2013365 (Refugee)
[2023] AATA 4364
•2 October 2023
2013365 (Refugee) [2023] AATA 4364 (2 October 2023)
CORRIGENDUM
DIVISION: Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER: 2013365
COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER: Jason Pennell
DATE OF DECISION: 2 October 2023
DATE CORRIGENDUM
SIGNED: 20 October 2023
PLACE OF DECISION: Melbourne
AMENDMENT: The following corrections are made to the decision:
The Home Affairs Reference(s) number ‘[deleted]’ on the decision record cover page should be replaced with ‘[deleted]’.
Jason Pennell Senior Member
DECISION RECORD
DIVISION: Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Clare Coffey (MARN: 1067518)
CASE NUMBER: 2013365
COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER: Jason Pennell
DATE: 2 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 2 October 2023 at 2.55pm
CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – ethnic minority – Chinese born in Burma – stateless – no legal status of permanent residence or citizenship – discrimination and harassment – fears forcible recruitment into ethnic armed group (KIA) and Burmese Army – political opinion – opposed to Military regime in Myanmar – active with PDR and HHICOM – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
VSAI v MIMIA [2004] FCA 1602
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 27 August 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 2 April 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Migration Act 1958 (the Act)).
3.The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 28 August 2020 and provided the Tribunal with a copy of the delegate’s primary decision record dated 27 August 2020.
4.The applicant appeared in-person before the Tribunal on 8 September 2023 to give evidence and present arguments. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. As such, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
5.The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
6.The applicant was represented by Ms Kathleen Clare Coffey relation to the review.
CRITERIA FOR A PROTECTION VISA
7.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.
8.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.
9.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.1 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.2
10.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
1 s 5H(1)(a) of the Act
2 s 5H(1)(b) of the Act
are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
11.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 under s 36(2)(aa) of the Act. That is, 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 (‘the complementary protection criterion’).3 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
12.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 (the Department), 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.
APPLICANT’S CLAIMS AND EVIDENCE
Applicant’s identity and country of reference.
13.The applicant claims that he was born on [date] in [Town 1] Township, Kachin State, Myanmar. The applicant provided the Department with his Myanmar passport, his Citizenship Scrutiny Card, and Household Registration (Member) List which confirmed his date and place of birth.
14.The applicant claimed that he is not entitled to full citizenship in Myanmar and that his passport was obtained fraudulently by paying a bribe. The applicant’s evidence was that his paternal grandparents were ethnic Chinese and as such were only entitled to Foreigner Registration cards in Myanmar.4 However, his evidence was that his father and his siblings were afforded Myanmar citizenship because they are ethnic Mon and recognised by the Myanmar.5 In addition, his evidence was that his mother’s parents were born in China, but fled to Kachin State, Myanmar. His evidence was that his maternal grandparents and mother were never granted Citizenship in Myanmar, but rather were given Foreigner Registration cards.6
15.The right to citizenship in Myanmar is determined by the Burma Citizenship Act 19827 (the Citizenship Law). It’s reported that the Citizenship Act is highly discriminatory and arbitrary, undermines the rule of law and fails to satisfy the State’s obligations under international human rights law. Due to its discriminately nature and implementation, many residents in Myanmar lack a legal identity (more than 25 percent, according to the 2014 Census)8 with many life-long residents of Myanmar having been effectively rendered stateless.9
3 s 36(2)(aa) of the Act
4 Applicant’s Statutory Declaration dated 26 November 2019 [4], Dept File No [deleted] Doc ID: 7609955
5 ibid
6 Applicant’s Statutory Declaration dated 26 November 2019 [5], Dept File No [deleted] Doc ID: 7609955
7 Refworld, Burma Citizenship Law, 15 October 1982:
8 International Commission of Jurists, ’Citizenship and Human Rights in Myanmar: Why Law reform is Urgent and Possible A legal briefing’ June 2019, https//: Citizenship-law-reform-Advocacy-Analysis-Brief-2019-ENG.pdf
9 ibid
16.The Citizenship Act refers to three types of citizenship (‘citizen,’ ‘associate citizen’ and ‘naturalized citizen’) each of which is based on different criteria and confers different rights and legal privileges, protections, and penalties on individuals.10 Section 3 of the Citizenship Act confers full citizenship on those considered to be ‘nationals’ under the 2008 Constitution, such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan groups. Section 2, Article 4 provides that the President or the Union government can decide if an ethnic group is a ‘national’ or not.11 Full citizens enjoy legal rights and protections to the extent prescribed in Myanmar law. Those who are not a member of a national group but are descendants of families permanently living in Myanmar since before the first Anglo-Burmese War of 1824 or were citizens prior to the commencement of the Citizenship Act, may also qualify for full citizenship.12
17.“Associate” and “naturalized citizenship” categories generally apply to persons who are not a member of a ‘national race’ group, and/or do not have two parents who are citizens,13 but who can prove an ancestral link dating back almost the establishment of modern-day Myanmar in 1824 or who can prove a link that predates the establishment of the State in 1948.14 It’s reported15 that this is difficult to prove and has been interpreted in a discriminatory manner in circumstances where 25 percent of the country’s population do not have official documentation. In addition, the discriminatory and arbitrary nature in which the citizenship law is administered makes it very difficult for people to obtain Myanmar citizenship. As a result, it’s reported that many people fall outside the citizenship categories, including the Rohingya together with many people of Chinese or Indian descent, and as a result are denied citizenship.16
18.The Tribunal notes that the applicant provided the Department with a copy of his Citizen Security Card (CSC). The county information reports that CSCs are issued to prove a person’s citizenship. Pink CSCs are issued to full citizens while blue and green CSCs are issued to associate and naturalised citizens respectively.17 Citizens are eligible to receive a citizenship scrutiny card once they turn 10 years old. The country information reports that document fraud in Myanmar is highly prevalent and that fake identity documents can be obtained easily including identity feeder documents including birth, marriage, and divorce certificates together with household registrations lists and CSC’s.18 While passports have more sophisticated security features, it is possible to obtain a genuine passport using fake national documents.19 In addition bribes are paid to speed up obtaining a passport.
19.The applicant provided a copy of his CSC card. The document provided noted that he is an ‘Associate Citizen.’ The applicant’s own evidence was that he and his mother had blue CSC cards, while his father’s CSC card was coloured red (or pink). Based on the applicant’s evidence it appears that his family had obtained their CSC cards legitimately prior to him applying for his passport. The applicant provided evidence to the Department that he and his father went to passport office in Yangon to obtain his passport. He stated that he waited outside while his father went into the office and bribed officers to get the passport. The applicant was present when his father bribed the officer and was not able to say what it was for other than obtaining his passport. In
10 ibid
11 OHCHR UPR Submissions; http//: uprdoc.ohchr.org
12 ibid; section 3 1982 Citizenship Law.
13 ibid14 ibid; Burma/Myanmar Joint Submission to the UN Universal Periodic Review 37th Session of the working group. ‘The 1982 Citizenship Law and Right to Citizenship of Minorities and freedom of Movement by Ye Hein Aung
15 ibid
16 DFAT report at p.18
17 ‘Legal Guide to Citizenship and identity Document in Myanmar’; https//:lannpya
18 DFAT report at p.47
19 DFAT report at p.47
circumstances where he already had his documentation to support the passport application, it appears his father has bribed the officer for the purposes of smoothing out the administrative process and ensuring he obtained his passport quickly. The Tribunal notes that the applicant was able to leave the country without difficulty. The country information that states airport staff review and check all bookings details and passport names prior to a person being able to leave the country. Checks are made to passport to ensure they match the bearer’s identification and details.20 Based on the applicant’s evidence and the available country information, the Tribunal finds that the passport is a genuine document.
20.The information in the applicant’s passport is consistent with his evidence in relation to his identity. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of Burma (Myanmar) and as such his protection claims will be assessed against Burma (Myanmar) as the country of reference and ‘receiving country’ respectively.
Migration history
21.The applicant arrived in Australia [in] July 2014 on a TU-572 (student) visa which was valid from 20 June 2014 to 30 August 2016 and has not departed since arrival.21 The applicant lodged his Protection (XA 866) visa on 2 April 2015. He is currently onshore lawfully on a Bridging Visa A (WA 010) which was granted on 2 April 201522.
Applicant’s claims for protection
22.The applicant’s protection claims were detailed in his protection visa application dated 1 April 2015 as follows:
“Why did you leave that country?
I left the country because and basically it is not my country in the eyes of the laws of the country though I was born and bred since birth until today. The immediate course is I am in harms way in case I remain in the country in light of the civil war ongoing specially in my birth pace the Kachin State where both the ethnic armed group (KIA) and the Burma Army are FORCED RECUTING YOUNG MEN specially of ethnic background mostly.
What do you think will happen to you if you return to that country?
The ethnic conflicts specifically in Kachin State are escalating today. Hence, forced recruiting is rampant and rife as well. May unknown and unregistered case of young men are nabbed and forced to serve in the armed contingent of both the KIA and the Burma Army. This is akin to condemning me to a life of kill or be killed no less.
Did you experience harm in that country(s)?
No. I am lucky to escape a certain ominous fate getting caught and force recruited like out friends who were forced recruited into the ranks of the Burma Army. Though two were relocated serving in the armed forces of Burma until today, however another one’s whereabouts are still remaining unknown until today.
Did you seek help within the country(s) after the harm?
Unanswered
Did you move or try to move to another part of the country(s) to seek safety?
No. As I was only [age] (2007) at the time and under the care of my parents, I have not right to make any decision for that matter. However, they sent me for my further studies in Rangoon as soon as I graduated out of high school as well.
Do you think you will be harmed or mistreated of you return to that country(s)?
20 DFAT report at p.43
21 Applicant’s Movement Records, AAT file No 2013365, Doc ID 11364185.
22 ibid.
Yes. Yes, I have no doubt about my life back in Burma in case I return to my place of birth of course. Firstly, I have BRIBED to get my Burmese passport which I am not entitled to hold in the first place as I am not a BONA FIDE CITZEN of Burma in the eyes of the existing laws of Burma. Secondly, I DARE NOT RISK GOING BACK to Burma holding a Burmese passport., knowing in my heart that it is ILLEGAL and UNOFFICAL in the first place.
Do you think the authorities of that country(s) can and will protect you if you go back?
No. No of course not. It is simply due to the fact that I have left the country using an UNOFFICAL TRAVELL DOCUMENT (Passport) and am only a guest Citizen with no right much less ENTITLED to use the Burmese passport in the first place. Hence, the relevant authorities will not help me. They would THROW the BOOK at me for daring to break the laws of the country basically.
Do you think you would be able to relocate within that country(s)?
NO. No, I could not RELOCTE to BURMA at any time as a result of my departure from that country using a BURMESE PASSPORT which I have obtained ILLEGALLY (BRIBED) in the first place. A non-resident like me breaking the law of the country as well has no right to argue much less seek legal course of action as well of course. Hence, RELOCATION to BURMA IS OUT OF THE QUESTION for me, I would say”.
23.The delegate summarised the applicant’s written protection claims as follows:23
·“He is stateless. He claims that he left Myanmar because legally he is not a citizen of that country according to Myanmar citizenship laws, despite being born and raised there, and despite his father being a Myanmar citizen.
·He is of ‘Burmese Chinese’ race. That is to say, he is ethnically Chinese.
·He also left Myanmar because of the ongoing insurgency in Kachin State, where he is from, and because of the forced recruitment or conscription of young men of ethnic background by both the Myanmar Army (Tatmadaw) and the Kachin Independence Army (KIA).
·In Myanmar he holds the status of a ‘guest citizen’ with no rights or entitlement to a Burmese passport. He claims that the Burmese authorities would prosecute him for using a fraudulent Burmese passport and departing the country illegally.
·His father and his father’s siblings obtained national registration cards and were registered as nationals of Myanmar (Burma) as members of the Mong Wun (or Mone Wun) ethnicity (a sub-group of ethnic Chinese) that is an officially recognised minority in Myanmar.
·His mother and her siblings were registered only as foreigners in Myanmar and were given Foreigner Registration Cards (FRC) based on their native place of origin as being China, because their parents, the applicant’s maternal grandparents, were born in China and subsequently moved to Burma. That is, the applicant’s mother is regarded as ethnic Chinese without Myanmar nationality, as is the remainder of her family. The Myanmar authorities therefore regard him as a Chinese citizen.
·Despite the fact his father is a bona fide citizen of Myanmar, he (the applicant) and his siblings are only deemed as ‘guest citizens’ and given foreigner registration cards based on his mother’s ancestry. The applicant claims that FRCs are required to be renewed every ten years and failing to do so would lead him to be deemed as an illegal immigrant.
·Both his paternal and maternal grandparents left China to come to what was then Burma and is now Myanmar.
·Because he has no legal status of permanent residence or citizenship in Myanmar, he has no equal opportunity or rights for employment in that country.
23 Protection Visa Decision Record, AAT file No 2013365, Doc ID: 7601971.
·The ethnic conflict in Kachin State is escalating and therefore forced recruitment or conscription is rife and rampant. He fears he would be forcefully recruited into either the Myanmar Army (Tatmadaw) or the KIA, and then condemned to either kill or be killed during military activities.
·At least three of his friends or acquaintances were forcefully recruited into the Myanmar Army. He claims that the Myanmar Army forcibly recruits young men from ethnic minorities and forces them to undertake dangerous roles for the army, such as acting as porters. Acting in such a role could lead the applicant to being killed. He claims that because there are very few volunteers for military service in Myanmar once a young man is forcibly conscripted, he is not allowed to leave the army into which he is recruited. He claims that both the Myanmar Army and the KIA believe he and other ethnic Chinese should support their respective causes.
·Ethnic minorities are subjected to ongoing attacks from the Myanmar Army and Myanmar authorities. He claims that the Myanmar military has been able to act with impunity and continues to dictate the political, economic and social spheres, despite the National League for Democracy being elected to power in 2015.
·Because he is from an ethnic minority and held a foreigner registration card (FRC) he was always treated as an outsider in Myanmar. He claims he was often verbally harassed and not provided many rights. He was subject to a curfew between sunset and sunrise, he was required to obtain permission to travel outside Kachin State, and he was only allowed to make one such trip each year. He claims that he could not access health care or public education, although he did attend and complete high school.
·After he completed high school in 2007, he went to renew his FRC card, but despite his eligibility the immigration office did not issue him with a new card. Instead, he claims that he was issued with a piece of paper that indicated that he had applied for a new card, but it had not yet been issued. At that time many young men were being forcibly recruited into the military, and the applicant’s family suspected that he was not issued an FRC because the authorities intended to forcibly recruit him into the Myanmar Army. As a consequence, the applicant claims that his family encouraged him to flee to the city of Yangon.
·In order to travel to Yangon he had to pay bribes at checkpoints, because he had not been issued with a new FRC. After he reached Yangon, the applicant claims that he was able to continue tertiary studies, but only at a private institute because of his status, which denied him entry to any government college or university. He claims that throughout his residence in Yangon he was required to report to the ward administration office.
·After he completed his Bachelor degree in [year] he tried to obtain employment in Yangon, but as he was not a citizen he was not eligible to apply for government jobs or many other jobs. He claims that as a foreigner in Myanmar he has no rights to work and no right to employment. However, he was eventually able to find employment at the institute at which he had studied.
·He was issued with a new FRC in early 2014. He claims that the authorities regularly came to his house in Yangon at night to view his identity card. The applicant claims that the Myanmar authorities often mistreat individuals who hold foreigner registration cards. He became anxious and depressed.
·His father bribed the Myanmar authorities to obtain his Myanmar passport, to enable him to leave the country. He claims that he is not entitled to a Myanmar passport because he is not a bona fide citizen of Myanmar according to Myanmar law. He fears returning to Myanmar as the holder of a Myanmar passport knowing that it is unofficial and illegal for him to hold such a passport.
·His parents and siblings continue to live in Kachin State. They are unable to leave because of the laws preventing movement in and out of Kachin State. They live in fear because of the fighting between the KIA and the Myanmar army and because ethnic minorities are targeted.
·He will be sentenced to a long prison term with hard labour for breaking the laws of Myanmar by acquiring a Myanmar passport via bribes and using it to depart the country.
·If he returns to Myanmar he would be subjected to serious harm, torture, cruel, inhuman and degrading treatment or punishment, and physical and mental abuse. He fears being harmed by the Myanmar Army, the Myanmar authorities, and/or the Kachin Independence Army (KIA), based on his membership of an ethnic minority.
·He will be perceived with suspicion by the Myanmar authorities for having spent a prolonged time abroad, and as an ethnic minority member he might be perceived as speaking out against the atrocities of the Myanmar government. He claims that such perceptions would lead to him being detained and harmed if he was forced to return to Myanmar. He also claims he would be imprisoned for applying for protection abroad”.
The applicant’s evidence
24.The applicant’s evidence was that he was born on [date] in [Town 1], Kachin State, Myanmar. The applicant’s mother and father continue to live in Myanmar. The applicant’s evidence was that his father owns and operates a small [business]. He has one sister and [brothers] who all continue to live in Myanmar. His brother works in his father’s business.
25.The applicant’s evidence is that he is ethnic Burmese Chinese and a Buddhist.24 The applicant claims that he speaks reads and writes Burmese, Chinese and English.25
26.The applicant attended school in [Town 1], Kachin State, Myanmar and completed school in [year]. In [year], the applicant joined [an educational institute] in Yangon and completed a course [in year] and [a further] course in [year]. In [year], the applicant graduated with a Bachelor [degree] from [University 1] in Yangon, Myanmar.
27.The applicant’s evidence was that after his studies in Myanmar he was not able to get a job, other than as a tutor at his own college, because he was not considered a citizen of the country.26 The applicant travelled to Australia [in] July 2014 on a student visa and commenced a [course].
28.The applicant was married [in] March 2022. His wife is an Australia citizen. The applicant and his wife have one child born on [date].
29.The applicant’s evidence was that he was raised in [Town 1], Kachin State, Myanmar. His evidence was that the Kachin Independence Army (KIA) is a well-armed ethnic based Army, fighting for the independence of the Kachin State. The KIA has been engaged in an ongoing battle with the Burmese Army. The KIA is backed by the Chinese government which has supplied the KIA weaponry and funding. As a result of the clash between the KIA and Burmese Army, many please have been killed or displaced.27
30.The applicant’s evidence was that in Kachin State, the KIA and Burmese army are forcibly recruiting young males. The Burmese Army recruits young men from ethnic
24 Applicant’s Statutory Declaration dated 26 November 2019 [3]; Dept File No: [number] Doc ID: 7609955
25 Applicant’s Protection Visa Application dated 1 April 2015; Dept File No: [number] Doc ID:7609951
26 Applicant’s Statutory Declaration dated 26 November 2019 [14]; Dept File No: [number] Doc ID:7609955
27 Applicant’s Statutory Declaration dated 26 November 2019 [7]-[10]; Dept File No: [number] Doc ID:7609955.
minorities and force them to undertake dangerous roles in the army such as being porters used for carrying heavy equipment and weaponry. Both the KIA and the Burmese Army visit houses in Kachin State in the evenings looking to recruit young men.28 The recruits are provided with limited training and often sent to the front line of fighting. Many of those who have been forcibly recruited to the Burmese Army and the KIA have been killed or injured. The applicant’s evidence was that two of his brother’s friends ([named]) have been forced to join the Burmese Army. The applicant’s evidence was that despite his attempts to leave, [one friend] has been forced to remain in the Burmese Army and [another] has been missing for several years.29
31.The applicant’s evidence was that he became fearful that he would be forcibly recruited to join with the Burmese Army or the KIA. The applicant’s evidence was that the KIA leaders believed that ethnic Burmese Chinese would support their cause. As a result, as an ethnic Burmese Chinese, the applicant became fearful that he would be forcibly recruited into the KIA.
32.The applicant’s evidence was that in Myanmar ethnic tensions are deeply entrenched. As a result, ethnic minorities are subjected to ongoing attacks by the Burmese Army and the authorities.. The applicant’s evidence was that the Myanmar President, Thein Sein, has allowed the country’s military to act with impunity towards ethnic minorities in subjecting them to serious harm. Despite the election of the National Military League for Democracy (NLD) in 2015, the military has continued to dictate the political, economic, and social agenda in Myanmar.30 The applicant claims that belonging to an ethnic minority meant he was treated as an outsider in Myanmar. He claims that he was verbally harassed and not afforded basic human rights. For example, the applicant’s evidence was that he and his family were subjected to a curfew by which they were not permitted to leave their house between sunset and sunrise.31 To travel outside Kachin State he was required to obtain official permission and was only allowed one trip per year. He and his family did not have access to health care or public education.
33.The applicant’s evidence was that to travel within the Kachin state, it was necessary go through checkpoint controlled by the Burmese Army and pay bribes to be able to pass. While the applicant was studying and living in Yangon, he was required to report to the Ward Administration Office each week.32 In or about March 2018, his brothers were traveling to a town [to] visit the bank. On the way the KIA stopped them and demanded money. The KIA threatened to kill their mother if they did not pay. The applicant’s evidence was the KIA took his brother’s mobile phones so that they could not film the incident.
34.The applicant’s evidence was that following the military coup in February 2021, he attended protests against the Myanmar Military Regime at Federation Square and Parliament House in Melbourne.33 On 11 April 2021, he also attended a protest against the military coup outside the Victorian Parliament wearing his ethnic dress. The applicant provided the Tribunal with photos of him attending each protest.
35.The applicant’s evidence was that given his experience of the authorities in Myanmar, he is passionate about supporting groups to overthrow the Military regime in Myanmar.34 The applicant also claims that he has been a volunteer with Helping Hands for the Immediate and Complete Overthrow of the Military (People from
28 ibid
29 ibid
30 ibid31 Applicant’s Statutory Declaration dated 26 November 2019 [11]-[17]; Dept File No: [deleted] Doc ID:7609955.
32 ibid
33 Applicant’s Statutory declaration dated 31 August 2023. AAT file No 2013365 Doc ID: 11474022
34 Applicant’s Statutory declaration dated 31 August 2023 [9]. AAT file No 2013365 Doc ID: 11474022
Australia) (HHICOM).35 The organisation works towards the overthrow of the military regime in Myanmar. The applicant’s evidence was that he contributed financially to the organisation and attended various events. The applicant provided a signed certificate dated [2023] certifying that he is a dedicated member of volunteer of HHICOM.
36.The applicant’s evidence was that since 2012 he has donated money monthly to the Peoples Defence Force (PDF). He claims he attended PDF fundraising events [in] February 2022.36 In addition, he claims that he has expressed his views on social media. The applicant provided copies of his [social media] in which he has expressed his political views in opposition to the Military regime in Myanmar.
37.The applicant claims that because he has now spent a significant amount of time in Australia and has been politically active while here, there is a real chance he will be detained by the authorities and seriously harmed if he is returned to Myanmar. 37 He claims that because he is a member of an ethnic minority in Myanmar, he will be mistreated and harmed if he is returned to that country. The Military will believe that he is aligned with the KIA. In addition, if he is returned there is a real chance, he will be forcibly recruited into the KIA Army to fight against the Burmese Army.38
Applicant’s documents
38.The applicant has provided the Tribunal with the following documents:39
·Applicant’s post-protection interview written submissions dated 13 December 201940
·Statutory Declaration made by the applicant, including additional information in support of his protections claims, signed and dated 31 August 2023.
·Screenshots of the applicant’s social media posts, photographs and fundraising relating to his political activity in Australia.
·Copy of a letter attesting to the applicant’s membership and participation with the ‘Helping Hands for the Immediate and Complete Overthrow of the Military Dictator (People from Australia)’, signed and dated 4 August 2023.
·Copy of a letter of support from CRPH/NUG Support Group Australia, dated [2023].
·A copy of the applicant’s mother’s Myanmar Associate Citizenship Scrutiny Card, with certified English translation.
·Written legal submissions from the applicant’s representative.
COUNTRY INFORMATION
39.In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report on Myanmar dated 11 November 2022 (the DFAT Report),41 in particular, those parts of the DFAT Report marked as Attachment A to this decision.
35 Applicant’s Statutory declaration dated 31 August 2023 [6]. AAT file No 2013365 Doc ID: 11474022
36 Applicant’s Statutory declaration dated 31 August 2023 [7]. AAT file No 2013365 Doc ID: 11474022
37 Applicant’s Statutory declaration dated 31 August 2023 [22]. AAT file No 2013365 Doc ID: 11474022
38 Applicant’s Statutory declaration dated 31 August 2023 [23]. AAT file No 2013365 Doc ID: 11474022
39 AAT file No 2013365, Doc ID: 11474022.
40 Dept file No [deleted], Doc ID 7609961.
41 DFAT Country Information Report on Myanmar dated 11 November 2022
CONSIDERATION OF CLAIMS AND FINDINGS
40.The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Credibility
41.When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment, as well as the stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
42.The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, if an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’ then it remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.42 Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.43
43.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.44 Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
44.If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.45 However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
Accepted Facts
45.Based on the applicant’s evidence and the document’s provided by the applicant, the Tribunal accepts and finds that the applicant:
(a) was born on [date] in [Town 1], Kachin State, Myanmar.
(b) is ethnic Burmese Chinese and a Buddhist.
(c) speaks reads and writes Burmese, Chinese and English.
(d) parents continue to live in Myanmar.
42 Section 5AAA, the Act.
43 MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985)
6 FCR 155 at [169–70].
44 Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p.482.
45 The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].
(e) father owns and operates a small [business].
(f) has one sister and [brothers] who all continue to live in Myanmar.
(g) attended school on [Town 1], Kachin State, Myanmar. He completed school in 2007.
(h) applicant joined [an educational institute] in Yangon and completed a course [in year] and [a further] course in [year].
(i) graduated with a Bachelor [degree]from [University 1] in Yangon, Myanmar in [year].
(j) worked a tutor at his own college.
(k) was married [in] March 2022. His wife is an Australia citizen. The applicant has one child born on [date].
Applicant’s claims as a refugee
A past fear of persecution is not sufficient
46.A past fear may be a relevant consideration in determining if the applicant has a well- founded fear of persecution. However, the approach applicable under in s 5J(1)(a) of the Act is whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act and he is unable or unwilling, due to the present and well-founded fear, to avail herself of the protection of that country.46
Relevant grounds
47.The applicant claims that he has a well-founded fear of persecution if he is returned to Myanmar, pursuant to s. 5J(1)(a) of the Act, by reason of his race, as an ethnic Burmese Chinese, and because of his political opinion.
48.In Calado v MIMA47 the Court, in considering the expression of ‘race’ in reference to Article 1A(2) of the Convention, stated that it was appropriate to consider the “popular” understanding of the term that accords with a person’s physical appearance, skin colour and ethnic origin.48 The court stated:
‘There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.’
49.In addition, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status also refers to the expression of ‘race’ in the broadest of terms stating:49
‘68.Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.
46 Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]–[62], referring to Chan v MIEA
(1989) 169 CLR 379, s 5H of the Act
47 Calado v MIMA (1998) 81 FCR 450 at 455.
48 ibid49 Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [68]; https://www.unhcr.org/4d93528a9.pdf
50.In this case, the applicant claims that as a Burmese Chinese male there is a real chance he will be identified by the KIA and forcibly recruited into the KIA army. In addition, he claims that as a Burmese Chinese he is a member of a minor ethic group. As a result, there is a real chance he will be seriously harmed by the Myanmar authorities, in particular the Burmese Army if he is returned to Myanmar. Based on the applicant’s evidence, the Tribunal accepts that his claim does fall within in s 5J(1)(a) of the Act because of his race.
51.In addition, the applicant submits that his claim falls within s 5J(1)(a) of the Act because he has a well-founded fear of persecution because of his political opinion. To fall within s 5J(1)(a) of the Act, it is not necessary for the applicant to hold an actual opinion; rather, it is sufficient for his political opinion to be imputed to him by the persecutor.50 The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status51 provides that it is necessary for an applicant to show that they have a fear of persecution for holding a political opinion as ‘[H]olding political opinions different from those of the Government is not in itself a ground for claiming refugee status.’
52.The applicant claims that that he is opposed to the Military regime in Myanmar. He claims that as he has been active with the PDR and the HHICOM, he will be viewed as being opposed to the regime and will suffer serious harm if his returned to Myanmar. As such, the Tribunal accepts that the applicant’s claim does fall within s 5J(1)(a) of the Act because of his because of his political opinion as claimed.
Applicant’s well-founded fear
53.Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
54.In Chan v MIEA52 the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.53
55.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if he returns to Myanmar.
56.However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J 54stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
50 MIEA v Guo (1997) 191 CLR 559 at [571]; Chan v MIEA (1989) 169 CLR 379 at [416] per Gaudron J and at
[433] per McHugh J.
51 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80–86]; Chan v MIEA
(1989) 169 CLR 379 at [392].
52 (1989) 169 CLR 379 at 396.
53 (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
54 Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.
57.In MIEA v Guo, the Court stated that: 55
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
58.Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below, the Tribunal accepts that the applicant has a well-founded fear of persecution on both a subjective and objective basis.
Systematic and discriminatory conduct
59.Pursuant to section 5J(4)(c) of the Act, persecution must involve systematic and discriminatory conduct. The issue of systematic conduct involved in the persecution claimed was considered in Chan v MIEA56 in reference to the Convention. McHugh J stated:
The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.
60.In VSAI v MIMIA57 Crennan J, stated that where conduct is shown to be serious harm when assessing if it is ‘systematic conduct’, it would be wrong to require the applicant to show anything more than the act is deliberate or pre-meditated. It would not be necessary to show that the conduct is widespread or frequently recurring. Nevertheless, the frequency of an act may be relevant in determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low-level harm.58
61.In addition, the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In Ram v MIEA59 , Burchett J said:
Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
62.However, it has been held that while persecution will necessarily involve an element of motivation on the part of the persecutor, and will often be motivated by enmity,60 it is wrong to require an attitude of ‘enmity’ or ‘malignity’ before persecution can be made out.61 Accordingly, for the reasons described below the Tribunal is satisfied that there is a real chance the applicant will be seriously harmed as a result of systematic and discriminatory conduct.
The Applicant’s Race
55 MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
56 Chan v MIEA (1989) 169 CLR 225 at 429–430.
57 VSAI v MIMIA [2004] FCA 1602 at [53].
58 ibid.
59 Ram v MIEA (1995) 57 FCR 565 at 568.
60 MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [72].
61 Chen Shi Hai v MIMA (2000) 201 CLR 293 at [33]–[35], [60]–[61].
63.The applicant claims that there is a real chance he will be seriously harmed if he is returned to Myanmar because of his race. He claims that as a member of a minority race in Myanmar he would face ongoing harassment and discrimination if he is returned to the country.
64.The country information62 reports that racial discrimination in Myanmar is widespread and institutionalised. The Bamar Buddhists are favoured by the authorities especially over other groups with darker skin and those who do not speak Burmese fluently.63 Those belonging or perceived to belong to a so called ‘mixed race’ (for example those from South Asian and Chinese heritage)64 are forced to queue separately when accessing government services. It’s reported65 that they are subjected to racial abuse and official discrimination. Those without full citizenship are excluded from certain professions including medicine and law and are prevented from achieving higher ranking positions in both the government and military.66
65.It’s reported by Amnesty International67 that civilians from minority ethnic groups suffer appalling violations and abuses, including war crimes, at the hands of Myanmar’s military and ethnic armed groups in the country’s Kachin and northern Shan States. In 2017, 100,000 people were torn away from their homes and farms due to conflict and human rights abuses.68 It reported69 that the Myanmar’s Armed Forces are known to carry out torture and extrajudicial executions on minority villagers and to place punitive restrictions on their movement and humanitarian access. In addition, ethnic armed groups have been known to abduct civilians seen to support an opposing party, forcibly recruit men, women and children into their fighting forces and impose “taxes” on impoverished villagers trapped in the conflict.70
66.Its reported71 that since the coup in 2021, violence in Kachin State increased steeply with fighting between the military and KIA extending into the north of the state.72 It’s reported that 312 clashes between the KIA and the military resulted in an estimated 12,000 people being displaced in Kachin State between March 2021 to June 2021.73 The military crackdown included shooting civilian protesters and destroyed entire villages believed to support the opposition, massacring both civilians and opposition fighters.74 It’s reported that at least 1,500 civilians have been killed by the military with more than eight thousand people, including journalists’ medical workers, and NLD politicians having been arrested.75
67.The applicant’s evidence was that in Kachin State, the KIA and the Burmese Army forcibly recruited young males into their forces to participate in the ongoing fighting. As a young male he is at risk of being recruited by the KIA. The country information reports76 that many ethnic authorities experience violence and displacement due to
62 DFAT report at p.18
63 ibid
64 ibid
65 ibid
66 ibid67 Amnesty International ‘Myanmar: Ethnic minorities face range of violations including war crimes in northern conflict’ 14 June 2017 ww.amnesty.org/en/latest/press-release/2017/06/myanmar-ethnic-minorities-face- violations-in-northern-conflict/
68 ibid
69 ibid
70 ibid71 Council on Foreign Relations, ‘Myanmar Troubled History Coups Military Rule and Ethnic Conflict.’ 31 January 2022; DFAT Report at p.15
73 ibid74 Council on Foreign Relations, ‘Myanmar Troubled History Coups Military Rule and Ethnic Conflict.’ 31 January 2022; ibid
76 DFAT report at p.18
ongoing conflict in their home states and regions. It’s reported77 that dozens, if not hundreds, of armed groups operate in Myanmar. There are an estimated 20 ethnic armed organisations including the KIA, the Arakan army, the Karen International Union, and the Ta’ang National Liberation Army. It’s reported78 that the KIA is among seven non-state armed groups in Myanmar that have been listed as recruiting and using child recruits. While it’s reported that recruitment can be voluntary, ongoing coercive recruitment also takes place.79 Administrators in charge of recruitment routinely overlook evidence that recruits are underage.80 In addition, it’s reported81 that the KIA has been responsible for abducting and recruiting locals into their armed force. In May 2017, the KIA forcibly recruited 40 villagers from Waingmaw township in Myitkyina district.82 On May 22 year?, about 2,000 ethnic Lisu protested against KIA for forcibly recruiting other Lisu and trying to extort money from the minority group.83 In September 2020, it was reported84 that villagers in Lashio Township in the Shan State were forced to flee their homes as armed groups were forcibly recruiting civilians.
68.The Myanmar government claims that its national armed forces is an all-volunteer force. 85 However, Human Rights Watch reports that most new recruits are conscripts, a large proportion of which are children.86 To compensate for the lack of voluntary recruits and high rates of desertion, specialised recruitment units have been established throughout the country for the purposes of filling recruitment quotas. It’s reported87 that the unrelenting pressure to meet recruitment quotas has placed boys and young men at constant risk of forced or coerced recruitment.
69.Based on the applicant’s evidence and the available country information, the Tribunal accepts that that there is a real chance the applicant will be seriously harmed if he is returned to Myanmar by reason of him being a member of an ethnic minority as claimed.
Applicant’s political opinion.
70.The applicant claims that there is a real chance he will be seriously harmed if he is returned to Myanmar by reason of his political opinion. The applicant claims that he is passionately opposed to the Military regime in Myanmar and as a result has attended protest rallies against the regime and financially supports the HHICOM and PDF. Based on the documentation provided by the applicant including his [social media] posts, the Tribunal accepts that he is opposed to the Military regime in Myanmar and supports the HHICOM and PDF as claimed.
71.The country information88 reports that opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subjected to abuses including arbitrary detention, torture sexual violence and enforced
77 DFAT Report at p.13
78 Reliefweb, ‘A Dangerous Refuge: Ongoing child recruitment by the Kachin Independence Army- July 2015’ dated 3 July 2015: independence-army-july-2015.
79 ibid
80 ibid81 Radio Free Asia, Ethnic militia abducts villagers as forced recruits in Myanmar's Kachin state, 6 October 2017, available at: ibid
83 ibid84 Burma News International, ‘Hundreds of Civilians Flee Forced Recruitment by Armed Group in Northern Shan State’ 4 September 2020; group-northern-shan-state
85 Human Rights Watch, ‘The Recruitment and Use of Child Soldiers in Burma’ ibid
87 ibid
88 DFAT Report at p.26
disappearance. People of all ages who participated in anti-regime protests have been arrested or killed.89
72.The country information90 reports that since the coup the government has increased electronic surveillance of Myanmar residents. The cameras are equipped with facial recognition and license plate technology. The authorities record the information which is used to identify and prosecute people involved in anti-regime protests.
73.Those accused of being sympathetic towards the political opposition are at risk of being detained by the authorities. To be accused of being sympathetic towards the opposition, it is enough to have a picture of Aung San Suu Kyi displayed at a person’s home or on their mobile phone, using foreign apps such as Facebook, possessing a virtual private Network or owning dinted pots and pans.91 The DFAT report92 states that sources in Yangoon had experienced random police searches of their homes and vehicles on multiple occasions. In addition, police make random checks of individual mobile phones looking for anti-regime material.93 The authorities make no distinction between those actively opposing the military regime and those expressing dissatisfaction with the regime.94 As such, it’s reported that the threshold of falling under official suspicion is extremely low.95 As such, anyone opposing or perceived as opposing the military regime are at a high risk of being seriously harmed including torture, arbitrary detention enforced disappearance beating or application of the death penalty.96
74.In this case, the applicant has actively protested again the military regime in Australia. He has supported the HHICOM and PDF and actively posted his involvement in such organisations together with his anti-military regime views on social media. The junta has killed over 3,600 dissenters and arrested tens of thousands more since its coup in 2021. The country information97 reports that along with the use of direct violence the military regime since the coup in 2021 has actively in maintained a 24/7 online surveillance of individual citizens to detect attempts to communicate hidden or indirect anti-regime messages online. Online platforms and social media channels have been targeted by the regime. This has included blocking access to social media platforms like Facebook, imposing restrictions on virtual private networks (VPNs, which can bypass internet censorship), and conducting online surveillance to control and monitor online activities.98 As a result of the regimes online activities a growing number of people have been jailed face arrest warrants or have been forced to flee as they become targets of the prosecution. Among the recent victims was model May Panche, who was sentenced to three years’ imprisonment for expressing sympathy on Facebook for the victims of the junta’s deadliest air strike to date, which killed over 160 people in Sagaing’s Pazi Gyi Village in April.99 As such based on the available country information, the Tribunal accepts that there is a real chance his social media profile would have been discovered by the regime. In such, circumstances, based on the country information detailed above, the Tribunal accepts that there is a real chance the
89 DFAT Report at p.26
90 DFAT Report at p.27
91 DFAT Report at p.26 (banging pots and pans is a common form of protest)
92 ibid
93 ibid
94 ibid
95 ibid96 DFAT Report at p.26
97 The Irrawaddy ‘Myanmar Junta Seps Up Efforts to Monitor, Silence Perceived Online Critics’ by Khin Nadi 14 June 2023. https//: efforts-to-monitor-silence-perceived-online-critics.html
98 ibid
99 ibid
applicant will be seriously harmed if he is returned to Myanmar because of his political views.
75.In addition, the applicant has now been in Australia for a considerable time. He is now married to an Australia citizen and has a child born in Australia. It’s reported that upon arrival in Myanmar the authorities heavily scrutinise those entering and departing the country. In circumstances where the applicant has been in Australia for a period, the Tribunal accepts he would be subjected to heavy scrutiny by the authorities. It’s reported that there are severe consequences for anyone suspected of opposing or criticising or having links to western countries. In this case, the applicant has been active in his criticism of the regime, which has been well documented in his social media posts. In addition, his links to Australia are his marriage to an Australia citizen and child and his membership of HHICOM and PDF. Accordingly, based on the available country information and his evidence in relation to his activities in Australia, the Tribunal accepts and finds that there is a real chance he will be seriously harmed as a failed asylum seeker upon his return to Myanmar.
76.Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that the applicant is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a).
CONCLUSION
77.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a) of the Act.
DECISION
78.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jason Pennell Senior Member
ATTACHMENT ‘A’
RECENT HISTORY
2.1Myanmar (known until 1989 as Burma) achieved independence from Britain in 1948, initially as a parliamentary republic. A military coup overthrew the government in 1962. Myanmar has since been ruled mostly by military regimes and has experienced internal conflict and lengthy periods of international isolation.
Corruption
2.24Corruption is endemic at all levels of Myanmar society, from petty bribery of officials to major corruption in government procurement processes and the selling-off of state- owned assets to military cronies. Transparency International ranked Myanmar 140 out of 180 countries in its 2021 Corruption Perceptions Index. According to the 2020 Global Corruption Barometer, 20 per cent of people surveyed in Myanmar reported having paid a bribe to access public services in the prior 12 months. According to GAN Integrity, a compliance management firm, corruption and weak rule of law are major barriers to doing business in Myanmar. Drivers of corruption include low public sector salaries, cumbersome bureaucratic processes, armed conflict, social customs such as gift-giving and ‘tea money’, differing ‘levels’ of citizenship (see Race/Nationality) and a flourishing shadow economy.
2.25Prior to the February 2021 coup, the NLD government had taken steps to tackle corruption, including passing the Anti-Corruption Law (2013) and establishing the Anti-Corruption Commission (ACC) in 2014. As a result, Myanmar reported the greatest improvement of any country in the Corruption Perceptions Index between 2012 and 2018. Like many public institutions, the ACC was purged following the coup and its members replaced with individuals loyal to the military regime. It is unclear whether corruption has worsened since the coup, but it is unlikely to have improved. See also Prevalence of Fraud.
SECURITY SITUATION
2.30Myanmar has been continuously affected by conflict since independence in 1948. Long-running ethnic insurgencies are fuelled by discriminatory policies, inequality, and political disenfranchisement, as well as struggles over land, resources and markets (both licit and illicit). Since the February 2021 coup, a widespread armed insurgency has emerged that seeks to attack the military regime and its officials and restore democracy to Myanmar. Within this context, the Myanmar military remains the principal armed actor in post-coup Myanmar and is overwhelmingly the main violator of human rights and international humanitarian law.
2.31The military regime has no direct control over large parts of the country, and Action on Armed Violence, an NGO, estimates at least one-third of the country is in the hands of ethnic rebel groups. Armed groups operate along Myanmar's borders with China, Thailand, Laos, Bangladesh, and India. The ‘Bamar heartland’, including Mandalay, Yangon, Sagaing and Magway, was once relatively peaceful, but since the coup this region has seen a sharp rise in violence, as local PDFs and ethnic armed organisations clash with security forces, and the military regime targets civilians they perceive as supporting their enemies.
Armed Groups
2.32Dozens if not hundreds of armed groups operate in Myanmar. There are an estimated 20 ethnic armed organisations. The most significant include the Arakan Army (AA), the Kachin Independence Army (KIA), the Karen National Union/Karen National Liberation Army (KNU/KNLA), the Ta’ang National Liberation Army (TNLA) and the United Wa State Army (UWSA). Many of these groups are large and well- equipped. Besides defending their populations from the military and other ethnic armed organisations, they often assume some state functions within the area they control, providing education, health, and other services, as well as levying taxes and controlling licit and illicit trade. The line between ethno-nationalist army and criminal gang is often blurry, and varies across different actors. Individuals associated with armed groups have been both victims and perpetrators of human rights abuses.
2.33On 5 May 2021, the National Unity Government announced the establishment of the PDF as its armed wing, with the stated aim ‘to defend and protect lives, properties and livelihoods of the people’ from violence by the military and other forces under the control of the State Administration Council. Its long-term objectives include the overthrow of the military regime and the formation of ‘Federal Union Forces’ incorporating Myanmar’s ethnic armed organisations. The PDF is ostensibly under the central command of the NUG and divided into five regional commands (Northern, Southern, Eastern, Western, Central). In reality, it consists of hundreds of smaller ‘PDFs’ and local resistance groups with varying levels of reporting and allegiance to the NUG, which, according to the International Crisis Group, range from ‘underground urban cells consisting of a few people to large, well-organised militias with hundreds of fighters equipped with modern light arms’. Many of its recruits are previously non-radicalised young people who say they have been driven to violence by the regime’s abuses. In reality, only about 20 per cent of PDFs are under the command and control of the NUG.
2.34PDFs have engaged in direct fighting with security forces, sabotaged infrastructure, and carried out shooting and Improvised Explosive Device (IED) attacks against soldiers, police, and regime officials. They have also assassinated regime supporters and alleged collaborators/informers. As of December 2021, the NUG claimed PDFs had killed more than 1,500 Myanmar military soldiers, although these figures are
impossible to verify and PDF gains have been largely exaggerated. While an NUG code of conduct directs PDFs to refrain from attacking civilians, civilians have been killed in their attacks, and civilian infrastructure has been targeted. PDFs have received arms and training from some ethnic armed organisations, and in some cases have fought alongside these groups against the military (particularly in Chin, Kayah, and Kachin States).
2.35Militia groups sponsored by the military regime known as Pyu Saw Htee have been accused of arson, targeted assassinations, attacks on civilians and spreading disinformation. According to media reports, they consist of ‘active and retired military personnel, civil servants, members of the military proxy Union Solidarity and Development Party, ultranationalists and people hired for a wage’. The military has reportedly armed and trained Pyu Saw Htee groups (some of whose members are former soldiers) and in some cases conducted operations alongside them. Data for Myanmar, a not-for-profit research group, claimed regime-backed groups such as Pyu Saw Htee were responsible for burning down more than 7,000 homes across the country between May 2021 and March 2022. Pyu Saw Htee have also been involved in clashes with PDF forces.
Armed Conflict
2.36In the decade prior to the coup, armed conflict in Myanmar had stabilised at moderate levels. This was in part due to economic growth, a liberalising political environment and peace negotiations between the government and armed groups. Violence was mostly confined to Shan State, Kachin State, Kayin State and Rakhine State, at varying levels of intensity. Following the coup, violence increased dramatically and spread to almost all parts of the country. From January to December 2020, the Armed Conflict Location & Event Data Project (ACLED) recorded 1,483 conflict incidents (including battles, bombings, riots, violence against civilians and so forth). Over the same period in 2021, ACLED recorded 16,150 incidents, a ten-fold increase. In 2020, the Myanmar Institute for Peace and Security (MIPS), a think tank, recorded one or more armed incidents in 49 townships; that number rose to 122 townships in the first seven months of 2021. Types of violence include fighting between armed groups and security forces; attacks on and by regime-affiliated militia groups; the targeting of civilian infrastructure; artillery, mortar and surface-to-surface missile strikes; improvised explosive devices (IEDs) and unmarked landmines; abductions, torture, sexual violence and extrajudicial killings; burning of homes and buildings (including religious buildings); and air strikes from helicopters and fixed wing aircraft. According to the UNHCR, as of July 2022, more than 750,000 people had been internally displaced and another 40,000 had fled to neighbouring countries due to conflict, bringing the total number of internally displaced people in Myanmar to over 1 million.
2.37Since the coup, Yangon and Mandalay have seen persistent violence for the first time in recent Myanmar history. For instance, in February 2022, there were 118 IED incidents and 34 attacks involving small arms in Yangon, while over the same period there were 47 IED incidents and 21 small arms attacks in Mandalay. IED attacks have targeted government buildings or security forces, as well as businesses perceived as having connections to the military regime. Gun violence includes targeted shootings by PDF forces of security forces and perceived collaborators, and security forces raids of PDF hideouts.
2.38The Sagaing and Magway regions, where the Bamar ethnicity is in a majority and which have historically been largely peaceful, saw a significant uptick in violence following the coup. PDF fighters in these regions are poorly armed (compared to more established ethnic armed organisations) and as a result have mostly avoided direct engagement with the military, preferring indirect IED attacks. PDFs in Sagaing
Region and Magway Region have carried out IED attacks on military convoys, government administration buildings, cell towers operated by Mytel (a military telecommunications company), schools and other facilities. In October 2021, the military launched an offensive to subdue PDFs operating in Sagaing Region, leading MIPS to describe Sagaing as ‘the epicenter of new armed conflict following the coup’. This offensive has continued throughout 2022. The Myanmar Institute for Strategy and Policy, another think tank, estimated in June 2022 that over 15,000 homes and buildings had been destroyed in Sagaing and more than 395,000 people internally displaced – nearly half the total number of IDPs in Myanmar since the coup.
2.39Violence in Kachin State rose steeply following the coup, and fighting between the military and the KIA extended into northern Shan State, Sagaing Region and Mandalay Region throughout 2020-21. This followed the release of images of security forces killing unarmed protesters in Myintkyina, the Kachin State capital, in March 2021. MIPS recorded 312 clashes between the KIA and the military in the first six months of 2021 and estimates 12,000 civilians were displaced in Kachin State between March and June 2021, adding to approximately 100,000 living in protracted displacement in Kachin since 2011. Elements of the KIA have provided training and arms to PDFs. For instance, the KIA has supported PDFs in northern Sagaing Region, and a military raid in Mandalay in June 2021 captured eight PDF fighters and killed four others, two of whom were subsequently revealed to be KIA officers. In October 2022, Myanmar military airstrikes against an outdoor concert in Kachin State killed over an estimated 60 people, most of them civilians.
2.40Chin State had experienced relatively little conflict since 2010, but widespread protests following the coup led to a brutal crackdown that in turn spurred an active armed insurgency. At least 14 armed groups now operate in Chin State, including the Chinland Defense Force (CDF) and the Chin National Defense Force (CNDF), both of which are allied to the long-established Chin National Army (CNA). An estimated 50,000 people have been displaced by the conflict in Chin State. Mindat in Chin State was among the most conflict-affected townships in Myanmar in 2021, with 29 clashes recorded between the military and resistance forces in the first six months of 2021. Tactics used by security forces in Chin State have become increasingly brutal, and in November 2021, Human Rights Watch released a statement on behalf of 512 regional and international civil society organizations calling for urgent UN intervention to address ‘the escalating attacks in Chin State [and] the rapidly deteriorating humanitarian, human rights and political crisis in Myanmar’. The statement noted incidents including the indiscriminate shelling and burning of 200 homes and two churches (see Christians) in Thantlang in October 2021, the use of airstrikes and artillery against civilians, and the blocking of humanitarian aid intended for affected populations.
2.41Following the coup, the KNU/KNLA offered shelter in its territories in Kayin State to protesters and CDM participants, drawing the military’s ire. Since then, conflict between the KNU/KNLA and the military has intensified, with at least 150 clashes in the first six months of 2021, 310 clashes in December 2021, and 181 clashes in January 2022. In March 2021, the KNU/KNLA overran two military bases, prompting a fierce response including airstrikes and artillery attacks. Eighteen people were killed and an estimated 40,000 displaced, many of them fleeing to makeshift homes in caves and the jungle.
2.42Fighting has also taken place in the vicinity of the Myanmar-Thailand border, close to Mae Sot and Myawaddy, causing thousands to flee into Thailand. Thai authorities subsequently pushed for many of these people to return, in some instances reportedly threatening to burn their temporary shelters to the ground if they did not go back to Myanmar. From March to July 2022, KNU/KNLA forces seized several locations of strategic importance to the military in this area, and air attacks by the Myanmar Airforce – in some cases crossing into Thai territory – have so far failed to dislodge them.
2.43Kayah State and parts of Shan State have seen fierce fighting between the Myanmar military and local resistance forces. These resistance forces have amalgamated under the Karenni Nationalities Defence Force, together with the Karenni Army (the armed wing of the Karenni National Progressive Party, or KNPP) since mid-2021. As much as 70 per cent of the population of Kayah State was estimated to have been displaced by conflict as of July 2022. The UN estimates 85,000-100,000 people were displaced from Demoso, Loikaw and Hpruso townships in Kayah State and Pekon and Hsiseng in Shan State following gun battles, airstrikes and shelling that resulted in dozens of civilian casualties. There have been numerous reports of atrocities in these areas, including extrajudicial killings and attacks on churches, including air strikes (see Christians). A deliberate military attack on a civilian convoy in Kayah State in December 2021 killed 35 civilians, including two humanitarian workers (see International Organisations, NGOs and Civil Society). Northern Shan State has also seen an increase in inter-ethnic armed organisation conflict, including between the Restoration Council of Shan State (RCSS) and the TNLA, and between RCSS and SSPP/SSA with support from the UWSA. For instance, an estimated 600 people were displaced from Namtu in northern Shan State by fighting between these groups in January 2021.
2.44There has been longstanding conflict between the Myanmar military and the AA in Rakhine State. Despite an informal ceasefire, MIPS reports that ‘military tensions on the ground [in Rakhine State] remain high’. The Arakan Rohingya Salvation Army (ARSA), whose October 2016 attack on Border Guard Police in Maungdaw Township provoked a massive security operation against the Rohingya, still operates in Rakhine State. In December 2021, ARSA fighters allegedly attacked 20 residents of Khone Taing Village in Maungdaw, injuring one, and in January 2022, photos and videos emerged online purporting to show ARSA fighters conducting armed exercises in the Rakhine jungle.
2.45The steep increase in violence across the country, along with the military regime’s crackdown on civil society, has made it much harder for humanitarian and development organisations to deliver assistance in conflict areas, including education, healthcare, emergency shelter and food. There are ongoing reports of humanitarian aid being confiscated by the military, as well as attacks on, and arrests of, local aid workers (see NGOs and Civil Society Organisations).
Civil Unrest
2.46Following the February 2021 coup, demonstrations broke out throughout the country, including in Yangon, Mandalay and Nay Pyi Taw, as well as in smaller cities, with some reportedly drawing as many as 150,000 protestors. Healthcare workers and civil servants launched a nationwide civil disobedience movement, which was also joined by railway workers, garbage collectors, bank workers, electricity workers and others.
2.47The military regime’s response to the protest movement has been harsh and wide- ranging, including restrictions on freedom of expression and assembly, the arrest and detention of protestors, the spreading of disinformation, and the beating, torture and killing of protestors and first aid responders. As of November 2021, the Assistance Association for Political Prisoners, an NGO, listed more than 1,200 confirmed killings and over 10,000 arrests in relation to the anti-coup protest movement, though numbers are likely much higher. At least 1,200 people had been sentenced for anti- coup activities as of July 2022. A video analysis by Amnesty International recorded more than 50 instances of security forces using live ammunition and military weapons to systematically attack unarmed protestors between 28 February and 8 March 2021, a trend which has continued since. In July 2022, the military regime carried out the death penalty against four men involved in anti-coup activities, including two prominent pro-democracy activists (see Death Penalty).
Violent and Organised Crime
2.48According to UN Office on Drugs and Crime (UNODC) data, the homicide rate for Myanmar is 2.26 murders per 100,000 population, above Cambodia and Vietnam, but well below Thailand and the Philippines (although, this is likely to be an underestimate). Organised crime is a major problem. Myanmar is the world’s second- largest producer of opium and the largest producer of methamphetamines. Illegal logging, mining and wildlife smuggling are rife, and Myanmar is a major source country for human trafficking. Criminal loan sharking gangs operate in Myanmar and in some cases have links to international crime syndicates. Loan sharking is often linked to gambling, both legal and illegal
RACE/NATIONALITY
3.1Ethnicity in Myanmar is a determinant of citizenship and basic rights, a factor in political and armed conflict, and a source of discrimination, particularly for the Rohingya. While section 347 of Myanmar’s 2008 Constitution theoretically guarantees “any person to enjoy equal rights” and protections before the law, many people are denied these rights in law and practice. Myanmar officially recognises 135 ethnic groups, which it categorises into eight ‘Major National Ethnic Races’: Kachin, Kayin, Kayah, Chin, Mon, Bamar, Rakhine and Shan (notably excluding Rohingya). These divisions are often arbitrary and reflect colonial era understandings of racial classification rather than the reality of ethnic diversity in Myanmar. The CIA World Factbook describes the population as 68 per cent Burman (Bamar), 9 per cent Shan, 7 per cent Karen, 4 per cent Rakhine, 3 per cent Chinese, 2 per cent Indian, 2 per cent Mon, and 5 per cent Other. Identity in Myanmar is complex, involving elements of ethnicity, religion, language and geographic location. Different members of the same family may identify as different races, and people’s officially recognised race or religion may be different to how they self-identify.
3.3Racial discrimination in Myanmar is widespread and institutionalised, in a way that privileges Bamar Buddhists over other groups, especially over people with darker skin and those who do not speak fluent Burmese. People belonging to or perceived as belonging to so-called ‘mixed races’ (a term used to refer those of South Asian or Chinese heritage) are forced to queue separately when accessing government services and sometimes report racial abuse and discrimination from officials, including the use of ethnic slurs and refusals or delays when accessing public services. People without full citizenship are excluded from certain professions, including medicine and law, and informal ceilings apply to all non-Bamar ethnicities in government and military jobs, preventing them from reaching higher ranks. School curricula sometimes include racist content, such as poetry encouraging the hatred of people with ‘mixed blood’. According to the International Commission of Jurists, more than a quarter of the Myanmar residents enumerated in the 2014 census lacked a legal identity, denying them basic rights and access to government services. Ethnic minorities are more likely than the Bamar majority to be undocumented. Many ethnic minorities experience violence and displacement due to ongoing conflict in their home states and regions (see Security Situation).
3.4DFAT assesses that members of non-Bamar (minority) ethnic groups in Myanmar face a moderate risk of societal and official discrimination on the basis of their ethnicity, although for some groups (such as Rohingya) the risk is much higher. Minority ethnic groups including the Chin, Karen, Karenni and others suffer frequent violence at the hands of the state, largely on the basis of actual or perceived association with armed resistance movements (see Security Situation, Political Opinion, Actual or Imputed).
STATE PROTECTION
Military
5.1The Myanmar military consists of three branches: army, navy and air force. The dominant national institution since independence, it has staged several coups since 1962 and ruled the country for much of that time. According to the Global Firepower Index 2021, Myanmar has the fourth largest military in Southeast Asia, with an estimated 450,000 active duty personnel, although unit strengths are likely to be much less than claimed due to historically low levels of recruitment, disease, desertions, deaths in combat, resignations and retirements. The military budget in 2020 was USD 2.26 billion, around 3 per cent of GDP. Myanmar’s military is led by the Commander-in-Chief of Defence Services, currently Senior General Min Aung Hlaing, who also chairs the State Administration Council and has claimed the role of Prime Minister since the February 2021 coup.
5.2Sources familiar with the Myanmar military told DFAT it lacked professionalism at an institutional level, as demonstrated by its unrestrained use of violence against civilians. Before and since the 2021 coup, soldiers have been accused of human rights abuses including extrajudicial killings, torture, rape and other forms of sexual violence, arson, indiscriminate shelling and aerial attacks, and laying landmines in civilian areas. An OHCHR report in September 2020 detailed severe human rights abuses by the military against civilians in Rakhine, Chin and Shan States. In March 2022, the US Government declared that violence committed against the Rohingya minority by the military amounted to genocide and crimes against humanity.
5.3The 2021 coup has greatly lowered the military’s prestige and morale. As a result it has struggled to meet recruiting targets for officers and enlisted soldiers. Applications for the National Defence College dropped from 2,500-4,000 per year before the coup to just 450 after. Standards have reportedly been lowered to encourage more recruits. Increasing numbers of soldiers have deserted or defected. The NUG claims up to 3,000 soldiers have defected since the coup. Others have fled the country. In 2022, the military lifted the maximum sentence for desertion from two to five years.
5.4A law allowing for conscription in cases of national emergency was enacted in 2010, but never enforced. In February 2022, Senior General Min Aung Hlaing said the military regime planned to implement conscription under the People’s Military Service Law 2010, which would require men and women to do up to three years of compulsory military service. As of October 2022, DFAT was not aware of conscription being officially implemented in Myanmar. In the past, the military has been accused of recruiting children as soldiers, and it continues to face accusations of using civilians including children in non-combat support roles.
5.5Given the role of the military in Myanmar’s government, military personnel have generally enjoyed impunity for alleged human rights violations. There have been a handful of convictions for human rights abuses in military courts in recent years, but these have involved junior officers and resulted in short sentences. In April 2018, seven soldiers were sentenced to 10 years imprisonment with hard labour for their involvement in the Inn Din massacre in Rakhine State in 2017. They were released after less than a year. No military personnel have been held officially accountable by the regime for human rights abuses committed since the February 2021 coup.
INTERNAL RELOCATION
5.17Article 355 of the Constitution protects the right of citizens ‘to settle and reside in any place within the Union of Myanmar according to law’. Nevertheless, people in Myanmar face a variety of restrictions to their freedom of movement. In the past, these primarily applied to areas with active conflicts, for instance Rakhine State, but now much of the country is impacted by movement restrictions of various kinds. Authorities imposed repeated lockdowns across the country following the outbreak of the COVID-19 pandemic in 2020. Following the 2021 coup, authorities increased the number of security checkpoints in cities and on major roads. In February 2021, the military regime amended the Ward or Village Tract Administration Law (2012) to require people to report all overnight guests to their homes, a requirement that was previously removed in 2016. Failure to comply can attract a fine or imprisonment.
5.18People attempting to relocate within Myanmar face a range of barriers depending on their personal circumstances. Some members of minority ethnic groups do not speak Burmese, which can make relocation to Burmese-speaking areas difficult. Relocation is also challenging for people without significant financial resources or existing networks of family and friends in the location they are moving to. Single women often find it particularly difficult to relocate, in part due to a lack of employment opportunities, especially since the economic crisis brought on by the coup and COVID-19. Since the coup, large numbers of people have fled to areas controlled by ethnic armed organisations to escape arrest for anti-regime activities including protests and participation in the Civil Disobedience Movement. This has led to increased conflict between ethnic armed organisations and the Myanmar military in these areas (see Security Situation).
TREATMENT OF RETURNEES
Exit and Entry Procedures
5.19Myanmar has three international airports: in Yangon, Mandalay and Nay Pyi Taw. Since the COVID-19 pandemic, international flights have only operated into and out of Yangon. Check-in and immigration procedures for Myanmar passport-holders are similar to standard international practices, but since the 2021 coup, travellers are scrutinised by security forces prior to leaving the country. Airport staff review booking details and check the name in the passport against the name on the reservation. Customs and immigration staff vet baggage, and immigration staff check that the passport photograph matches the bearer and scan the passport. Sources told DFAT that before clearing customs, departing travellers were subject to a ‘military check’ that compared their details against a list of people wanted by the regime. DFAT is aware of people being denied permission to leave the country and taken into custody following these checks.
5.20Travel to or from Myanmar by land is restricted to a limited number of official border crossing points in Thailand, Laos, China and India. Land crossings into Myanmar have mostly been closed since the beginning of the COVID-19 pandemic, although border crossings with China and Thailand have periodically reopened. There are also lengthy stretches of unmonitored border areas where unofficial land crossings occur. Many thousands of people have crossed these borders unofficially since the 2021 coup, mostly into Thailand, but also into India and occasionally China. Since the August 2017 violence in Rakhine State, Rohingya migrants have undertaken irregular maritime movements from Rakhine State to Thailand and Malaysia.
5.21DFAT assesses that it would be difficult (but not impossible) for a person wanted by the authorities to safely leave the country by air, depending on their profile and documentation. It would be relatively easy for such a person to cross undetected into neighbouring countries via land, although they would have to evade internal checkpoints and possibly make an arduous journey through difficult terrain.
Conditions for Returnees
5.22Myanmar’s Ministry of Labour, Immigration and Population is responsible for interviewing returnees, with the exception of Rohingya returnees, who are managed by the Ministry of Social Welfare, Relief and Resettlement. The International Organisation for Migration (IOM) provides a range of services for returnees, including assistance with quarantine requirements, legal assistance, training courses, and help to access schooling and health services. About 40-60 per cent of returnees are able to access these services. Following the coup, an estimated 100,000 people fled overland to Thailand from Myanmar. Of this number, about 60,000 are thought to have returned. Before the coup, refugees from Thailand (primarily Karen) could return to Myanmar via a formal assisted voluntary returns process, undergoing ‘national verification’, which could take up to a year, before being issued a CSC (see National Identity Cards) which allows them to exercise rights and access services in Myanmar. Sources told DFAT no one had returned from Thailand under this scheme since the coup and there was little interest from anyone in doing so.
5.23DFAT is aware of migrants being returned to Myanmar since the 2021 coup, primarily from neighbouring countries. Three days after the military coup, Malaysia accepted an offer by the military regime to return 1,086 people to Myanmar on three navy ships, despite a Malaysian court order they be allowed to remain in Malaysia. Malaysia claimed all those who returned did so voluntarily and none of them were asylum seekers. DFAT understands these returnees were required to quarantine in Yangon before being returned to their communities. Returnees to Myanmar who departed the country illegally are technically subject to up to five years’ imprisonment for having illegally crossed a border; in 2020 the government announced it would enforce this law as part of measures to prevent the spread of COVID-19.
5.24In November 2017, the governments of Myanmar and Bangladesh signed an ‘Agreement of Return of Displaced Persons from Rakhine State’. According to the agreement, Myanmar will receive former residents of Rakhine State who left for Bangladesh after the violent attacks of October 2016 and August 2017, if they can prove their former residency of Rakhine State. Myanmar and Bangladesh agreed to commence the repatriation of displaced Rohingya in January 2018 and to complete the process within two years. A May 2021 article in The Global New Light of Myanmar, a regime-controlled newspaper, claimed 790 Rohingya had returned to Myanmar from Bangladesh ‘on their own’ since the agreement was signed. Large- scale repatriation of Rohingya from Bangladesh remains a distant prospect.
5.25DFAT 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.
DOCUMENTATION
5.26Myanmar authorities issue a wide variety of identity and other official documents, including birth and death certificates, national identification cards, household registers and passports. The specific documents a person holds may depend on their class of citizenship (full, naturalised or associate, see Race/Nationality), as well as their capacity to negotiate Myanmar’s complicated, inefficient and frequently corrupt bureaucracy. Since the coup, large numbers of people have had to flee their homes, often carrying limited documentation. PDF attacks on ward administration offices, office closures and a general reluctance to interact with representatives of the regime mean many people have been unwilling or unable to apply for new documents or renew existing ones since the coup.
Birth and Death Certificates
5.27The Ward or Village Tract Administration Law requires all births and deaths to be registered with ward or village tract administrators. The punishment for non- compliance is a maximum seven days’ imprisonment or MMK 5,000 (approximately AUD 5).
5.28Birth certificates provide citizens with access to social, education and health services. Citizens without birth certificates may be denied higher education and job opportunities. In 2014 and 2015, the government conducted nationwide campaigns to raise awareness about the procedures of birth registration, and in 2017, less than 20 per cent of children below the age of five were reported to be unregistered. While most children in urban areas are registered, few children in remote areas have a birth certificate. Children in Rakhine State are most likely to be unregistered, and Rohingya children in particular face difficulties in obtaining birth certificates (see Rohingya). Deaths are reportedly under-registered, particularly in rural areas, where remoteness and lack of transport limit access to registration facilities.
National Identity Cards
5.29 Since Myanmar’s independence, a variety of identity cards have been issued under different laws:
·National Registration Card (NRC): Often referred to as the ‘three-folding card’, NRCs were issued under the 1949 Registration of Residents Act from 1949 to 1989. NRCs offer full access to citizenship rights and do not record ethnicity or religion. They were later replaced by CSCs. In 2017, the government launched a pilot project to replace paper-based NRCs with an electronic card in Nay Pyi Taw, Mandalay and Yangon regions, and Rakhine State. Rohingya and Rakhine Muslims who surrendered their NRCs as part of the citizenship scrutiny process in the early 1990s did not receive CSCs in return.
·Temporary Registration Card (TRC): Known as the ‘white card’, the TRC was intended as a temporary replacement for people whose NRC was lost or damaged. However, from 1995 Myanmar authorities began issuing TRCs to Rohingya and other minorities not officially recognised in the eight national races of the Burma Citizenship Act of 1982, supposedly while their citizenship status was being determined. TRCs were revoked in 2015, and replaced with a Temporary Approval Card (TAC) or ‘white card receipt’. The TAC’s legal basis is unclear, and it does not confer any citizenship rights.
·Citizenship Scrutiny Card (CSC): Introduced under the Burma Citizenship Act of 1982, CSCs were issued in accordance with the three categories of citizenship: full (‘pink card’), associate (‘green card’) and naturalised (‘blue card’). CSCs include ethnicity and religion information. Very few CSCs have been issued to Rohingya. See Race/Nationality.
·National Verification Card (NVC): Previously known as Identity Cards for National Verification (ICNVs), NVCs (‘turquoise card’) have been issued since 2016 to people undergoing citizenship verification, but are not considered an identity document or proof of citizenship. The NVC does not include ethnicity or religion information. UNHCR have reported that although many Hindus are eligible for naturalised CSCs, many remain undocumented, and those who are documented are generally required by the government to obtain an NVC. Biometric data has been collected with the issuance of NVCs since October 2017. NVCs have been issued in Rakhine State by the Immigration and National Registration Department, accompanied by security forces. This has largely been implemented through a door-to-door process, as many Muslims remain reluctant to approach authorities directly and apply for the card. Many Rohingya continue to be unwilling to engage in the NVC process, due to a
deep distrust of the government. DFAT is aware of reports of individuals who did not voluntarily participate in the process being issued NVCs (see Rohingya, Citizenship).
Passports
5.34Myanmar introduced machine-readable ‘e-passports’ in 2015. These store personal and biometric information on an embedded smart-card chip. There are 17 passport issuing centres across the country, at least one in every state and region. To obtain a passport, citizens need to present their CSC, parent’s CSC and household registration, and fill out an application at the issuing centre. The applicant must attend in person, where they have an official photo taken. Offices usually specify 10- 15 working days for processing, however timeframes vary depending on the office. Bribes are reportedly often required to obtain, and expedite, passports (see Prevalence of Fraud).
5.35People of non-Bamar ethnicity frequently report racist treatment at the hands of passport officials, including being required to queue separately, being subject to additional scrutiny and being solicited for additional bribes (see also People of South Asian descent). In May 2022, local media reported the regime was refusing to issue passports to CDM participants including civil servants, and that names of these participants had been circulated to passport offices. In June 2021, the military regime sent notes to foreign governments including Australia announcing the cancellation of dozens of passports belonging to members of the National Unity Government and other opponents of the regime.
PREVALENCE OF FRAUD
5.36Document fraud is highly prevalent in Myanmar. Fraud can take the form of fake documentation, or genuine documentation provided on the basis of fraudulent information. The prevalence of corruption in Myanmar means that fake identity documentation can be purchased with relative ease, and identity feeder documents including birth, marriage and divorce certificates; household registration lists; and NRCs, CSCs and NVCs, are all subject to significant fraud. While passports have more sophisticated security features, it is possible to obtain a genuine passport using a fake national identity card. DFAT does not have any information about the treatment by authorities of those determined to have fraudulent documents.
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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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