2105916 (Refugee)

The Administrative Appeals Tribunal considered the case of several applicants seeking protection visas, whose claims were disputed by the delegate. The core of the dispute centred on the applicants' claimed identity as stateless Rohingyas from Myanmar, which the delegate rejected, finding them to be citizens of Myanmar. The applicants asserted their Rohingyan ethnicity and Muslim religion as the basis for their statelessness and fear of persecution.

The legal issues before the Tribunal were whether the applicants qualified for protection under the 'refugee' criterion, as defined by section 36(2)(a) of the Migration Act 1958, or on 'complementary protection' grounds under section 36(2)(aa). This involved determining the applicants' nationality and assessing whether they had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available to them in Myanmar.

The Tribunal's reasoning focused on the delegate's assessment of the applicants' nationality. The delegate had questioned the applicants' claims of statelessness due to a lack of identity documents, their fluency in Burmese rather than Rohingya, and inconsistencies in their statements regarding their ethnic background and knowledge of Rohingya culture. The Tribunal noted that the delegate had considered country information and guidelines relevant to protection status determination. However, the Tribunal concluded that the decision under review should be remitted for reconsideration.

The Tribunal remitted the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act.