2007122 (Refugee)
[2023] AATA 2493
•12 June 2023
2007122 (Refugee) [2023] AATA 2493 (12 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2007122
COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER:Shahyar Roushan
DATE:12 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 12 June 2023 at 4:03pm
CATCHWORDS
REFUGEE – protection visa – Burma – political opinion – participation in anti-government demonstrations and meetings in Australia, and financial contributions – involuntarily returned failed asylum seeker – country information – recent military coup and continuing human rights abuses – low threshold for official suspicion and high risk of harassment, detention and violence – state protection and relocation not available – decision made without hearing necessary – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), 5L, 36(2)(a), 56, 65
Migration Regulations 1994 (Cth), Schedule 2Any 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
BACKGROUND
The applicant is a [Age]-year-old, national of Burma (Myanmar). She arrived in Australia [in] October 2019 as the holder of a Tourist visa (Class FA) (Subclass 600), which ceased on 16 January 2020.
On 20 November 2019, the applicant lodged an application for a Protection visa and on 9 April 2020, a delegate of the Minister for Home Affairs refused to grant the applicant the visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
In her Protection visa application form, in response to questions in relation to her reasons for claiming protection, the applicant stated that it is hard to earn a ‘decent salary’ to support her family in Myanmar. If she returns to Myanmar, she would ‘probably [be] declared bankrupt and would be homeless.’ Internal relocation would be ‘a waste of time and money’ and the authorities would not be able to protect her.
The applicant was not invited to an interview. However, on 5 March 2020, the Department sent her a letter under s 56 of the Act, inviting her to provide additional information and evidence regarding any reason as to why she would face serious harm or significant harm if she were to be removed to Myanmar.
On 20 March 2020, the applicant provided the Department with an email response, stating:
I have received the letter from immigration sending trough email on 5 March 2020 that i have to give the comment for provide the additional information. I facing the persecution if i going back to my Myanmar. In our community we having the affair of the political opinion and it makes my family including the family member have the same impact. I really not secure to get back. Since we having a global infection, i heard my country have facing worst situation, but at the moment i can't provide the official evidence for this matter. I'm really appreciate if the Government Australia give me the protection in this country. However, with this opportunity given to me, i will turn my life around and give back to Australia who allowed me into their home. (sic)
The delegate’s decision
The delegate was not satisfied that, on the basis of the claims presented, there is a real chance that the applicant would face serious harm or a real risk that she would face significant harm in Myanmar. The delegate was not satisfied that the applicant has a well-founded fear of persecution or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Myanmar, there is a real risk she would suffer significant harm.
The review application
On 15 April 2020, the applicant applied for a review of the delegate’s decision. Subsequently, she submitted a number of documents in support of her review application, including a detailed account of her political activities in Australia, photographic and documentary evidence in support of her claims and country information in relation to Myanmar.
The following is a summary of the additional information and the claims provided by the applicant.
She has always ‘hated’ the Burmese military, especially its commanders. Since her arrival in Australia, the situation has changed in Myanmar, and she has been involved in many activities in Australia against the Burmese military rule. She has participated in demonstrations in Sydney and [City]. These activities have been reported by mainstream media and videos and photographs have been posted on social media. The Myanmar authorities use various means to spy on these activities and report back. The Burmese Military Intelligence scans [Social media] pages worldwide and they would have become aware of her activism. In addition, in [Month, year], she and a group of others hosted a meeting in [City] with [a representative] of the [Organisation], and photographs of this meeting may have been posted online. She is always careful in her phone conversations with her family as she is concerned about the authorities monitoring phone calls.
The applicant submitted to the Tribunal photographs depicting her as a participant in a demonstration at [Venue], protesting against the Burmese use of rape as a weapon of torture against political prisoners, as well as photographs of her attending the [Organisation]. She also submitted evidence of financial contributions she had made in support of the opposition to the military rule in Burma.
The hearing
Having considered the evidence before it, the Tribunal decided that there was sufficient material available to enable it to decide the review in the applicant’s favour without a hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The Tribunal accepts that the applicant is a national of Myanmar. The Tribunal initially had some concerns that the applicant had made no mention of her ‘hatred’ for the Burmese military in her Protection visa application and has provided no explanations for this lack of disclosure in the numerous submissions provided in support of her review application.
Nevertheless, the Tribunal accepts that her attitude towards the Burmese military would have assumed greater significance following the February 2021 military coup in Myanmar. On the basis of the more recent evidence submitted by the applicant, the Tribunal accepts that she is genuinely opposed to the military rule in Myanmar and has expressed her views through participation in protest activity and demonstrations in Australia since the coup. The Tribunal accepts that reports and images relating to these demonstrations, potentially featuring the image of the applicant, have been posted on social media pages, which may come to the attention of Myanmar authorities. The Tribunal also accepts that the applicant has made financial contributions in support of the opposition to the military rule. The Tribunal is satisfied that the applicant’s activities in Australia represent a genuine expression of her political views and that she has engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee.
The country information sources consulted by the Tribunal indicate that the optimism which sprouted following the 2010 elections and led to transformative political and economic reforms, the release of political prisoners and the election of Aung San Suu Kyi to parliament, blossomed into a short-lived democratic reality in November 2015 when Myanmar held its first credible national elections in more than half a century. Having won 80 per cent of the available seats, the NLD assumed power, and although Aung San Suu Kyi could not become president due to a constitutional clause drafted to exclude her, she was appointed State Counsellor and Foreign Minister.[1] In subsequent elections held in November 2020, the NLD won in a landslide, paving the way for Aung San Suu Kyi to become president. However,
[the] military rejected the result and seized power under the leadership of Senior General Min Aung Hlaing on 1 February 2021. Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.[2]
[1] DFAT, DFAT Country Information Report – Myanmar, November 2022.
[2] Ibid.
In a recent report on the situation regarding human rights in Myanmar in the two years after the coup, the United Nations High Commissioner for Human Rights stated:
Two years after launching a coup, the military has brought the country into a perpetual human rights crisis through the continuous use of violence, including killings, arbitrary arrests, torture, forcible disappearances and the prosecution and sentencing of anti-coup opponents…[3]
[3] UN Office of the High Commissioner for Human Rights (OHCHR), Report of the United Nations High Commissioner for Human Rights, Situation of human rights in Myanmar since 1 February 2022, 2 March 2023, A/HRC/52/21.
The report referred to the ‘catastrophic’ human rights situation that continues to fester and noted that conditions have worsened during the second year since the military coup was launched. It stressed:
People throughout the country are exposed to continuing violations of their rights and to crime, including killings, enforced disappearances, displacement, torture, arbitrary arrests and sexual violence. There are reasonable grounds to believe that the military and its affiliated militias are responsible for most of such violations, some of which may constitute crimes against humanity and war crimes.
Forces opposing the military have also committed human rights abuses, in particular in the targeting of non-combatant officials, their family members and others whom they believe to be assisting the military in some way…[4]
[4] Ibid.
In its most recent Country Information Report in relation to Myanmar, DFAT also provided a grim and alarming assessment of the prevailing conditions in the country. Regarding political opinion, DFAT stated:
Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in antiregime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest)… Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[5] (Emphasis added)
[5] DFAT, n1, above.
DFAT assessed:
…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.[6]
[6] Ibid.
The Tribunal accepts that the applicant is opposed to the Burmese military rule and that she would not return to Myanmar voluntarily should she not succeed in being granted a Protection visa. In such hypothetical circumstances, she would be returning as a failed asylum seeker, and it would be reasonable to assume that the Myanmar authorities would become aware that she was returning in this capacity.
According to DFAT:
…given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries…, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[7] (Emphasis added)
[7] Ibid.
The Tribunal finds that as a returning failed asylum seeker, the applicant would likely be accused of being opposed to or having criticised the regime regardless of her history, profile, past and/or present activities, or any details concerning the nature of her claims. The Tribunal is of the view that this imputation of anti-regime political opinion would be triggered first and foremost as a consequence of the applicant being removed to Myanmar as a failed asylum seeker. The Tribunal finds that failed asylum seekers in Myanmar constitute a particular social group within the meaning of s 5L of the Act.
Having considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Myanmar, there is a real chance that she would be subjected to threats to her life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are her political opinion and her membership of the particular social group of failed asylum seekers in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar. As the applicant fears harm by the Myanmar authorities, the Tribunal finds that effective state protection against the harm she fears is not available to her. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar. The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. It follows that s 36(3) does not apply.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior MemberAttachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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Immigration
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Procedural Fairness
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