2011704 (Refugee)

[2023] AATA 2376

2011704 (Refugee) [2023] AATA 2376 (21 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Houssam Hayba (MARN: 0001536)

CASE NUMBER:  2011704

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:Meena Sripathy

DATE:21 April 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 21 April 2023 at 1:54pm

CATCHWORDS
REFUGEE – protection visa – Burma – religion – Islam – son attacked by extremist Buddhist nationalist groups while taking part in community defence – applicant abused, assaulted and threatened by police while looking for son – member of particular social group – divorced woman – imputed political opinion – returned failed asylum seeker – no harm to other family members – country information – scrutiny of returnees – real chance of harm as returned failed asylum seeker enhanced by religion and gender – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65, 425(2)(a)
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Burma (Myanmar), applied for the visa on 16 August 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant has a well-founded fear of persecution for any one or more of the reasons specified in s5J(1) and is therefore not a refugee as defined in s5H(1), 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 the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 425 (2)(a) of the Act.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

11. In the present matter, the Tribunal has considered DFAT Country Information Report Myanmar dated 11 November 2022, among other sources of information, see further below.

    CONSIDERATION OF Claims and evidence

12. Information contained in the application form and accompanying statement indicates the applicant is female and was born in [Year] in Yangon, Myanmar.  She states her relationship status as ‘divorced’. She is of Burmese ethnicity and Islam religion.  She travelled to Australia on a visitor visa using her own passport.

13. In a statement, translated by a certified translator on 28 July 2019 and attached with the application, the applicant provided further information and details of her claims for protection as follows: 

    ·     She was born in [Township 1] in Yangon, Myanmar. She attended State High School for seven years from [Year] to [Year] but could not continue because her parent’s business was not doing well.  She is Burmese Muslim.

    ·     She married in [Year] at the age of 18 and moved to [Township 2] in Yangon, Myanmar.

    ·     She has [children] from this relationship.

    ·     She was divorced in 2009 because of her husband’s physically abusive behaviour, bullying and unfaithfulness.  She took her two youngest children with her and moved back to her mother’s house in [Township 1] Yangon.

    ·     In May 2013, two policemen came to her mother’s house looking for her eldest son ([Mr A]).  She told them she did not know his whereabouts as he lived with his father since the divorce.  She stated that the policemen said that her son’s stepmother had informed them that the applicant had encouraged her son to participate in political activities and join the armed rebels.

    ·     She was then taken to the police station where she was physically assaulted by the police officers.  She continues to have a wound on her [Body part]. She was threatened and made to sign a document that she will continue looking for her son otherwise she would be sent to prison. Her siblings helped pay the police off to have her released.

    ·     Another requirement was that once a month she had to go to the police station, sign that she was still actively looking for her son and pay the police off with money borrowed as she did not have any money.

    ·     In the first week of January 2016 her eldest son contacted her and informed her that he was in Australia.  He told her the reason he left Myanmar was because in 2012/2013 houses and shops of Muslims all over Myanmar were set on fire by the 969 group and Ma Ba Tha. The area her eldest son lived in with his father, was under attack and he took part in night watch duties to prevent further attacks.  Photos were taken of those who took part in night watch duties. These people were later imprisoned, abused and killed which led her son flee Myanmar as he became very scared.

    ·     She informed her son during their contact that she was not doing well as the police and 969 group were bothering her continuously because her ex-husband’s wife was telling lies about the applicant and her children to the police. She told him her second eldest son came to live with her because his father kicked him out and she was struggling both financially and due to the issues with the police and 969.

    ·     Her son told her to come to Australia with his siblings.  She worked hard and saved money to get her children passports and identity cards.

    ·     Her eldest son [Mr A] got married to an Australian and she wanted to come to his wedding but could not make it as she did not have enough money at the time. When her daughter in law was pregnant, she wanted to come for the birth, and her daughter in law’s mother sponsored her for a visa. 

    ·     She contacted a migration agent for help to get the visa. Just before her visa grant she was in a car accident with family members and therefore had to delay her trip and did not make it for the birth of her grandchild.

    ·     Her daughter in law died soon after the birth of the applicant’s grandchild and the applicant did not make it the funeral in time as she was delayed by authorities in Myanmar. They knew her son [Mr A] was now in Australia. She used an agent to pay off immigration officials.

    ·     She flew from Yangon to [Country] on 19 May 2019 and from [Country] to Melbourne Australia on 20 May 2019.

    ·     She wants to remain here with her Australian grandchild and look after him.

    ·     The address she lived at in [Township 1], Yangon in Myanmar is in the residential area of Buddhists and Hindus and Muslim households are rare in that area.

    ·     Her father is an Imam at a mosque and their house was situated on the main street in front of two Buddhist monasteries and Hindu temple.

    ·     In March 1997 the mosque and her family’s house was destroyed. Two years later the mosque and her family’s house were destroyed again due to tensions between Buddhists and Muslims.  Whenever there are problems between Buddhists and Muslims, stones were thrown at their house and the applicant and her family could only return once things had settled.

    ·     Muslims have no safety in Myanmar. They could not do their religious studies and lost economic opportunities.  Seven of them were living in her parents house in [Township 1], Yangon. She struggled for 10 years to live and support her [children]. It is no longer safe or fair for her in Myanmar.

14. Also submitted with the application was a support letter dated 8 July 2019 from [Ms B], child protection caseworker, NSW Family and Community Services, who is the caseworker of the applicant’s grandchild, born in [Year], whose mother passed away weeks later.  [Ms B] states it is essential for the infant child, who is only [Age], to have an appropriate support system in place and she seeks support for the applicant to remain in Australia to help address the child protection concerns in relation to the infant child.

15. The applicant attended a Protection visa interview on 19 May 2020, where she provided additional information about her background and claims.  A copy of the audio recording of the interview is included in the Department file. A summary of the information she provided as recorded in the delegate’s decision record is as follows:

    ·Her eldest son lives in Australia and her [other] children still live in Myanmar.

    ·The children live with her parents and her son studies by correspondence and works to support his other siblings in Myanmar.

    ·Her ex-husband lives with his wife in North Okkapala in Yangon and does not provide any support to his children remaining in Myanmar.

    ·She has [brothers and sisters] who still live in Myanmar none of whom have had any issues or problems with authorities.

    ·After her divorce she moved back to live with her parents in [Township 2] in Yangon.

    ·The applicant’s name is not on the household register of her parent’s property as it is very difficult for Muslims to change household registrations. However, the applicant’s daughter is on the applicant’s parents’ household register.

    ·The applicant stated that she can stay at her parents’ house because it is where she grew up.

    ·After the divorce, two of her sons including [Mr A] remained with their father and they visited the applicant only during school holidays.

    ·In May 2013, the police came to her parents’ house and asked her about her son [Mr A]. She informed them that they should go to his father’s house as he lives there. The police informed her that they had already been there and were informed by her ex-husband’s wife that the applicant would know the location of [Mr A].

    ·The police arrested her because they believed that she encouraged and manipulated her son to partake in political activities and financially supported her son to be terrorist.

    ·She was taken to [a] district police station and she was physically abused by uniformed police officers.

    ·They asked her about the location of her son [Mr A] and questioned her in relation to their suspicions stated above.

    ·She did not know the location of whereabouts of her son at the time of the arrest.

    ·She was interrogated from approximately 1pm and released the next morning around 10 am.

    ·She was made to sign a document before her release agreeing that she had persuaded her son to partake in political activities and join terrorists, and promise she would actively search for her son.

    ·She had to return to police station every month and pay the police off and sign a document confirming she was still actively looking for her son. She continued to do so up until her departure from Myanmar.

    ·She has not been arrested or interrogated on any other occasion.

    ·Two months after she left Myanmar, the police went to her mother’s house and asked about the applicant’s whereabouts. Her mother stated that the applicant left with her son and did not know where. They informed her mother to advise them if she finds out the applicant’s location.

    ·None of her children or any family members have been arrested since her departure from Myanmar.

    ·She only found out her son’s whereabouts in January 2016 and prior to that had not had any contact with him since May 2013.

    ·Her son [Mr A] came to Australia because he was worried the 969 movement would find him because they had taken photos of him and other males who were on night watch duties in his home town after the attacks by Buddhist gangs.

    ·The 969 group were also at the police station at the time of interrogation the applicantand they sexually harassed her. She did not raise it until interview as she was embarrassed by it.

    ·When [Mr A] contacted her in January 2016, he advised her that she should come to Australia with his siblings.

    ·She holds a pink Citizenship Scrutiny Card (CSC) stating her ethnicity as Bengali Bamar and her parents also have pink CSCs and were born in Myanmar.

    ·She last renewed her CSC when she was 18 years of age.

    ·Due to being Muslim, the applicant could not practice her religion freely, she was looked down upon and do not have the same rights as others in Myanmar.

    ·There have been no recent attacks on Muslims in Yangon where she lived but there have been recent attacks against Muslims in Rakhine.

    ·Whenever there were tensions between Buddhists and Muslims stones were thrown at her parents’ house because they are located in close proximity to two Buddhist monasteries.

    ·She only attempted to depart from Myanmar once and was not delayed or questioned by the authorities. Although she was required to sign at the police station every month because she had only been there recently she did not otherwise come to the attention of authorities.

    ·Her remaining [children] in Myanmar have CSCs and passports because she bribed immigration authorities. She applied for the CSCs in 2016 and they were issued in 2018.

    ·She stated that her parents also bribed immigration authorities for the applicant to be issued a CSC which states her ethnicity as Bengali Bamar and religion; Islam.

    ·Two months after she departed from Myanmar, the authorities went to her mother’s house to ask about the applicant, her mother told them she did not know where the applicant was.

    ·The applicant stated that her mother and children have not been arrested/ detained by the authorities since her departure from Myanmar.

    ·She fears returning to Myanmar because the police will arrest her and torture her like before now that they know she is living in Australia with her eldest son.

    ·She would also like to remain in Australia to care for her grandchild ([Mr A]’s son) as his mother (applicant’s daughter in law) passed away shortly after birth and he considers the applicant as his mother.

16. On 3 July 2020, a delegate of the Minister refused the application, finding that the applicant was not a person in respect of whom Australia has protection obligations under s36(2)(a) or 36(2)(aa) of the Act. In reaching this conclusion, the delegate accepted some but not all of the applicant’s claims. The delegate accepted the applicant was detained and questioned in May 2013 about her son’s whereabouts and may have been physically abused by police during this questioning. The delegate accepted she may have faced some level of discrimination and harassment in the past due to her religion by non Muslims in Yangon. However the delegate did not accept that she was still wanted by Myanmar authorities, or that she was sexually abused by the 969 group or that she was required to attend the police statement every month from 2013 until her departure in May 2019. The delegate did not accept she was still being targeted by the Ma Ha Na (formally 969 and Ma Ba Tha) due to being Muslim.

17. The delegate considered the above findings and available country information at that time, including the DFAT Country Information Report Myanmar 18 April 2019 among other sources, and concluded that she did not have any political profile over and above that of any other Muslim citizen and, having not come to the adverse attention of the Myanmar authorities apart from the single incident in May 2013, was not satisfied she faced a real chance of serious or significant harm upon return. The delegate was also not satisfied she faced a real chance of serious harm for reasons of her religion or as a failed asylum seeker returning from Australia, or for any other reason.

    Evidence before the Tribunal

    Country Information

18. On 11 November 2022 the Department of Foreign Affairs and Trade issued its latest Country Information Report on Myanmar[1].  The Report contains the following information relevant to the present application.

    [1] DFAT Country Information Report Myanmar 11 November 2022

19. In relation to Muslims, the DFAT Report states:

    3.27 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.

    3.28 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’.

    3.29 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.

    3.30 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.

    …

    3.32 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.

1. In relation to women, the Report states:

   3.73 The experience of women in Myanmar varies with factors such as ethnicity, religion, socioeconomic status, and whether they live in an area affected by long-term conflict. Nevertheless, women across the spectrum of Myanmar society are affected by issues such as high rates of domestic and gender-based violence, low rates of economic participation, exclusion from decision-making and lack of state protection. All these issues have been exacerbated by the impacts of the coup.

   …

   3.75 There are few legal protections for women in Myanmar, and those that exist are ineffective. Section 348 of the Constitution prohibits state discrimination against any Myanmar citizen on the basis of sex. Sections 349-351 prescribe equal pay and conditions for women doing the same work as men and equal rights for mothers and pregnant women. Section 352 prohibits discrimination on the basis of sex in the public service, although it also says ‘nothing in this Section shall prevent appointment of men to the positions that are suitable for men only’. There is no law against rape within marriage, and progress on a draft law against gender-based violence, under development since 2012, stalled following the 2021 coup. The age of consent is 14. According to Section 375(4) of the Penal Code, a man who has sex with a girl younger than 14 is guilty of rape. Despite being illegal, child marriage occurs in Myanmar (see Children).

   …

   3.81 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.

   …

   3.83 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.

2. In relation to political opinion (actual or implied), the DFAT Report states the following:

   3.44 As a result of the February 2021 coup, Myanmar is a military dictatorship, controlled by the State Administration Council (SAC) headed by Commander in Chief Senior General Min Aung Hlaing. The SAC has promised to hold elections in 2023 (see Political System). The 2008 Constitution, technically still in effect as of October 2022, describes the political system of Myanmar as a ‘genuine, disciplined multi-party democratic system’, but since the coup all state power is concentrated in the hands of the SAC. Under Sections 404-406 of the Constitution, political parties theoretically have the right to form, organise freely and participate and compete in elections. Likewise, freedom of expression, association and peaceful assembly are theoretically guaranteed under Section 354 ‘if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality’. In practice, these rights and freedoms were not always respected before the military takeover and have been routinely violated since.

   …

   3.47 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 anti[1]regime 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). Sources in Yangon told DFAT they had experienced random police searches of their homes and vehicles, some on multiple occasions. Police also make random checks for anti regime content on individuals’ mobile phones, leading some people to carry a second ‘politically clean’ phone as a precaution. 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.

   …

   3.51 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.

3. On conditions for returnees, the DFAT assessment is particularly stark:

   5.25 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.

4. The Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Myanmar since 1 February 2022[2] (issued on 2 March 2023) provides the following information:

   5.           People in all parts of Myanmar, in the two years since the military coup, remain exposed to daily human rights violations. In addition to the use of violence by the military itself, some pre-existing conflicts between the military and ethnic armed organizations have been reignited and violence has spread nationwide, dramatically changing the conflict landscape in Myanmar and heightening concerns for the protection of civilians. Global advocacy for peace and restraint have remained unheeded and the military, emboldened by absolute impunity, has consistently shown its disregard for international obligations and principles.

   6.           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,[3] including through indiscriminate airstrikes and artillery shelling, mass burnings of villages to displace civilian populations and the denial of humanitarian access. Punishing individuals and communities that they perceive to be opposing them, the military has also adopted rules[4] intended to target the anti-coup opposition and to severely restrict the civic space that had significantly contributed to the democratic transition in Myanmar.

   7.           While the military has stated its commitment to restore a multiparty democratic system through elections in 2023, it has actively and publicly designated its opponents as terrorists, arbitrarily detained and prosecuted them, primarily on specious charges of treason, sedition, incitement or other crimes, in secretive courts without any semblance of due process. Such actions take place against a backdrop of killings and extrajudicial executions, the use of the death penalty, enforced disappearances, arbitrary arrests, torture, sexual violence and a 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.[5]

   8.           Data from the United Nations indicate that, since February 2021, over one million people have been displaced and that 17.6 million people are now in need of humanitarian assistance.[6] Nearly half of the population, 25 million people,[7] currently live in poverty, with rural populations reported to be at risk of starvation as the military imposes 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.[8] Minority communities, including the Rohingya community, continue to face discrimination, as they have for decades.

   9.           While the military has consistently shown disregard for international obligations and principles, the people of Myanmar continue to demonstrate their determination to reject military rule. The refusal of civil servants to serve under military rule has led to a massive exodus from jobs, resulting in a near collapse of the military-controlled health and education systems.[9] Meanwhile, anti-military armed groups[10] have organized themselves nationwide, with often improvised and rudimentary weapons, and the National Unity Government has reported establishing functioning institutions in areas under its control. OHCHR has also received and investigated reports of violence committed by anti-military groups against civilians. While those abuses are of growing concern, they are not occurring at either the rate or scale of those committed by the military.

   ….

   [2] The Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Myanmar since 1 February 2022 The military’s “four cuts” policy has been used to cut off non-State armed groups from access to food, finances, intelligence and recruits by using scorched-earth tactics that punish and kill civilians, including the burning of entire villages and the displacement of local communities.

   [4] See See See See See A/HRC/50/CRP.1.

   [10]  Anti-military armed groups refer to People’s Defense Forces and other local groups that have resorted to armed resistance against the military coup.

11.          As noted in previous reports, the catastrophic human rights situation continues 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 war crimes, including the widespread use of indiscriminate airstrikes and artillery attacks against populated areas, the raiding and burning of villages, arbitrary arrests, the use of torture, extrajudicial killings and sexual violence. OHCHR has documented consistent tactics and patterns of abuse across the country, confirming that the military authorities operate as a solid and coherent structure, implying knowledge by the leadership of the commission of atrocities and/or, at minimum, failures to foreseeably prevent them.

….

33.          Serious concerns about the 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 have consistently reported increasing patterns of gender-based violence, stressing that negative effects of the coronavirus disease (COVID-19) pandemic and related restrictive measures, combined with military actions, have exposed women, men, boys and girls to the risk of abuse. Existing vulnerabilities of minority groups and communities facing discrimination, including LGBTQI+ individuals, have been further exacerbated. Interviewees unanimously indicated that the only accessible avenues for redress were community-based dispute-resolution mechanisms, although such mechanisms have so far proven to be inadequate in protecting survivors.

…

36.          Primary and secondary sources confirmed that sexual and gender-based violence, including rape, were repeatedly perpetrated in interrogation centres and other formal detention settings, as well as in villages during raids, against women, men and individuals who identify as LGBTIQ+…

37.          From a gender-based violence perspective, the consequences of the military’s seizure of power have significantly exacerbated existing risk factors, including the impact of COVID-19. Local organizations report that gender-based crimes, including trafficking, early and forced marriages, sexual harassment and violence, exploitation and forced prostitution, are reported to be on the rise due to the catastrophic security situation, lack of effective community-based protection mechanisms, displacement, separation from families, scarcity of essential goods and resources, increasing commodity prices and the disruption of community services. Women, girls, persons with disabilities and with non-binary sexual identities are considered most at risk of violence.

…

44.          The military authorities have also targeted the country’s legal and institutional systems by unilaterally adopting laws, imposing amendments to existing provisions and using laws and institutions to target opponents and suppress dissent. The judiciary of Myanmar and the National Human Rights Commission have effectively been subsumed under military control, thus eliminating any element of independence and credibility.

…

47.          Lawyers, practitioners and other interlocutors familiar with the justice and prison systems confirmed that military-controlled courts systematically violate core principles of independence and impartiality. Some reported being asked by judges not to attend court hearings as verdicts would simply confirm the charges laid. Lawyers, however, continued to perform their professional duties in the face of serious personal risk. An estimated 49 lawyers have been arrested since the coup and at least 7 have been convicted under spurious charges.

…

49.          Since 1 February 2021, the military has arrested 17,572 individuals, including 3,610 women and 381 children, on politically motivated grounds.  On national holidays since the coup, the military has announced large-scale prisoner releases, with credible sources confirming that political prisoners were only a small number among those released. The immediate rearrest of released political prisoners was reported in several cases. According to credible sources, as of 31 January 2023, at least 13,763 people remained in detention.

50.          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. Increasingly, family members of persons with outstanding arrest warrants face arbitrary arrest and detention, including through repeated abductions and the hostage-taking of children as young as three, which constitute, in some cases, enforced disappearances.

…

53.          Women also remain targets of repression, facing often extreme conditions in detention without adequate 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 adequate access to toilet facilities and menstrual hygiene supplies, intimidation, threats and physical and verbal abuse, were received from multiple sources. Similarly, LGBTIQ+ individuals were exposed to specific risks, and numerous incidents of rape, torture, beatings, harassment and other forms of sexual abuse in detention have been widely reported. According to interviewees, violence inflicted on them appeared to explicitly target their sexual orientation or gender identity: gay men report having experienced anal rape, while transgender women reported on their breasts being ridiculed and targeted during torture.

V.          Conclusions and recommendations

…

69.          The overall human rights situation in Myanmar during the second year since the military coup has worsened, with multiple serious violations occurring daily across the country. 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.

The Report of the Special Rapporteur on the situation of human rights in Myanmar, Thomas H. Andrews on the Situation of Human Rights in Myanmar,[11] issued on 9 March 2023 states that two years after Myanmar’s military launched an unconstitutional coup d’état and formed the State Administration Council (SAC), the country is in freefall, describing the situation as “a devastating human rights and humanitarian crisis”.  As opposition groups gain strength and the SAC’s control over territory and the people of Myanmar erodes, the military has doubled down on its brutal tactics, sowing violence and chaos across an ever-widening sphere of conflict. In recent months, the military has stepped up aerial attacks, bombing villages, schools, medical facilities, and encampments for internally displaced persons. The SAC’s campaign of mass arson continues, with roughly 58,000 homes and civilian structures burned since the coup.

[11] A/HRC/52/66: Situation of human rights in Myanmar - Report of the Special Rapporteur on the situation of human rights in Myanmar, Thomas H. Andrews | OHCHR , 9 March 2023

The Special Rapporteur reports that more than 1.3 million people have been displaced in the past two years, and more than 3,000 civilians have been killed. The SAC continues to suppress all forms of dissent as it attempts to impose a military-dominated future on the people of Myanmar. More than 16,000 political prisoners are now behind bars. The SAC has sought to legitimize its efforts to crush civic space and control local and international organizations by establishing a draconian Organization Registration Law. Despite extending a nationwide state of emergency through July 2023, the junta continues to make plans to hold sham elections in a desperate attempt to claim legitimacy and gain international recognition.

The Special Rapporteur’s report focuses on the failing international response to those fleeing violence and human rights violations in Myanmar and calls on Myanmar’s neighbors to fulfil their obligations towards people from Myanmar by ensuring their fundamental rights and refraining from sending anyone back to Myanmar against their will. Reference is made to the UN High Commissioner on Human Rights call for a moratorium on forced returns of refugees and migrants to Myanmar in October 2022, in response to mounting deportations of vulnerable people to Myanmar.[12]  The Report states:

50.      According to the UN, governments have deported thousands of people back to Myanmar every month since the coup.  Although many of these individuals may have been migrants who lacked documentation or overstayed visas, the dire socio-economic conditions in Myanmar and the SAC’s violence and oppression increases the risk of human rights abuses for all involuntary returnees. Myanmar’s neighbors have, by-and-large, failed to carry out individual determinations of the human rights risks faced by those who have been returned, likely leading to the refoulement of persons deserving of protection under international law. Deportations have resulted in human rights harms, including violations of economic and social rights and the right to family life. Authorities have also knowingly deported UNHCR registered refugees and others at severe risk of arbitrary arrest, torture, and other human rights violations by the SAC or military.

51.      The SAC has proactively sought assistance from governments in the region to secure the return of activists, CDM participants, military deserters, and other junta opponents. In October 2022, according to Myanmar state media, Myanmar’s Deputy Minister for Home Affairs asked for cooperation from INTERPOL and law enforcement officials from Malaysia, Thailand, and Indonesia to arrest and repatriate wanted individuals, including “terrorists hiding in foreign countries.”[13]

52.      Malaysian immigration authorities have reportedly deported more than 3,000 Myanmar nationals since the coup. In February 2021, just weeks after the coup, Malaysia deported 1,086 Myanmar nationals who arrived by boat, including at risk women, unaccompanied children, and other vulnerable individuals in violation of a court order halting their deportation. Deportations have continued from Malaysia despite calls from UNHCR, OHCHR, and others to halt the forced repatriation of all Myanmar nationals and UNHCR’s specific interventions on behalf of individuals who were subsequently deported. Myanmar Embassy officials met with Malaysia’s Immigration Department to “expedite” the return of Myanmar nationals prior to a series of deportations in September and October 2022. Some of those returned were individuals who had registered with UNHCR but were not yet in possession of UNHCR documentation. An October 2022 deportation included six military deserters, who could face the death penalty and are likely to have been tortured after being handed over to the SAC. In December 2022, a Malaysian court lifted a stay order that had halted the deportation of 114 Myanmar nationals for almost two years. The group, which reportedly included children and other vulnerable people, were returned to Myanmar in January 2023. UN officials and journalists following the deportations have not been able to find information concerning the whereabouts or conditions of many vulnerable deportees after they were forced back to Myanmar, including the deserters returned in October 2022.

[12] UN High Commissioner for Human Rights Volker Türk, “Forced returns to Myanmar must stop immediately, says Türk,” 26 October 2022, “Myanmar delegation attends 90th Interpol General Assembly in India,” Global New Light of Myanmar, 25 October 2022, AND REASONS

Nationality

1. On the basis of her passport issued by Republic of the Union of Myanmar, a copy of which the applicant provided to the Department with her application, the Tribunal accepts the applicant is a national of Myanmar and considers Myanmar is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.

   Consideration of applicant’s claims

2. As indicated above, the Tribunal did not consider a hearing to be necessary in this matter because it is able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 425 (2)(a) of the Act.

3. Generally when assessing claims made by an application the Tribunal needs to make findings of fact in relations to those claims, which usually involves an assessment of the credibility of the applicant. The applicant in this matter made specific claims upon which her fear of harm upon return were based, some but not all of which were accepted by the delegate. Specifically, the delegate accepted the applicant came to the attention of the authorities and was detained and questioned on one occasion in May 2013 but the delegate did not accept her claim, made for the first time at the interview, that she was sexually abused during this incident.  It was also not accepted that she was required to attend the police station monthly from the time of this incident in May 2013 until her departure from Myanmar in May 2019. The delegate did not accept she was still wanted by the Myanmar authorities or targeted by the Na Ha Na for reasons of her religion. 

4. On review, the Tribunal has assessed the material and evidence now before it. On the basis of this material, for the purposes of assessing her protection claims, the Tribunal considers it is only necessary to make the following findings, which can be made on the available evidence. The Tribunal accepts that the applicant is Muslim. This finding is based on the applicant’s written and oral evidence to the delegate at interview. The Tribunal observes from the delegate’s decision record that there were no concerns about the applicant’s claimed religion and, by implication of the findings made, it appears to have been accepted. The Tribunal accepts that the applicant is a woman, and on the basis of information in her application, that she is divorced, noting there is no other material before the Tribunal to contradict this.

5. Regarding her remaining claims that she came to the attention of the authorities in May 2013 and was detained and questioned about the whereabouts of her son; was sexually abused during this incident and was required to report monthly since then, the Tribunal notes the delegate expressed some credibility concerns. Ordinarily in reviewing the decision, the Tribunal would invite the applicant to a hearing and test those claims for itself by questioning her before making any determinative findings on these claims.  However, in this case, on the basis of the evidence of the serious deterioration in the circumstances in the applicant’s country of original since the date of delegate’s decision in July 2020, which the Tribunal accepts, it considers it is not necessary to make determinative findings on all of these matters to determine her claims for protection and for this reason it has not done so. 

6. The Tribunal has considered the applicant’s risk of harm if returned to Myanmar in the reasonably foreseeable future on the basis of its findings that she is a woman and a Muslim.  and would be returning to Myanmar as a failed asylum seeker from Australia. 

7. The Tribunal accepts the applicant’s fears of persecution are for reasons of her religion, membership of the particular social group of ‘women’ and imputed political opinion arising from her return from Australia following a prolonged absence and/or or as a failed asylum seeker. 

8. DFAT’s latest country report assesses that 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.  It has had regard to the information in the DFAT report that multiple sources advised that the threshold for falling under official suspicion is 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[14] and DFAT’s assessment that, with 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.

   [14] DFAT Country Information Report Myanmar 11 November 2022, paragraph 3.47- 3.51

9. The applicant, if returned to Myanmar from Australia, would be returning because her visa application was unsuccessful. She would be returning from Australia, and this would become known to the authorities when she arrived, as would the period she has been outside the country.  Therefore, on the basis of the country information before the Tribunal, particularly DFAT’s grave assessment for returnees, noting the low threshold for falling under suspicion of the authorities, the Tribunal is satisfied that the circumstances of the applicant’s return would be sufficient for the authorities to assume she sought asylum here and to impute to her an anti-regime political opinion.  Therefore, even though the Tribunal has not made any determinative findings on her claims to have come to the attention of the authorities in Myanmar in the past relating to enquiries about her son’s whereabouts, and her claims to have been reporting to the authorities monthly until her departure in May 2019, the Tribunal accepts that the circumstances of her return from Australia after an absence of several years would be a sufficient basis for the authorities to assume she sought asylum here and by doing so she would be perceived as opposing the regime and as such she would be at risk of arbitrary detention and violence.

10. Additionally, the Tribunal has considered the applicant’s risk of serious harm for reasons of her religion and membership of the particular social group as a woman and/or single woman. 

11. DFAT acknowledges in its report that Muslims in Myanmar experience discrimination and restrictions on their ability to practice their faith; anti Muslim sentiment is prevalent and ultranationalist Buddhist movements such as Ma Ba Tha and the 969 Movement have been influential in formenting anti-Muslim hatred in Myanmar.  The report notes that the leader of the Ma Ba Tha movement, Wirathu, known for repeatedly inciting violence against Muslims in speeches and online, who was arrested in November 2020 after turning himself in to authorities, was released by the military regime in September 2021 and there are strong links between ultranationalist Buddhism and the military. There is overwhelming country information regarding the risk of violence faced by Muslims in Rakhine State and Rohingya Muslims in particular, although 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.

12. The country information before the Tribunal indicates there are serious concerns about the continued use of sexual and gender-based violence by the military in conflict and non-conflict settings, and the absolute impunity of perpetrators, with sources confirming that sexual and gender based violence including rape were repeatedly perpetrated in interrogation centres and detention settings.[15] The UNHCHR Report states that women are targets of repression and often face extreme conditions in detention without adequate protection, with accounts of sexual violence, including rape and other degrading treatment, such as denial or lack of adequate access to toilet facilities and menstrual hygiene supplies, intimidation, threats and physical and verbal abuse received from multiple sources.[16]

    [15] The Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Myanmar since 1 February 2022 , paragraphs  33, 36 Ibid para 53.

DFAT’s latest report confirms this assessment, citing reports 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.[17]  The Tribunal accepts that as a failed asylum seeker returning to Myanmar the applicant will likely be perceived as an opponent of the regime.  It accepts that, as a woman there is also a real risk that she will face gender based violence in the context of being detained or questioned on arrival in the country. The Tribunal considers her religion, as Muslim, heightens the risk of adverse treatment and serious harm to her given the information about anti Muslim sentiment and discrimination and the links between ultranationalist Buddhism and the military in the current climate. 

[17] DFAT Country Information Report Myanmar 11 November 2022 , paragraph 3.81

Therefore, on the basis of the country information cited above, and placing significant weight on the dire assessment contained in the latest DFAT Report together with other sources that support this information, and also noting also the UN High Commissioner on Human Rights call for a moratorium on forced returns of refugees and migrants to Myanmar in October 2022, the Tribunal is satisfied there is a real chance, in the sense that it is not far fetched or remote, that the applicant will face serious harm on return to Myanmar for reasons of her perceived political opinion arising from her status as a returnee or failed asylum seeker, and the risk and nature of serious harm to her is heightened for reasons of her religion and gender. 

The Tribunal is satisfied that the harm, which may include arbitrary and prolonged detention, violence, including sexual assault, rape, torture and other degrading treatment in the context of interrogation and detention constitutes serious harm.  The Tribunal is satisfied that the essential and significant reasons the harm will be directed at the applicant are for her perceived opposition to the regime and her religion and gender. It is further satisfied that the harm she faces involves systematic and discriminatory conduct.

The Tribunal considers that the real chance of serious harm to the applicant exists throughout Myanmar in that it would arise in the course of her entry to the country and she would be of adverse interest to the security forces in all areas of Myanmar. Given the state is the agent of harm, the Tribunal finds there is no effective protection available to the applicant in Myanmar.

The Tribunal is therefore satisfied that the applicant has a well-founded fear of persecution in Myanmar as defined by s.5J of the Act.

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Section 36(3)

There is no information before the Tribunal to suggest the applicant has a right to enter and reside in any other country. On the information before it the Tribunal accordingly finds she has no such rights. The Tribunal is therefore satisfied that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Meena Sripathy
Member

Attachment  -  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.

…