2103226 (Refugee)
[2024] AATA 1048
•1 February 2024
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 is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply to applicants who arrived in Australia by sea at Ashmore.
Accordingly, the applicants are not ‘fast track applicants’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicants made the SHEV application that is the subject of the current review on 2 September 2020, which was refused on 8 March 2021.
The applicants (along with their son, [Mr A]) had made an earlier SHEV application on 2 December 2016. That visa application was originally assessed as invalid by operation of the statutory bar under s 91K, consistent with the Department’s view of the law as it stood at that time. As set out above, that view was subsequently held to be incorrect by the courts and the Tribunal has been advised by the Department that the first SHEV application has been reassessed as a valid application and is awaiting processing by the Department.
The representative in her submission to the Tribunal advised that the Department notified the applicants that the first SHEV application was valid on 15 March 2023.
Given the first SHEV and the second SHEV are applications for visas of the same subclass, the validity of the second SHEV is not affected by item 1404(3)(f) of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations) for making a valid visa application.
The applicants appeared before the Tribunal on 26 October 2023 where they gave evidence and presented arguments about the issues in their case in a combined hearing with their son’s ([Mr A]) matter. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
The applicants were represented in relation to the review. The representative attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the (the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. 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.
The delegate found the applicants’ claim of completely lacking any identification documentation (in Myanmar) implausible because country information indicates that documents are available to stateless people, including those of Rohingya origin, in Yangon. The delegate refers to the fact National Registration Cards (NRC) were issued to Rohingya over 12 years of age from 1951 onwards and from 1995, Temporary Residence Cards (TRC) were issued to those who previously held NRCs and those previously undocumented. The delegate notes advice from the International Crisis Group that Rohingya living in Yangon are typically registered as Burmese Muslims and as such hold ID cards and residency documents. Given the applicant’s father resided in Yangon, including when the NRC and TRC were issued to Rohingya, the delegate considered it highly likely he would have access to these forms of documentation even if stateless Rohingya. The delegate did note, however, that they were unable to make a conclusive finding in the absence of supporting evidence. Nonetheless they found the applicant’s claim of completely lacking any identity documentation implausible.
The delegate accepted the applicants’ were Muslim but did not accept they were stateless, undocumented or part of an ethnic minority. They reached this conclusion about the applicant’s nationality, and ethnicity taking into account the following considerations:
a.The applicant provided an exact date of birth (DOB) which may indicate his birth was officially recorded by the authorities in Myanmar. Stateless and undocumented persons from ethnic minorities usually do not know their exact DOB because they are denied issuance of a birth certificate and usually are born at home.
b.The applicant’s parents’ names indicate they are ethnic Burmese nationals and therefore Myanmar citizens. Specifically his father’s name [and] his mother’s name [appear] to be typical Burmese names with added Muslim names first. Karen do not have family names whereas the applicant provides his mother’s Muslim name first followed by what looks like a joined Burmese name. As well, his father’s family name – [name] – suggests he was not Rohingya but most likely ordinary Burmese.
c.Country information indicates HRLs in Myanmar are mandatory for all residents including stateless Rohingya and other ethnic minorities. Without it individuals are deemed illegal migrants and subject to arrest and deportation. Further it indicates people usually bribe the authorities to speed up the issuance of a HRL instead of hiding from it, as claimed by the applicant.
- Country information also indicates the authorities in Yangon regularly conduct HRL checks and those unable to comply may face arrest. Whilst country information indicates approximately 300,000 internal migrants live in Yangon with no HRL, they mainly reside in slum areas on the outskirts of the capital, yet the applicant lived in Thingangyun near the city centre for 45 years. Further, the fact he moved to a different area (Karen state, in 2005), rented property and opened a business does not match his claims to be destitute, and living in a slum area.
- A HRL is needed to connect utilities, buy land, and obtain licences including permits for trade, among other things. The delegate found it hard to believe the applicant could start a business [in] Karen state as an undocumented individual without attracting attention of the military and taxation authorities, and without registering their household and obtaining a HRL.
f.The applicant’s name, his parents’ names, his facial features and language skills indicate he is Burmese (Bamar) Muslim, not belonging to an ethnic minority.
g.The applicant was unable to demonstrate he was raised as part of Rohingya or Karen communities, is not familiar with their cultures, and does not speak either Rohingya or Karen.
h.The applicant’s mother’s (and her relatives’) lack of documentation appears improbable given they belong to a recognised ethnic group and are eligible for citizenship based on country information. Specifically, the Myanmar government currently recognises eight major ethnic groups (including Karen) as part of 135 ‘national races’; the law grants full citizenship to members of the 135 officially recognised national races; religion does not preclude granting of citizenship to individuals of a recognised race; and under s 6 of the 1982 Citizenship Law, a person remains a citizen if they were already granted citizenship under the 1948 Citizenship Act. Given this, it is also possible the applicant’s father, who was born in Yangon and had a non-Muslim name, could have acquired citizenship prior to 1948.
- In Myanmar the applicant would have been subject to several citizenship verification processes (CVP). Country information suggests treatment of Muslims, including non-Rohingya Muslims during a CVP might be significantly harsher in comparison to followers of other religions. Country information indicates that being a member of one of 132[3] official ethnic groups and non-Rohingya it would be unlikely he would be excluded from Myanmar citizenship altogether and left without any identity documents, even if there were some difficulties determining citizenship and the level of citizenship as a Muslim.
- The delegate found the applicant (and his wife) failed to provide a reasonable explanation as to why they cannot provide evidence of their status in Myanmar. Country information indicates the applicant’s family would have required documents (such as a TRC, HRL or NRC) to live in Thingangyun for so many years, and then move to Karen state and open a business there, as noted earlier.
- As country information indicates that Burmese and Karen Muslims are able to access citizenship in Myanmar under the Citizenship Act, this suggests the applicant (and his wife) possess citizenship rights and documents they are unwilling to present.
- The applicant failed to provide evidence showing the basis upon which his two daughters were granted visas in [Country 3], instead providing copies of their [Country 3] identity documents only.
[3] Elsewhere in the decision record the delegate refers to 135.
The delegate also noted, based on the applicants’ own testimony at interview, that the applicant (and his wife) self-identify as Burmese Muslims rather than as a member of an ethnic minority.
The delegate therefore concluded the applicant was a Burmese Muslim, not stateless or part of an ethnic minority.
The delegate also states that he was not satisfied as to the applicant’s identity but for the purposes of the application referred to him as his claimed identity of [name], born on [date] in Myanmar.
As the second named applicant’s evidence about her background, citizenship status, and ethnicity was nearly identical to her husband’s, the delegate made the same findings in this regard relying on the same country information and reasoning. The delegate concluded the second named applicant was a Burmese Muslim, not stateless or part of an ethnic minority. The delegate also states he was not satisfied as to her identity but for the purposes of the application referred to the second named applicant as her claimed identity of [name], born on [date] in Myanmar.
The Tribunal discussed their citizenship status and absence of identity documents and HRL (and related matters) with the applicants at hearing. In response, the applicant reiterated that he was born at home to a poor Muslim family in Yangon, and never obtained identity documents. He never went to school and survived by undertaking odd jobs such as [deleted]. His four children were born at home, they did not register their births, and they never attended school.
He said further that when their family moved to Karen state in 2005 in search of better work opportunities they just paid the local authorities whenever they reached any inspection gates. There he opened a [business] near the bus terminal – which is not uncommon – and no paperwork or permits were required. They lived in a small house in a compound near the village head’s residence whom they paid a monthly fee: they did not pay rent.
The applicant said he never had a HRL and when the authorities would visit their house they were usually given notice and would hide and/or the authorities would not look too closely, because they had already paid their monthly fee to the village head. Before he came to Australia he had limited knowledge of HRLs which is why he never thought to go to the local authorities and ask for one when he lived in Myanmar. He said they were struggling to survive, living with his aunt for a long time, and he was not fully aware it was needed.
In terms of his ethnicity, the applicant said his father died when he was very young and he knew little about him, although one day overheard his mother say he was Rohingya. His mother – whose ethnicity was Karen – died not long after his father did, and the applicant was raised by his paternal aunt in a part of Yangon where everyone spoke Burmese, which was common in their area.
When asked whether he considered being able to obtain Burmese citizenship as his mother was Karen – one of 135 recognised ethnic groups as noted by the delegate - the applicant said at the time this was not an issue, given they were able to move around easily, there were no (serious) inspections, and they therefore did not think to get identity documents.
With respect to the delegate’s concern about the applicant knowing his exact DOB, which may indicate his birth was officially recorded by the authorities in Myanmar, which is unusual for undocumented persons from ethnic minorities, the applicant said his mother had told him his DOB, as well as the midwife who helped deliver him (at home): which he then told the UNHCR officer when he registered in [Country 1], having committed it to memory. He thinks it was accurate but acknowledged it may have been a guestimate.
Issues pertaining to the applicants’ nationality and ethnicity (as well as their specific protection claims) were also addressed in a pre-hearing written submission from the representative dated 13 October 2023, which was provided to the Tribunal. In it she contends (among other things) that the applicants have consistently and across many years provided evidence that they are stateless and of Karen/Rohingya ethnicity. Also provided was a statutory declaration from the applicant dated 9 October 2023 who reiterates that he was stateless in Myanmar, with no identity documents and his life there was difficult. In terms of his ethnicity, he notes that he was not well educated and only knows what his mother told him: that his father was Rohingya and she was Karen.
Findings about the applicant’s nationality and ethnicity
The Tribunal has considered the concerns raised by the delegate, the applicant’s responses, the submissions and supporting documents in determining the applicant’s citizenship status (if any) and ethnicity.
The Tribunal accepts, as did the delegate, the applicant is a Muslim from Yangon who last lived in Karen state (from 2005) before departing Myanmar in 2006.
The Tribunal also accepts the applicant is stateless and of mixed (Rohingya/Karen) ethnicity who never obtained identity documents in Myanmar. In reaching this conclusion it has given weight to the following considerations.
a.The applicant has consistently stated he is stateless, with no identity documents (including a HRL) and of mixed (Rohingya/Karen) ethnicity. He has given a consistent account of his background, his parents’ background (insofar as he was aware) and of his life growing up as a poor Muslim in Yangon being raised by an aunt after his parents died when he was young.
b.His evidence was corroborated by his wife and son’s oral evidence at hearing, and the oral evidence of his daughter and son-in-law (at a separate hearing before the same Member, held on 4 December 2023).
c.The applicant never claimed to have had much knowledge of his parents’ heritage, to have spoken Rohingya or Karen, or to have grown up immersed in their cultural practices. He has consistently claimed to have grown up in an area of Yangon where the Burmese language was common and spoken. This explains his limited knowledge of his parents’ backgrounds (including ethnicities) as well as why he speaks Burmese.
d.In terms of his ability to live without identity documents, the applicant explains he was poor, he worked [doing specified work] (among other odd jobs) and never went to school in Yangon: therefore, he did not need identity documents in these respects (or in relation to enrolling his children in school, for example, as they never went to school). Further, his explanation that when they moved to Karen state they opened a small [business] near the bus terminal and lived in a small house in a compound near the village head’s residence, whom they paid a monthly fee, is consistent with his earlier evidence and plausible.
e.With respect to why he never obtained a HRL the applicant explained at hearing that growing up poor in Myanmar (and as a Muslim) he was not fully aware they were needed, and never went to the local authorities to ask for one. He was struggling to survive, living with his aunt and then his immediate family. This is understandable given his background and circumstances. He also claims when the authorities visited they were usually given notice or they would hide and/or the authorities would not look too closely. The Tribunal considers this plausible.
f.The Tribunal also notes country information indicates that not everybody from Myanmar is able to acquire the documents that they are eligible to acquire under law, particularly displaced persons, and that failure to possess these documents should not be taken to affect the validity of their story. It notes that Myanmar has a recent history of arbitrarily removing and destroying identity documents held by members of minority groups.[4]
[4] European Network on Statelessness and the Institute on Statelessness and Inclusion, ‘Statelessness in Myanmar: Country Position paper May 2019’ (May 2019) Stateless Journeys: p 14
The Tribunal has considered whether the applicant may have been eligible to apply for naturalised citizenship pursuant to the provisions of the Burma Citizenship Act of 1982, which appears to be what the delegate suggested (when considering the likelihood of him being a citizen), given his claims to have had one ethnically Karen parent and one ethnically Rohingya parent.
Country information indicates that the Burma Citizenship Act of 1982 provides for three categories of citizenship: full citizenship, associate citizenship; and citizenship by naturalisation. Individuals are automatically considered full citizens at birth if they are among the 135 groups of identified or national ethnic groups, including Karen. Section 43(a) of the Act stipulates that a person born of parents, one of whom is a citizen and the other a foreigner, may apply for naturalised citizenship.[5] However in this case there is no evidence the applicant ever sought or was granted naturalised citizenship, and his evidence was that his parents died when he was young and they themselves were Muslims, and part of ethnic minorities.
[5] ‘Rohingyas – Insecurity and Citizenship in Myanmar’, TSU Press, T. Gibson, H. James & L. Falvey, 1 August 2016, p 41
The Tribunal also notes country information indicates the authorities in Myanmar are known to restrict access to citizenship from those of mixed ethnic parentage, even where they are eligible for it by law:
Those who are of mixed ethnic parentage are at risk of statelessness. Often, they do not fit into the rigid ethnic criteria set out in the citizenship law which does not always reflect demographic realities or self-ascribed identities within the country. As a result, those of mixed ethnic or religious parentage frequently have ethnic categories imposed on them by state authorities that exclude them from access to full citizenship. Those who have at least one parent who does not belong to one of the recognised national ethnic groups of Myanmar do not qualify for automatic citizenship. Although children with a parent who is a citizen not belonging to the national ethnic groups can, in certain circumstances, apply for citizenship, in practice they often do not receive it due to poor or discriminatory implementation of the law.[6]
[6] European Network on Statelessness and the Institute on Statelessness and Inclusion, ‘Statelessness in Myanmar: Country Position paper May 2019’ (May 2019) Stateless Journeys:
The other concerns the delegate had which led to them concluding the applicant was not stateless and not an ethnic minority included his provision of an exact DOB, his parents’ having Burmese names, and himself looking Bamar Burmese. With respect to his DOB, as noted, the applicant told the Tribunal he was told this date by his mother who was told by the midwife but admitted it may have been a guesstimate. The Tribunal is willing to accept his evidence in this regard and even if he was certain as to his DOB, this of itself does not cast doubts in any significant way on his claimed statelessness and mixed (Rohingya/Karen) ethnicity.
With respect to his parents’ having Burmese names, it appears in the decision record the delegate confused the applicant’s parents names with those of his wife’s parents’ names (as listed in the visa application form and on their UNHCR cards). In any case, the Tribunal notes historically (and presently) many persons seek to hide their Rohingya heritage given the discrimination directed towards Rohingyas (and Muslims)[7].
[7] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.5 – 3.12; 3.38 and 3.29
In summary, the Tribunal considers the applicant has provided consistent evidence to the Department about his mixed Rohingya and Burmese ethnicity of Muslim religion, which has been corroborated by his wife’s, son’s, daughter’s, and son-in-law’s evidence. Whilst country information indicates that the applicant may have been eligible for identity documents, including a HRL and possibly citizenship, there is no evidence he obtained it and country information also indicates it is not always possible to do so in practice, with specific barriers for those of a minority ethnic background and/or Muslim. The Tribunal accepts the applicant’s explanations as to why his language and cultural knowledge pertaining to Rohingya and Karen ethnicities is limited. The other concerns raised by the delegate have either been explained or were not so great as to cast significant doubt about the applicant’s claimed statelessness and mixed (Rohingya/Karen) ethnicity.
For these reasons the Tribunal accepts the applicant is a stateless Muslim of mixed Rohingya and Karen ethnicity, formerly resident in Myanmar and [Country 1].
With respect to the second named applicant, as noted the delegate held the same concerns and relied on the same reasoning and country information to conclude she was not stateless or of a minority ethnicity.
At the Tribunal hearing the second named applicant said she was unsure where she was born, but she grew up in Yangon, raised by a maternal aunt as her parents died when she was young. Her aunt told her little about her parents but she knew her mother was Karen. She knew nothing about her father. The second named applicant said she never went to school and her DOB was a guestimate given to UNHCR (in [Country 1]). Her four children were born at home in Yangon, and never went to school: therefore, there was no need to show identity documents to enrol them in school, for example.
Initially the Tribunal considered it somewhat odd that both applicants claimed to have identical backgrounds, including that their parents died whilst young, they were raised by aunts, and the ethnicity of their father (Rohingya) and mother (Karen) was the same. However, having heard their evidence at hearing about their backgrounds, which was generally consistent with each other, and what they had told the Department, the Tribunal accepts her evidence in this regard. It notes it found the second named applicant’s oral evidence about her and her parents nationality and ethnicity at times vague but considers this attributable to her background and circumstances (including limited education and knowledge about certain matters such as her parents’ histories) not because she was deliberately trying to be misleading with respect to her nationality, ethnicity and protection claims.
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 FINDINGS
Country 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.
The applicant states that he continues to fear harm in Myanmar due to his Muslim religion and mixed Karen and Rohingya ethnicity; that he was previously targeted by the authorities because of his religion and mixed ethnicity, denied citizenship, and unable to go to school; he was beaten and subject to work in forced labour conditions by soldiers; and he fears harm from the police and military on return due to his religion and ethnicity.
The delegate was satisfied the applicant was Muslim (as noted), and accepted he was detained by the military in 2005 in Karen state as claimed but considered it was an isolated incident. They referred to country information about the treatment of Muslims in Myanmar and found the applicant did not face a real chance of serious harm from anyone on this basis. The delegate refused the applicant’s protection visa application on 8 March 2021.
In his statutory declaration provided to the Tribunal on review, the applicant reiterated his background and claims and provides an update about his current circumstances and extant fears if he has to return to Myanmar, including after the military coup there on 1 February 2021. In this regard, he states the military are treating anyone they consider a political opponent very harshly and are suspicious of people who come back to Myanmar after spending time in Western countries such as Australia. Also he considers Myanmar is so unstable even Burmese Buddhists are being put in jail and beaten: it is even more dangerous for him and his wife as Muslims of mixed ethnicity.
At hearing the applicant reiterated his claims in these and related respects. He remains fearful the authorities will seriously harm him on his return to Myanmar, noting he was arrested in Karen state not long before he left.
On review the representative submitted separate statutory declarations from the applicants dated 9 October 2023 in which they confirm the information provided to the Department is correct, including about being stateless, undocumented and of mixed Rohingya/Karen ethnicity.
In her submission to the Tribunal the representative contends that the applicants fear persecution on return to Myanmar from the security forces and/or members of the public for reasons of their:
·Mixed Rohingya and Karen ethnicity
·Muslim religion
·Imputed political opinion as persons opposed to the military regime on account of (among other things):
ØTheir status as Western returnees and people who may be perceived to have affiliations with Western countries and diaspora groups
·Their inclusion in the following particular social groups:
ØStateless Rohingya/Karen Muslims
ØUndocumented persons
ØFailed asylum seekers
ØReturnees from a western country
ØPeople associated with Western influence
ØPeople associated with Burmese and in particular Rohingya diaspora groups.
Reference to country information about treatment of people with such profiles is made to support the contention that their fears on return to Myanmar are well founded. In particular, the representative emphasises country information that indicates following the military coup in Myanmar the risk of persecution for those perceived to hold anti-military sentiments is considered high and the threshold for being suspected of holding such sentiments is extremely low.
Findings with respect to the first named applicant
The Tribunal accepts the applicant’s claims about his background and the specific trigger that led them to leave Myanmar: specifically his detention and mistreatment at the hands of the Burmese military after trying to stop them harassing his daughter in Karen state in 2006. His oral evidence at hearing was consistent with his written evidence before the Department and Tribunal in this respect, corroborated by his wife’s and son’s oral evidence. Further, as noted, the delegate accepted his claims in this respect.
The Tribunal also accepts the applicant’s oral evidence about restrictions he and his wife faced in Myanmar in terms of being able to practice Islam, for example verbal abuse on their way to the mosque, which meant he often practised at home.
The Tribunal also accepts he would be returning to Myanmar as a failed asylum seeker, having been outside the country for many years.
Given these findings the Tribunal has considered country information about the situation in Myanmar for someone with the applicant’s profile and the current circumstances there.
For the reasons that follow the Tribunal accepts the applicant faces a well-founded fear of persecution from the military authorities on return to Myanmar for the combined reasons of his imputed political opinion, his Muslim religion, his mixed (Karen/Rohingya) ethnicity and his membership of a particular social group of failed asylum seekers.
Whilst the Tribunal has accepted the applicant’s father was Rohingya, on his own evidence his father died when he was young, he knew little about him, and he did not indicate he experienced problems in Myanmar due to his father being Rohingya. At hearing when asked what kind of racial discrimination he experienced in Myanmar, the applicant referred to problems he experienced as a Muslim, for example being verbally abused on the way to mosque. Nonetheless the Tribunal accepts the applicant’s mixed Rohingya/Karen ethnicity could add to his risk profile on return. As noted by the representative in their submission, DFAT assesses 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, and that 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’.[9] Further, DFAT assesses that all Rohingya in Myanmar:
…are at high risk of official discrimination, including denial of basic rights and services, on the basis of their ethnicity and Muslim religion. Within Rakhine, Rohingya face a high risk of societal discrimination from other ethnic groups and a high risk of violence from security forces and ethnic militias. Outside Rakhine, Rohingya face a high risk of societal and official discrimination but a lower risk of violence. Undocumented Rohingya outside Rakhine remain at high risk of abuse and exploitation and are subject to arrest and detention by the authorities for ‘illegal’ movements[10].
[9] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.4
[10] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.12
DFAT reports that ethnicity in Myanmar is a determinant of citizenship and basic rights, with many people denied these rights in law and in practise. Stateless persons in Myanmar are denied fundamental rights and basic services including access to healthcare and education, employment opportunities, freedom of movement, freedom to choose the timing and number of their children, freedom to marry whom they choose, and freedom to run for political office.[11]
[11] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.1–3.3
Presently, Myanmar is a military dictatorship, controlled by the State Administration Council (SAC) headed by Commander in Chief Senior General Min Aung Hlaing.[12]
[12] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.44.
Myanmar has had a history of military coups since independence from Britain in 1948, most recently on 1 February 2021, after the NLD won the November 2020 election in a landslide. At the time Aung San Suu Kyi and other NLD leaders were detained, arrested and a state of emergency declared. The coup sparked large-scale, nationwide protests which were severely suppressed by security forces.[13] In response the NLD and ethnic party representatives formed a government in exile known as the National Unity Government (NUG) including representatives from the NLD, which since November 2021 has launched an armed revolutionary struggle against the military regime. Fighting has continued with renewed fighting between the miliary and various ethnic armed organisations.[14]
[13] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary.
[14] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 2.5, 2.19 and 2.22; Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary, p 10.
In its report DFAT chronicles the impact of the February 2021 coup on Myanmar’s citizens and government and other administrative architecture, as well as the decline in the security situation as a widespread armed insurgency has emerged that seeks to attack the military regime and its officials and restore democracy. DFAT states that the military remains the principal armed actor and is ‘overwhelmingly the main violator of human rights and international humanitarian law’.[15]
[15] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 2.30.
Within this context DFAT identifies several at-risk groups and individuals, including opponents of the military regime ranging from senior political leaders to casual participants in street protests, who have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearances.[16]
[16] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.47.
DFAT assesses that anyone opposing or perceived as opposing the military regime (and their family members) is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty.[17] The SAC has declared NLD and others as terrorists.[18]
[17] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.51.
[18] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.50.
Furthermore, participants in the widespread Civil Disobedience Movement (and their family members) that emerged after the coup are assessed by DFAT as at high risk of official discrimination in the form of job losses, property seizures, threats and arbitrary arrests and at moderate risk of violence in the form of extrajudicial killings, beatings and torture in custody.[19]
[19] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.54.
The United Nations Special Rapporteur on the situation of human rights in Myanmar, Thomas H. Andrews, published a report on 9 March 2023 about the situation two years after the military coup, describing the country as being in ‘freefall’. He states that as opposition groups gain strength and the SAC’s control over territory and the people of Myanmar erodes, ‘the military has doubled down on its brutal tactics, sowing violence and chaos across an ever-widening sphere of conflict’. The military campaign of terror and violence has reportedly intensified, and includes aerial attacks, bombing villages, schools, medical facilities and internally displaced persons encampments, and mass arson. Indiscriminate attacks and the targeting of civilian populations have been a hallmark of the SAC’s post-coup strategy.[20]
[20] United Nations Human Rights Office of the High Commissioner, ‘A/HRC/52/66: Situation of human rights in Myanmar – Report of the Special Rapporteur on the situation of human rights in Myanmar, Thomas H. Andrews’, 9 March 2023.
In a report about the human rights situation of Rohingya Muslims and other minorities in Myanmar by the UN Secretary General published on 14 August 2023 it is noted that all states and regions across Myanmar continued to be affected by armed clashes involving the Myanmar armed forces, ethnic armed organisations and resistance forces, including People’s Defence Forces.[21] The report states that:
Conflict actors, especially the Myanmar armed forces, continued to use tactics designed to instil fear not only among enemy combatants but also among the civilian population in and around areas affected by conflict. Reports of beheadings and dismemberment allegedly perpetrated by the Myanmar armed forces, mostly in the Sagaing Region, are part of this trend. The number of mass killings, in which 10 or more people were killed, also increased substantially, according to the Institute for Strategy and Policy – Myanmar.[22]
[21] United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraph 32.
[22] United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraph 33.
Additionally, according to the report, arson attacks continued to increase; continued air strikes and bombardments by the Myanmar armed forces have resulted in many civilian casualties; and there are credible reports that detainees are also beaten, forced to do hard labour and subjected to other punishments, including sexual and gender-based violence.[23]
[23] United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraphs 34–36.
DFAT reports that since the coup, torture has been reported throughout the country, especially against political prisoners and suspected members of PDFs and ethnic armed groups. Torture is common in places of detention, in particular military interrogation centres, but also prisons, police stations and military bases. Bodies of people who have been forcibly disappeared often show signs of torture.[24]
[24] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 4.6.
With respect to the situation of Muslims in Myanmar, DFAT states there are a number of distinct Muslim communities living throughout the country, including the Kaman, Pantay, Pashu, Rohingya and Zerbadee, and that whilst the majority live in northern Rakhine state, there are also Muslim communities in Yangon, Ayeyarwady, Magway, and Mandalay.[25]
[25] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.27
DFAT states Muslims in Myanmar experience discrimination and restrictions on their ability to practices their faith; are unrepresented in the public sector; are reportedly excluded from a range of government jobs; and are frequently denied basic rights and services including access to citizenship cards.[26]
[26] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.28, 3.29
Additionally it reports that anti-Muslim sentiment is prevalent and circulated via social media, state institutions and mainstream news websites; Muslims are often called racial slurs and subject to hate speech; and that since 2011 ultranationalist Buddhist movements such as Ma Ba Tha (the Association for the Protection of Race and Religion) and the 969 Movement have been influential in fomenting anti-Muslim hatred and violence. Further, DFAT reports that there are strong links between ultranationalist Buddhism and the military, with soldiers indoctrinated to see Islam as an existential threat to the Union of Myanmar[27]. Overall DFAT assesses that:
…Muslims in Rakhine State, regardless of ethnicity, face high levels of official and societal discrimination and a moderate risk of violence on the basis of their religion and perceived association with the Rohingya (who face specific, higher risks). DFAT assesses that Muslims outside of Rakhine State face moderate levels of official and societal discrimination and a low risk of violence on the basis of their religion[28].
[27] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.28 – 3.31
[28] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 3.32
With respect to the treatment of returnees and failed asylum seekers to Myanmar, DFAT assesses that:
Given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries, 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.[29]
[29] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 5.25.
Given this country information, the Tribunal accepts the applicant – who would be returning to Myanmar as a stateless Muslim of mixed (Rohingya/Karen) ethnicity and as a failed asylum seeker who has come to the adverse attention of the military (in Karen state) in the past – faces a real chance of serious harm from the military authorities on return to Myanmar in the foreseeable future.
Accordingly, the Tribunal finds that there is a real chance that the applicant will face serious harm at the hands of the military authorities if he returns to Yangon in the form of being subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are due to his actual or imputed political opinion, membership of a particular social group of failed asylum seekers, Muslim religion, and mixed (Rohingya/Karen) ethnicity in Myanmar as required by s 5J(4)(a).
Additionally, the Tribunal is satisfied that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his (actual or imputed) political opinion, and/or mixed (Rohingya/Karen) ethnicity, and/or membership of a particular social group of failed asylum seekers, and/or Muslim religion.
In this case the applicant fears serious harm at the hands of the military dictatorship in Myanmar, controlled by the SAC. Although reports indicate that since the February 2021 coup the military has lost control of large parts of the country, it is also reported that Myanmar’s military maintains a significant level of control over Yangon, Mandalay, Naypyidaw and other major urban areas.[30] Given this, and DFAT’s advice that the military remains the principal armed actor and is ‘overwhelmingly the main violator of human rights and international humanitarian law’[31] in Myanmar as noted, the Tribunal is not satisfied that the effective protection measures as per s 5LA are available to the applicant in Yangon provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Myanmar for the purposes of s 5LA(2).
[30] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, p 14.
[31] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2), at 2.30.
For similar reasons and based on such country information (as well as noting the changeability of the situation and reach of the military) the Tribunal is not satisfied that there is any part of Myanmar in which the applicant would be safe from the persecution that he fears based on his actual or imputed political opinion, Muslim religion, mixed ethnicity, and/or membership of a particular social group of failed asylum seekers. The Tribunal accepts the applicant would face a real chance of persecution in all areas of Myanmar and therefore he satisfies s 5J(1)(c).
The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to ‘alter his or her political beliefs or conceal his or her true political beliefs’, and/or ‘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’, and/or conceal an innate or immutable characteristic which is impermissible as per ss 5J(3)(a), 5J(3)(c)(i) and 5J(3)(c)(vi).
For these reasons, the Tribunal finds that the applicant faces a well‑founded fear of persecution from the authorities due to the combined reasons of his imputed or actual political opinion, and/or mixed (Rohingya/Karen) ethnicity, and/or membership of a particular social group of failed asylum seekers and/or based on his Muslim religion if he returns to Myanmar, now or in the reasonably foreseeable future. The Tribunal finds that the applicant has a well-founded fear of persecution for the purposes of s 5J.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.
In considering whether he comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant.
Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.
The second named applicant
The second named applicant made her own claims at the protection visa stage, in addition to her husband’s claims, detailed in a statutory declaration dated 1 December 2016 and a further one dated 5 November 2020 provided to the Department. She claimed, in summary, to fear the authorities and community members as a Muslim who prays at home.
In her statutory declaration provided to the Tribunal the second named applicant states that she shares her husband’s fears and adds that she also has concerns being a Muslim woman, where it is not free or safe to wear a hijab without fear of physical attack or verbal abuse from non-Muslims. This is echoed in her husband’s statutory declaration provided to the Tribunal, who notes a lot of harm against women in Myanmar and his fears the authorities will go after his wife and daughter if they cannot find him. The applicant states that he fears for his wife as a Muslim woman with health issues including asthma and hypertension who would not be able to access appropriate medical treatment. He also fears she will be subject to sexual violence. She reiterated these claims at hearing, which the Tribunal accepts.
Based on the country information referred to above, the Tribunal is satisfied the second named applicant faces a well-founded fear of persecution on return to Myanmar imputed with an anti-regime political opinion as a member of a particular social group of failed asylum seekers, and as a Muslim woman, and based on her mixed (Rohingya/Karen) ethnicity.
Accordingly, and relying on the same reasoning and analysis of relevant country information as above in relation to the applicant, the Tribunal finds that if the second named applicant returns to Myanmar she faces a real chance of serious harm in the form of being subjected to threats to her life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities on return in the foreseeable future. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the second named applicant are her political opinion, Muslim religion, mixed (Rohingya/Karen) ethnicity and her membership of the particular social group of failed asylum seekers in Myanmar. Further, the Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar and that effective state protection against the harm she fears is not available to her. The Tribunal also considers that steps to modify her behaviour to avoid a real chance of persecution in Myanmar is impermissible in her case.
There is no evidence before the Tribunal to suggest that the second named applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.
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
100. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criteria set out in s 36(2)(a).
DECISION
101. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Nicole Burns
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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