2106371 (Refugee)

2106371 (Refugee) [2023] AATA 2474 (27 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Munashe Rusamo
CASE NUMBER: 1900908 & 2106371

COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Simone Burford
DATE:27 June 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal:
(i)    remits matter 1900908 (Temporary Protection visa application made on 24 November 2015) with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act; and
(ii)   sets aside the decision in matter 2106371 to refuse the applicant a Safe Haven Enterprise visa application made on 15 October 2015 and substitutes it with a decision that the visa application was not valid.
Statement made on 27 June 2023 at 1:00pm

CATCHWORDS
REFUGEE – protection visa – Myanmar – religion – Muslim – particular social group – stateless Muslims who illegally depart Myanmar – failed asylum seeker – race – Rohingya – nationality – stateless – fear of detention – fear of killing – forced labour – household registration lists – Myanmar citizenship – state of emergency – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 48, 65, 91, 411, 499
Migration Regulations 1994, Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
DBB16 v MIBP (2018) 260 FCR 447
Kopalapillai v MIMA (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be stateless.
The applicant has lodged three applications seeking a review of two decisions:
·the first decision under review was made by a delegate of the Minister for Immigration and Border Protection on 13 July 2017 to refuse to grant the applicant a protection visa (in that instance a Class XD (Temporary Protection) visa) under s 65 of the Migration Act 1958 (Cth) (the Act) (the first protection visa application);
·the second was made by a delegate of the Minister for Home Affairs on 23 April 2021 to refuse to grant the applicant a protection visa (in that instance a Class XE-790 (Safe Haven Enterprise) visa) under s 65 of the Migration Act 1958 (Cth) (the Act) (the second protection visa application).
The applicant has lodged two applications for review with respect to the first protection visa application (Tribunal No 1900908 and Tribunal No 1906206) and one application with respect to the second protection visa application (Tribunal No 2106371).
This decision deals with the first application for review of the first protection visa application and the application for review with respect to the second protection visa application.
Procedural background
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] August 2012. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decisions to refuse to grant the applicant protection visas are not ‘fast track decisions’ (as defined in s 5(1)). Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant was previously granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa (and associated Bridging visa) on 9 April 2013 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s 91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgment in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20), the s 91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a Protection visa (Class XA) in August 2013. That application was deemed invalid.
The applicant applied for Temporary Protection visa on 24 November 2015 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa made on 15 October 2015 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The first application for a Temporary Protection visa on 25 November 2015 was refused by the delegate on 13 July 2017. The delegate refused to grant this visa on the basis that was not an ethnic Rohingya or stateless person as claimed and was not a person in respect of whom Australia had protection obligations pursuant to ss 36(2)(a) or 36(2)(aa). A valid application for review of that decision was made on 14 January 2019. A further application for review of that decision was made on 15 March 2019.
The second visa application was refused by a delegate on 23 April 2021. An application for review of that decision was made on 13 May 2021. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
CLAIMS AND EVIDENCE
First visa application
According to the first visa application, the applicant, who was also known by his full name of [two names] and by his Burmese name [Alias A], was born in [specified year] in [Town 1 variant in] Rhakine State, Myanmar. He claimed to be a Muslim of Rohingya ethnicity and stateless. His father is deceased. His mother continues to reside in Myanmar. He has [specified family members]. [Number siblings] are deceased. He claimed all family members were stateless due to their Rohingya ethnicity.
He completed [number] years of primary school in his village and attended a village Madrassa for a year and a half for religious education.
The applicant’s claims for protection in the first visa application were set out in a statement of claims dated 14 October 2020 and summarised in the delegate’s decision, which the applicant provided to the Tribunal in support of the reviews, as follows:
·The applicant states he is a stateless ethnic Rohingya, that he follows the Muslim religion, and that he was born in Rakhine State, Myanmar;
·The applicant claims that in Myanmar, there is no freedom of movement or access to education for stateless Rohingya;
·The applicant states that he fears arrest, imprisonment, forced labour, physical assault and being killed by the Myanmar government if returned, due to his ethnicity and religion.
In his accompanying statement of claims the applicant provided the following claims and evidence. The statement included corrections to a statement made in 2013 in support of his protection visa application which had been deemed invalid.
The applicant claimed that in Burma the authorities arrest Rohingya and Muslim people, and also force them to do forced labour. The military persecute all people in Burma and oppress all religions that are not Buddhist. His village is surrounded by the military and he had been forced to work for them twice, for two periods of eight or nine months and on many other occasions for two or three days. If you refused to do the labour he would be killed on the spot and if he was late for work he was beaten with the butt of a gun. He was forced to dig rocks to construct roads and they were never paid and had to provide food and drink to the soldiers.
In 2009 his brother was arrested by the military. It was alleged that he and other men from the village had had an argument with the authorities about doing more forced labour for them. He was at sea when the arrests occurred and when he returned he was told he should leave as they were arresting men in the village. He and his [brother] left. He indicated that they were not the subject of an arrest warrant as he had suggested in his 2013 statement. That was an error by the interpreter.
He provided a document he described as a Burmese National Character documentation card. That stated he had submitted an application for a National Scrutiny Card. Following advice that he should obtain identification in 2015 he phoned his [brother] in Burma and sent a photo of himself to his brother who took it to the senior authority figure in the village. That person wrote the document. His brother sent him a copy of the document on [a messaging service] in September 2015. He said since sending the document the village had been segregated and his brother could not leave to send him the original.
He travelled to a village 5 hours away. He noted that his previous statement indicated that the next day his mother told him that the military came to the village and had arrested more men. He had also stated that she told me his brother had been tortured by the military and had died after three days in hospital, and that the other men who were arrested ended up being jailed and some were sentenced for around seventeen years. He stated that this was a mistranslation and that he had not heard this information until he reached [Country 1]. He had left Burma because he didn’t think it was safe anymore and believed he would be jailed. He travelled to Rangoon and on to [Country 1] via [Country 2]. In his application he indicated he left Burma in January 2009, transited [Country 2] and arrived in [Country 1] in January 2009 where he resided until July 2012.
He claimed that in Burma he had no rights and was stateless because he is a Rohingya and a Muslim. He worked as a fisherman in Burma, but he was not allowed to work in other places. The only way to work in another town was to pay a bribe. He had to pay bribes to travel to another village. While in detention in Australia he learned that his village had been burned including half his house and some people now live in campsites.
The applicant lived in [Country 1] for 3 and a half years. In his application form it indicates he [worked in a role] in a Penang [business] on a full-time basis from January 2009 to July 2012. He also worked in [a specified industry] on an occasional basis from January 2012 to July 2012. He claimed [Country 1] was not safe for him as he was unlawful. He was caught by police at least once a month and had to pay bribes to avoid arrest. He met and married a Burmese Rohingya woman in [Country 1] and they had a [child]. They married in a traditional ceremony. Although his earlier statement had said he was registered with the UNHCR in [Country 1] this was an error and he meant to say he had tried to register but was stopped by police when he tried to go there. As things were not getting better in [Country 1] he decided to travel by boat to Australia.
The applicant attended an identity interview on 15 April 2016 and on 21 November 2016 attended an interview regarding his claims for protection (TPV interview). According to the delegate’s decision record, at the TPV interview the applicant was asked about his names. At the interview the applicant indicated that his name was [one name] and that his father's name was [Father A]. The delegate asked why the applicant had provided the alias name [Alias B] on arrival in Australia and at his Biodata interview. The delegate records that he denied doing so but then stated he was starving after the boat journey and that [Alias B] was the name he used on [social media]. He claimed that someone else had created the account and the username and that he wasn't sure how to use [social media].
When asked why he did not use the name [his other name] as his first name at his Biodata or Entry interviews he responded that he was instructed by a lawyer a first and second name is used but that it is not usual to have a given name and a surname in Burma. The delegate asked why the applicant’s father had two names, [Father A], but he was not able to provide an explanation. He said he wasn't too sure about why his father had two names. The delegate asked why the applicant was using [his name] instead of [a spelling variant]. The applicant responded that his brother’s name was very long. The delegate was not satisfied by these responses.
The applicant was also asked about his requests to use a Burmese interpreter and he said that he can speak Rohingya quite well ("80 percent" for verbal and "100 percent" for understanding) and that his Burmese has a heavy accent. He indicated he was "more attuned to Burmese", given he'd watched many movies in Burmese and that Rakhine and Burmese languages were not that different. He said his mother spoke Rohingya.
In relation to his religion, the delegate’s decision records that at the identity interview, the applicant stated he never attended a mosque. He stated that Muslim were required to pray 5 times a day but when he was at work on the fishing boat, he only prayed when he had time. He was able to provide ‘only the first word of the opening prayer in the Koran’. When asked about what was involved in the Islamic faith, the applicant "thought about his response for a while before he said that Muslims are not allowed to consume pork".
At the TPV interview, the delegate’s decision records that the applicant stated that he only attended mosque on auspicious days. He stated that when he was working at sea, the waves were too large and the boat was too small to pray and that 'no one did that'. He was unable to name any of the 4 or 5 imam’s who rotated through his village mosque. The applicant stated that he was unable to read, so had not read nor studied the Koran. He stated that he observed the 'rules' of Islam such as not consuming alcohol. He said that he'd attended mosque only a few times, and that he'd imitate the religious phrases he'd heard others utter. He said that given his family's limited finances, he was required to focus on working and earning a living.
The applicant stated that his father passed away thirty years ago, due to cancer; that his mother is retired and continues to reside in [Town 1]; that his [sisters] live in different locations in Rakhine State. One is in a refugee camp. One of his [siblings, named], lives in Myanmar and [his brother], [Brother A], lives in [Country 1]. Another [sibling] ([Sibling A]) died after a physical altercation with village police about [work], and another, [Sibling B], died in prison, after being sentenced to seventeen years' incarceration for attempting to travel to Yangon.
The applicant claimed that he married [Wife A], who was born in [specified year], in [Country 1] in early 2009 and that she was from the same village as the applicant. They separated in August 2012, when the applicant left [Country 1] for Australia. The applicant claimed his wife 'eloped' with another man and travelled to [Country 3]. His [child] was born in [year] and subsequently died.
When asked about how he left Myanmar the applicant claimed he had paid a bribe to a driver. The driver had cut the applicant's hair to facilitate him pretending to be a soldier as the applicant was wearing a raincoat that was coloured similar to those worn by army personnel. The applicant and his [Brother A], sat alongside the driver, the back section of the driver's vehicle being full of fish. Bribes were paid route to Yangon. He claimed the police didn't stop their vehicle to check identification because that type of check was undertaken on buses, not vehicles carrying goods.
In questioning regarding the identity document provided, denied seeking a Citizenship Scrutiny Card. He stated that the Recommendation Letter form the village elder was required to facilitate travel around Myanmar, and that the letters were valid for one month only. When asked how he was able to obtain the national Character Card without a family household register he said that the village elder knew everyone.
Delegate’s decision – First visa application
The delegate considered that the applicant demonstrated a degree of internal inconsistency within his proposed narrative regarding his name which lead the delegate to question the veracity of the narrative. The delegate found that the applicant held linguistic identifiers consistent with citizens of Myanmar and Bangladesh; as such, only gave minimal weight to the applicant's language abilities in the overall assessment of his identity. He delegate accepted that the applicant is able to speak the Burmese language fluently.
The delegate considered that Sunni Muslims constitute 90 percent of the total population in neighbouring Bangladesh. As such, the applicant's claimed religion is consistent with a person from both Myanmar and Bangladesh and only minimal weight could be afforded to the applicant's religion in the overall assessment of his identity. The delegate also held significant concerns about the applicant's limited understanding and unconvincing responses to questions about the Muslim religion, as demonstrated at the TPV and Identity interviews.
The applicant's responses to questions about his parents and siblings were unconvincing and further demonstrate the internal inconsistency within his overall narrative.
The delegate was concerned that the applicant has not given a complete and accurate account of his marriage, the current status of the marriage and regarding his child. The delegate expressed a concern that the applicant was concealing or has fabricated aspects of his marriage, the whereabouts of [Wife A] and the details regarding his child.
The delegate considered that the applicant's claimed limited education is at odds with his demonstrated knowledge and use of the Burmese language at the Identity and TPV interviews and found that this casts additional doubt over the applicant's life narrative. The delegate also found that responses regarding his travel between his home village and Yangon to be implausible, unconvincing, at odds and claims that he, the applicant, has raised, and further demonstrative of the internal inconsistency in his overall narrative.
The delegate noted that country information supports it as plausible that the applicant was denied citizenship in Myanmar. However, the delegate found that the applicant's ongoing and extensive inconsistencies, and his inability to provide plausible explanations for the inconsistencies, lead the delegate to be unable to extend the benefit of the doubt regarding the applicant's claim that he is stateless. The delegate considered the applicant’s claimed limited education and his stated difficulties with remembering dates; however, the delegate was not satisfied that these difficulties explained the inconsistencies in the applicant’s dealings with the Department.

The delegate formed the view that the evidence did not support the applicant's claim that he is a stateless ethnic Rohingya born in Myanmar. The delegate concluded that the applicant is more likely to be a citizen of Myanmar.
The delegate found that the applicant is not an ethnic Rohingya or a stateless person as claimed. The delegate considered it followed that they could not place any weight on the applicant's other claim for protection, as the events and circumstances contained therein relate squarely to this aspect of his claimed identity. Accordingly, the delegate dismissed the applicant's material claims in their entirety, on the basis that they are not credible.
Second visa application
According to the second visa application the applicant is a stateless Muslim originating from [Town 1] in Rakhine State, Myanmar. The majority of population in the village and the island where it is located are Burmese and Mauk (Magh) people. The delegate’s decision summarised the applicant’s claims as follows:
·His mother, [and specified family members] are living in the same village. His other sister [Sister A] lives in a UNHCR camp, but he does not have contact with her.
·His brother [Brother A] lives in [Country 1] and registered with the UNHCR.
·His [Sibling B] and [Sibling A] are deceased.
·Rohingya villages around his village and also Rohingya homes in his village have been destroyed and their inhabitants forced to flee.
·Applicant grew up speaking three languages: Rohingya (with parents), Burmese (at work) and Magh (to communicate with other villagers).
·He went to school but studied only until [grade].
·He rarely attended mosque and knows little about religion or holy texts. He never learned how to read Quran even though he attended some religious education but it was provided in Rohingya not Arabic. There was no opportunity for praying at his work either.
·In [Country 1] he got married and had a [child]. But their baby died and his wife eloped with a [Country 3] man to [Country 3]. Her lover organised papers for her.
·As a Rohingya, the applicant was forced in Myanmar to undertake heavy unpaid labour constructing roads to Yangoon, sometimes up to nine months in a year. A soldier kicked him once breaking his teeth. Some of his co-workers died of hard work.
·On other occasions, the soldiers seized the fishermen’s boats and forced the fishermen to transport military goods for free.
·In 2009, while he was fishing, his [Sibling A] was arrested by the military. [They] and other villagers were involved in an argument with the military about forced labour. His mother gathered some money and asked the applicant to flee.
·In [Country 1], he learned that his [sibling] died when [released] from custody. He believes that [the cause was] injuries inflicted during [incarceration].
·His other [Sibling B] was arrested and jailed for an attempt to move to Yangon.
·[They] died from malaria while in prison.
·He and his [Brother A] escaped their village with the help of a network of ‘travel agents’ who smuggle people from Rakhine State to large cities. They went by boat to [a named town] and from there by a truck to Yangon.
On 2 February 2021, the applicant made a post-interview submission in which he referred to the military coup in Myanmar. He reiterated his claims stressing that he seeks protection for the following reasons:
·His Rohingya ethnicity which is not on the ‘national races’ list;
·His religion as a Muslim;
·His nationality (or lack thereof) as a stateless Rohingya Muslim;
·His imputed nationality as someone who is believed by the Myanmar authorities to be a national of a foreign country (usually Bangladesh);
·His membership of a particular social group, being stateless Muslims who illegally departed from Myanmar;
·His membership of a particular social group, former Muslim residents of Myanmar who are believed to be Bengali foreigners prior to their departure and have now been absent from Myanmar for a long period of time;
·His actual or imputed anti-government or anti-military political opinion as someone who sought asylum in a Western country;
·His previous experiences of harm.
In addition, the applicant raised Complementary Protection claims stating he feared being arrested under section 10 of the Myanmar Immigration Act and put in prison if he is returned to Myanmar without a valid passport or other identity document which he is not entitled to. If forced to return to Myanmar, the applicant claims to be detained, interrogated, imprisoned, convicted, and punished for charges relating to his illegal departure from Myanmar. The applicant fears that throughout this process, he will face a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment, and/or degrading treatment or punishment.
The applicant claimed that he had no documentation other than the recommendation letter and that he had tried to obtain a household list but had been unable to. He stated he grew up speaking the Rohingya language with his parents and in his day-to-day life but also spoke the Burmese and Mauk languages. He preferred to us Burmese more than Rohingya because he had less problems with Burmese interpreters. He claimed that in an earlier departmental interview he had asked for a Rohingya interpreter and was given a Bengali man that spoke Rohingya with a strong Bengali accent and that made it hard for him to understand him and to communicate.
He claimed he was raised as a Muslim, but practicing the religion was not a major part of his life and he cannot read the Koran because he cannot read Arabic.
He claimed that videos and photos of a man holding a head and posts about the Muslim Brotherhood which appeared on his [social media] account and about which he had been questioned at the TPV interview appeared on his [social media] account because what other people post appears on his account.
He claimed that in 2009, while he was away fishing, his [Sibling A] was arrested by the military following a dispute about forced labour. When he returned to the village his mother told him to leave to avoid being arrested. When he got to [Country 1], he was informed his [sibling] had been unwell and had been sent to hospital where [they] died. He believed this may have been due to poor treatment or torture while [being] imprisoned. His [sibling] had been arrested a few years prior to that while travelling to Yangon. [They] had been imprisoned and they were later told [they] had died of Malaria.
He said to escape Rakhine, he and his brother gave money to a driver who agreed to transport them. They cut their hair and wore a coat like a military coat and sat up the front with the driver and pretended they were soldiers. There was another man who sat in the back. They were stopped by the military at some checkpoints along the way, and the driver would hand them papers with money in it, including a bribe. He claimed it was a short trip but they were lucky to escape.
Delegate’s decision – Second visa applicantion
As with the delegate’s decision on the first visa application, the delegate refused the application as they were not satisfied of the Applicant’s ethnicity. The Delegates were not satisfied that the Applicant was a Rohingya and as such did not accept the Applicant’s claims that he would be subject to persecution/significant harm for reasons of him ethnicity as a Rohingya. The Delegates pointed inconsistencies in relation to the Applicant’s name and the implausibility of the Applicant’s life story as reasons why they could not accept the Applicant’s claim that he is a Rohingya born in Myanmar. For these reasons the Delegates found that the Applicant would not face a real risk of significant harm/persecution for reasons of his ethnicity and imputed political opinion as a stateless Rohingya in Myanmar.
The delegate gave weight to the country information which indicates that the applicant's family would have required official documents to live in [Town 1] and found that the applicant failed to provide a reasonable explanation why he and his family cannot produce evidence of their status in Myanmar. The delegate concluded that they were reluctant to do so because evidence would show that they are citizens of Myanmar and do not belong to the Rohingya ethnic group.[1]
[1] 'Burmese Muslims attack qovernment office', Democratic Voice of Burma, 30 July 2009
The delegate’s decision referred to the fact that during the identity interview, the applicant was also asked if he had a household registration, which is typically used as a form of primary identification by Rohingya in Myanmar. He stated that he never had a family list and that his [brother] told him it had been destroyed in a fire before he was even born. The delegate noted that this would mean the applicant’s family list was destroyed prior to [year] (his birth year). The delegate referred to country information indicating that during the first military regime in Myanmar (1962-1988), there were no restrictions on the issuing of household registration lists (HRL) to Rohingya.⁶ The delegate noted country information which states that copies of household registration lists are held by the head of the household and the local police station or Immigration and National Registration Department (INRD), and that, should it be lost, it can be re-obtained at the INRD office/police station. Family lists are required when applying for an identity card or birth certificate, when enrolling in school, when applying for a travel permit and a variety of other interactions with the state. The delegate noted that a family list is required to obtain a recommendation letter from a village administrator, such as the document the applicant has provided.
The delegate considered that country information indicated that HRL is a crucial document for Myanmar residents that is required for each individual and household. A HRL contains identification of a person's residential status, their address details and personal information including their registration number, ethnicity and religion. The delegate noted that sources state that every Rohingya must present a HRL at the time of a check by authorities otherwise they might be regarded illegal migrants. HRLs are necessary to obtain CSCs, birth certificates and to access services.[2]
[2] 'Myanmar-Cl 171211102738419 - Rohingya - Documents- Hou hold Lists', Country of Origin lnformation Services Section (COISS), 19 February 2018
The delegate gave weight to the fact that Burmese and other ethnic groups, including those of Muslim faith, with exception of Rohingya, are able to access citizenship in Myanmar under the Citizenship Act, which also suggests that the applicant has citizenship rights in Myanmar. The delegate found it was highly likely that the applicant and his family have acquired citizenship in Myanmar.
Further, the delegate referred to country information the applicant's village, [Town 1] concerning the issuance of citizenship certificates to Muslim residents of the village who pretended to be Kaman Muslims (Magh people of Muslim faith who are entitled to citizenship).[3] [Details deleted.] The delegate concluded [details deleted] that it was highly unlikely that any residents of the village remained undocumented or without HRL following that process.
[3] [Source deleted].
The delegate did not accept that the applicant will suffer any persecutory harm for his actual or imputed anti-government or anti-military political opinion because he sought asylum in a Western country. DFAT country information suggests that the Myanmar government and International Organisation for Migration actively supported returning non-Rohingya persons who left Myanmar illegally and resided as refugees in Thailand. Rather being punished, they were provided with 'information on conditions in returns areas, counselling, and financial support for transport'. Despite that, DFAT assessed that the majority of refugees from Thailand preferred to return informally due to range of factors, including a continued mistrust amongst camp populations of the Myanmar government, and the lengthy process of verification, which can lead to family separation.
The delegate considered the information about latest developments in Myanmar after the military coup and while noting deaths and arrests of street protesters in major cities, found information did not suggest that the Myanmar military have used violence against non-Rohingya population of Rakhine State.
Proceedings before the Tribunal
The applicant appeared before the Tribunal on 2 December 2022, 24 February 2023 and 9 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Official A], Secretary of the [Community Organisation 1] and [Mosque 1]. The Tribunal hearings were conducted with the assistance of an interpreter in the Burmese and English languages.
The applicant was represented in relation to the review by Mr Rusamo of Estrin Saul Lawyers. His representative attending the hearings and the Tribunal acknowledges his assistance in progressing the matter noting the procedural complexity surrounding the history of the matter.
An initial hearing was held via teams on 2 December 2022. This was held as a combined hearing of applicants 1900908, 1906206 and 2106371. The Tribunal notes matter 1906206 was a duplicate application with respect to the TPV application review. That matter is the subject of a separate decision.
At that hearing, the Tribunal explained to the applicant the procedural history of his case, resulting in multiple review applications being lodged with the Tribunal. The Tribunal also explained that it had decided to combine the reviews, to which the applicant expressed no objections. In addition, the Tribunal discussed with the applicant and Mr Rusamo the determinative issues and timeline for further submissions. The applicant indicated he was not intending to call any witnesses.
Prior to the second hearing the applicant provided the following documents:
·Copies of the delegate’s decision in the TPV and SHEV applications;
·Statutory declarations from the applicant made in 2013 and 2015 (which was missing from the TPV file);
·Written submissions dated 17 February 2023 annexing:
oThe applicant’s original class XA protection visa application from 2013 which had been deemed invalid;
oThe record of the applicant’s ‘Irregular Maritime Arrival – Entry Interview’ held on 30 August 2012;
oLetter from [Official A], Secretary of the [Community Organisation 1] and [Mosque 1], confirming that applicant is ‘a practicing Muslim brother from our community’ who ‘comes every Friday to attend the prayers at our [mosque]’.
oUNHCR identity cards for [Brother A variant] (issued [in] March 2021), including an unofficially translated statement that ‘[the applicant] who is living in Australia is my [brother]’ and [Sister A variant] (issued [in] January 2022), including an unofficially translated statement that ‘[the applicant] who is living in Australia is my [brother]’. Both indicate a country of origin as ‘Myanmar’;
oLetter from the [Official B], Secretary, [Community Organisation 2] dated 27 April 2018 stating that the applicant is a Rohingya Muslim from Rakhine know to ‘us’ since he settled in Western Australia in 2013 and noting he is ‘also speaking the Rohingya language’ and will require an interpreter from the central or Southern regions of Rakhine;
oThe applicant’s ‘Statement of Claims’ dated 14 October 2020.
At the second combined hearing on 24 February 2023 the Tribunal took evidence from the applicant in person regarding his claims and background. The Tribunal also discussed with him issues arising from the earlier delegate’s decisions. However, as the Tribunal was unable to cover all issues at that hearing, it indicated a further hearing would be held.
The applicant had indicated he did not wish to call witnesses at that hearing. However, the Tribunal indicated it wanted to speak to the people who had provided supportive statements, including [Official B] and [Official A], at the resumption of the adjourned hearing. The Tribunal also invited the applicant to provide further evidence of the UNHCR status of his siblings, noting that the identity cards did not indicate they had been assessed to be refugees nor did it identify them to be Rohingya. The Tribunal noted the process of registration with the UNHCR and the assessment of refugee status and claims were separate processes.
Prior to the resumption of the adjourned hearing the applicant indicated the following witnesses were available via telephone:
[Official A]
[Official A] is the secretary at [Community Organisation 1] and [Mosque 1]. [Official A] wrote in support of the Applicant’s application to the Tribunal and is available to give evidence to the Tribunal on 9 March 2023.
[Imam A]
[Imam A] is the Imam at [Mosque 1]. As [Official A] may not interact extensively with the Applicant at the mosque [details deleted], the Imam has made himself available to provide evidence beyond the evidence provided by [Official A].
[Mr A]
[Mr A] is an Australian citizen Rohingya resident in Western Australia. [Mr A] is from Rakhine state and attests to the Applicant’s ethnicity as a Rohingya. [Mr A] resides with the Applicant in Perth and seeks to provide evidence in support of the Applicant’s application.
[Mr B]
[Mr B] is an Australian citizen. [Mr B] met the Applicant in Rakhine State in the early 2000’s. [Mr B] met the Applicant as a result of [Mr B] having family in the village which the Applicant is from.
[Official B]
Unfortunately, the Applicant has not been able to get in touch with [Official B] to be a witness at the hearing. [Official B] provided a letter of support to the Applicant in 2018 which was provided to the Tribunal in the present applications. [Community Organisation 2] is based in [City 1] and is not able to provide an updated without the Applicant physically being present in [City 1].
Following the hearing on 9 March 2023, the applicant provided statements of [Mr B] (dated 24 February 2023) and [Imam A1] (previously referred to as [Imam A]) (dated 23 March 2023), the Imam at [Mosque 1].
[Mr B] indicated he was half Burmese and half Rohingya and Muslim. He indicated he had known the applicant ‘for years’ and could confirm he was an ethnic Rohingya. He stated that:
[The applicant] has the resemblance of an ethnic Rohingya and is a Muslim. Because of this I believe that [the applicant] is an ethnic Rohingya from Rakhine State in Myanmar’
[Imam A1] confirmed that the applicant was a regular attendee at the Mosque though he did not know him personally. He otherwise relied on the evidence given by [Official A].
Submissions indicated the witnesses sought only provide those (brief) statements and had no further evidence to give. Submissions indicated that [Mr A variant] would not be providing further evidence and that the applicant sought to rely on the information provided.
On the basis it was indicated no further evidence would be provided from those witnesses, no further hearings were held.
Submissions
The applicant submitted that the primary issues to be considered in this review application are in relation to the applicant’s ethnicity and the applicant’s religion. The questions to be answered in relation to these primary issues are:
· is there applicant ethnically Rohingya?; and
· is the applicant a Muslim?
The applicant submitted that there is an abundance of country information that indicates that if a person is Rohingya or Muslim residing in Myanmar they are subject to persecution and are at real risk of significant harm. It was submitted that should the applicant satisfy the Tribunal that he falls into either or both of these groups, then it follows that the Tribunal should find that he faces either a real chance of persecution or real risk of significant harm.

It was submitted that a further risk arose with respect to the real or imputed political profile which may be ascribed to the applicant on his return to Myanmar. As the applicant fled Myanmar on the premise that he was a persecuted Rohingya Muslim it was submitted that the applicant will face significant harm/be persecuted for reasons of his imputed political opinion as a failed asylum seeker or alternatively a citizen of Myanmar who is opposed to the current military regime.
It was submitted that the applicant’s life story was characteristic of a Rohingya male from Rakhine State. It was submitted that the applicant’s account of the arrest of his [brother] was consistent with uniquely Rohingya experience. It was submitted that the consistency in the recounting of these stories demonstrates that the account is not fabricated and is credible. It was also submitted the applicant’s account of having worked in forced labour was consistent with country information concerning conditions for Rohingya in Rakhine.
It was submitted that beyond the applicant’s uniquely Rohingya accounts of his family history, his [Sister A variant] and the Applicant’s [brother] [Brother A variant] are registered Rohingya with the UNHCR evidenced by their identity cards. It was submitted this should be sufficient to satisfy the Tribunal that the applicant is Rohingya.
It was submitted that the applicant was unable to describe features of Rohingya culture due to oppression of Rohingya in Rakhine. Further it was submitted that the applicant had preferred use of the Burmese language to avoid persecution in Myanmar. This was also an explanation for his Burmese aliases, [Alias B] and [Alias A].
Similarly, it was submitted that the applicant’s limited knowledge of the Muslim faith is not an indication that he is not a Muslim but is characteristic of the limited knowledge base of Muslim’s from Rakhine State. It was submitted that the applicant is a practising Muslim and regularly attends [Mosque 1] to develop his understanding of his faith. The [Community Organisation 1] support letter was evidence of this.
It was also submitted that the deficiencies in the applicant’s understanding of Islam when he first arrived in Australia should not be an indication of the applicant’s faith considering the oppressive cultural context in which the Applicant was raised and practised his faith. The Applicant’s ability at first instance to name key features of the Muslim faith and his continued commitment to develop an understanding of his demonstrates that the Applicant is Muslim.
It was suggested that the applicant could show he can speak Rohingya if a Rohingya interpreter from his village was located. However, as discussed with the applicant’s representative it is in the Tribunal’s view the issue was that in the 10 years the applicant had been dealing with the Department there was no record of him having requested a Rohingya interpreter, preferring Burmese interpreters instead. This did not mean he could not speak Rohingya but cast doubt on a claim that it was his first language, consistent with his claimed profile.
Evidence
The applicant described his family background in Myanmar, indicating he was born in Rakhine state in the same village as his parents. His grandparents had come from a village close by.
The Tribunal asked the applicant to confirm his religious denomination and he said he followed Islam. He proceeded immediately to describe his religious practice saying prayed five times a day and detailing the times of prayer. He said that in the morning before the sun comes up, they have to do prayer. In the afternoon about they have to do prayer, and, in the evening, they do more prayers. He said he believed in Allah, and they have to travel to Mecca and pay monies to share income so that for every 100 you earn you have to give 3 dollars.
The Tribunal asked how long he had been doing daily prayers for and he said in the past he hadn’t done have 5 times daily and sometimes he prayed 2 times. The Tribunal asked again how long he had been doing this and he said about 7 to 8 years now. He said that during Ramadan his boss allow them to do prayers. The Tribunal asked if attended a mosque and he said he attended [Mosque 1]. The Tribunal asked how long he had bene attending that mosque and he said, ‘around 7-8 years now’. He said the Imam had changed during that period. He said that after 4-5 years they are gone and another one comes. The Tribunal asked if he had attended a mosque prior to that and he said that in detention in a religious leader, [named], used to bring them together. The Tribunal asked about his practice in [Country 1] and he said he went to a mosque but not every day because he was scared of the police there. He said that even in the mosque they can come. The Tribunal asked if that was the reason he wasn’t practicing at the mosque and he said yes and also that it was late when he got back from work.
As the Tribunal had not asked about the applicant’s religious practice when he commenced a detailed description of his daily prayer practice and religious observance, the Tribunal found his response somewhat defensive and rehearsed. This caused some concern about the genuineness of those responses. However, the Tribunal allows for the fact the applicant would have been sensitive to this question given prior findings by delegate’s calling into question the applicant’s claimed Muslim faith and that he would have been anxious to explain his religious observance to the Tribunal. As such the Tribunal does not draw an adverse inference from the manner of the applicant’s response.
The Tribunal asked about the letter from [Community Organisation 1] and asked if he had ever provided information from the organisation before. He said that ‘During this 8 years we know each other there’ but he didn’t know needed a letter earlier. The Tribunal asked if he was saying he wasn’t previously aware his Muslim faith had been at issue and he said he thought the interpreter asked him to describe his Muslim faith. The Tribunal put to him that the fact he hadn’t previously raised his involvement with [Mosque 1] might cast some doubt on the credibility of that evidence.
The applicant told the Tribunal his mother and [specified siblings] still lived in the village. His mother lived with one sister who was widowed and her [children] were not in the same house but were in one close by. The other house was burned.
He said that in Myanmar he attended the village school for a few years and then attended a madrassa. He said they learnt the religious prayers. His father’s [relative] was the imam of the madrassa. He said they went from about 7-8 am in the mornings and learnt to write in Arabic. The Tribunal asked what language they were taught in and he said the village language which was Rohingya. The Tribunal clarified he was saying he was taught in Rohingya and he said the teaching was in Rohingya dialect and some in Burmese. The Tribunal clarified that the madrassa was in addition to going to government school and he said that he went to government school for about a year. He said that at home they spoke Rohingya village dialect and some visitors would speak Rakhine dialect.
He said that altogether there was about 7000 Rohingya in his village. Burmese and Buddhist people also live there and the clinic doctors are Buddhist.
The Tribunal asked about the circumstances in which the applicant left Myanmar. He said that he was out fishing and there was looting in the village. When he got back his mother told him that males were getting beat up so they went back to the sea and then his [brother] was taken away with about 40 or 50 people. He and his brother went to another town and from that town they arranged a broker to take them to Rangoon. The Tribunal asked about how he was taken to Rangoon and he said they took them in a car. The Tribunal asked if it was just him and his brother or f there were others and he was he didn’t’ know how many others were in the front. He said he was sitting on the car floor sitting on the car floor and there were salted dry fish in the car as well. He said it was an enclosed truck. The Tribunal asked how they avoided being picked up by the authorities and he said he didn’t know anything about the authorities, He said it wasn’t just them, there were other people in the truck all sitting together. He said they were Rohingya abut not from the same place.
He said they didn’t need to do anything because the people they paid took care of the authorities. He said that all he needed to do was get in the back of the truck because they were making arrangements. They didn’t stop. The Tribunal asked if they got them to take any other precautions and he answered‘, No we didn’t have to do anything he said they gave them water bottled, got them to sit on the sheet, surrounded them with sword fish, tucking them around them.
The Tribunal asked about the letter from the [Community Organisation 2] and he said he had given it to his lawyer at the time but he didn’t know what he had done with it. He said you had to go to [another city] to be a member. The Tribunal asked why it mentioned him needing a Rohingya interpreter and he said because he needed one from his village. The Tribunal queried whether he had ever asked the Department for a Rohingya interpreter. He said no because he had an interpreter in the hospital in Darwin and because of his dialect he could understand about 80 % of what he said so in immigration he asked for Burmese interpreter.
The Tribunal asked what the applicant feared would happen to him if he returned to Myanmar and he said that at the moment the news in Rangoon and other places there are bombs blasting everywhere. In Rakhine, ethic group called AA is fighting all the time. He said that the military government will harm him but the other military forces, the ethnic armed forces would not harm the people. The Tribunal asked why the military government will harm him and he said because he is ‘Rakhine, Muslim, Rohingya’. He said he was more prone to harm from the military government and other people. The Tribunal asked about why they would harm those people and he said he wasn’t too sure about that but since he was young, they were much worse off than other ethnic backgrounds. He said this was not only in Rakhine. He said that people who practice the Muslim religion are looked down on.
The Tribunal asked about his claim to have been forced to work for the government and he said it was in 2001-2002 during the summer and the raining season. He said he worked for about 18 days, 5 days, or a week and then back again. He said one Muslim from each house had to work for them and they had to bring their own food. He said he worked doing this for about one and a half years. The Tribunal asked if other members of the family had to do this and he said that each house had to have one person go. He said at that time he was the only one but there were other times when siblings have to go. The Tribunal asked what work they were doing and he said a village leader took them on a boat for 7-8 hours into the jungle and they were digging to make a road and then said it was for a gas pipeline to China. He said that on another occasion they would come and get people to work for one or tow days. He said on one occasion one of the soldiers kicked him and broke his front teeth.
The Tribunal discussed with the applicant the issue of the lack of household registration which was detailed in the delegates decisions and in particular in the second delegate’s decision record. He said that they do have registration but that the government took those registrations and said they needed to renew those. He said no one wants to have that. He said some Rohingya have old registration. He said they confiscated their identity cards when he was about 14 or 15 they confiscated the household registration from his village.
He said that he obtained the registration letter from the village administrator who lived in the village. He said his mother used to go and get the letters. He said they fill out the form and they stamp it and sign but they only give to people they know. He said they don’t have anything to prove household registration but they ‘ know my mother and know me as well’. He said every Muslim has to get that document otherwise you will be locked up. The Tribunal asked about the fact he had previously claimed three fires at his home and he said that there had been after he had left.
The Tribunal noted that his submissions said his documents had been taken by people smugglers and he said ‘Yes’. He said the document he had was a form that they needed the village representative to fill out if they have to go somewhere. He said it doesn’t last long. That was the document the people smugglers took. The Tribunal asked if the village administrator had an office and he said no it was just their house. The Tribunal notes he had previously claimed that his mother had gone to the police to get a document.
The Tribunal asked about the applicant’s aliases. He said that when he was born, the imam gave him an Arab name. In the detention centre he gave his school nickname, [Alias C]. The Tribunal asked why some of the siblings go by Burmese names and he said they also have other names but it just happened that on the boat he gave the other sibling names as Burmese names. The Tribunal asked about his [social media] account and he said he didn’t know how to use [social media] and a friend set it up. He said he didn’t post on it as he didn’t know how. He said he used [Alias B variant] on [social media] because the Myanmar people all know that name and the Arabic name is only used in the Muslim community. He said that the reason they don’t use their Muslim names and that most Muslims use Burmese names is because if they use Muslim names, it is looked down on.
[Official A] gave evidence that [they have] been the secretary of the [Community Organisation 1] for about 4 years but has been at the mosque much longer. [Official A] said [the applicant] [has been seen to] come and go at the mosque. [Official A] does not know him personally [but] he comes to the mosque everyone Friday and that [Official A] became aware of his attendance about one to two months prior. [Official A] was approached by one of the teachers to prepare the letter. [Official A] was not aware if the applicant engaged in any activities at the mosque outside Friday prayers.
The Tribunal invited the applicant to provided statements from the witnesses who were not available at the hearing and any additional evidence following the hearing. Following the hearing two witnesses, [Imam A variant] and [Mr B variant] provided brief statements and indicated they had no further evidence to provide.
Delegates decision
As with the delegate’s decision on the first visa application, the delegate refused the application as they were not satisfied of the Applicant’s ethnicity. The Delegates were not satisfied that the Applicant was a Rohingya and as such did not accept the Applicant’s claims that he would be subject to persecution/significant harm for reasons of him ethnicity as a Rohingya. The Delegates pointed inconsistencies in relation to the Applicant’s name and the implausibility of the Applicant’s life story as reasons why they could not accept the Applicant’s claim that he is a Rohingya born in Myanmar. For these reasons the Delegates found that the Applicant would not face a real risk of significant harm/persecution for reasons of his ethnicity and imputed political opinion as a stateless Rohingya in Myanmar.
The delegate gave weight to the country information which indicates that the applicant's family would have required official documents to live in [Town 1] and found that the applicant failed to provide a reasonable explanation why he and his family cannot produce evidence of their status in Myanmar. The delegate concluded that they were reluctant to do so because evidence would show that they are citizens of Myanmar and do not belong to the Rohingya ethnic group.
The delegate gave weight to the fact that Burmese and other ethnic groups, including those of Muslim faith, with exception of Rohingya, are able to access citizenship in Myanmar under the Citizenship Act, which also suggests that the applicant has citizenship rights in Myanmar. The delegate found it was highly likely that the applicant and his family have acquired citizenship in Myanmar.
The delegate did not accept that the applicant will suffer any persecutory harm for his actual or imputed anti-government or anti-military political opinion because he sought asylum in a Western country. DFAT country information suggests that the Myanmar government and International Organisation for Migration actively supported returning non-Rohingya persons who left Myanmar illegally and resided as refugees in Thailand. Rather being punished, they were provided with 'information on conditions in returns areas, counselling, and financial support for transport'. Despite that, DFAT assessed that the majority of refugees from Thailand preferred to return informally due to range of factors, including a continued mistrust amongst camp populations of the Myanmar government, and the lengthy process of verification, which can lead to family separation.
The delegate considered the information about latest developments in Myanmar after the military coup and while noting deaths and arrests of street protesters in major cities, found information did not suggest that the Myanmar military have used violence against non-Rohingya population of Rakhine State.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 (Cth) (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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons, and findings
The applicant claims to be stateless and to be at risk of harm in Myanmar due to his claimed Rohingya ethnicity, Muslim faith, and imputed political opinion as a returned asylum seeker.
For the following reasons, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and that he satisfies the criterion set out in s.36(2)(a). Accordingly, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Given the nature of the applicant’s claims, including in particular his claimed statelessness, it necessary to set out factual basis findings with respect to the applicant’s claimed profile. Significantly, this includes findings in relation to his ethnicity, stateless/nationality, and religion.
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[4] 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.[5] 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.[6] 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 and claims.
[4] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
[5] SZLVZ v MIAC [2008] FCA 1816 at [25].
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 (per Beaumont J); Selvadurai v MIEA & Anor
In the present case, the Tribunal takes into account that significant time has passed since the applicant left Myanmar and since the claimed events occurred there. The Tribunal allows for some degree of inconsistency over time in the applicant’s account of events on that basis and having regard to the challenges presented by language barriers and the applicant’s claimed limited formal education.
However, the Tribunal had significant concerns in relation to the applicant’s overall credibility. It is evident from the various records of the applicant’s evidence in support of his visa applications and arrival information that the applicant’s account of his circumstances and the details of his experiences in Myanmar have changed over time. In addition, the applicant has adopted multiple pseudonyms which have in some instances not been declared until put to the applicant by the department. He has claimed to have no documentation, produced documents late in the process and with differing accounts of their provenance. He has presented in interactions with the department in a manner not consistent with his claimed profile, including by consistently requesting Burmese translators despite claiming Rohingya as his first language.
The Tribunal applied significant latitude to the applicant’s evidence in assessing evidence giving rise to credibility concerns. Even allowing for the passage of time, education, and language difficulties the Tribunal did not find the applicant’s explanations and evidence to be plausible or credible in many respects. Ultimately, the Tribunal did not find many aspects of the applicant’s evidence to be credible or reliable.
Notwithstanding these concerns, the Tribunal did accept key aspects of the applicant’s core claims, including (giving the applicant the benefit of the doubt) that he is a practicing Muslim from Rakhine state. Based on current country information (discussed below) the Tribunal considers this will give the applicant an adverse profile which gives rise to a real chance of serious ham on return to Myanmar.
The Tribunal’s assessment below is based on the available material, which gives rise to a number of credibility concerns addressed below.
Rohingya ethnicity and statelessness
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). He claims to be an ethnic Rohingya from Rakhine state.
Relevant evidence in support of this claim includes the following:
·The document referred to as a Burmese National Character documentation card or reference letter from the village elder which stated he had submitted an application for a National Scrutiny Card;
·UNHCR identity cards bellowing to the applicant’s brother and sister which were said to show they were registered as Rohingya refugees with the UNHCR in [Country 1];
·Letter from the [Community Organisation 2] dated 27 April 2018 stating that the applicant is a Rohingya Muslim from Rakhine know to ‘us’ since he settled in Western Australia in 2013 and noting he is ‘also speaking the Rohingya language’ and will require an interpreter from the central or Southern regions of Rakhine; and
·The applicant’s life story which it was submitted was ‘characteristic of a Rohingya male from Rakhine State’ including the account of the arrest of his [brother] which was ‘consistent with uniquely Rohingya experience’. It was submitted that the consistency in the recounting of these stories demonstrated that the account is not fabricated and is credible. It was also submitted the applicant’s account of having worked in forced labour was consistent with country information concerning conditions for Rohingya in Rakhine.
DFAT’s most recent country information report provides the following summary of the citizenship status and documentation of Rohingya in Myanmar.
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.
A July 2017 report by the Department of Immigration and Border Protection[7] 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.
[7] 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 Tribunal acknowledges that the applicant’s accounts of claimed incidents with his brothers and his own experienced of forced labour are broadly consistent with country information concerning the experience of Rohingya in Rakhine. However, the Tribunal does not consider those accounts to be sufficient to establish the applicant’s claimed ethnicity alone. The applicant displayed a knowledge of Rakhine state consistent with his claims to have been born in Rakhine. The Tribunal accepts on this basis that the applicant is from Rakhine state.
However, country information suggests that there are a number of ethnic groups in Rakhine state including majority Bamar and Karmen, both of which also include Sunni Muslims. The applicant acknowledged that he came from an area of mixed ethnicity, albeit he claimed that Rohingya and Bamar villages were separate and that Rohingya were singled out for mistreatment. Some of those non-Rohingya groups are also Muslim. Further, country information suggests that non-Rohingya migration across the border to Thailand is also common. In the Tribunal’s view a resident of Rakhine who grew up in a mixed ethnic area would be familiar with the history and patterns of treatment of Rohingya in Rakhine.
Further, the applicant offered no evidence to corroborate any of the claimed instances of harm to himself or his brothers in Myanmar, including any evidence from others who were familiar with his family history. While it was submitted that [Mr B] knew the applicant from Rakhine and could attest to his Rohingya ethnicity, [Mr B’s] eventual statement provided did not include this information stating merely that:
[The applicant] has the resemblance of an ethnic Rohingya and is a Muslim. Because of this I believe that [the applicant] is an ethnic Rohingya from Rakhine State in Myanmar’
The only bases on which [Mr B] attests to the applicant being Rohingya is his appearance and religion Having regard to country information the Tribunal does not consider such factors to be sufficient to ground a finding the applicant is a Rohingya and accordingly places little weight on [Mr B’s] assessment in the regard, noting that it was indicated [Mr B] had nothing further to add to this evidence.
Further, it was submitted [Mr A], the who lives with the applicant and was also said to be Rohingya, would attest to the applicant’s ethnicity. However, it was later indicated [Mr A] would not provide evidence as foreshadowed. No explanation for the absence of the foreshadowed evidence was provided to the Tribunal. In such circumstances the Tribunal considers it reasonable to infer the proposed witness was not prepared to attest to the applicant’s ethnicity.
It was submitted that the letter from [Community Organisation 2] from 2018 evidenced the applicant’s Rohingya ethnicity. However, the Tribunal did not place weight on that letter as there was no reasonable explanation as to why it was provided so late and the Tribunal’s association declined to provided updated information or evidence regarding the provenance of the letter or the basis on which the applicant was considered to be Rohingya. In this regard the Tribunal notes it was submitted [Community Organisation 2] did not have an office in Perth and was only able to provide letters in support of those in [City 1]. However, this did not explain how the applicant had originally obtained a letter (which referred to him living in Western Australia). The Tribunal was also concerned that the letter advocated for the applicant to have a Rohingya interpreter yet the applicant had never requested one and had told the Tribunal his preference was for an interpreter who spoke Burmese. In such circumstances and noting the unavailability of any member of [Community Organisation 2] to provide current evidence with respect to the applicant’s ethnicity the Tribunal places little weight on the letter as evidence of the applicant’s claimed ethnicity.
While the Tribunal understands not all Rohingya speak Rohingya, particularly those outside Rakhine, the applicant’s history of using Burmese also contributed to the Tribunal’s concerns regarding his claims be Rohingya. Further, the applicant’s use of multiple aliases including two Burmese names, and the fact several of his siblings have Burmese names, adds to concerns regarding the credibility of his claims. In this regard the Tribunal notes the applicant claimed to have spoken Rohingya at school, yet adopted a Burmese name at school to avoid persecution. The Tribunal regarded this explanation as implausible.
The Tribunal acknowledges that citizenship and identity documentation in Myanmar is complex and opaque. Citizenship in Myanmar is ‘full of ambiguities’ arising from gaps in the law and issues with administrative procedures, the complexities of the situation on the ground and ‘the interaction of the legal standards and popular perceptions of belonging’. [8] However, the Tribunal was concerned that the applicant’s claim to lack any documentation, including a household registration list, was not consistent with country information concerning the use of household registers lists in Rakhine, including to control the movement of ethnic Rohingya. There were also inconsistencies in the applicant’s account of why he lacked a HRL, saying first it was destroyed in a first before he was born and then claiming before the Tribunal that it was confiscated when he was around 15 years old. The Tribunal shares the concern that the lack of documentation without reasonable or consistent explanation suggests an attempt to bolster the applicant’s claims to be stateless and to avoid identification with any other ethnic registration in Myanmar.
[8] ‘The Ambiguities of Citizenship Status in Myanmar’, in Living with Myanmar (2020).
The Tribunal also had concerns regarding the village reference letter. The Tribunal acknowledges the need for caution in assessing documents from Myanmar. Country information, including the most recent DFAT report, indicates that document fraud is rife. However, in 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.
With respect to the reference letter, the applicant claimed it was necessary to enable movement outside the village. However, there were inconsistencies in his account of having obtained the letter telling the Tribunal that his bother obtained it from the elder by going to his home but having earlier given evidence to the Department that his mother had obtained the letter from police. The Tribunal considers those inconsistencies, the late provision of the letter and the lack of any other documentation which it might be considered the family would have held over the years, cast significant doubt on the credibility of that document and the Tribunal does not place weight on it as evidence of the applicant’s claimed ethnicity.
With respect to the applicant’s brother and sister’s registration with the UNHCR, as discussed with the applicant at the hearing, the documents provided demonstrated merely that his brother and sister had registered with the UNHCR in [Country 1]. There was no indicating on the document or on any other material before the Tribunal that they had been assessed to be Rohingya or that they had been assessed to be Convention refugees on that or any other basis. As discussed with the applicant, the Tribunal’s understanding is that registration and refugee status determination as distinct process undertaken by the UNHCR.[9] The applicant was invited to provide any further information regarding the assessment of his siblings claims or any refugee determination with respect to them in [Country 1] but no further information was provided. On the information before it, the Tribunal does not place any weight on those documents as evidence of Rohingya ethnicity but accepts the presence and registration of the applicant’s siblings in [Country 1] supports his account of having left with his brother and of other siblings having left Myanmar, though the material does not evidence the reasons for leaving.
[9] Refugee Status Determination | UNHCR

The Tribunal was also concerned that while much reliance was placed on the consistency of the applicant’s account of his background and past experiences as evidencing Rohingya ethnicity, the Tribunal was concerned that there were significant inconsistencies in the applicant’s account of his experiences in Myanmar and in particular with respect to the account of leaving Myanmar to avoid persecution. As noted earlier, the applicant has given differing accounts of how and when he left Rakhine. While minor differences in his accounts may be expected, his flight from Myanmar was an event of some significance and the Tribunal would expect that evidence regarding matters such as whether he was stopped by police, was sitting beside the driver or in the back of the truck buried under fish and how long it took for the applicant to complete his journey would remain broadly consistent. The fact his stories differed significantly on this point cast significant doubt on how and why he departed from Myanmar including casting doubt on his claim that his brother was arrested precipitating his flight.
Having regard to the information before it the Tribunal has serious concerns regarding inconsistencies in the applicant’s evidence reading his Rohingya ethnicity and finds that he is not a stateless Rohingya as claimed.
Muslim faith
The Tribunal acknowledges that there is a broad overlap between the applicant’s ethnic identity and his Muslim faith.
The delegates were not satisfied that the applicant was Muslim having regard to his apparent lack of familiarity with the Koran and with Muslim practices of common observance including prayer. The Tribunal shares some of these concerns regarding the applicant’s evidence of his historical practice as a Muslim, and considers it plausible the applicant’s recent attendance at [Mosque 1] is in response to earlier findings of the department rejecting his claims to be a Muslim. However, the Tribunal notes the evidence of the [Community Organisation 1] and [Mosque 1] evidencing that he is a practicing Muslim which was not available during prior consideration of the applicant’s claims for protection. Having regard to this information, the Tribunal affords the applicant the benefit of the doubt with respect to his claimed religion and accepts that he is a Sunni Muslim as claimed.
The applicant has claimed to have experienced discrimination as a Muslim, overlapping somewhat with his claimed status as a stateless Rohingya.
As noted in DFAT’s 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.[10]
[10] DFAT 2022 Report, at [3.27] - [3.32].
The Tribunal notes the applicant claimed to be able to receive religious education there and attend mosque albeit it he described a sporadic practice of prayer driven by work commitments and the limitations of being on a fishing boat for significant periods. This suggests a degree of religious freedom in his home village though the Tribunal notes the applicant’s claims that a Muslim he was discriminated against in Rakhine and that he would face discrimination elsewhere in Myanmar.
While it appears the applicant had some freedom practice as a Muslim in the past in Rakhine state, DFAT assesses that:[11]
Muslims in Rakhine State, regardless of ethnicity, face high levels of official and societal discrimination and a moderate risk of violence on the basis of their religion and perceived association with the Rohingya (who face specific, higher risks). DFAT assesses that Muslims outside of Rakhine State face moderate levels of official and societal discrimination and a low risk of violence on the basis of their religion.
[11] DFAT 2022 Report at [3.32].
This extends to Bamar Muslims having difficulty obtaining citizenship documents without declaring themselves to be ethnically Bangali.[12]
[12] DFAT 2022 Report, at [3.27] - [3.32].
The Tribunal does not accept on the available evidence that the applicant has suffered treatment in Myanmar that involved serious harm due to his Muslim faith. The applicant’s practice in Myanmar was sporadic and appears to have been dictated by the demands of work and limited education regarding his Muslim faith. This continued in [Country 1] and Australia prior to the applicant becoming more observant and joining [Mosque 1] where he now practices more regularly, attending Friday prayers. While the Tribunal understands the prior decision makers’ concerns regarding aspects of the applicant’s claimed faith, having regard the applicant’s history and circumstances the Tribunal considers it plausible that he is an adherent to the Islamic faith and that this contributes to his risk profile on return to Myanmar.
Current situation in Myanmar
Since the applicant left Myanmar, the situation the country has undergone significant and seismic political change. In February 2021, the military once again seized power by rejecting the results of the elections held in November 2020, in which the NLD won in a landslide. Consequently, according to DFAT,
Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.[13]
[13] DFAT 2022 Report.
In a recent report on the situation of human rights in Myanmar in the two years after the coup, the United Nations High Commissioner for Human Rights stated:
…the military has brought the country into a perpetual human rights crisis through the continuous use of violence, including killings, arbitrary arrests, torture, forcible disappearances and the prosecution and sentencing of anti-coup opponents…[14]
[14] UN Office of the High Commissioner for Human Rights (OHCHR), Report of the United Nations High Commissioner for Human Rights, Situation of human rights in Myanmar since 1 February 2022, 2 March 2023.
The report referred to the ‘catastrophic’ human rights situation that continues noting that conditions have worsened during the period since the military coup was launched. It stressed:
People throughout the country are exposed to continuing violations of their rights and to crime, including killings, enforced disappearances, displacement, torture, arbitrary arrests and sexual violence. There are reasonable grounds to believe that the military and its affiliated militias are responsible for most of such violations, some of which may constitute crimes against humanity and war crimes.
Forces opposing the military have also committed human rights abuses, in particular in the targeting of non-combatant officials, their family members and others whom they believe to be assisting the military in some way…[15]
[15] DFAT 2022 Report.
In its 2022 Report DFAT assessed that:
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.[16] (emphasis added)
[16] DFAT 2022 Report.
DFAT further assessed that:
…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.[17]
[17] DFAT 2022 Report.
Country information regarding developments since the military regime took power also suggests heightened security sensitivities and military crackdowns under the state of emergency have heightened the risk for those returning to Myanmar with increased entry surveillance and questioning by the authorities seeking to ensure the suppression of dissent against the regime. Relevantly to the applicant’s circumstances, DFAT assesses that:
given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries…, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[18] (emphasis added)
[18] DFAT 2022 Report.
This account is consistent with country information referred to in submissions from the Applicant.
The applicant’s submissions also drew attention to reports by the the United Nations Office of the High Commissioner for Human Rights (OHCR) in January 2023 that 2,890 people have died as a result of the military’s excessive use of force against those the military sees as being anti-regime or being proximate to those who are anti-regime. The OHCR also reported that close to 1,000 people who are perceived as being anti-regime were imprisoned by military forces. The report also indicated that Myanmar was in an extreme humanitarian crisis as a result of the ongoing civil unrest and internal paramilitary conflict. The military’s excessive use of force against anti-regime fighters and civilians has only exacerbated the humanitarian crisis in Myanmar that began in 2021.
Submissions noted that on 1 February 2023, the military regime reneged on its 2021 commitment to hold free and fair elections in February 2023 and relinquish their power to the winner of those elections. The military regime announced that it will extend the state of emergency for another 6 months to ‘stabilise’ the security situation in Myanmar before holding elections. The extension in the state of emergency means the continued suspension of the rule of law in Myanmar and absolute military control of the Myanmar state apparatus.
The applicant submitted that the February state of emergency extension means the continuation of extreme violence under the guise of stabilising the security situation in the country. The February extension also indicates that the state of emergency can be further extended at the will of the military regime and points to the security situation in the country remaining unstable for the foreseeable future.
Refugee assessment
For the reasons outlined above, the Tribunal accepts that the applicant is a practicing Muslim from Rakhine state and would be identified as such on return to Myanmar. Further, the applicant would return to Myanmar as a failed asylum seeker from a Western country. Country information suggests he would be imputed to be a political opponent of the regime regardless of the reasons and manner in which he left Myanmar in 2012. In the applicants circumstances he is also a Muslim and from Rakhine state. Based on country information those elements of his personal profile place him at elevated risk of coming to the adverse attention of the Myanmar military regime on return.
Credible country information establishes that the Myanmar military remains the principal armed actor in post-coup Myanmar and is overwhelmingly the main violator of human rights and international humanitarian law.
Considering the current situation in Myanmar, DFAT assess that a failed asylum seeker returning to Myanmar from Australia would be at high risk of official harassment, arbitrary detention, and violence, regardless of why they originally left. While the Tribunal has not accepted the applicant’s claims to be a stateless Rohingya, the Tribunal accepts that there is a high level of scrutiny of people arriving and departing the country, and severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries. The Tribunal considers that in the current environment of military rule the fact the applicant is a Muslim and originates from Rakhine state would further attract adverse attention on his return.
Based on the information before it, the Tribunal accepts that the applicant is a citizen of Myanmar who sought asylum in Australia, a Muslim, and a former resident of Rakhine state. The Tribunal is satisfied that in the country political environment of Myanmar, these characteristics there is a real chance of serious harm to the applicant on this basis.
The Tribunal finds that as a returning failed asylum seeker, the applicant would likely be accused of being opposed to or having criticised the regime regardless of his history, profile, past and/or present activities, or any details concerning the nature of his claims. The Tribunal is of the view that this imputation of anti-regime political opinion would be triggered first and foremost as a consequence of the applicant being removed to Myanmar as a failed asylum seeker. The Tribunal finds that failed asylum seekers in Myanmar constitute a particular social group within the meaning of s 5L of the Act.
Having considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Myanmar, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment, and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act.
The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his imputed political opinion, religion and his membership of the particular social group of failed asylum seekers in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar. As the applicant fears harm by the Myanmar authorities, the Tribunal finds that effective state protection against the harm he fears is not available to him. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar. The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. It follows that s 36(3) of the Act does not apply.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal:
(i)remits matter 1900908 (Temporary Protection visa application made on 25 November 2015) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)sets aside the decision in matter 2106371 to refuse the applicant a Safe Haven Enterprise visa application (made on 15 October 2015) and substitutes it with a decision that the visa application was not valid.
Simone Burford
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

(1994) 34 ALD 347 at 348 (per Heerey J) and Kopalapillai v MIMA (1998) 86 FCR 547

[2023] AATA 2474

27 June 2023

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