2103226 (Refugee) - [2024] AATA 1048

2103226 (Refugee) [2024] AATA 1048 (1 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jennifer Anne Blakeman
CASE NUMBER:  2103226
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Nicole Burns
DATE:1 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 01 February 2024 at 9:59am

CATCHWORDS
REFUGEE – Protection Visa – Burma (Myanmar)– stateless – race – mixed ethnicity (Rohingya/Karen) originally from Myanmar – religion – Burmese Muslims – imputed political opinion – persons opposed to the military regime – membership of a particular social group of failed asylum seekers on return to Myanmar – People associated with Burmese and in particular Rohingya diaspora groups – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are husband and wife, having married in Myanmar in 1980. They arrived in Australia by boat (along with their son, daughter, and son-in-law, whose separate review applications are being considered by the same Member in related cases[1]) [in] October 2012. They claimed to be stateless and of mixed ethnicity (Rohingya/Karen) originally from Myanmar. They had left Myanmar in March 2006 for [Country 1] and left [Country 1] (for [Country 2], en route to Australia) on [date] August 2012. The applicants applied for the visas on 3 September 2020.
[1] AAT No 2103387 (in respect of their son, [Mr A]) and 1902600 (in respect of their daughter ([name]) and son-in-law ([name]).
The applicants’ two other daughters were resettled to [Country 3] from [Country 1] subsequently.
The extensive procedural history to this case is summarised as follows. According to Departmental records, the applicants arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] October 2012. On 17 January 2013 the applicants were assessed as ‘unauthorised maritime arrivals’ and granted Temporary Safe Haven (Subclass 449) visas. At the time, the grant of the Subclass 449 visas was considered to trigger the statutory bar under s 91K against making further visa applications.
In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2103226 (Refugee)

Details

AGLC: 2103226 (Refugee) [2024] AATA 1048
Case: [2024] AATA 1048
Decision Date: 1 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa claims of two applicants, who are stateless Muslims of mixed Rohingya and Karen ethnicity formerly resident in Myanmar. The dispute centred on whether the applicants had a well-founded fear of persecution in Myanmar, which would entitle them to a protection visa.

The AAT was required to determine if the applicants met the criteria for a protection visa, either under the refugee criterion or on complementary protection grounds. This involved assessing the applicants' claims of statelessness, their mixed ethnic background, their religious identity as Muslims, and whether these factors, combined with their status as failed asylum seekers, would expose them to persecution or significant harm upon return to Myanmar. The Tribunal also had to consider the correct country of assessment for stateless individuals with multiple countries of former habitual residence.

The Tribunal accepted that the applicants were stateless Muslims of mixed Rohingya and Karen ethnicity, formerly resident in Myanmar. Applying established Australian jurisprudence, the AAT determined that for stateless individuals with more than one country of former habitual residence, their claims should be assessed against the country from which they departed due to a well-founded fear of persecution. In this instance, the applicants' claims were assessed against Myanmar. The Tribunal found that the second applicant had a well-founded fear of persecution in Myanmar for the purposes of section 5J of the Migration Act 1958 (Cth).

Consequently, the Tribunal concluded that the decision under review should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For these reasons and relying on the same reasoning (and country information) as pertains to the applicant’s case, the Tribunal accepts the second named applicant is a stateless Muslim of mixed Rohingya and Karen ethnicity, formerly resident in Myanmar and [Country 1]. PROTECTION CLAIMS, EVIDENCE AND FINDINGSCountry of reference The Tribunal finds the applicants are both stateless Muslims of mixed Rohingya and Karen ethnicity, formerly resident in Myanmar and [Country 1]. It accepts for the reasons above the applicants were born and resided in Myanmar until 2006 when they moved to [Country 1], residing there until 2012. As they are stateless, they cannot be returned to Myanmar or [Country 1] and their claims are to be assessed against their country of former habitual residence. The Australian courts have held that when assessing the claims of a stateless person who has more than one country of former habitual residence, their claims should be assessed against the country from which they left owing to a well-founded fear of persecution, rather than against a country of subsequent habitual residence in which they have no fear of persecution.[8] Accordingly, the Tribunal has assessed the applicants’ claims against Myanmar.[8] Al-Anezi v MIMA (1999) 92 FCR 283 at [22] In summary, the applicants claim to fear persecution at the hands of the authorities and Burmese Buddhists as Muslims with mixed (Rohingya/Karen) ethnic backgrounds; being stateless; based on their imputed political opinion; and membership of a particular social group of failed asylum seekers on return to Myanmar. Claims and evidence: first named applicant The applicant’s claims were initially detailed in a statutory declaration dated 1 December 2016 provided to the Department in support of the first SHEV application (a copy of which was submitted to the Department in support of the second SHEV application). In it the applicant sets out his background and difficulties he faced growing up in Myanmar as a Muslim including not being able to go to school and facing discrimination in employment. He states he and his wife also had to pray in secret and his wife was too afraid to wear the hijab. Also, being undocumented and having to hide when the authorities would visit the house to check the HRL. The applicant explains he decided to leave Myanmar in March 2006 after he was assaulted by soldiers who visited his [shop] in Karen state (having moved there from Yangon in 2005) in response to him trying to stop them assaulting his daughter. He was arrested and taken to jail where he was further beaten. He was released a month later after villagers were able to provide bail. In support of the second SHEV (currently under review) the applicant provided an unsigned statutory declaration dated 2 September 2020 in which he states he relies on the December 2016 statutory declaration in most respects. However, he clarified an error in the departure dates from Myanmar in the visa application form: that is he left in 2006 not 2005. Also with respect to his education he stated he had no formal education but received informal education in Yangon from a local volunteer to read and write up to grade 3 level. The Tribunal accepts his evidence in this regard.

Decision

Reasons for decision

The Tribunal therefore finds that the second named applicant has a well-founded fear of persecution in Myanmar for the purposes of s 5J. CONCLUSION

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent report on Myanmar from DFAT was published on 11 November 2022. The issue in this case is whether the applicants are owed protection either under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Nationality and ethnicity The applicants’ purported statelessness status and mixed (Rohingya/Karen) ethnicity was an issue before the delegate and the Tribunal on review. As noted by the delegate in their decision record[2] at the protection visa application stage, both applicants claimed to be stateless Muslims born in Thingangyun, Rangoon, Myanmar who had never obtained identity documentation, including household registration lists (HRL). They both claimed their parents died when young and they were raised by relatives. In terms of ethnicity, the first named applicant (hereafter the applicant) claimed his mother was Karen whilst his father Rohingya. The second named applicant claimed the other way around with respect to her parents. However, in her statement dated 2 September 2020 provided to the Department she explained this was an error and her father was Rohingya and her mother Karen. [2] A copy of which the representative provided to the Tribunal on review. The applicants claimed they married in 1980 and were issued an Islamic marriage certificate – nikah – which they lost en route to [Country 1]. They provided to the Department their UNHCR cards, issued to both applicants [in] 2011 in [Country 1]. UNHCR verified with the Department that they were genuinely issued; however, the delegate found this was insufficient to establish their identity because the applicants advised they did not present any identity documents when they registered and the process was based on their verbal statements.