2105916 (Refugee)
[2023] AATA 4780
•23 October 2023
2105916 (Refugee) [2023] AATA 4780 (23 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Amelia Faraone
CASE NUMBER: 2105916
COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER:Alison Murphy
DATE:23 October 2023
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 23 October 2023 at 11:58am
CATCHWORDS
REFUGEE – Protection Visa – Burma (Myanmar) – race – Rohingyan ethnicity – religion – Muslim – stateless Rohingyas originating from Myanmar – imputed with a political view that is opposed to the Myanmar military regime – each of the applicants has a well-founded fear of persecution in Myanmar – effective protection measures are not available to the applicant – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63Any 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 30 April 2021 to refuse to grant the applicants Safe Haven Enterprise (Subclass 790) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant mother) is the mother of the second and third named applicants (the applicant sons). They arrived in Australia by boat on [date] January 2013 and identified themselves as stateless Rohingyas originating from Myanmar (Burma), who had been residing in [Country 1].
According to Departmental records, the applicants arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] January 2013. On 26 June 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
1 September 2020. It is in fact the second SHEV application made by the applicants, with the Departmental file indicating that they first applied for a SHEV on 18 January 2017 (the first SHEV). 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.As both 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 delegate refused to grant the visas on the basis that they did not accept the applicants to be stateless, rather the delegate found they were citizens of Myanmar (Burma). The applicants made a valid application for review on 5 May 2021.The first and second named applicants appeared before the Tribunal on 25 September 2023 to give evidence and present arguments. 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.
Non-disclosure certificate
The Tribunal has before it the applicant’s Departmental file relating to the refusal of the visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s 438 of the Act by issuing a certificate dated 5 October 2023 covering a document summonsed by the Tribunal. The certificate states that disclosure of the information subject to the certificate would be contrary to the public interest because it contains information given to an officer of the Department in confidence.
The Tribunal accepts that certificate to be valid. Where a valid certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person.
The certificated information relates to the Department’s assessment of the protection claims made by the applicant’s husband and son, which is supportive of the applicant’s evidence about her own nationality and ethnicity. Except in so far as that information is referred to in these reasons and the Tribunal’s correspondence to the applicant dated 12 October 2023, the Tribunal has not provided the applicant with a copy of or otherwise disclosed the certificated information.
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 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The nationality of each of the applicants is in dispute. At the time they arrived in Australia, the applicant mother identified herself as a stateless Rohingya from Myanmar who had been living as a refugee in [Country 1] since fleeing Myanmar in 2000 with her eldest child, [Miss A]. On arrival in [Country 1] she joined her husband, [Mr B], who had fled Myanmar in 1998. It is not in dispute that the applicant sons were born in [Country 1] in 2002 and 2009 but are not entitled to citizenship or residence rights in that country. The family registered with the UNHCR in 2002 and received their UNHCR cards in 2004. Her husband came to Australia by boat in April 2012 together with their eldest child and was granted a permanent protection visa and is now a permanent resident of Australia.
The delegate did not accept that the applicant mother or the applicant sons were stateless, rather he found them to be citizens of Myanmar. In making that assessment, the delegate noted:
·The applicant claimed to be stateless on the basis of her Rohingyan ethnicity and Muslim religion;
·She did not produce to the Department any identity documents including a birth certificate and Household Registration List. Such documents would have recorded her personal particulars, including her race and religion, and are required to access health and education services. The delegate did not accept the applicant and her family members were able to live in Myanmar without these identity documents and considered the applicant had withheld them in order to hide her true nationality and ethnicity;
·The UNHCR card for the applicant’s daughter [Miss A] records her ethnicity as ‘Burmese, Bamar, Burman’ rather than Rohingyan;
·The Bamar ethnic group is recognised by the Myanmar government as one of eight major ethnic groups and 135 ‘national races’ granted full citizenship;
·The applicant stated at interview that she was only fluent in Burmese and while she could understand questions in Rohingyan, she could only respond in Burmese;
·The applicant stated at interview that she knew little about Rohingya history and cultural practices;
·In her post-interview statement, the applicant stated that she told UNHCR that she is a Rohingya Muslim, but she did not speak Rohingya well, and she also told them that by descent she has one parent who is ethnically Burmese and one parent who is ethnically Rohingya.
In response to these issues, the applicant mother advised the Department that her father is a Rohingya Muslim from Burma, while her mother was a non-Rohingya Muslim. While her father spoke fluent Rohingya, the family lived in Yangon and spoke mainly Burmese. The applicant can understand some Rohingya language, but speaks only a little of that language. She did not learn about Rohingya culture and history because she is not educated and the family was trying to hide their Rohingya heritage.
At the Tribunal hearing, the applicant mother gave evidence consistent with her statements to the Department. She stated that her father is a Rohingya Muslim, while her mother was a non-Rohingya Muslim from Mon State who was also denied citizenship.
The applicant and her siblings followed their father and identify as Rohingyan. She and her siblings were unable to study or receive health care without payment while growing up in Myanmar. The applicant attended Grade 1 of school with the assistance of people in the community but could not continue because the family could not afford to pay. Her father faced discrimination in Yangon because of his Rohingya ethnicity and for that reason he was determined that his children would be fluent in Burmese and the family spoke Burmese at home. Her mother passed away at age [age] because of the emotional toll of the discrimination they had suffered and the applicant fled to [Country 1] as she didn’t feel safe in Myanmar.
In relation to the family’s identity documents, the applicant maintained that they had not been issued Citizenship Scrutiny Cards or even their predecessor identity document, the National Registration Cards. She gave evidence that when her father tried to register the family, he was removed from existing registers because of his Rohingyan ethnicity.
In relation to Household Registration Lists, apparently issued to all households in Myanmar, regardless of ethnicity or nationality, the applicant stated that it may be that her parents knew about that but they are no longer alive. The applicant mother’s oldest daughter, [Miss A], was born in Myanmar shortly before the family left for [Country 1]. The applicant mother has consistently stated that she was not issued a birth certificate for [Miss A].
I note the applicant left Myanmar in 2000, aged approximately [age], and I consider it understandable that she does not know whether her parents were issued a Household Registration List during her childhood. In any case 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.[1]
[1] European Network on Statelessness and the Institute on Statelessness and Inclusion, ‘Statelessness in Myanmar: Country Position paper May 2019’ (May 2019) Stateless Journeys accessible at: <
The applicant mother claims that she is married to a Rohingyan man and that he and their elder son have been recognised as such by the Department. The Tribunal has obtained a copy of the protection finding relating to the applicant’s husband [Mr B] and son [Mr C]. That case note indicates that they arrived in Australia by boat in April 2012, approximately 8 months prior to the applicants in the current review. The statements of the applicant husband about the family’s Rohingyan ethnicity, statelessness, residence in Yangon until 1988 and then in a refugee camp in [Country 1] for 14 years is in all material respects consistent with that of the applicant in the current review. The applicant husband was registered with the UNHCR and identified the applicants in the current review as his wife and children who were living as refugees in [Country 1] after fleeing Myanmar in 1998.
The case note records that the applicant’s husband stated that his father was Rohingyan while his mother was of Burmese ethnicity and Muslim religion, but the family was perceived to be Rohingyan and persecuted as an ethnic and religious minority. The delegate recorded that the applicant’s husband had the physical features characteristic of Rohingyans and accepted he was of mixed Rohingyan and Burmese ethnicity and Muslim religion. The delegate noted that he had been consistent in the information he had provided to the Department since his arrival on Christmas Island and answered all questions spontaneously with an adequate level of detail. The delegate was satisfied that he was recounting factual evidence relevant to his personal experience and his experiences as described were plausible and consistent with country information. The delegate found the applicant’s husband faced a well-founded fear of persecution from the Burmese authorities as stateless Burmese Muslims of mixed Rohingyan and Burmese ethnicity and that [Mr C] was entitled to the protection visa as a member of his father’s family unit.
The Tribunal has considered whether the applicant mother may have been eligible to apply for naturalised citizenship pursuant to the provisions of the Burma Citizenship Act of 1982 given that she had one ethnically Burmese parent and one ethnically Rohingya parent. That Act creates a tiered system of citizenship with the lowest tier being ‘naturalised citizens’. 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.
However there is no evidence the applicant mother ever sought or was granted naturalised citizenship and in any case country information indicates that state practices relating to citizenship acquisition for Rohingya have been found to violate legal certainty, the rule of law and international human rights law generally:
Arbitrariness is shown in the way in which citizenship was revoked, domestic laws were applied or not, cards were handed out and revoked, and people were called “illegal immigrants”, yet accepted back in repeated cycles of mass displacement and repatriation.[2]
[2] European Network on Statelessness and the Institute on Statelessness and Inclusion, ‘Statelessness in Myanmar: Country Position paper May 2019’ (May 2019) Stateless Journeys accessible at: <
As well the state authorities 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.[3]
[3] Ibid
Material produced to the Tribunal indicates that the applicant mother attended protests in Sydney in 2018 against Aung San Suu Kyi’s response to international accusations her government was ‘ethnic cleansing’ against Myanmar’s Rohingya Muslim population. The applicant is identifiable in media coverage of that protest and that coverage has appeared online and in the print version of [a media outlet] in Myanmar.[4] The Tribunal notes the applicant’s participation in those protests pre-dates the visa application and considers this adds weight in favour of her claimed Rohingyan ethnicity.
[4] [Source deleted]
In relation to the UNHCR recording the applicant’s daughter [Miss A]’s ethnicity as Bamar rather than Rohingya, the Tribunal notes that it actually records her ethnicity as ‘Burmese, Bamar, Burman’, not just Bamar, indicating that the UNHCR did not drill down into the details of the applicant’s ethnicity. The applicant mother is unable to explain how this occurred, stating that [Miss A] herself was too young to be interviewed and each of her parents correctly advised the UNHCR that they were of mixed Burmese and Rohingyan ethnicity. The Tribunal has been referred to an academic research paper which indicates that mistakes in data collected by the UNHCR occur and there are no in-built systems for such errors to be addressed or corrected, with potentially serious consequences for refugees.[5] The Tribunal notes that there is no evidence that any of the applicant’s other family members had their ethnicity similarly recorded and accepts it may simply have been an error in the data collection by the UNHCR, or merely an expedient way to record a person of mixed ethnicity.
[5] Culbertson S, Dimarogonas J, Costello K, Lanna S, Crossing the Digital Divide: Applying Technology toThe Tribunal considers the applicant mother has provided consistent evidence to the Department about her own mixed Rohingyan and Burmese ethnicity of Muslim religion. There is nothing in the material before the Tribunal that provides any rational basis for the different assessments of the claims of the applicant mother and sons in the current review as compared to their husband and father who were assessed separately. Their evidence is consistent with that of each other and that of the country information cited by the delegate who made the protection finding in respect of the applicant husband and son. While the Tribunal considers it is likely that the applicant mother’s parents were issued a Household Registration List prior to her departure from Myanmar in 1998, it is understandable that she may not know this. Similarly the Tribunal accepts that the discrimination directed towards Rohingyans caused the applicant mother’s parents to seek to hide the family’s Rohingyan ethnicity while raising their children in Yangon, with a consequential loss of language and knowledge of cultural practices.
For the above reasons, the Tribunal finds the applicant mother is a stateless Muslim of mixed Rohingyan and Burmese ethnicity, formerly resident in Myanmar and [Country 1]. The Tribunal accepts that she identifies as Rohingyan and that she and her family were perceived as such by the Myanmar community and authorities. The Tribunal further accepts that each of the applicant mother’s children, including the second and third review applicants as well as [Miss A] [Mr B] and [Mr C], who have each been assessed separately by the Department, are also stateless Muslim of mixed Rohingyan and Burmese ethnicity who identify and are identified as ethnic Rohingyans.
Risk of harm on return
As the applicants are stateless, they cannot be returned to Myanmar or [Country 1] and their claims must 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.[6] For these reasons the Tribunal has assessed the applicants’ claims against Myanmar.
[6] Al-Anezi v MIMA (1999) 92 FCR 283 at [22]
DFAT reports that ethnicity in Myanmar is a determinant of citizenship and basic rights, with many people denied these rights in law and in practice. Stateless persons in Myanmar are denied fundamental rights and basic services including access to healthcare and education, employment opportunities, freedom of movement, freedom to choose the timing and number of their children, freedom to marry whom they choose, and freedom to run for political office.[7]
[7] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) 3.1–3.3
In February 2021, Myanmar’s military rejected the landslide victory of Myanmar’s National League for Democracy (NLD) in the November 2020 election, seizing power of the country and imprisoning NLD leader Aung San Suu Kyi and other NLD members. In response, a government-in-hiding was formed by NLD and ethnic party representatives under the banner of the National Unity Government, which established an armed wing, being the People’s Defence Force (PDF). The PDF has continued an armed struggle against the Myanmar military.[8]
[8] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 2.5
By late 2021, it was reported that the military was destroying entire villages believed to support the opposition, massacring both civilians and opposition fighters. At least 1,500 people were reported killed by the military, and more than 8,000 people arrested, including journalists, medical workers and NLD politicians. By January 2022 it was reported that the PDF and the military were engaged in violent and lethal clashes across all of the country, including small villages that had not previously seen this kind of conflict.[9]
[9] Lindsay Maizland, Myanmar’s Troubled History: Coups, Military Rule and Ethnic Conflict, 31 January 2022 at Myanmar’s Troubled History: Coups, Military Rule, and Ethnic Conflict | Council on Foreign Relations (cfr.org)
In its most recent Country Information Report, DFAT provided the following assessment of conditions in Myanmar:
Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in antiregime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest) … Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[10]
[10] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 3.47
DFAT assessed:
anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.[11]
[11] Ibid, 3.51
In relation to failed asylum seekers, DFAT reports that:
given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries …, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[12]
[12] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 5.25
In February 2023 the UNHCR reported:
People in all parts of Myanmar, in the two years since the military coup, remain exposed to daily human rights violations. In addition to the use of violence by the military itself, some pre-existing conflicts between the military and ethnic armed organizations have been reignited and violence has spread nationwide, dramatically changing the conflict landscape in Myanmar and heightening concerns for the protection of civilians. Global advocacy for peace and restraint have remained unheeded and the military, emboldened by absolute impunity, has consistently shown its disregard for international obligations and principles.[13]
[13] Report of the United Nations High Commissioner for Human Rights, ‘Situation of human rights in Myanmar since 1 February 2022’, 2 March 2023 at para 5
Other sources report that representatives of the military junta stated publicly in September 2022 that showing moral support for the democracy movement was an act of terrorism, threatening jail terms of up to 10 years just for sharing pro-democracy content on social media, and even longer for those who provided even small amounts of money.[14]
[14] Martin Petty and Ed Davies, ‘Myanmar Military Threatens Jail for Online “Likes” for Opponents’, Reuters (online) 20 September 2022 < 20/?fbclid=IwAR1AHIyI780B3woJ_eMMc4ICl9IKJe0PfPsdst8pTJNJMPHikowzSleLmdA>
In view of the country information cited above, the Tribunal accepts that the applicants’ Rohingyan ethnicity, Muslim religion and long periods of residence in [Country 1] and more recently Australia, will cause them to be imputed with a political view that is opposed to the Myanmar military regime putting them at high risk of official harassment, arbitrary detention and violence.
For all of the above reasons, the Tribunal finds that if the applicants were to return to Myanmar, there is a real chance that they would be subjected to threats to their lives or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. Such treatment amounts to serious harm under s 5J(4)(b) of the Act and the essential and significant reason for that harm is their political opinion.
In considering whether the applicants can obtain protection from the authorities of Myanmar, DFAT reports that the Myanmar military is ‘overwhelmingly the main violator of human rights and international humanitarian law’, targeting civilians they perceive as supporting their enemies.[15] As the agent of persecution is Myanmar’s military regime, the Tribunal finds that the real chance of persecution relates to all areas of Myanmar and that effective State protection is not available to the applicants. The Tribunal therefore finds that each of the applicants has a well-founded fear of persecution in Myanmar.
[15] DFAT, DFAT Country Information Report – Myanmar, 11 November 2022 (version 2) at 2.30–2.31
DECISION
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 criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Alison Murphy
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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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the Global Refugee Crisis, (2019, RAND Corporation, Santa Monica) at 74; Fitzpatrick S, ‘Grade Level Placement for Refugee Students: Determining Appropriate Placement’, The
Morning Watch: Educational and Social Analysis, (46:1-2, 2018), at 2
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