able to obtain a Myanmar passport without providing identity documentation. The applicant responded that her mother arranged the passport with a broker and she was unsure of the process.
b.The Delegate put to the first named applicant that the Department had information she may have obtained her passport under a false identity. The applicant responded that she had a student identification card with her name on it and would provide a translated copy of this to the Delegate.
c.The Delegate put to the first named applicant that in her Visitor visa application she indicated she was working for a company. The first named applicant claimed that everything was filed with the broker, and she did not know what was provided on the form.
d.The Delegate put to the first named applicant that according to Department sources she falsified information on her Visitor visa application. On the application form, she had indicated she was to visit the visa sponsor to attend the sponsor’s wedding ceremony in Australia. The first named applicant responded that she had no idea as the broker handled everything.
e.The first named applicant repeated claims of participating in interfaith organisations to attempt to defuse situations during conflicts in Meiktilar in 2013 and Mandalay in 2014. She indicated that the interfaith body she was a member of did not pursue political activities and merely promoted peaceful coexistence between individuals of different religious backgrounds. After the 2013 events in Meiktilar, the group gave themselves a name (‘[specified]’) and became more active. Their activities mostly involved charity work and assisting the elderly and informing people about Islam. The group had about 15 members.
f.The first named applicant further expanded on her claims of arrest, detention and hiding. She detailed that people in normal clothes came to her home and arrested her. She was then taken, driven for two hours, slapped and beaten. Her arrest and detention occurred over 14 days.
g.The Delegate put to the first named applicant that the current country information suggested that the political situation in Myanmar had improved since the Democratic Party was elected in 2015. The Democratic Party released all political prisoners after 2015, and interfaith activist prisoners were released in 2017. Community and mob violence had also declined. The first named applicant did not agree with the country information and stated that in reality the government had not changed their practice.
Delegate’s Decision
The Delegate accepted that the first named applicant had contact with members of an interfaith group and was involved in some charitable actions. However, the Delegate did not accept that she had a political profile that would be likely to attract adverse interest from the authorities as her participation was minimal.
The Delegate did not accept that the first named applicant left her country only with the assistance of a people smuggler and corrupt airport officials.
It was not accepted that the first named applicant was refused a birth certificate or National ID card by authorities because she is a Muslim. The Delegate noted that the first named applicant travelled using a passport in her real name. The passport was issued [in] 2014 when the first named applicant was allegedly hiding from police. The Delegate was not satisfied that she would have been able to obtain a genuine passport in her real identity if this was the case. The evidence suggested that the first named applicant left Myanmar in a regular manner and was not of adverse interest to Burmese authorities.
The Delegate accepted that the first named applicant’s partner might be an ethnic Rohingya but did not accept that he is stateless from the Rakhine State. The Delegate noted that the first named applicant’s partner had a Myanmar birth certificate, was born in a state hospital, and attended a Myanmar university to study [course]. This evidence led the Delegate to believe that the first named applicant’s partner is a Myanmar citizen of Rohingya ethnicity. The Delegate, therefore, did not accept that the personal circumstances of the first named applicant’s partner would lead to her or the second named applicant being denied Myanmar nationality and citizenship.
The Delegate also found that the second named applicant would be recognised as a Myanmar citizen by birth as she was born to Myanmar citizens.
The Delegate was unable to be satisfied that the applicants had a well-founded fear of persecution for reasons of political opinion and religion, or that they were owed complementary protection.
Information to the Tribunal
Submission, 7 March 2023
On 07 March 2023 the applicants’ representative provided a submission to the Tribunal detailing the reissued 11 November 2022 Department of Foreign Affairs and Trade (‘DFAT’) Report on Myanmar and references to a recent AAT decision for an applicant from Myanmar.
Submission, 17 March 2023
On 17 March 2023, the applicants’ representative submitted extracts from the first named applicant’s husband’s protection visa application, in which he claimed:
a.His family are stateless Rohingya from Maungdaw.
b.He was a political activist previously known to the authorities. He fears being harmed because of his political activism in Burma for the [named party] and in Australia for the [named community group] and because of living illegally in Yangon.
c.His daughter will be unable to obtain citizenship or any identity documents because he falsely indicated he is of Bengali Bamar ethnicity and illegally relocated to Yangon. He believes his daughter, himself and his wife will be punished for this.
Submissions, 19 March 2023
On 19 March 2023, the applicant’s representative provided submissions to the Tribunal enclosing the Office of the High Commissioner for Human Rights (‘OHCHR’) report dated 02 March 2023.
The representative also provided submissions regarding the first named applicant’s [social media] activities and her husband’s [social media] profile.
The representative enclosed the first named applicant’s husband’s statement of claims and additional information.
The representative also provided relevant country information on critics of the regime.
Submissions dated 24 March 2023
On 24 March 2023 the applicants’ representative submitted the following documents:
a.The first named applicant’s Statutory Declaration dated 23 March 2023, containing the following additional information:
i.The applicant admits that her political involvement claims were exaggerated out of fear of being deported because she fled from a murderous regime and did not want to return as a failed asylum seeker.
ii.She did have some low-level participation in an interfaith peace group in Myanmar.
iii.She was never arrested or detained.
iv.Her identity documents, specifically her Scrutiny Card and Myanmar Passport, are genuine. However, this was sought through an agent.
v.Her great grandparents were Myanmar residents, however, had to pay an agent to get her identity documents because of the severe discrimination against Muslims.
vi.Her husband assisted her to come to Australia.
vii.Her husband’s friend agreed to provide her an invitation letter to attend her wedding as a friend and this is what she used to apply for a Visitor Visa at the Australian Embassy in Yangon.
viii.She is a supporter of the NUG and participated in the February 2021 protests in [Sydney]. Her husband has also attended additional protests and marches.
b.The first named applicant’s husband’s Statutory Declaration dated 23 March 2023.
c.The first named applicant’s Certificate of marriage dated [in] January 2020.
Country Information
DFAT’s most recent ‘Country Information Report Myanmar’, published on 11 November 2022, contains the following:[1]
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 11 November 2022
Muslims
There are a number of distinct Muslim communities living throughout Myanmar, including the Kaman, Pantay, Pashu, Rohingya and Zerbadee. Most follow the Sunni sect. According to the 2014 census, Muslims made up approximately 4 per cent of the population, although this figure undercounts Rohingya Muslims, who were effectively excluded from participating. The majority of Muslims live in northern Rakhine State, but there are also Muslim communities in Yangon, Ayeyarwady, Magway, and Mandalay.
Muslims in Myanmar experience discrimination and restrictions on their ability to practise their faith. They are underrepresented in the public sector. There were no Muslim ministers under the previous NLD government, nor are there any Muslim members of the regime’s SAC. Muslims are reportedly excluded from a range of government jobs, including as public school teachers and health workers. In recent decades many mosques have been burned down or vandalised, especially in Rakhine State, and authorities have prevented communities from rebuilding them. In June 2021, a mosque in Ahlone Township, Yangon was burned down in what the Burma Human Rights Network says was a deliberate arson attack. One source told DFAT more than 100 mosques had been destroyed and no new mosques built in the country since 1962. Authorities often withhold permission for Muslim worshippers to publicly celebrate religious events including Ramadan. In satellite towns without established mosques, Muslims are often forced to pray in makeshift prayer houses, which are sometimes too small to accommodate the number of worshippers. A report by the Burma Human Rights Network in 2017 found at least 21 villages had been declared ‘Muslim-free zones’ by local authorities, with signs erected in some villages stating ‘Muslims are not allowed to buy or rent properties’.
Muslims are frequently denied basic rights and services on the basis of their religion. An estimated 65 per cent lack citizenship cards, and many find it difficult or impossible to obtain them, even if they are theoretically qualified. Reasons vary, ranging from the Muslim applicant being unable to provide extensive and often difficult-to-obtain documentation to prove family lineage before 1824, to the refusal of immigration authorities to register a Muslim person as Bamar, the majority ethnicity. Some have been required to choose a ‘foreign’ ethnicity (such as Bengali) to self-identify as Muslim on applications for citizenship cards. Under the ‘Preservation of Race and Religion Laws’, a Muslim man is not allowed to marry outside of his religion.
Anti-Muslim sentiment is prevalent in Myanmar and is circulated through social media, state institutions and mainstream news websites. Muslims are often called by racial slurs and subject to hate speech. Since 2011, ultranationalist Buddhist movements such as Ma Ba Tha (the Association for the Protection of Race and Religion) and the 969 Movement (an anti-Islamic religious group) have been influential in fomenting anti-Muslim hatred in Myanmar. During that time, Ashin Wirathu, a prominent monk and leader of the Ma Ba Tha movement, repeatedly incited violence against Muslims in speeches and online, including by spreading conspiracy theories that Muslims were planning to take over the country by marrying and converting Buddhist women. In 2018, Wirathu’s hate speech led Facebook to ban him and the national monastic council to bar him from speaking publicly. Ma Ba Tha was banned in 2017 and afterwards rebranded as the Buddha Dhamma Philanthropy Foundation. Wirathu, who had been in hiding since May 2019, turned himself into authorities in November 2020 and was arrested for ‘exciting disaffection against the government’. The military regime released him in September 2021.
There are strong links between ultranationalist Buddhism and the military. Soldiers are reportedly indoctrinated to see Islam as an existential threat to the Union of Myanmar. A 2018 New York Times investigation found anti-Muslim social media disinformation campaigns had been carried out on a large scale by the military. Anti-Muslim propaganda has continued in the aftermath of the 2021 coup. For instance, in December 2021, military aircraft dropped leaflets on villages in Sagaing claiming the Organisation of Islamic Cooperation was providing money and ammunition to support the killing of monks and insulting of Buddhism. Pro-military Facebook users have also made false claims linking PDFs and the political opposition to Islamic extremist groups such as ISIS and the Taliban.
DFAT assesses that Muslims in Rakhine State, regardless of ethnicity, face high levels of official and societal discrimination and a moderate risk of violence on the basis of their religion and perceived association with the Rohingya (who face specific, higher risks). DFAT assesses that Muslims outside of Rakhine State face moderate levels of official and societal discrimination and a low risk of violence on the basis of their religion.
…
Political Opposition
… DFAT assesses anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.
…
Women
… Reports suggest that since the coup, women who are detained by the security forces for opposing the regime are frequently subjected to sexualised threats and sexual harassment, and in some cases to sexual assault, rape and torture. DFAT is aware of credible allegations of extreme sexual torture of some female detainees, including gang rape, sexual mutilation and being hung naked from a tree. Sources told DFAT female political prisoners were particularly vulnerable while being held in military interrogation centres and while being moved between locations.
DFAT assesses that women in Myanmar are at moderate risk of societal discrimination and moderate risk of official discrimination in the form of inadequate state protection from gender-based violence. Female political prisoners are at high risk of sexual harassment and moderate risk of sexual violence and rape. Rohingya women in Rakhine State face high levels of official and societal discrimination on the basis of their gender. Women throughout Myanmar face a moderate risk of GBV, particularly domestic violence.
…
Children
… DFAT assesses young people, including teenagers, face a moderate risk of official discrimination and a low risk of societal discrimination on the basis of their age and presumed association with the resistance movement, regardless of their actual involvement. Children of opponents of the regime face a high risk of official harassment and arbitrary detention, including as hostages, but this is generally on the basis of their parents’ political affiliation, rather than their age alone.
…
Returnees
… DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries (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.
…

The most recent OHCHR report ‘Situation of Human Rights in Myanmar since 1 February 2022’, [2] published on 02 March 2023 contains the following:
[2] Office of the High Commissioner for Human Rights (‘OHCHR’) ‘Situation of Human Rights in Myanmar since 1 February 2022’, 02 March 2023.
Two years after the military coup, people in all parts of Myanmar remain exposed to daily human rights violations. While some pre-existing conflicts between the military and ethnic armed organizations (EAOs) have reignited, violence has spread nationwide, dramatically changing Myanmar’s conflict landscape and heightening concerns for the protection of civilians. Global advocacy for peace and restraint have remained unheeded, and the military, emboldened by continuous and absolute impunity, has consistently shown disregard for international obligations and principles.
By late 2021, and throughout 2022, violence intensified especially in the north-western and south-eastern parts of Myanmar, with the military employing its “four cuts” strategy including through indiscriminate airstrikes and artillery shelling, mass burnings of villages to displace civilian populations, and denial of humanitarian access. Punishing individuals and communities that they perceive as opposing them, the military also adopted rules intended to target anti-coup opposition and severely restrict the civic space that had significantly contributed to Myanmar’s democratic transition.
Whilst the military has stated commitment to restore a multiparty democratic system through elections in 2023, it has actively designated its opponents, publicly, as terrorists, arbitrarily detained them and prosecuted them primarily on specious charges of treason, sedition, incitement or other crimes in secretive courts without any semblance of due process. These actions take place against a backdrop of killings and extrajudicial executions, use of the death penalty, enforced disappearances, arbitrary arrests, torture, sexual violence, and denial of fair trial rights, among other violations. Credible sources reported having verified 2,940 deaths and 17,572 arrests by the military and its affiliates since the coup.
UN data indicates that since February 2021 over one million people have been newly displaced, and that 17.6 million people now need humanitarian assistance. Nearly half of the population, 25 million people, currently live in poverty, with rural populations reported to be at risk of starvation as the military imposed further physical and administrative restrictions on access to areas affected by violence and conflict. Main supply routes and waterways across the country have been blocked, preventing humanitarian actors from reaching people in need. Minority communities, including the Rohingya, that have suffered decades’ long discrimination, continue to face discrimination.
As noted in previous reports, a catastrophic human rights situation continued to fester. There are reasonable grounds to believe that acts by the military constitute human rights violations and violations of international humanitarian law, some of which may amount to international crimes, including widespread use of indiscriminate airstrikes and artillery attacks against populated areas, village raids and burnings, arbitrary arrests, use of torture, extrajudicial killings, and sexual violence. OHCHR documented consistent tactics and patterns of abuse across the country confirming that the military operates as a solid and coherent structure, implying knowledge of its leadership.
…
OHCHR continued to receive information and document cases of enforced disappearances with the military and its affiliated militias reported as main perpetrators. While the nature of the violation makes it challenging to verify the full extent of its occurrence, the information received indicates that prominent political figures, religious and community leaders opposed to the military’s purported seizure of power are targeted.
Credible information was received about cases in which the military failed to arrest the intended target, such as members of the National League for Democracy, political activists, anti-military armed group members, and individuals associated with the civil disobedience movement, and disappeared their family members to force them out of hiding. In April, in Yangon, the military targeted a family accused of supporting anti-military armed groups. After arresting the mother, plain clothes individuals took from kindergarten the three-year-old son. On 19 December, she was reportedly sentenced to 20 years’ imprisonment. No additional information about her son has been received since.
…
Sexual and Gender-Based Violence
Serious concerns about continued use of sexual and gender-based violence by the military in conflict and non-conflict settings, and the absolute impunity of perpetrators, remain unaddressed. Additionally, civil society organizations consistently reported increasing patterns of gender-based violence, stressing that negative effects of COVID-19 and related restrictive measures, combined with military actions have exposed women, men, boys, and girls, continuously to risks of abuse.
… Primary and secondary sources confirmed that sexual and gender-based violence, including rape, were repeatedly perpetrated in interrogation centers and other formal detention settings against women, men and LGBTIQ+ community members, as well as in villages during military raids.
…
Since 1 February 2021, the military has arrested 17,572 individuals, including 3,610 women, and 381 children on politically motivated grounds. … According to credible sources, as of 31 January 2023, at least 13,763 people remained in detention.
Numerous interviewees stated that anyone can be arrested at any time. They noted that the military had progressively targeted individuals accused of association with anti-military groups and their families. Notably, family members of persons with outstanding arrest warrants increasingly faced arbitrary arrest and detention, including through repeated abductions and hostage-taking of children, as young as three, constituting in some cases enforced disappearances.
Credible reports persisted that the military continued to rely on tactics amounting to torture and ill-treatment against detainees, mostly in interrogation centres. Interviewees described instances of severe beatings; mock executions; being suspended from ceilings without food or water; electrocution; forced nudity in front of others, and sexual violence, including against men and LGBTIQ+ individuals. While previously interrogations aimed at identifying leadership of protests, they have increasingly focused more recently on inquiries about detainees’ connections with anti-military groups. OHCHR received consistent reports about inadequate conditions in detention, which may amount to torture, including overcrowding; insufficient sanitation and hygiene; and lack of access to or denial of healthcare services, food, and water. Deaths in detention due to torture, ill-treatment, or inadequate access to medical care, continued to be reported at alarming levels.
Children in detention remained a grave concern, as they continued to be arrested arbitrarily and detained in juvenile detention centres, police stations, prisons, and military interrogation centres, often instead of their family members, and were subjected to proceedings before military-controlled courts, including on counter-terrorism charges. According to UN figures, between January and December 2022, at least 129 children were incarcerated, including those below the age of criminal responsibility, for alleged association with armed and anti-military groups. Credible sources reported at least 104 known cases of children tortured, mostly in interrogation centres, through different methods, including stabbing in the stomach, electroshocks, and pulling of fingernails.
Women have also remained targets of repression and faced often extreme conditions in detention without adequate forms of protection. Although secure access to victims and survivors remains extremely challenging, accounts of sexual violence, including rape, and other degrading treatment, such as denial or lack of access to adequate toilets and menstrual hygiene supplies, intimidation, threats, and physical and verbal abuse were received from multiple sources. …
…
Since 1 February 2021, the military has adopted measures severely limiting civic space, including restrictions on the rights to freedom of expression, association, peaceful assembly, and movement, and public participation. Those opposing the military continue to be harassed, arrested, and prosecuted for the peaceful exercise of their rights, both online and offline. On 20 September, the military criminalized social media activity determined to be acts of opposition, including “liking” posts that the military deemed to be supportive of anti-military armed groups. Such acts carry penalties of up to 10 years’ imprisonment. …
CONSIDERATION OF CLAIMS AND EVIDENCE
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 425(2)(a) of the Act.
Country of Reference
The applicants provided the following identity documents to the Tribunal:
a.A copy of the first named applicant’s Myanmar passport issued in [2014].
b.A copy of the second named applicant’s birth certificate, showing that the first named applicants place of birth was in [Town 1], Burma.
c.A translated copy of the first named applicant’s birth certificate, showing that her parents were born in Myanmar and her birth was registered with the Mandalay Registrar of Births and Deaths for that district.
d.A copy of the first named applicant’s Student Identity Card from [Town 1].
e.A copy of the first named applicant’s Student Identity Card from [a named] School Mandalay.
f.A copy of the birth certificate of the first named applicant's second child, dated [date], showing that the first named applicant’s place of birth was [Town 1], Myanmar.
According to DFAT’s report, referred to above, the Myanmar authorities issue a wide variety of identity and other official documents, including birth and death certificates, national identification cards, household registers and passports.[3] The Ward or Village Tract Administration Law requires all births and deaths to be registered with ward or village tract administrators.[4]
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 11 November 2022 [5.26]
[4] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 11 November 2022 [5.27].
Based on the documents submitted by the applicants and the available country information the Tribunal accepts that the first named applicant is a citizen of Myanmar.
An identity assessment in relation to the first named applicant’s husband was conducted by the Department on 20 March 2014. It was found that he was born and lived all his life in Rangoon, was born in a state hospital, obtained a Myanmar birth certificate and completed a [Degree] from [a named] University. On the basis of this evidence the Tribunal accepts it is likely the first named applicant’s husband is a citizen or associate citizen of Myanmar. The Tribunal is therefore satisfied that the second named applicant is a national of Myanmar as the child of parents who are Myanmar citizens.[5]
[5] See section 7 of the 1982 Citizenship law (Myanmar)
Credibility
The first named applicant claims she fears harm if forced to return to Myanmar because of her religion as a Sunni Muslim and her involvement in socio-religious activity in Myanmar and political activity in Australia.
Religion
Since arriving in Australia, the first named applicant has maintained that she is a Sunni Muslim. At the Department interview, she stated that she does not attend a Mosque however she regularly worships at home. The department Delegate questioned the applicant regarding her religious beliefs and appeared to be satisfied with her responses.
The Tribunal notes that there is no available evidence to indicate the first named applicant is not a Sunni Muslim.
In view of her consistent evidence the Tribunal accepts that the first named applicant is of Muslim faith. The Tribunal also accepts that the second named applicant is being raised in a Muslim household.
Socio-religious and Political activity
The applicant claims to have had low-level participation in an interfaith peace group in Myanmar during 2013 and 2014 but has admitted that this did not bring her adverse attention from the authorities in Myanmar. The Tribunal accepts she did have this low-level activity and that she did not experience any resultant harm.
The applicant’s representative provided submissions regarding the first named applicant and her partner’s [social media] activities. The Tribunal accepts that the applicant and her partner have publicly posted information on social media regarding the massacres inflicted by the Myanmar regime in 2014, and other posts against the military coup.
The Tribunal also accepts that the first named applicant and her husband attended protests in Sydney against the Myanmar military regime.
Fear of harm in Myanmar
According to the available current country information actual and perceived opponents of the military regime in Burma (Myanmar), ranging from senior political leaders to casual participants in street protests, have been subjected to arbitrary detention, torture, sexual violence and enforced disappearance.[6]
[6] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 11 November 2022
The reports highlight that anyone who has been accused of sympathy with political opposition is at risk of detention by the authorities, including for having pictures in their homes or on their mobile phones, or using foreign [apps]. DFAT’s latest report concluded that the threshold for falling under official suspicion is extremely low.[7] DFAT has assessed that anyone who opposes, or is perceived as opposing, the military regime is at high risk of official discrimination and violence. Family members are also at high risk.[8]
[7] Ibid [3.46] – [3.48].
[8] Ibid [3.51].
The Tribunal accepts that the first named applicant’s activities in both Myanmar and Australia will be perceived adversely by the regime in Myanmar. The available current country information indicates that, despite the low-level nature of her community and political participation to date, she will be considered an opponent of the regime.
Further, both applicants would be returning to Myanmar as failed asylum seekers from Australia. As set out above, DFAT currently assesses that a failed asylum seeker returning to Burma (Myanmar) from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left the country.[9]
[9] Ibid.
DFAT’s report highlights that there are severe consequences for anyone suspected of opposing or criticising the regime in Myanmar or having links to Western countries, and for their family members.[10] According to the available information the applicants will be at high risk of official discrimination and violence, including detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty.[11]
[10] Ibid.
[11] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 11 November 2022
The Tribunal is therefore satisfied there is a real chance that the first named applicant will face serious harm on return to Myanmar for the essential and significant reason of her political opinion due to her political activity and having sought asylum in Australia. The Tribunal considers that the applicant’s religion, as a Muslim, further heightens her risk of serious harm.
The Tribunal is further satisfied there is a real chance that the second named applicant will face serious harm on return to Myanmar for the essential and significant reasons of her imputed political opinion due to having sought asylum in Australia, and her membership of a particular social group, namely the family of the first named applicant.
The Tribunal is satisfied that the harm the applicants will face in Myanmar is a result of systematic and discriminatory conduct in that it will be done to them intentionally and selectively.
The Tribunal considers that the real chance of serious harm to the applicants exists throughout Myanmar in that they would be of adverse interest to the security forces in all areas Myanmar. Given the state is the agent of harm the Tribunal finds there is no effective protection available to the applicants in Myanmar.
The Tribunal is therefore satisfied that both applicants have a well-founded fear of persecution in Myanmar as defined by s.5J of the Act.
Section 36(3)
There is no indication that the applicants have a right to enter and reside in any other country. On the information before it the Tribunal accordingly finds they have no such rights. The Tribunal is therefore satisfied that the applicants are not excluded from Australia’s protection by s.36(3) of the Act.
Conclusion
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Melissa McAdam
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2023] AATA 2271

30 March 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal