2012044 (Refugee)

2012044 (Refugee) [2023] AATA 4376 (4 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nathan Willis (MARN: 1467692)
CASE NUMBER:  2012044
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Alison Murphy
DATE:4 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 04 October 2023 at 9:37am
CATCHWORDS
REFUGEE – protection visa – stateless/Burma – imputed political opinion – identity and citizenship – entered Australia using genuine passport – claim that passport issued on basis of fraudulent feeder documents provided by agent – identity card in name of real but deceased person and household list based on applicant’s own family – long residence in refugee camp in third country – oral evidence from cousin, statutory declaration from aid worker, UNHCR registration and third country documentation – humanitarian visa application and social media activity in real name – opposition to regime and financial support for anti-regime groups – country information – prevalence of document fraud – citizenship laws – stateless persons denied fundamental rights – regime’s human rights violations and military actions against opposition groups and individuals – high level of scrutiny – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1), (4)(b), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Al-Anezi v MIMA (1999) 92 FCR 283
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be stateless, applied for the visa on 6 March 2019. The delegate did not accept the applicant to be stateless, rather he found the applicant was a Myanmar citizen. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was owed protection by Australia.
The applicant appeared before the Tribunal on 13 September 2023 to give evidence and present arguments. The Tribunal resumed the hearing on 22 September 2023 to receive oral evidence from [Mr A] by video from [Location 1, Country]. The Tribunal hearings were conducted with the assistance of an interpreter in the Burmese and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
IDENTITY AND COUNTRY OF NATIONALITY
There is a dispute about the applicant’s identity and country of nationality.
The applicant entered Australia as the holder of a visitor visa using a passport issued by the Myanmar authorities [in] 2018. That passport identifies him as [the applicant – short form of name], born [Date], who is a Buddhist of Nepalese (Nipal or Nipaw) ethnicity. The department has assessed that to be his correct identity.
However the applicant claims that the passport in the name of [the applicant – short] was issued to him on the basis of fake identity documents and that his correct name is [Alias], being the identity in which he lodged an application for an offshore humanitarian (Class XB) visa in November 2015. He claims he is a stateless [Ethnicity] born in Myanmar on [Date] who resided in a refugee camp in [Country] for 17 or 18 years prior to his arrival in Australia in February 2019.
The applicant claims that he was able to obtain a fake Myanmar passport in the name of [the applicant – short] with the assistance of an agent in [Country] who manufactured a bogus identity card and household list to use as the base documents for the passport application. He submitted a statutory declaration from [Mr B], who attested to knowing the applicant from 2006 as an asylum seeker named [Alias] residing in the [Locations 1-3] refugee camps in [Country].
The delegate did not accept that the applicant’s correct name is [Alias], nor did the delegate accept him to be stateless. In making that assessment the delegate relied upon the following matters:
a)documents provided by the applicant in support of his visa application indicate that he is a Myanmar citizen;
b)country information suggests that it is very difficult for ethnic minorities in Myanmar to obtain bogus identity documents in the manner claimed by the applicant;
c)social media material indicates that the applicant had travelled between [Country] and Myanmar in 2017 and 2018.
Analysis of claims regarding statelessness
As noted above, the applicant entered Australia as the holder of a passport issued to [the applicant – full form of name] by the authorities of Myanmar in July 2018 and an Australian visitor visa.
In support of the visitor visa application the applicant provided a Citizenship Scrutiny Card (CSC) issued [in] April 2018 and a household list in the identity of [the applicant – short] who was identified as a Buddhist of Nepalese (Nipal or Nipaw) ethnicity. The applicant also provided a sale deed on a farm in [Township 1] purchased by [the applicant – short] in November 2015; a deed for another house bought by [the applicant – short] in [Township 2]/Yangon in March 2014; a deed for a house and land bought by [the applicant – short] in [Township 3]/Yangon on 11 December 2018; a bank statement from [Bank] in Yangon showing a balance of over 20 million kyat (approximately $20,000); a business licence issued to [the applicant – short] as the owner of the [Name] grocery store in that township dated 1 April 2018; and 2017/18 and 2018/19 income tax returns for that business.
The applicant claimed to have purchased these documents for $1,000 via an agent in [Country]. He told the department he returned to Myanmar from [Country] in 2018 with his bogus CSC and household list to apply for the bogus passport and visa. The delegate did not consider that amount of money was sufficient to overcome all the obstacles a stateless member of an unrecognised ethnic minority living abroad would face in obtaining identity documents, referring to country information discussed below.
The delegate was concerned that while the applicant claimed that he obtained his CSC and passport in the identity of a real but deceased person, the household list provided by the applicant for [the applicant – short] appears to correlate with the applicant’s actual family situation. In particular the applicant’s family name [Name] and correct date of birth are recorded on the household list. The family’s ethnicity is recorded as ‘Nipaw’ (Nepal), consistent with the applicant’s Nepalese [Ethnicity]. The name and date of birth for the applicant’s father that appears on that household list is consistent with those declared by the applicant in the humanitarian visa application in 2015 and the protection visa application in 2019. The dates of birth of three young children appearing on that household list are the same as those of the applicant’s three children, although the names are different. Further one of the siblings named on that household list, [Mr A], is linked to the applicant on social media and the delegate formed the view he is the applicant’s brother. All of these matters led the delegate to conclude that the household list was genuine, that the applicant’s real name is [the applicant – full] and that he is a national of Myanmar and not stateless as claimed.
Before the Tribunal the applicant maintained that his real identity is [Alias] and not [the applicant – full], giving evidence that the agent who prepared the household list inserted details of his family members into the document so that they could all use it. He said he obtained the fake household list and CSC through an agent in [Country], travelling to [Location 4] on the border between Myanmar and [Country] where the Burmese government runs a passport office to obtain a passport under the identity of [the applicant – short]. After obtaining the passport in July 2018, he travelled back to [City] where he spent two months, returning to Myanmar in October 2018 as shown on that passport.
[Mr A] (also spelled [Spellings 1 and 2]) gave evidence by video from [Country], stating that he is the applicant’s cousin as their fathers are brothers and he had only ever known the applicant by the name [Alias]. He gave evidence that he grew up with the applicant in Myanmar, that he received his Myanmar citizenship at about 16 years of age by paying bribes to get the relevant documentation and that he had been living in [Country] since 2000. He said he was aware of the household list naming the applicant as [the applicant – short] and that he was aware his own name also appeared on that list.
He told the Tribunal that he believed this household list was issued in 2008 in Myanmar, after their families had already relocated to [Country]. The household list was issued by submitting the family list to the township, then applying to the district. He said it contained the family members of both the applicant’s father and [Mr A]’s father because the Myanmar government didn’t recognise the families as citizens and it was easier for them if the household list was created to contain members of both families. The Tribunal considers [Mr A] to be a credible witness who appeared to have a better understanding of the issues relevant to the Tribunal’s assessment and nothing to gain by giving false evidence. The Tribunal notes that the delegate independently obtained extensive information about [Mr A] and his family through [Mr A]’s social media accounts and nothing in that material is inconsistent with his evidence to the Tribunal.
The Tribunal notes that the applicant has made inconsistent statements about how and in what circumstances the identity documents of [the applicant – short] were obtained. In a written statement dated 15 February 2019 he states he obtained the household list by paying a broker in [Country], before using it to obtain the CSC and later the passport. This is inconsistent with the evidence of [Mr A], who says he believes the household list was issued in 2008. Having considered all of the evidence, the Tribunal prefers the evidence of [Mr A] as to the creation of the household list and considers it possible that the applicant simply doesn’t know the circumstances in which that document was obtained. It appears to the Tribunal that the family list was first created in or about 2008, possibly by the extended families of the applicant and [Mr A], and then altered to include new members as children were born.
Whatever the true circumstances as to the creation of the household list, the Tribunal is satisfied that it cannot be genuine. The household list was first produced to the department in support of the applicant’s visitor visa application in 2018. It was accompanied by an English language translation that bears the stamp of a notary public in Yangon. A second NAATI accredited English language translation has been produced to this Tribunal, which contains a number of differences from the first which appear to be largely immaterial.
However a close examination of both the untranslated household list and the two English language translations reveals that the second page of the first English language translation is entirely different from what appears in the original untranslated document. The untranslated document contains a list of 11 names on the first page and that list finishes on the first page. In the second page of the first English language translation, that list extends by a further five names on the second page. Three of those names are children with birthdates the same as those of the applicant’s children. In the second English language translation by a NAATI accredited translator, those extra five names do not appear. It is apparent that the first English language translation by a notary public in Yangon has been altered to include persons who don’t appear on the untranslated document. As well, the dates of birth on the first page in both translations state that [the applicant – short] and his purported sibling [C] were born approximately six weeks apart which clearly cannot be correct.
There are also inconsistencies in the applicant’s evidence about how he obtained the passport in the name of [the applicant – short]. In a written statement dated 15 February 2019 he states that after assuming the identity of the deceased [the applicant – short], he ‘drove with the broker to the Myanmar, with my false identification card’. This appears inconsistent with his evidence at hearing that he obtained the passport from a Burmese government-run passport office in the town of [Location 4, Country]. However communication with the applicant at the Tribunal hearings was difficult, even with the assistance of an interpreter. The relevant sentence in the written statement dated 15 February 2019 appears to be missing a word and the Tribunal accepts that the applicant may have intended to say that he ‘drove with the broker to the Myanmar border’. [Location 4] is on the border of [Country] and Myanmar and country information indicates that several offices are open in border towns to assist Burmese migrants in [Country] to renew or upgrade their passports.[1] The Tribunal gives the applicant the benefit of the doubt and accepts that he obtained the passport issued in the name of [the applicant – short] in [Location 4], [Country] rather than crossing into Myanmar. It is also possible that the passport issued to the applicant under the name of [the applicant – short] in 2018 was not the first passport issued to him under that identity.
[1] [Reference redacted]
DFAT reports that document fraud is highly prevalent in Myanmar, including the issuing of genuine documentation on the basis of fraudulent information. DFAT reports that the prevalence of corruption in Myanmar means that fake identity documentation can be purchased with relative ease and identity feeder documents including household registration lists and CSCs are all subject to significant fraud. DFAT notes that passports have more sophisticated security features, but it is still possible to obtain a genuine passport using a fake national identity card.[2]
[2] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 at 5.36
The Tribunal notes the information cited in the delegate’s decision to the effect that persons from ethnic minorities seeking Myanmar passports experience particular difficulties obtaining official documentation, including base documentation required for the issuing of passports. They are also subject to institutional discrimination, which may include requirements to apply at an Immigration and National Registration Department office in person, or to apply in a person’s usual place of residence or to provide evidence of land or home ownership in any new place of residence.[3] This indicates a clear incentive for those persons who are denied official documentation by the Myanmar authorities to obtain those documents fraudulently.
[3] Ibid; ‘CI171114121506770 – Ethnic Minorities – Replacing ID Documents’, Country of Origin Information Services Section (COISS), 22 November 2017
The delegate’s decision also refers to sources which appears to be inconsistent with the DFAT advice in some respects, indicating that while some people successfully obtain fake identity documents in Myanmar, this is not easy or widely available and those who are successful in doing so are often those with social and financial capital. By contrast those with little or no means would encounter a variety of challenges which for many would be insurmountable, particularly as they relate to documentation that for many is almost impossible to get.[4]
[4] ‘Myanmar Query Response – Chin State’, Asylum Research Consultancy, 31 July 2017, p.20
Another source referred to by the delegate suggests that persons belonging to ethnic and religious minorities attract more thorough scrutiny to verify the information on their citizenship card and confirm their date of birth in order to prevent fake passports being issued. However that same source reports that such heightened scrutiny is used primarily to elicit bribes from persons belonging to ethnic minorities and that after those bribes are paid they are issued passports, in some instances without even the most cursory check of the feeder identity documents.[5] The Tribunal considers that the available country information consistently indicates that ethnic minorities have great difficulty obtaining genuine identity documents but that fraudulent identity documents can be readily purchased through the use of bribes.
[5] ‘Discrimination and Corruption Plague Burmese Passport System’, Burma Human Rights Network, Burma Human Rights Network, 14 June 2018

Having regard to all of the above information, the Tribunal accepts that the household list produced by the applicant in support of his visitor visa application is not genuine, rather it was created by the families of the applicant and [Mr A], most likely to facilitate their free movement inside and outside of Myanmar as well as access to government services. As the household list is the base layer feeder document for the issuing of the CSC and passport, the Tribunal is not satisfied those documents are genuine, rather it considers that all of the identity documents produced in the name of [the applicant – full] are either fraudulent, or genuine documents issued on the basis of fraudulent feeder documents.
That being the case, the Tribunal accepts that [the applicant – full] is not the applicant’s correct name. It is not in dispute that the applicant has been living under the name of [Alias] for many years, as evidenced by his UNHCR registration slip which dates back to 2004, his UNHCR resettlement referral form which shows his arrival at the [Location 3] refugee camp in [Country] in July 2008 and the [Country] Minister of Interior’s pre-screening registration document dated 1 February 2009. As noted above the applicant also applied for a humanitarian visa in 2015 under the identity of [Alias].
[Mr A] has provided oral and written evidence to the Tribunal to the effect that he has known the applicant by the name of [Alias] since they were young children as they are paternal cousins. [Mr B], President of the charity [Organisation 1], has provided a statutory declaration stating that he met the applicant in [Location 1, Country] in 2006 and that he helped the applicant and his family move into the [Location 2] refugee camp in around 2007. [Mr B] states that he understands the applicant used the common [Ethnic] name [the applicant – short] on his passport, but that he has only known him by the name of [Alias] and he is confident that the applicant has never been identified by the name of [the applicant – short] other than in the false passport he used to travel to Australia. The applicant operates social media accounts in the name of [Alias]. In view of all of the evidence before it, the Tribunal accepts that the applicant’s true name is [Alias].
In considering whether the applicant is stateless or a national of Myanmar, the Tribunal notes the delegate accepted the applicant was born in Myanmar and is of [Ethnicity]. This was in part due to the social media material seen by the delegate for [Mr A], which indicates [Mr A] is involved in the [Country]-based Myanmar-born [Organisation 2] which provides assistance to undocumented people from Myanmar residing in [Country]. The Tribunal notes this information was not provided to the department by the applicant, but was independently located by the delegate on [Social media]. The Tribunal considers this to be strong evidence of the family’s [Ethnicity] and status as undocumented refugees from Myanmar resident in [Country].
DFAT reports that the Burma Citizenship Act of 1982 establishes a hierarchy of citizens on the basis of ethnicity, with full citizenship rights only granted to those who can trace family residency prior to 1823, most of whom belong to eight major ethnic groups. Associate citizenship is granted to children who have only one citizen parent, while naturalised citizenship is granted to the offspring of those who migrated to Myanmar during the colonial period. Groups falling outside of these categories are excluded from citizenship altogether.[6] While Ghurkas were granted full citizenship under the 1947 Constitution, they were not classified as one of the country’s official ethnic groups after the military dictatorship came to power and have since faced restrictions on their ability to retain or apply for citizenship.[7]
[6] Ibid at 3.1–3.3
[7] [Refence redacted]; StatelessJourneys-Myanmar-Summary.pdf; [Reference redacted]
At hearing the applicant agreed he had returned to Myanmar in 2017 and 2018 as identified by the delegate in the social media material, telling the Tribunal that he had returned to [State 1] once prior to the military coup but had crossed over the [Country] border into [State 2] on multiple occasions. He said he did not need a passport to enter because that area was not in the control of the Myanmar authorities, rather it was controlled by armed groups including [Armed group] and he was travelling with members of that group. DFAT confirms that [Armed group] controls parts of [State 2], assuming some state functions in those areas they control.[8]
[8] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 at [References]
For the above reasons, the Tribunal accepts the applicant’s correct identity is [Alias] born [Date], that he is of [Ethnicity] and that he has been denied citizenship by the authorities of Myanmar. The material before the Tribunal indicates that his wife and [children] remain living in [Country] where they are registered with the UNHCR and the [Country] Ministry of the Interior.
Risk of harm on return
As the applicant is stateless, he cannot be returned to Myanmar and his claims must be assessed against his country of former habitual residence. The Australian courts have recognised that applicants may have more than one country of former habitual residence and in this case the applicant has spent significant periods of his life in each of Myanmar and [Country]. In such circumstances it is not necessary to assess the applicant’s claims against both of these countries, rather the Australian courts have held that a stateless person should be assessed against the country from which they left owing to a well-founded fear of persecution, rather than against a country of subsequent habitual residence in which they have no fear of persecution.[9] For these reasons the Tribunal has assessed the applicant’s claims against Myanmar.
[9] Al-Anezi v MIMA (1999) 92 FCR 283 at [22]
DFAT reports that ethnicity in Myanmar is a determinant of citizenship and basic rights, with many people denied these rights in law and in practice. Stateless persons in Myanmar are denied fundamental rights and basic services including access to healthcare and education, employment opportunities, freedom of movement, freedom to choose the timing and number of their children, freedom to marry whom they choose, and freedom to run for political office.[10]
[10] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) 3.1–3.3
The Tribunal accepts that the applicant is genuinely opposed to the military regime. In making that assessment it notes that in February 2021, Myanmar’s military rejected the landslide victory of Myanmar’s National League for Democracy (NLD) in the November 2020 election, seizing power of the country and imprisoning NLD leader Aung San Suu Kyi and other NLD members. In response, a government-in-hiding was formed by NLD and ethnic party representatives under the banner of the National Unity Government (NUG), which established an armed wing, being the People’s Defence Force (PDF). The PDF has continued an armed struggle against the Myanmar military.[11]
[11] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 2.5
By late 2021, it was reported that the military was destroying entire villages believed to support the opposition, massacring both civilians and opposition fighters. At least 1,500 people were reported killed by the military, and more than 8,000 people arrested, including journalists, medical workers and NLD politicians. By January 2022 it was reported that the PDF and the military were engaged in violent and lethal clashes across all of the country, including small villages that had not previously seen this kind of conflict.[12]
[12] Lindsay Maizland, Myanmar’s Troubled History: Coups, Military Rule and Ethnic Conflict, 31 January 2022 at Myanmar’s Troubled History: Coups, Military Rule, and Ethnic Conflict | Council on Foreign Relations (cfr.org)
The applicant has posted material on his facebook account that is critical of the Myanmar military and supportive of Aung San Suu Kyi. The Tribunal accepts that he also participated in public gatherings against the military while in the [Location 3] refugee camp in [Country] between 2006 and 2011 as well as protests in [Location 4] in 2008. He has donated to the Thai-based organisation ‘[Organisation 3]’ and documentary evidence of those donations has been provided to the Tribunal. The Tribunal considers all of these actions to be consistent with his [Ethnicity] and status as an undocumented person from Myanmar.
In its most recent Country Information Report, DFAT provided the following assessment of conditions in Myanmar:
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.[13]
[13] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 3.47
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.[14]
[14] Ibid, 3.51
In relation to failed asylum seekers, DFAT reports 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 …, 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.[15]
[15] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 5.25
In February 2023 the UNHCR reported:
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.[16]
[16] Report of the United Nations High Commissioner for Human Rights, ‘Situation of human rights in Myanmar since 1 February 2022’, 2 March 2023 at para 5
Other sources report that representatives of the military junta stated publicly in September 2022 that showing moral support for the democracy movement was an act of terrorism, threatening jail terms of up to 10 years just for sharing pro-democracy content on social media, and even longer for those who provided even small amounts of money.[17]
[17] Martin Petty and Ed Davies, ‘Myanmar Military Threatens Jail for Online “Likes” for Opponents’, Reuters (online) 20 September 2022 < 20/?fbclid=IwAR1AHIyI780B3woJ_eMMc4ICl9IKJe0PfPsdst8pTJNJMPHikowzSleLmdA>
In view of the country information cited above, the Tribunal accepts that the applicant’s [Ethnicity] and long period of residence in [Country] and Australia together with his use of social media to promote views critical of the Myanmar military as well as his financial support for groups opposed to the Myanmar military will cause him to be imputed with a political view that is opposed to the Myanmar military regime putting him at high risk of official harassment, arbitrary detention and violence.
For all of the above reasons, the Tribunal finds that if the applicant were to return to Myanmar, there is a real chance that he would be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. Such treatment amounts to serious harm under s 5J(4)(b) of the Act and the essential and significant reason for that harm is his political opinion.
In considering whether the applicant can obtain protection from the authorities of Myanmar, DFAT reports that the Myanmar military is ‘overwhelmingly the main violator of human rights and international humanitarian law’, targeting civilians they perceive as supporting their enemies.[18] As the agent of persecution is Myanmar’s military regime, the Tribunal finds that the real chance of persecution relates to all areas of Myanmar and that effective State protection is not available to the applicant. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar.
[18] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 2.30–2.31
In light of the Tribunal’s findings and conclusions, it is not necessary for the Tribunal to go on and consider his other claims for protection that arise out of events that are said to have occurred prior to his departure from Myanmar.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alison Murphy
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.
…

[2023] AATA 4376

4 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Standing