2104299 (Refugee)
[2022] AATA 983
•17 February 2022
2104299 (Refugee) [2022] AATA 983 (17 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: [Applicant’s name][1]
[1] The applicant’s family name also appears as [deleted]. The Tribunal considers this to be a variation of the same name, that arises through transliteration of Burmese text into English.
CASE NUMBER: 2104299
COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER:James Silva
DATE:17 February 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 17 February 2022 at 11:56am
CATCHWORDS
REFUGEE – protection visa – Burma – Myanmar – stateless – Federal Circuit Court remittal – race – Rohingya – religion – Muslim – particular social group – stateless individuals from Myanmar – claims of father’s political dissidence and Rohingyan advocacy – credibility issues – Myanmar passport – legal departure from Myanmar – met the formal requirements for full Myanmar citizenship as Kaman – low risk of being targeted by Buddhists or others – father’s voluntary return to Myanmar – February 2021 military coup – significant political and human rights deterioration – long-term resident abroad – lack of current documents – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 25, 36, 65, 91R, 375A, 376, 424A, 425, 438(1)(a), 45AA,
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Kopalapillai v MIMA (1998) 86 FCR 547
KXHA and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 39
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816Any 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
The applicant is a man in [age range] from Myanmar (Burma). He claims to be stateless and a former habitual resident of Myanmar, although this is in dispute.
He arrived in Australia [in] May 2013, as an irregular maritime arrival (IMA), together with his [father]. The applicant and his father made a combined application for protection visas on 19 August 2013.
On 8 February 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the review applicant (‘the applicant’ in this decision) and his father protection visas under s.65 of the Migration Act 1958 (the Act).
By operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a temporary protection (class XD) visa and is taken not to be, and never to have been, a valid application for a protection (class XA) visa. The decision under review refers to both class XA and class XD visas. While the delegate acknowledged in the text of the decision that this was now an application class XD visas (page 5), the findings and conclusion mention class XA visas. The notification letter of 8 February 2016 refers to the refusal of the application for class XD visas. In any event, the effect of r.2.08F is such that the application the Tribunal must consider is one for a temporary protection (class XD) visa.
On 1 March 2016, the applicant (and his father) sought review of the delegate’s decision. On 18 May 2020, the Tribunal, differently constituted (‘the first Tribunal’), affirmed the decision not to grant the applicant and his father protection visas. In relation to the applicant, the first Tribunal was not satisfied that he met the criteria in s.36(2)(a), (aa), (b) or (c). The applicant’s father departed Australia [in] November 2019, and therefore could not meet the criterion in s.36(2) that the visa applicant be a non-citizen in Australia.
The applicant sought review of the first Tribunal’s decision in respect of himself, and [in] March 2021, the Federal Circuit Court issued a consent order remitting the matter to the Tribunal for reconsideration, on the basis that the first Tribunal had failed to provide the applicant with an opportunity to be heard about his religious practice, as required by s.25.
The matter is now before the Tribunal pursuant to the Court’s order.
The Tribunal has decided that it can make a decision in the applicant’s favour, without a hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The issue is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is set out in the attachment to this decision. A key factual question is whether the applicant is a stateless Rohingya as claimed, or a citizen of Myanmar.
CLAIMS AND EVIDENCE
Claims
The applicant claims to be a stateless Rohingya and Sunni Muslim. He has consistently claimed to have experienced official and societal discrimination as a stateless Rohingya and a Muslim. He fears further such mistreatment if he returns to Myanmar in the future.
Beyond this, the applicant’s claims have evolved over time. He claimed to have fled Myanmar with his father, whom the Myanmar authorities wanted because he had in his possession a book banned in Myanmar, and was perceived to be a Rohingya activist. Following their departure from Myanmar, the applicant’s [brother] had gone missing. Following his father’s return to Myanmar in November 2019, the applicant claimed (in March 2020) that the authorities had visited the family home three times, and that his father had gone into hiding. More recently, he claims that his father has returned home, and all family members have been located. The applicant claims that the situation following the February 2021 coup means that he continues to be at risk of persecution or significant harm, given that most anti-government protestors are young and that he lacks a national ID card.
Background
The applicant is [an age]-old-man from [a] Township, in Yangon, Myanmar’s commercial capital. He claims to be an ethnic Rohingya and a Sunni Muslim, and to be stateless.
The applicant attended a government school in [Yangon], from [year] to [year], completing Year 10 (‘matriculation’). He then undertook an [apprenticeship] in Yangon ([company name]), from June 2011 to April 2013, when he left for Australia. [This company] is a major [services] provider in Myanmar.[2]
[2] [Source deleted].
The applicant has never married or been in a de facto relationship. His family consists of his father, who was born in [named] Township, Rakhine State; his mother, born in [a named location] (Shan State); [a] brother born in [the same location]; and a sister and [a number of] brothers born in Yangon. His family’s whereabouts and welfare have featured in his protection claims, over time, and are discussed in more detail below.
According to the applicant, he and his father departed Myanmar [in] April 2013, undocumented and unlawfully. However, there is other evidence suggesting that the applicants held Myanmar passports and departed legally. They claimed to have travelled first to [one country]; entering [a second country in] April 2013; and departing for Australia [in] April, by boat. They arrived in Australian waters [in] May 2014, and were detained until [July] 2013. On 18 August 2013, they applied for protection visas.
Evidence
The evidence before the Tribunal includes the following relevant material, from the Department and the Tribunal files. This list focuses on material relating directly to the applicant, but also includes evidence relating to his father, as their primary application and their review application before the first Tribunal were combined, and their claims and evidence overlap to a large degree.
To the Department
§ The Department file [includes] the applicant’s protection visa application of 19 August 2013, accompanied by a statutory declaration (6 August 2013). It also includes the forms and statutory declaration relating to his father, including a combined Form 866B and attachments relevant to both applicants. (The Tribunal refers to the applicant and his father as ‘the applicants’, for ease of reference.)
§ The applicants attended protection visa interviews on 29 April 2015, recordings of which are on the Department file, and extracts of the representative’s transcription of the interview with the applicant. There is also correspondence between the Department and the applicants, between April and September 2015, in particular concerning their names, and the father’s documentation.
§ Protection visa decision record of 8 February 2016.
§ Identity and personal documents (notarised copies, in Burmese with English translations):
- Birth register document and matriculation examination certificate.
- Father’s documents: Myanmar driver licence issued [in] July 2014; letter from the Burmese Rohingya Community of Australia (BRCA); letter dated [December] 2012 from the Rohingya Society in [Country 1], in relation to the father.
Before the Tribunal (first and current reviews)
§ Review application form, lodged on 1 March 2016. The applicant attached to this a copy of the delegate’s notification letter, but not the decision record.
§ Submissions of 5 September 2019 and 16 October 2019, including further supporting documents:
- Household registration certificate issued [March] 2005.
- In relation to the father, letter from Burmese Rohingya Community (BRC), for both applicants, BRC cards.
- Psychological report of 7 May 2019.
§ Correspondence regarding the father’s return to Myanmar
§ Submission of 18 March 2020, addressing the father’s return to Myanmar and presenting new claims about his father’s disappearance.
The first Tribunal affirmed the decision to refuse to grant the protection visas on 18 May 2020.
[In] July 2021, following the court’s remittal for reconsideration of the first Tribunal decision, the applicant requested priority processing of this application and consideration of a favourable decision without a hearing. The gist of the submission is that, in light of recent developments and new country information, the Tribunal could find that the applicant is a person in respect of whom Australia has protection obligations, as a Muslim and a Rohingya; and arguably as a person who is de jure stateless.
A further submission dated 17 November 2021 addresses questions concerning the applicant’s claimed statelessness, and recent country information about the political situation in Myanmar. Attached to the submission was an updated statement from the applicant, dated 17 November 2021, and an article by Peggy Brett, ‘The Ambiguities of Citizenship Status in Myanmar’, in Living with Myanmar (2020).
The Tribunal made enquiries through the Department about the circumstances of the applicant’s father’s return to Myanmar, including the documentation that he relied on. The Tribunal received advice that the father had made arrangements for his return through the International Organisation for Migration (IOM), as a voluntary return. He travelled on a certificate of identity issued by the Myanmar authorities. The Tribunal obtained a copy of the certificate, issued by the Myanmar Embassy [in] 2019. It states that the certificate is issued in lieu of a Myanmar passport issued [in] 2012, with the authorising officer’s certification that the father ‘has stated to me that he is a citizen of the Republic of the Union of Myanmar’.
The Tribunal has before it a large volume of country information. The most recent Department of Foreign Affairs and Trade (DFAT) report of 19 April 2019 pre-dates the military coup of 1 February 2021. While it contains background information of ongoing relevance, the Tribunal has drawn on more recent reporting, in particular on the current political and human rights situation, including on the treatment of Muslims and Rohingya. Relevant details are in the findings and reasons below.
The Tribunal has determined that it can make a decision in the applicant’s favour, on the basis of the available material and without a hearing. The submissions invite the Tribunal to accept certain factual claims, and to draw inferences on country information about the current security and human rights situation in Myanmar, the situation of the Rohingya and Muslim minorities, and the documentation of Rohingya. The Tribunal considers it appropriate to address these issues, to ensure the basis for its decision is clear.
Non-disclosure certificates
On 7 February 2016, the Department issued a certificate under s.438(1)(a) stating that it is in the public interest not to disclose certain information contained in documents on the Department [file]. The certificate covered folios 136-141, stating that they ‘relate to internal deliberations of the Department’. The folios contain the Department’s internal ‘identity integrity checklists’ for both the applicant and his father.
The Tribunal is of the view that the certificate is not valid, as it does not identify a valid basis for public interest immunity. The information in these documents is found in the delegate’s decision record and other documents. The applicant was informed of the certificate and its contents during the first Tribunal review.
Anonymous allegation and non-disclosure certificate
The Department file also includes an anonymous allegation made on 3 April 2020, stating that the applicant is a Myanmar citizen with documentation from that country, who is able to return there (as his father had done). On 27 October 2021, the Department issued a certificate certifying that s.376 applies to the allegation, because it was given to the Minister or a Department officer in confidence, and s.375A does not apply.
The Tribunal wrote to the applicant on 27 October 2021, advising him of the existence of the certificate. The Tribunal conveyed its preliminary view that the certificate appeared to be valid, as it identified a public interest reason in protecting information provided to the Department in confidence. It gave the gist of the allegation, namely that he is a Myanmar citizen who has documentation permitting his return to that country. It noted that the caller provided the applicant’s personal details, including that he had come to Australia by boat and that his father had returned to Myanmar. It observed that, while the contents of the allegation are relevant to his claims, it did not propose to place any weight on them, as the source was unknown and it is not possible to test the basis of the allegation.
In a response dated 17 November 2021, the applicant noted this without substantive comment about the validity of the certificate, requesting only that, if the Tribunal plans to take the information into consideration, it provides him with a copy of the file note under s.376(3)(b). The Tribunal considers that no further action is required.
Country of reference and receiving country
The applicant claims to be a stateless Rohingya, and a former habitual resident of Myanmar. He speaks Burmese and has shown a familiarity with that country. He has provided a copy of a birth registry note and an academic certificate, and relies also on the documentation that his father submitted. The Tribunal accepts the applicant’s possession of these documents as further evidence of his Myanmar origins. It finds that the country of reference (for the purpose of assessing his refugee claims) and the receiving country (in assessing his eligibility for complementary protection) is Myanmar.
A key issue in this case is whether the applicant is stateless, as claimed; or whether he has Myanmar citizenship (whether as a full citizen, an associate citizen or a naturalised citizen). The Tribunal assesses these below.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment and findings of fact
The applicant has requested the Tribunal to make a favourable decision on the available material, without a hearing. The submissions of 18 July 2021 and 17 November 2021 set out updated country information. The applicant also provided a copy of an affidavit of 4 December 2020 to the Federal Circuit Court and a statement dated 27 October 2021 with new claims and information.
The Tribunal must make findings of fact as a basis for assessing Australia’s protection obligations. In the present case, include findings as to the applicant’s claimed statelessness, his Rohingya ethnicity and Muslim faith, and his and his family’s experiences in Myanmar. The Tribunal is satisfied that the applicant has a well-founded fear of Convention-related persecution, in large part due to recent country information. It also considers it important to set out the factual basis for this conclusion. Significantly, this includes findings in relation to his ethnicity, stateless/nationality and documentation, which were addressed in recent submissions.
The Tribunal is mindful of the principles that apply in fact-finding generally, and assessments of credibility. For instance, the Full Federal Court in AVQ15[3] observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[4] However, it is also well-established that the Tribunal is not required to accept uncritically any or all claims made by an applicant. Nor is it required to have rebutting evidence available to it before finding that a particular factual assertion made by an applicant has not been made out.[5] The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility in evaluating the applicant’s evidence as a whole.
[3] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
[4] SZLVZ v MIAC [2008] FCA 1816 at [25].
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 (per Beaumont J); Selvadurai v MIEA & AnorIn the present case, the Tribunal takes into account that the applicant was [age] years old when he accompanied his father by boat to Australia, some nine years ago; and that he relied in part on his father’s claims, of which he claimed to have limited direct knowledge. In addressing inconsistencies between his and his father’s travel from Myanmar, he has also claimed to be traumatised by their departure from Myanmar, although the Tribunal has found no medical evidence of memory loss or similar symptoms of trauma.
A particular challenge in this case, in relation to the applicant’s claimed statelessness and his documentation is that information about these matters in Myanmar is complex and opaque. The article by Peggy Brett[6] highlights that citizenship in Myanmar is ‘full of ambiguities’, noting: ‘Some of these ambiguities are the result of gaps in the law and issues with administrative procedures. Others result from the complexities of the situation on the ground and the interaction of the legal standards and popular perceptions of belonging’. In essence, the applicant contends that because he and his family obtained documents through bribes, and also taking into account country information about Rohingya and documentation in Myanmar, the Tribunal should draw no adverse inferences from the documents that suggest he and his family hold Myanmar citizenship.
[6] ‘The Ambiguities of Citizenship Status in Myanmar’, in Living with Myanmar (2020).
The Tribunal acknowledges the need for caution in assessing documents from Myanmar. Country information, including the most recent DFAT report and Ms Brett’s study, indicates that document fraud is rife. For Rohingya, this includes falsely recording their ethnic identity as Kaman, in order to secure documentation and citizenship and who, according to Ms Brett, may still be subject to scrutiny if local communities are aware of their Rohingya background. Importantly, in the Tribunal’s view, this does not require it to accept uncritically all assertions by persons of Rohingya or part-Rohingya origin, about which documents (or parts of documents) are factually correct and about to their status. Rather, it is necessary to assess the evidence in its entirety, having regard among other things to the document holder’s experiences and conduct in Myanmar, and their credibility (including the consistency and plausibility of their claims).
The Tribunal’s assessment below is based on the available material, which gives rise to a number of credibility concerns addressed below. Key among these are: (a) inconsistencies in the applicant’s and his father’s accounts of their departure from Myanmar (which have now been strengthened by evidence of the father having held a Myanmar passport); and (b) the fact of the father’s return to Myanmar.
Rohingya ethnicity
The applicant has consistently stated that he is of Rohingya ethnicity and linked this with his Muslim faith (although there are other groups of Muslims in Myanmar).
Relevant evidence in support of this claim includes the following:
§ The applicant initially claimed to speak Burmese, Hindi, Rohingya and English, and to be literate in Burmese and English. He has since clarified that he does not in fact speak Rohingya.
§ The applicant’s father also claimed to be Rohingya and is familiar with that language. He gave his place of birth as [name] village, which appears similar to the name of a settlement to the north of [Rakhine] State.[7] He claimed to have moved from Rakhine State to Yangon in 1969. Although this pre-dates the largescale displacement of the Rohingya in the 1970s and 1990s, country information indicates that the nationalist rhetoric of former president Ne Win in the 1960s had already started to isolate the Rohingya population in Rakhine State.[8] The Tribunal is satisfied that the father’s claimed move to Yangon, in or around the late 1960s, is consistent with his claim to be of Rohingya ethnicity.
§ The applicant and his father submitted some documents, identifying them as Muslim and Kaman, which the Tribunal examines in more detail below. It is satisfied that these broadly support their claims to be of Rohingya ethnicity, based on country information that Rohingya often present themselves as Kaman (or members of other recognised national minorities).
§ The applicant (and his father) also presented letters of support, including a letter from the Rohingya Society in [Country 1] (December 2012), a letter from the Burmese Rohingya Community in Australia (BRCA) (May 2018) and BRCA identification cards (June 2019).
[7] [Source deleted].
[8] Human Rights Council: Report of the independent international fact-finding mission on Myanmar, 12 September 2018: >
The Tribunal accepts that the applicant is of Rohingya ethnicity, as claimed.
Documentation and Citizenship
In essence, the applicant claims that, as a Rohingya, he is excluded from Myanmar nationality by virtue of law and is therefore stateless. He also claims that he and his family were only able to obtain documents through bribes, and that he is in effect also undocumented.
The situation regarding citizenship in Myanmar, the status of the largely invisible Rohingya population outside Rakhine State, and their documentation, is complex and opaque. The Tribunal notes from the outset the following:
§ The majority of published information about the Rohingya relates to those in Rakhine State, and the recently displaced populations in Bangladesh and other regional countries. As noted in the most recent DFAT Report, Rohingya in Rakhine State are subject to ‘official and societal discrimination on the basis of ethnicity [that is] high, endemic and severe’. These conditions are not directly relevant to the applicant, who was born in Yangon, and whose father left Rakhine in the late 1960s.
§ The situation for Rohingya outside Rakhine State is more nuanced and complex. Country reports, including DFAT, note the following: (a) a lack of official statistics about the size of the Rohingya population and their circumstances; (b) the fact that many Rohingya in Yangon and other cities conceal their ethnic identity, for instance by avoiding the use of the Rohingyan language in favour of Burmese; and (c) common practices to secure documents and full, associated or naturalised citizenship, such as officially identifying as Kaman or another Muslim group, and the use of bribery (often through ‘agents’).
§ DFAT also reported, in relation to Myanmar as a whole, that ‘the vast majority [of Rohingya] remain undocumented – or holding a white card receipt – and are effectively stateless’.
DFAT’s most recent country information report provides the following succinct summary of the citizenship status and documentation of Rohingya in Myanmar.
Citizenship
3.9 Up until the late 1980s, all Myanmar citizens were issued formal identity documentation known as National Registration Cards (NRCs), and many residents of Rakhine State, including Rohingya, held NRCs. Non-citizens were issued Foreign Registration Certificates. In 1989, the government carried out a ‘citizenship scrutiny’ exercise as part of the implementation of the Citizenship Law. During this process, NRCs were replaced with full, naturalised or associate Citizenship Scrutiny Cards (CSCs). Under the Citizenship Law, many Rohingya are formally eligible for associate or naturalised citizenship, but very few have been issued CSCs of any type following the citizenship scrutiny exercise. While this is largely due to the unwillingness of government officials to provide citizenship to Rohingya, many Rohingya also reject the categories of associate or naturalised citizenship, on the basis that they implicitly deny the existence of Rohingya in Myanmar before 1823, and legally reinforce what Rohingya see as the inaccurate view that Rohingya are immigrants from Bangladesh. Associate and naturalised citizenship categories confer fewer rights than full citizenship.
3.10 In 1995, the government began to issue Temporary Registration Cards (TRCs) (known as ‘white cards’) to those who identified as Rohingya. However, in 2015 then-President Thein Sein declared white cards invalid, thus removing the only formal identity documentation available to the Rohingya. Temporary Approval Cards (known as ‘white card receipts’) were given out in exchange for TRCs, reportedly as part of a plan to reinstate identification documents at a later date. However, these were not accepted as valid documentation for the purposes of voting in the 2015 elections, or to stand as candidates, or form political parties.
3.11 From June 2015, the government began issuing a new ‘identity card for national verification’ (ICNV). DFAT understands that as few as 1,000 people were issued this card in 2015. Rohingya applicants were required to identify as ‘Bengali’ on the ICNV, and rights associated with the ICNV, including its limited two-year validity, were unclear. The UN Fact-Finding Mission described a campaign to coerce Rohingya to accept the ICNV, and increased restrictions on those with white card receipts in parts of northern Rakhine State.
3.12 From 2016, the government restarted the process to determine who is a citizen under the Citizenship Law. Rohingya were requested to undergo a ‘citizenship verification process’ (as opposed to the ‘citizenship process’ for members of the 135 recognised ethnic groups), and issued National Verification Cards (NVCs). The NVC does not specify religion or ethnicity, it has no expiry date and it is the current form of identity documentation required for Rohingya by the government. Reports of coercion to accept the NVC increased following the October 2016 violence, however as at January 2017, only around 6,000 NVCs had been issued in Rakhine State, compared with nearly 400,000 white cards which were surrendered, in part reflecting the decreased trust in the authorities from the Rohingya population.
3.13 In August 2017, the Advisory Commission on Rakhine State, a government established body chaired by former UN Secretary General Kofi Annan, made a number of recommendations to improve the government’s citizenship verification process for Rohingya, including making the process voluntary.
3.14 Despite these restrictions specified by authorities, the rights provided by the NVC remain opaque. In theory, NVC holders are permitted to travel anywhere in Myanmar, however in practice this is limited by the rules and regulations of local areas (see Freedom of Movement, and Movement restrictions in Rakhine, Kachin and Shan States). In February 2018, the government advised DFAT that a NVC is required by Rohingya in order to access basic services such as health and education. Despite this, most Rohingya remain unwilling to participate in the citizenship verification process and accept NVCs on the basis that it may remove their right to remain in Myanmar long-term, or establish them as a lower class of citizen with fewer rights. As a result, the vast majority remain undocumented – or holding a white card receipt – and are effectively stateless. This is having significant implications in particular for the registration of new births in the Rohingya community (see Birth and Death Certificates, and National Identity Cards). Credible sources reported that Rohingya also face difficulties in legally obtaining passports.
The DFAT report also addresses the documentation of Rohingya outside Rakhine State in the following terms: ‘Rohingya outside Rakhine State generally have higher incomes and better access to resources than those in Rakhine State, and are typically able to obtain identity documentation that allows them to live and work without facing the high levels of discrimination otherwise experienced by Rohingya in their day-to-day life. Typically, Rohingya in Yangon are registered as ‘Burmese Muslims’ or ‘Bamar Muslims’. A person willing to record their ethnic group as a Burmese/Bamar Muslim is generally able to access either full, associate or naturalised citizenship (depending on their family history[…]), including national identity cards and residency documents which provide a legal right to a passport. Local sources reported that Rohingya can also pay bribes to officials to obtain a Kaman identity card.
The submission of 17 November 2021 draws attention to a decision of the AAT’s General Division, KXHA[9], dated 5 February 2020, in which the member reviewed a range of country information about Rohingya in Myanmar, in determining the citizenship status of the applicant’s parents (Myanmar passport holders who are Rohingya Muslims), for the purpose of assessing whether or not the applicant was eligible to become an Australian citizen under s.21(6) of the Citizenship Act 2007. In that case, the Tribunal found that the applicant’s father would have been de jure stateless by virtue of the 1982 Citizenship Law and concluded, on the balance of probabilities, that the applicant’s parents were stateless. The submission invites the current Tribunal to conclude that, as a Rohingya, the applicant is not entitled to full citizenship, and would not be able to access associate or naturalised citizenship.
[9] KXHA and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 39
Relevantly, the Tribunal in KXHA extracted a paragraph from a July 2017 report by the Department of Immigration and Border Protection[10] that describes the citizenship and documentation of Rohingya in Yangon in the following terms:
Documented Rohingya in Yangon have been able to obtain passports. A significant number of Rohingya in Yangon possess NRCs and can obtain passports. Rohingyas possessing CSCs [“Naing” cards] have used these to obtain passports. Alternatively, passports can be obtained by bribing officials or using a broker. To obtain passports however, the identities used are either organized by the broker or obtained by falsely claiming a different ethnicity. Since the Burmese government wants Rohingya and Muslims to leave the country, bribery can smooth the passage through airport immigration. Burmese Muslims (which Rohingya in Yangon typically register as) holding national ID cards and residency documents have a legal right to a passport.
[10] Department of Immigration and Border Protection publication Rohingya: Issues Relating to Statelessness (Myanmar, Bangladesh and Malaysia) - Thematic briefing, Country of Origin Information Services Section (COISS), effective from 14 July 2017
The submission of 17 November 2021 had attached to it a paper by Peggy Brett, ‘The Ambiguities of Citizenship Status in Myanmar’ which examines both the legal framework of the Citizenship Law and its application to the Rohingya minority, under the rubric of ‘ambiguous citizenship’, as well as the issue of documentation. It notes, among other things, that even in the case of ‘fake Kaman’ – a reference to a group of some 3,000 Rohingya residents of a township in Rakhine State who claimed to be Kaman – the citizenship cards of 21 were withdrawn in response to local protests that they had given false information.
The Tribunal notes that applicant presented several ID documents to the Department and the Tribunal, all of which he claims were obtained through brokers and/or bribes, and therefore not legitimate documents.
§ (To the Department) a copy of his birth certificate, notarised in Yangon [in] July 2013, giving that his father is a Muslim of Myanmar (Bamar) race and Myanmar nationality, and his mother is a Muslim of Rakhine (Rohingya) race and Myanmar nationality.
§ Copy of matriculation examination certificate, issued on [date].
§ (To the first Tribunal) a copy of a household registration list issued [in] February 2005 recording his parents as being Muslim Kaman with Myanmar nationality.
The Tribunal also has before it documents relating to the applicant’s father:
§ Myanmar driving licence.
§ Certificate of identity (travel document) issued by the Embassy of the Union of Myanmar [in] 2019.
As discussed below, the father’s Myanmar certificate of identity refers to a Myanmar passport that he held, details of which he provided to the Myanmar Embassy. The Tribunal has formed the view that both the applicant and his father departed Myanmar on passports in their own names.
The Tribunal is satisfied, and finds, that the applicant (and his father) are Rohingya who have officially identified themselves as Kaman, and have thereby met the formal requirements for full Myanmar citizenship. Having regard to their personal and family circumstances – such as the father’s move to Yangon in the late 1960s; the family’s residential, education and employment background; and the father’s return to Myanmar in 2019 – the Tribunal concludes that the family has officially identified as Kaman for decades. The Tribunal is satisfied on the available evidence that the family now has an established paper trail that establishes them as Myanmar citizens, and that they do not actively ‘conceal’ their Rohingya identity in the course of official dealings. In contrast with the ‘fake Kaman’ group in Rakhine State, cited in Ms Brett’s paper, the Tribunal finds that the applicant and his family are well-integrated into their local community in Yangon; they are not at risk of neighbours contesting their entitlement to citizenship; and they are not subject to successive citizenship scrutiny exercises.
The Tribunal accepts that the applicant (and his family) may have relied on brokers and/or paid bribes to secure documents in the past. Country information indicates that these practices are widespread in Myanmar, and often used to ensure that officials perform their duties in a timely manner. They may also facilitate the issuance of genuine documents that a person may not be entitled to, or that contain false information; or they may involve the production of fabricated documents. As noted in the DFAT and other reports, these practices provide some scope for undocumented, stateless Rohingya, including those in Yangon, to obtain documentation and travel. The Tribunal accepts that the applicant and his family have relied on such means to obtain documentation in the past, particularly in the years immediately following their arrival in Yangon (late 1960s) and after the 1982 Citizenship Law.
The existence of such practices does not mean that the Tribunal should completely disregard the documents that the applicant and his family have relied on, or that it should accept the applicant’s selective reliance on parts of these documents. Rather, the Tribunal considers it appropriate to consider them in light of all the circumstances, including the applicant’s overall candour, experiences and conduct.
The Tribunal takes into account that successive citizenship scrutiny exercises have made it increasingly difficult for Rohingya, even those who have held NRCs, CSCs and other documents in the past, to have these renewed or replaced. Some sources suggest that it is virtually impossible for Rohingya, even those who have previously held full citizenship, to retain this status. However, country information about Rohingya in Yangon suggests that they have tended to keep a low profile, and secured documentation and citizenship by registering their ethnicity as Kaman or Burmese/Bamar Muslim.
The Tribunal finds on the available material that the applicant is of Rohingya background; that he and other family members have long identified themselves as Kaman[11], and are accepted as such in Yangon; and that they have obtained documents, such as household registration lists, national IDs and (in the case of the applicant and his father) have obtained Myanmar passports. It finds that the applicant has full Myanmar citizenship. Furthermore, the family has lived in Yangon on this basis for decades, and appears to have stable, reasonably comfortable circumstances. The Tribunal proceeds on the basis that the applicant’s family continues to present as Kaman, and that they have not been subject to
[11] The Tribunal uses the term Rohingya/Kaman for ease of reference, to indicate that the applicant is of Rohingya ethnicity, but identifies and is accepted as a Kaman.
Discrimination as a Rohingya/Kaman
The Tribunal acknowledges that there is a broad overlap between the applicant’s ethnic identity and his Muslim faith. In terms of his ethnicity, the applicant’s main claims as presented to the Department and the Tribunal relate to his lack of citizenship and documentation, reflected in his statement of 6 August 2013: ‘I grew up in a country which does not recognise me as a human being’, and his claimed inability to express himself as a Rohingyan.
Country information indicates that discrimination exists in Myanmar, including by the Bamar majority towards other ethnic groups, in particular the Rohingya. In the applicant’s case, however, he does not speak Rohingya or engage in other cultural practices (beyond his Muslim faith). This reflects the fact that he was born and grew up in Yangon, where Burmese is the most common language and where the Rohingya community has tried to conceal their identity and origins, in part to avoid adverse attention and potential harm. This has been a process over time. While the applicant may have had few if any opportunities to learn the Rohingya language or culture, due to his immediate environment, the Tribunal is not satisfied that this involves persecution or significant harm (for instance, in the form of him having to avoid such activities or modify his conduct).
The applicant’s and his family’s circumstances strongly suggest that they are well-integrated into their local community in [location], and reasonably successful, in terms of home ownership, education (the applicant’s [brother] went to university and the applicant attended a government high school) and employment (including the father’s [business] and the applicant’s apprenticeship in a [firm]). This reinforces the Tribunal’s view that, while he may have experienced some degree of discrimination as a Rohingya/Kaman, this was at a low level, and did not involve persecution or significant harm, or give rise to a fear of such harm.
Discrimination as a (Rohingya/Kaman) Muslim
The applicant has consistently claimed to have experienced discrimination as a Muslim, overlapping somewhat with his claimed status as a stateless Rohingya. In his statutory declaration of 6 August 2013, he claimed that Buddhists ‘used to target us whenever we wore our Islamic traditional clothes’; that he had been bullied twice; and that on another occasion he had been verbally abused and intimidated. He claimed that these incidents happened when he was on his way to or from the mosque, and as a result he had to be vigilant. He claimed to have witnessed the arson attack in January 2013, on a mosque in Yangon that was ‘very close’ to his house. Fourteen students died in the attack.
As noted In DFAT’s April 2019 report, discrimination against Muslims in Myanmar is longstanding and pervasive, and has become more pronounced in recent years. DFAT cited some examples of this discrimination, including general anti-Muslim sentiment, particularly outside the main cities; their underrepresentation in the public sector; and that Myanmar officials have put obstacles in the way of the Muslim community, for instance, by refusing or delaying building permits for religious buildings, and through laws preventing Muslim men marrying outside their religion.
The Tribunal accepts, as did the delegate and the first Tribunal, that the applicant has experienced some degree of official and societal discrimination as a Muslim. The key issue is the nature and extent of such past harm, including whether the applicant has had to modify his conduct (such as foregoing religious practices) in order to avoid persecution or significant harm.
§ The Tribunal finds little in the applicant’s personal or family circumstances to suggest that they are particularly devout or high profile Muslims, in Yangon or Australia.
- For instance, the applicant attended a government school and went on to do an [apprenticeship]. His [brother] attended university, and his father operated a [business]. There is no direct evidence of the personal pursuit of religious matters.
- In his original statement, the applicant’s father wrote that there is no scope to provide religious education to children, but this does not sit well with country information indicating that there are mosques and a well-established Muslim community in Yangon. He also claimed that in early 2013, government agents threatened him when he attempted to call people for prayer. It is not clear in what capacity he was calling people to prayer (since he is a businessman) and, in the Tribunal’s view, his return to Myanmar undermines the credibility of this claim. Furthermore, the Tribunal has found many references to religious schools (madrasahs) in Yangon, and does not accept at face value that religious education does not exist there.
§ The first Tribunal noted that the applicant’s ‘attire and manner as presented at the hearing’ did not suggest that he was a person who would need to alter their manner at hearing. Although the first Tribunal’s decision was remitted by consent, because the applicant had not had an opportunity to be heard on that issue (as required by s.425), the observation is relevant. In his affidavit of 4 December 2020, the applicant confirmed that he wore a shirt and pants to the Tribunal, was clean-shaven, and had an earring in his ear.
§ The applicant claims to go to a mosque in Lakemba four or five times a day, wearing Islamic garb and removing his earring; and that he observes other Muslim prayers. He emphasises that he considers wearing the jubah on Fridays as an essential part of his religious practice. Had the Tribunal not been able to reach a favourable decision on the basis (mainly) of new country information, it would have sought further details and supporting evidence on this claim, also in relation to the applicant’s activities in Myanmar.
The Tribunal finds, for the purpose of this decision, that the applicant experienced some degree of official and societal discrimination in Myanmar, including possibly some instances of verbal abuse. However, it does not accept on the available evidence, particularly taking into account his and his family’s circumstances, that there was any more serious intimidation or threats, or any physical harm. As the Tribunal is not satisfied that the applicant practices any demonstrably conservative form of Islam, it is also not satisfied that he had to modify his conduct or refrain from certain religious practices in order to avoid the risk of persecution or significant harm in Yangon.
The Tribunal accepts the anti-Muslim violence in Myanmar in early 2013 unsettled all Muslims in the country; that local communities took security precautions such as night patrols; and that the school fire in Yangon in early 2013 heightened fears that the violence could flare up there (whereas the focus had previously been on Rakhine State, Meiktila and isolated incidents elsewhere). However, the Tribunal notes that the applicant’s father produced a letter from the Rohingya Society in [Country 1] dated 3 December 2012, i.e. before the school fire in Yangon. Given its concerns that the applicant holds an (undeclared) Myanmar passport, and departed Myanmar legally, together with his father, the Tribunal is not prepared to accept at face value that the applicant witnessed any of the events in early 2013 or that they affected him directly.
Country information indicates that (non-Rohingya) Muslims outside Rakhine State face discrimination that goes beyond the conduct of religious activities. This applies in particular to the provision of government services. DFAT gave as an example that Muslims in Yangon and Mandalay often ‘experience delays and are required to pay informal fees for routine government processes, such as updating household lists.’ It assessed ‘that these incidents generally represent informal discrimination by mostly Bamar Buddhist public officials, rather than formal policy.’ As noted above, the applicant stressed – in the context of claiming to be a stateless Rohingya – that he and his family managed to obtain some documents, through brokers and the payment of bribes. The Tribunal accepts on the basis of country information that the applicant and his family did occasionally face delays and have to pay ‘fees’ to update household lists and obtain other documents, and that they may have relied on Burmese brokers to smooth the path. It is not satisfied, however, that such practices involved persecution or significant harm, or that the applicant and his family faced the prospect of being unable to secure documents or obtain essential government services.
Father’s political profile
The applicant claimed that he departed Myanmar, together with his father, due to the latter’s possession of a book that was banned in Myanmar, and his profile as a political dissident and Rohingyan advocate. Following the father’s return to Myanmar and in light of the applicant’s recent statements (which in effect downplay these claims), the Tribunal is not satisfied that his father engaged in any such activities, or that the applicant has any adverse profile due to his association with his father.
Departure from Myanmar
Based on the Tribunal’s analysis of the applicant’s claims, including those relating to his Rohingya/Kaman ethnicity, his Muslim faith and his father’s (now-rejected) political profile, the Tribunal does not accept that he and his father fled Myanmar fearing persecution or significant harm. Nor does it accept that they left as undocumented, stateless Rohingya, fleeing overland. It finds instead that the applicant is a Rohingya/Kaman Muslim and a Myanmar citizen who departed legally, in order to secure passage to and eventual settlement in Australia.
Events since 2019
The applicant’s father departed Australia [in] 2019[12]. The applicant has addressed the circumstances of his father’s departure and presented new claims relating to his father.
[12] As noted in the first Tribunal’s s.424A letter of 13 February 2020, addressed to the applicant and his father.
In relation to his father’s willingness to return to Myanmar, the applicant referred to his father’s poor mental health and the impact on him of his separation from his wife, mother and family. He also claimed that part of his father’s motivation to return was that his family had been ‘facing issues’ since departure (implicitly, problems associated with the father); and that, given his health issues, he feared dying in Australia without seeing his family again.
§ A psychological report dated 7 May 2019[13] states that the father was suffering from mixed anxiety and depression, and is receiving cognitive behavioural therapy. The letter gives few details, such as date of referral, history of consultations or method of diagnosis. Curiously, the sentence referring to the applicant’s father is immediately followed by an identical sentence with the name of another patient. The Tribunal finds this to be of minimal probative value.
§ The Tribunal accepts that the father may have had a strong motivation to be reunited with his family in Myanmar. However, it is not satisfied on the available evidence that he had any health issues that caused him to act irrationally; or that he was in fear of his own health; or that he risked returning because his family was facing problems linked with his protection claims.
[13] [Source deleted].
In submissions to the first and current Tribunals, the applicant contends that no adverse inference should be drawn from his father’s return, noting that he (the applicant) had been fearful of what might happen to him, but his father had been adamant. In the Tribunal’s view, the father’s return casts doubt about the applicant’s claims in two respects: (a) his prospective treatment as a Rohingya Muslim, including in respect of documents; and (b) the risks that arise from his association with his father.
The father’s ability to return to Myanmar in November 2019 is in stark contrast to the submissions that were made on his behalf to the Tribunal, five weeks earlier, on 16 October 2019. These included claims that he (the father) faced persecution due to his ‘race, religion and statelessness’, as well as his significantly enhanced profile due to his advocacy for the Rohingya community in Myanmar as well as in Australia. The submission refers to the father and the applicant (in part, through his association with his father).
The applicant has presented claims relating to his father’s experiences on his return to Myanmar:
§ In March 2020, the applicant wrote that he has had limited contact with his father, but has learned that the authorities came to the house on three occasions, and that his father had gone into hiding. He (the applicant) claimed to have been worried about his father’s safety.
§ In his November 2021 statement, the applicant explained that he did not hear from his father for a while after his departure, and he feared the military might have arrested him. About a month after his return to Myanmar, his father called and told the applicant that he had been questioned, and had gone into hiding. The applicant wrote that the authorities did not return after that, implying that his father eventually returned to the family home.
§ The applicant went on to speculate that his father avoided harm ‘because he is an old man’: ‘He can’t even stand properly. He is not a threat to them. He is not going to do anything’. The applicant contrasts this his prospects as a young man, particularly in light of the anti-government protests.
§ The most recent statement indicates (paragraph 8) that the applicant’s father is currently living in Yangon with the applicant’s mother and [another] brother; his other siblings have their own households.
Further questions arise in relation to the father’s ability to obtain documentation and return to Myanmar.
§ The submission of 18 March 2020 records the applicant’s view that his father must have relied on his household registration certificate, which gives his race as Kaman (not Rohingya) to return. He thought that the authorities might have been looking to question his father about these documents.
§ In his statement of 21 November 2021, the applicant states that his father had told him the previous week that his national ID card states he is Kaman. He (the father) doubted that the applicant would be able to return to Myanmar on this basis, as he had never held an ‘adult card’, let alone one that records his race as ‘Kaman’.
The Tribunal considers the applicant’s attempts to distinguish his father’s situation from his own, based on his father’s age, stated ethnicity and other factors, to be contrived and unpersuasive. The household registration certificate in fact states that all members of the household are Kaman, and Myanmar nationals. The Tribunal has found no record of the applicant’s father having presented a national ID card, although it accepts as plausible that he has one (along with other documentation) and it records his ethnicity as Kaman. The Tribunal notes that the applicant’s birth certificate records the father as a Muslim Myanmar and the mother as a Rakhine (Rohingya) Muslim. In this respect, the applicant’s situation would appear to be similar to his father’s.
It is difficult to reconcile the father’s return to the family home sometime during 2020 or 2021 with the claims that the Myanmar authorities were pursuing him because of his advocacy for the Rohingya. Overall, the applicant’s recent submissions suggest that his father’s (claimed) lack of documentation, stateless and adverse political profile were not such obstacles to his return after all. The Tribunal is concerned that the applicant has shifted the focus of his own protection claims to the general country situation in Myanmar, and in doing so, has revealed that some or all of the claims that he previously presented or relied on were unreliable.
As noted above, the Tribunal obtained some information about the father’s return to Myanmar, including a copy of the Certificate of Identity issued by the Myanmar Embassy [in] 2019. This is essentially a travel document to facilitate the father’s return to Myanmar. The certificate includes pro forma language: ‘This is to certify that [the father] has stated to me that he is a citizen of the Republic of the Union or Myanmar’, and that the issuance of the certificate is ‘without prejudice to and in no way affects the national status of the holder’. An annotation states: ‘This certificate of identity is issued in lieu of Myanmar Passport No. [number] issued in Yangon [in] 2012 [which] is hereby cancelled’.
This information reinforces the Tribunal’s view that the applicant, like his father, is a Myanmar national, and that they both departed Myanmar on passports issued [in] 2012. In the Tribunal’s view, the reference to the father’s passport details in his travel document is very strong evidence that he and the applicant travelled on Myanmar passports, and did not depart unlawfully, as claimed. It indicates that he presented to the Myanmar Embassy either a copy of the passport, or details including a reference number and date of issuance that was sufficient to satisfy the authorities as to the father’s citizenship. The timing of the applicant’s travel to Australia; the father’s presentation of a document issued in [Country 1] in December 2012; and the inconsistent accounts they both gave of the (claimed) unlawful overland journey, all reinforce this view.
In light of these circumstances, the Tribunal finds for the purpose of this decision that the applicant’s father returned to Myanmar for personal and family reasons; and that he did so on a Myanmar travel document that was issued in lieu of his passport. It is not satisfied on the available evidence that the authorities came to the family home to question the father; that he then went into hiding; or that he has returned to the family home only with great caution. The Tribunal proceeds on the basis that the applicant’s father, a Myanmar national, returned to the family home and has not been subject to any adverse attention.
For the purpose of this decision, the Tribunal makes the following findings of fact:
§ The applicant is a person of Rohingya origins but is integrated into the local community as a Kaman person, and recognised as such.
§ As a Muslim, he has experienced some degree of official and societal discrimination, at a low level.
§ By virtue of his father’s and other family members’ long-term identification as Kaman, the applicant holds full Myanmar citizenship, and has held and used a Myanmar passport to which he is entitled.
§ He departed Myanmar on his Myanmar passport, by air. Discrimination against Muslims and non-Bamar minorities played some role in his (and his father’s) decisions to leave the country, neither had experienced discrimination or other harm amounting to persecution or significant harm, and they did not flee Myanmar in fear of such harm.
§ The applicant’s father has returned to Myanmar without incident.
ASSESSMENT: REFUGEE CRITERIA
The Tribunal now assesses whether - having regard to the findings of fact above, the applicant’s future conduct if he returns to Myanmar, and relevant country information – the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future.
The submission of 18 March 2020 summarises the applicant’s claims as being on the basis of his Rohingya race, Muslim faith, nationality and membership of a particular social group ‘stateless individuals from Myanmar’. He also presented claims associated with his father’s circumstances. For the reasons stated above, the Tribunal accepts that the applicant is of Rohingya ethnicity and a Muslim, who is integrated into the community as a Kaman, but it does not accept that he is stateless. It also does not accept that the applicant has any adverse profile through his association with his father.
DFAT’s most recent country information report on Myanmar, dated 18 April 2019, includes commentary on education and employment in Myanmar; Muslims and religious freedom; Rohingya outside Rakhine State; household registration lists; documentation and the prevalence of fraud; and the consequences of illegal departure. The first Tribunal included relevant extracts in its decision. Relevantly, DFAT opined that ‘Rohingya who live outside of Rakhine Stat experience moderate levels of societal and official discrimination on a day-to-day basis, […but those] who choose to identify as Kaman or other Muslim groups face a similar level of discrimination to that experienced by other Muslims’. There is a sizeable Muslim community in Yangon. DFAT found that, in an atmosphere of more assertive Buddhism, there had been sporadic incidents of anti-Muslim violence, instances of harassment, and reports of restrictions on Muslim practice (including some examples where Muslims modified their practice to avoid being mistaken for conservative Bangladeshi or Indian Muslims). Overall, this information suggests that the applicant, who presents as a Kaman and does not practice a conservative form of Islam, is at a low risk of being targeted by Buddhists or others.
The Tribunal considers much of this information – such as information about the education system, employment framework, historic attitudes to Muslims and Rohingya, and basic documentation – to be relevant in the present case. However, any assessment of Australia’s protection obligations also needs to take into account recent political developments.
The military coup of 1 February 2021 removed the democratically elected government of Aung San Suu Kyi, charging her with offences that many regard as trumped-up. A commentary of 25 February 2022 summarises developments over the past year as follows: ‘Since then, despite its brutal repression of opposition, the military regime has been unable to consolidate control of the country. It is resorting to increasingly extreme violence to try terrorising the population into submission. It has killed some 1,500 civilians in the past year – including some who were summarily executed or tortured to death in interrogation centres – and arrested, charged or jailed nearly 9,000 more.’[14]
[14] International Crisis Group, Richard Horsey, Senior Adviser, Myanmar; One Year On from the Myanmar Coup, 25 January 2022:
Recent country information confirms that the human rights situation in Myanmar is poor and deteriorating. The situation is complex, evolving and opaque; and it is difficult to obtain independent, real time reports. Meanwhile, the military’s efforts to suppress the opposition, and search for dissidents and striking civil servants, continue to meet with violent resistance in various parts of the country. This includes the emergence of local defence forces, sometimes joined by ethnic armed groups. This has placed the Myanmar military under increased pressure and caused economic chaos, with widespread shortages, the collapse of public services, and significant impacts on the civilian population.[15] Increasingly, there is talk of Myanmar as a potential ‘failed state’.
[15] Ibid.
The submission of 18 July 2021 cites the Australian Government’s announcement in May 2021 to allow Myanmar nationals on temporary visas to extend their stay in view of the continuing violence, as evidence of the seriousness of the situation.[16] This is consistent with general assessments of the human rights situation. At the same time, it is important to note that generalised violence, internal turmoil or civil war do not, of themselves, amount to Convention-related persecution, or give rise to protection obligations. Rather, that requires an assessment of all the applicant’s circumstances, including whether the violence has the necessary selective or discriminatory quality.
[16] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, ‘Visa arrangementsFor the reasons stated above, the Tribunal finds that the applicant is a Myanmar national. Its assessment of his documentation and his father’s ability to obtain and use a Myanmar travel document to return there strongly suggest that the applicant will not face a real chance of having the authorities target him for those reasons, if he returns.
The Tribunal has found a few references to the post-coup situation for persons of Rohingya origin in Yangon and Muslims, eg. any change to the low-level discrimination that they face; their participation in recent unrest; or any adverse interest on the part of the Myanmar authorities or society at large. These include the following:
§ A consistent theme in the reporting has been the coup’s effect in unifying previously diverse groups, all now opposed to the military. Numerous reports indicate that Muslims have participated in protest activities, from mid-February 2021, and that ‘Yangon’s usually hidden Rohingya community even openly joined in […]’.[17]
§ Numerous reports have noted the conciliatory tone towards the Rohingya from the Bamar community and others, a marked departure from previous attitudes. For instance, the Economist edition of 29 January 2022 reported that many people who previously considered the Rohingya as ‘terrorists’ and ‘illegal immigrants’ have changed their tune. Since the coup, there has been a marked shift in public sentiment, including demonstrations in solidarity with Rohingyas in cities all over the country.[18] The article notes that one reason for this shift has been the parallel government’s desire for international legitimacy; it also implies that there is also a pragmatic interest in garnering anti-government support from across ethnic and religious divides.
§ Other reports speculate that Muslims could be at greater risk, as the military may seek to shore up Bamar-Buddhist support by fomenting tensions with Muslims (including Rohingyas). The submission of 18 July 2021 refers to earlier examples of anti-Muslim discrimination (although this is really a recap of previous advice). The submission of 17 November 2021 draws attention to the unexpected release from prison of Ashin Wirathu, a Buddhist nationalist monk who was instrumental in the 2012 ant-Muslim violence, a development that the Lowy Institute wrote ‘bodes ill for the rights of the country’s minorities…’.[19]
[17] ‘Myanmar’s protests have unified a disparate country, but including the Rohingya can help defeat the coup’, Lee, R, Australian Broadcasting Corporation (ABC): Religion and Ethics, 15 February 2021, 20211005102454
[18] The Economist: The enemy of my enemy: Myanmar’s generals have united the country—against themselves, 29 January 2022:
[19] Lowy Institute – The Interpeter, Myanmar’s extreme Buddhist nationalists (21 September 2021) >Given the limited reporting from Myanmar, the Tribunal considers that it would be unsafe to draw firm conclusions, either that Muslims and/or Rohingya are subject to more favourable social conditions following the coup, and/or that the government is now more likely to target them as scapegoats.
The Tribunal relies in this assessment above all on country information about the extent of the ongoing violence and human rights violations in Myanmar, mindful that current information is limited. As noted in the Economist, the military is fighting on multiple fronts, there have been mass public servant resignations and the authorities are struggling to govern even the territory that it does control. In such circumstances, the Tribunal considers that there is a real chance that the applicant’s return to Myanmar in the reasonably foreseeable future would result in the authorities’ scrutiny and suspicions. Factors that may contribute to this could be the applicant’s approach to the Embassy to request a travel document (replacement passport); the duration of his stay in Australia to date; his status as a failed asylum seeker (i.e. failure to demonstrate his stay on other grounds); and his minority status (as a Muslim, and due to his ethnicity).
The Tribunal finds that, taking all these factors into account, there is a small but nonetheless real chance of the authorities subjecting the applicant to questioning, detention and potentially mistreatment on his return to Myanmar. It is satisfied that any associated physical harassment or ill-treatment would involve serious harm amounting to persecution, as required by s.91R(1)(b). It is satisfied that this is the result of systematic and discriminatory conduct, in the treatment of those perceived to be opposed to Myanmar authorities: s.91R(1)(c). And it is satisfied that the essential and significant reason for the persecution would be the applicant’s perceived anti-government opinion (linked in part with his migration history, his ethnicity and his religion): s.91R(1)(a).
The Tribunal has concluded that the applicant is at the time of this decision a Myanmar citizen, although it is unable to determine on the limited available information whether he holds full, naturalised or associate citizenship. It finds that he is unable, or unwilling because of his fear of persecution, to avail himself of the protection of Myanmar.
Section 36(3) provides that, subject to certain qualifications, Australia is taken not to have protection obligations in respect of an applicant who has a right to enter and reside in another country and has not taken all possible steps to avail themselves of that right. There is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in – whether temporarily or permanently, and however that right arose or is expressed – any country other than Myanmar.
For the reasons set out above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to Myanmar.
Summary
The Tribunal has considered the applicant’s claims and evidence individually and cumulatively. For the reasons set out above, the Tribunal finds that the applicant is a Myanmar citizen, a Muslim and a person of Rohingya background who identifies as Kaman and is recognised by the authorities and his community as such. It does not accept that he left Myanmar in response to any discrimination or mistreatment, or in response to the authorities’ pursuit of his father, as a perceived political opponent or Rohingya advocate. Nonetheless, in light of the February 2021 military coup in Myanmar, and the significant political and human rights deterioration there, and taking into account the applicant’s personal circumstances (as a long-term resident abroad, his lack of current documents, and his religious and ethnic background), the Tribunal finds that he has a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to Myanmar.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
James Silva
Member
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
(1994) 34 ALD 347 at 348 (per Heerey J) and Kopalapillai v MIMA (1998) 86 FCR 547
to support Myanmar Nationals in Australia’ (5 May 2021)
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