2114731 (Refugee) - [2023] AATA 2558

2114731 (Refugee) [2023] AATA 2558 (1 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Esther Mai Pearson
CASE NUMBER:  2114731
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Denis Dragovic
DATE:1 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 01 June 2023 at 10:51am
CATCHWORDS
REFUGEE – Protection Visa – Stateless – race – a stateless Rohingya – religion –Muslim – citizenship – applicants have some form of right to access citizenship or have existing citizenship in Myanmar – applicant doesn’t have a right to enter and reside in a third country – applicant has a well-founded fear of persecution for reason of religion – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 45AA, 65, 91, 499
Migration Regulations 1994, r 2.08, Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be stateless, applied for the visas on 28 August 2013.
The Departmental delegate found that the applicants are not stateless Rohingyans from Myanmar and instead accepted them to be Muslims from Myanmar. Based upon this finding and applying the then available country information the delegate refused to grant the visas on 28 May 2015.
The applicants appealed this decision to a differently constituted Tribunal. The applicants did not appear before the Tribunal and following this non-appearance the member proceeded to make a finding on the papers noting that without the presence of the applicants to answer questions, ‘the Tribunal is unable to conclude whether the applicant is a Myanmar national of Rohingya ethnicity.’
The matter is before the Tribunal because of a Court order. The court criticised the Tribunal’s decision for the reason that, in effect, as the member had not made a finding of the applicant’s nationality then the Tribunal failed to consider whether the applicant could return to the place of former habitual residence, namely [Country 1], where he and his family had worked and lived for several years.
The matter is now before this Tribunal.
The applicants applied for Protection (Class XA) visas. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the applications are taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas.
The applicants appeared before the Tribunal on 21 April, 5 and 26 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Myanma and English languages.
The applicants were represented pro bono in relation to the review. The representative attended the Tribunal hearing and provided meaningful oral and written submissions.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
What is identity?
In considering the citizenship or lack thereof of the applicants it is important to note that people who are stateless do not have identity documents. This is the nature of statelessness in that the state has denied them the right to be recognised as citizens and as such does not grant them any documentation that would affirm their citizenship. Alternatively, it is possible that people claim not to have documents or dispose of their documents prior to arriving to Australia. In some countries, stateless people have documents testifies to their lack of citizenship but recognises their presence, for example, this may include registration with UNHCR or the granting of some temporary residency documents.
As citizenship cannot be confirmed without documentation and some applicants may choose not to provide their national identity documents a decision maker needs to engage with the written and oral evidence of the applicant’s life while living in their home country and test it against available independent third-party information to ascertain their status.
Evidence regarding the applicants’ identity
Regarding the usage of the term Burma and not Myanmar throughout this decision, the official name of the country was changed from the Union of Burma to the Union of Myanmar in 1989. Where the interpreter used Burma, and it was the term used by the applicant, I have recorded it as Burma for the purpose of more accurately reflecting the applicant’s evidence, despite the official abridged name being Myanmar. To avoid any doubt, they are one and the same country.
The first named applicant’s identity
The first named applicant (‘the applicant’) claims to be a stateless Rohingya born in [a town], Burma, a town on the outskirts of the capital Yangon.
In the written application form he claimed to have completed eleven years of education in state primary and secondary schools finishing his schooling in [Year 1]. This was recorded in his application form both in total years completed and the specific dates of his attendance.
During oral evidence the applicant claimed that he had only completed his education through to Grade 10. He claimed that he sat for a university entrance exam but was unable to enter university as a result of his lack of citizenship.
He said that he was able to attend school because during those days one didn’t need citizenship to attend, just a certificate from the ward commissioner that he lives in that ward. This was no longer the case, according to the applicant, when the laws changed. He said that around the time when he finished high school the law only allowed those who held an ID card to go to university. He claimed that for this reason he was unable to attend university.
During his schooling he claims to have been badly treated having to do jobs that others did not have to, be forced to sit at the back of the class and bullied by other students all because of his ethnicity.
In oral evidence, the applicant claimed that he began work in approximately [year] and continued to work in Myanmar through to 2006 when he departed for [Country 1]. He claims that he worked as an unregistered worker during this period who was paid in cash as he was unable to establish a bank account without identity documents. He claims that he did not receive any of the benefits that other employees received such as sick leave or public holidays. He claims when he and others who were not citizens protested against low salaries, the police would only arrest the protestors, though, the applicant was never arrested.
In the applicant’s visa application form it records the applicant as having started work in [Year 2]. In his application form there is a gap where the final year of study is listed as [Year 1] but the first year of employment is [Year 2]. It is not clear from his application what he did between [Year 1] and [Year 2] When this was raised at the hearing with the applicant he said that he was told to only include his first steady job and not the piecemeal work that he was doing for four years. But I note that the first steady job he described doing was working in a factory whereas what was listed as his first job was ‘selling [items]’. The applicant’s inconsistent account of his employment is concerning.
Regarding the applicant’s claimed ancestral details, the applicant claimed that:
a.His father moved to Yangon when there was freedom of movement for all people.
b.His father was Rohingya.
c.The applicant’s paternal grandfather and grandmother are both claimed to be from Rakhine State.
d.The applicant’s mother is from Karen State. She is claimed to have been Buddhist but converted to Islam upon marrying the applicant’s father. He wrote ‘I believe my mother held a national registration card that allowed her to live in Myanmar, but she was not recognised as a citizen.’[1]
e.The applicant’s maternal grandparents may have had citizenship but when his mother came to Yangoon she tried to apply for citizenship but she was unable to get it. The maternal grandmother is Karen while all he knows of his maternal grandfather is that he had roots from India during the British era (in his statutory declaration of 17 April 2023 he references Pakistan, but I place no weigh on this as prior to becoming Bangladesh it was East Pakistan and prior to that a part of India).
[1] Statutory Declaration 17 April 2023
The applicant claimed that his parents never owned land and instead lived in a house on a farm owned by a farmer who rented it to his father.
In Myanmar, each household is required on a household registration form. Regarding the household register document, he wrote:
To my knowledge, my parents never had a household or family list. I understand that when my family moved to Yangon, my father attempted to apply for a household list, but he was told that he would have to pay a fee. My father was unable to afford the fee, and so he did not apply. Although some Rohinygan families are registered on the family register my family was not because my parents were illiterate and could not afford to apply for documentation.[2]
…
Because my family were unable to afford to pay bribes, my family never held a Family List. I understand that the official policy is all families are required to have a Family List, but we never had one. I know of many other Rohingya families who also did not have one. The authorities would sometimes come to check people had a Family List, and we would say that we did not have one. They would abuse us and say we were illegally immigrants from Bangladesh. They tried to get us to bribe them, but we did not have any money, so they would abuse us, verbally and physically, instead.
[2] Statutory Declaration 17 April 2023
The applicant’s primary language is Burmese. He claimed that he could understand Rohingya but couldn’t speak it because since he had been going to school, he was not allowed to speak another language. He said that if he was caught speaking Rohingya at school he would be punished. He recalled in a written submission that, ‘in [a grade], where my friend and I were caught talking together in Rohingya. The teacher thought we were talking about her, and she made us stand on our desks, and we were given a “tree flocking” on the back of our hips.’[3]
[3] Statutory Declaration 17 April 2023
He also noted that where he grew up, people spoke Burmese and it was necessary for him to speak Burmese to communicate with the general population.
The applicant stated at the Departmental interview that his mother could not speak Rohingya.
The applicant claims that he left Myanmar in 2006 for [Country 1]. He claims that his travel to [Country 1] was facilitated by a people smuggler, paid for by his brother, who was already in [Country 1]. While in [Country 1] he claimed that he relied upon a fake Myanmar passport to identify himself as Burmese simply for the purpose of avoiding deportation from [Country 1].
The nature of the fake passport was questioned by the delegate and once again at the Tribunal hearing as he had claimed that it had a one-year validity whereas country information referenced in the delegate’s decision indicates that Myanmar passports have a three- or five-year validity. When asked about this the applicant said that it was not intended for the purpose of travel, as he had entered [Country 1] with the assistance of a smuggler, but only internally within [Country 1] for identification purposes. Following further research there is an indication that Myanma passports can be extended by one year, though the nature of the passport is not clear.[4]
[4] >
Country information indicates that up to 10% of the Myanmar labour force is working in Malaysia or Thailand and many go through irregular means to access opportunities:
Due to the expensive, complex and time-consuming procedures required for formal recruitment through licensed agencies, many migrants continue to seek the assistance of unlicensed brokers or go abroad through irregular channels. The social networks that facilitate these movements were established long before any management systems had been developed to regulate labour migration. The involvement of unscrupulous actors and the lack of accurate and impartial information can place migrants at risk of abuse and exploitation. For some migrants, this is the only avenue available to access livelihoods and safety.[5]
[5] Triangle in ASEAN Quarterly Briefing Note Myanmar: January – March 2023

The applicant returned to Myanmar in 2008 for the claimed purpose of taking his wife and child to [Country 1]. He explained at the hearing that he was detained once he returned to his village. He claims that it was because local officials noted his return and demanded the payment of 500,000 Kyat. He claims that they threatened that if he doesn’t pay, he would go to jail. He didn’t pay and was sent to jail. He claimed that he was tortured, beaten and required to do hard labour. The authorities continued to ask for payment of 500,000 Kyat. But then he claims that his father-in-law negotiated the payment down to 300,000 Kyat which he paid from funds raised through his community. In total the applicant claims to have spent two months in jail.
He claimed that he was arrested because within his village there are people who work for the authorities, and they reported to the authorities that he had returned. He claimed that it was normal that they would report who is missing and those coming back, because there are many people going to and from Thailand and Malaysia. Despite knowing this he said that he didn’t believe that he would be arrested. He was threatened with charges, including that he had left the country illegally and that he was telling other countries ‘bad things’ about Myanmar including providing information against the Myanma government. He claims that they threatened him with those charges but once he had paid them the threats were dropped. After his release, he claims that he remained in Myanmar for another week or ten days and then decided that it was not safe to stay any longer, so he left for [Country 1] with the aid of a people smuggler together with his wife and son.
I put to the applicant that he had written in his statement of claims dated 27 August 2013: ‘I was forced to pay bribes to him to avoid being imprisoned.’ I put to the applicant that this may imply that he was not imprisoned and there is no mention of a two-month period when he was ‘tortured’, ‘beaten’ or required to do ‘hard labour’. He said that he wasn’t sure what the interpreter was saying when he wrote the application. I put to him that it was prepared with the assistance of a lawyer and that he used an interpreter over the phone.
In the applicant’s statutory declaration dated 17 April he wrote:
I was also not given any food or water for the two days that I was detained. The other people in the larger room where I was kept for most of the two days hit me and punched me. It was an extremely traumatic experience for me and terrified me.
At the hearing the applicant said that the period was two months. This was clarified and confirmed as being two months. I put this discrepancy to the applicant, and he responded that he meant that the two days he didn’t receive any food or water but that he stayed for two months. I read out the text again, ‘The other people in the larger room where I was kept for most of the two days hit me and punched me.’ I emphasized that it was written, ‘where I was kept for most of the two days,’ which suggests that the entire stay was two days. He said that he was in one cell then moved to another after two days. I asked why in other submissions including his written statement accompanying his visa application and his statement from 2015, the claimed two months detention was not mentioned despite the need to pay a bribe was discussed. He responded that when he was preparing that material he was just answering the questions put to him and then he provided the answer that came to his mind.
I asked the applicant whether he had ever held any identity cards and specifically I explained that there were three different coloured cards for the three different types of citizenship along with a white card, known as a temporary registration card, which was held by many Rohingya.[6] The applicant said that he didn’t know about the differences when he lived there but only learned about the white cards when he came to Australia. I put to him that it is difficult to believe that he didn’t know about them while he lived there. He said that in the environment that he lived, he had not seen any identity card and was not aware of them, but when travelling from Myanmar to [Country 1] and seeing the authorities stop travellers and ask for their identity cards, he recalls that some people showed red cards, whereas people who didn’t hold any card had to pay money.
[6] DFAT,’ DFAT Country Information Report: Myanmar’, 18 April 2019 [5.58]
I again put to him that it is difficult to believe that he could have lived in a mixed community where he is a minority, go to school and not be allowed to go to university and yet not know that there are people with a different status than him. He said that at the time he was young and maybe that’s why he didn’t know. He said that he did realize when he was working that people had different cards. He said that he only had a student ID which was white coloured. I asked why he didn’t get another card after his student years. He said that a lot of money had to be paid to get a card and that he wasn’t able to afford money to get a card.
He said that you have to have 1 million Kyat to buy a red card. In addition, he claimed, you have to sign that your father is not Rohingya. He said that wealthy Rohingya were able to acquire such cards. He again claimed that he only heard about white cards when he came to Australia. Then he added that he did know of green cards (naturalised citizen cards) before then.
The applicant clarified that the bribe that is required is not required of people from other religions and ethnicities. I put to him that country information states bribery is widespread and not limited to people of other religions or ethnicities.[7] He said that they are condemning Rohingyas and others from Bangladesh and treat them worse.
[7] Bak, M.; (2019) Myanmar: Overview of corruption and anti-corruption. Bergen: U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute (U4 Helpdesk Answer 2019:21)
That the applicant knows of the price of a bribe to obtain a card adds concern in my mind regarding the applicant’s credibility arising from his claims that he did not know about identity cards.
In the second hearing the applicant recalled that as a student he had applied for an identity card but that he didn’t get a reply. He didn’t recall what type of card he was applying for, but that he had to provide his name, date of birth and his parent’s names. I note that according to the 1951 Resident Registration Rules, National Registration Cards (NRCs) were provided to every resident except foreigners. Those who were 10-18 years old were issued with a citizenship card.[8]
[8] T. Gibson, H. James & L. Falvey ed, ‘Rohingyas: Insecurity and Citizenship in Myanmar’, TSU Press, 2016 p87
I asked about the whereabouts of the birth certificate for the applicant’s first child. He responded that his wife told him that she kept the certificate with her mother, but when a disaster came and the house was damaged everything was damaged. The second named applicant added that when they asked her mother for the document, she was angry as she explained that their house was damaged and yet the applicants in Australia were concerned about a piece of paper.
With regards to the birth certificate of the second born child who was delivered in a hospital in [Country 1], the applicant said that he was living with his uncle at the time and his uncle had kept it in a safe place but then his uncle died after they had departed for Australia and that he doesn’t know what happened to it. Yet in the earlier interview the second named applicant said that she threw away the birth certificate thinking it would not be necessary in Australia. When this apparent contradiction was put to the second named applicant, she said that the journey to Australia was traumatic and hence the contradiction. I noted that the interview was long after the journey to which she responded that she was nervous, scared and emotional and so she wasn’t sure what she said.
During the first hearing the applicant had claimed that he didn’t know that the birth certificate was an important document. I put to him that it is hard for me to believe how in a society where it is difficult to obtain any official document, particularly for someone claiming to be Rohingya, that an official document would not be perceived to be valuable. He responded again that he didn’t know how important it was.
The applicant provided a letter from the Chairman of [an] Organisation. The letter states:
This is to certify that [the applicant] (DOR [deleted]), of [address], is a member of Rohingya community from Myanmar (Myanmar) and well known to us since he settled in Melbourne from year 2013. Despite he was born and grown-up in central Myanmar, his father was originally from Arakan/Rakhine state and he also speak some Rohingya language.
I have considerable concerns over the applicant’s credibility. I accept that he has had traumatic experiences beginning with his life in Myanmar along with his life in [Country 1] through to his travel to Australia and hardship while living through uncertainty over the past ten years. But the inconsistencies that have arisen are not minor nor are they predominantly inconsistencies that arise from omission of minor events in life. The applicant claimed to have been detained while in Myanmar for what appears to be either two days or two months. This is a substantial difference that I do not accept arises from any biological deterioration of the memory. That he was unable to provide clarity on aspects of his education is concerning. And when he tried, it only created further questions and concerns. For a person who grew up without documents to claim that he didn’t know a birth certificate would be a valuable document is disingenuous. While the representative cautioned the Tribunal against using Western standards for assessing value or worth on documents, I instead believe that it is a Western preconceived notion to place less importance on documents as new ones can always be created. For someone who has never held an official identity document, as claimed, and then to receive one for their child but claim that they didn’t think it was valuable is simply not believable.
The applicant and his family did not hold any identity cards including the temporary registration card which was held by many Rohingya. He claimed that he didn’t know about the different types of identity cards for citizens and non-citizens until he left the country. Yet the applicant spoke of having different rights to others while working, he explained how he could not attend university despite having sat for the university entrance exams, he spoke of the discrimination he encountered as a Rohingya. That the lack of an identity card and the reason for it, namely that his father was Rohingya, would not have led to the applicant learning about identity cards and the existence of temporary registration cards for some despite being an adult who was working in the informal sector for several years alongside other Rohingya is simply not plausible.
For these reasons I find the applicant to wholly be lacking credibility.
The second named applicant’s identity
The second named applicant claims to have been born in Yangon, where she finished [schooling]. She said that she didn’t continue as the cost of supporting her schooling was too high.
She claimed that her parents are from [a town] in central Yangoon where they have always resided since she can remember.
She claims that she never held an identity card.
She acknowledged that she can only speak Myanma.
She claims to be a Muslim and that her parents were Muslims.
Regarding the applicant’s ancestral details:
a.She claimed that her mother and father are Myanma Muslims. She said that her parents did not explain to her what that meant. I asked if it was used in the same context as the term ‘Rohingya’ would be used to describe others, to which she said that it is.
b.She did not know anything about her grandparent’s heritage.
During the identity interview the second named applicant said that her parents are both Myanma citizens. In response to putting this information to her at the hearing, she said that she understood her parents to have rights to citizenship, and that they applied but never heard back. She said that she heard this from her parents.
We discussed the amendments made by the second named applicant’s statement from 2015 in which she listed a series of mistaken statements that she had made to the Department. The list of statements are reproduced here:
I did not have any identity documentation in Burma. I was born at home and I never had a birth certificate.
During my identity interview on 27 /10/2014, I stated that I was born in a hospital and issued with a birth certificate and was a Burmese citizen. This is incorrect, I was very stressed, fatigued and pregnant at the time of the identity interview and I suffer from memory problems.
During my identity interview on 27/10/2014 I stated that my parents and grandparents are Burmese citizens, this is incorrect. As noted above I was pregnant and fatigued at the time. In addition although our family called ourselves Burmese citizens but we did not have any documentation and were not citizens of Burma.
During the Protection Visa interview I stated that I destroyed the birth certificates of my children. This is incorrect I destroyed other documents, which related to our travel to Australia. I did not destroy any identity or registration documents.
The applicant claimed not to remember making those corrections so instead, I revisited the same questions. She claimed that she was not born as a Burmese citizen nor were her parents or grandparents. She said that her eldest son was born in Burma in a home. I note that the responses she provided align with her statements given in the 2015 document but are contrary to what was provided in her protection visa and identity interview.
Regarding her knowledge of identity cards, she acknowledged that she knew of the different citizenship cards. She said that people who could afford them did have coloured cards. But her family didn’t have even a white card. She claims that she didn’t know about white cards back then. I put to her that Rohingya would get white cards and asked how she could not know. She said that she hadn’t heard adding that her ethnic group is Myanmar Muslim.
It is not in dispute that there are Muslims who are Burmese citizens. As DFAT notes:
Islam is practiced widely around the country including in Yangon, Irrawaddy, Magwe, and Mandalay Divisions by some Bamar and ethnic Indians as well as ethnic Kaman and Rohingya. Aside from the Rohingya, most Muslims speak Burmese or the dominant local dialect in their place of residence, and/or their language of origin. In Karen State, for example, many Muslims have integrated into Karen communities, speak Karen language, and sometimes refer to themselves as ‘Black Karen’.
The issue is whether the second named applicant hails from one of these groups and as such has citizenship or alternatively, she is from a group that is excluded from citizenship. I am greatly concerned over the applicant’s credibility particularly as she was twice interviewed and provided information about her heritage that subsequently was withdrawn and replaced with information that is opposite to what was originally provided.
Although the husband and wife are individuals, there is a reason to consider whether both have conspired to provide incorrect information. I am satisfied that the information provided originally to the Department by the second named applicant is the correct information. This is in part as I am not convinced by the explanation given by the applicant correcting the information, namely that she was fatigued. It is difficult to comprehend how fatigue could lead to claiming to be a citizen if the reality was that the entire basis of the persecution she faced for decades was because she was not a citizen. If this was a minor oversight, I would be sympathetic, especially noting her mental health challenges and how they could impact her memory, but this was a complete narrative of her identity. I am also concerned with her subsequent claims as she was unable or unwilling to provide a complete narrative of her ethnicity. To claim to simply be Myanma Muslim is unconvincing. I do not accept that she has no ethnicity. It is possible that her primary association was as a Muslim, but I am not convinced that even in such a situation she would not be aware of her heritage. As such I find that the second named applicant is a citizen or has access to full citizenship.
Country Information
I have considerable concerns regarding the truthfulness of the evidence given by the applicants. While it is possible that the applicant’s contradictions are complete fabrications it is also possible that they arise from facts that have been embellished or sprinkled with some wilful omissions. To further consider the applicants’ claims I turn to relevant country information including material submitted by the applicants’ representative from two academics knowledgeable in the field of Rohingya identity.
As background DFAT explains that
Since the 1962 military coup, successive governments have claimed the Rohingya are illegal migrants from Bangladesh, marginalising them and progressively stripping them of their rights. Up until the late 1980s, many Rohingya held National Registration Cards (NRCs) identifying them as Burmese citizens. s, but following a ‘citizenship scrutiny’ exercise in 1989, these were replaced with Citizenship Scrutiny Cards (CSCs), of which very few were issued to Rohingya. In 1995, the government began issuing Temporary Registration Cards (TRCs, also known as ‘white cards’) to the Rohingya, but these were declared invalid in 2015, leaving most Rohingya undocumented and effectively stateless.
Current country information states that Rohingya ‘are denied fundamental rights and basic services in Myanmar, including access to healthcare and education, employment opportunities, freedom of movement, freedom to choose the timing and number of their children, freedom to marry whom they choose, and freedom to run for political office.’[9] Yet the applicant may have completed Grade 11. As he completed his studies in [Year 1] current literature on the ability of Rohingya to access education is not necessarily relevant.
[9] DFAT [3.7]
Alternative sources suggest that it was possible for Rohingya to access education:
In rural Pauktaw, respondents said their children could be enrolled in primary school without either a delivery certificate or birth certificate, but were unsure about secondary school requirements since their children born after 2005 had not yet reached secondary school age.[10]
[10] ‘Rohingyas: Insecurity and Citizenship in Myanmar’ p107
In addition, on this specific matter evidence was provided by two experts on the Rohingya in Myanmar.
A letter was submitted to the Tribunal by the representative dated 3 May 2023 from Dr [A], a minority rights expert. Dr [A] has seven years of humanitarian and research experience in the Myanmar context with specific expertise in issues related to access to civil documentation, citizenship and the different forms of recognition and non-recognition of persons belonging to minorities. I have reproduced the statement in full as it is case specific:
I have reviewed the statement of [the applicant] dated 14 April 2023 and understand that [the applicant] is a male from Burma/Myanmar of Rohingya ethnicity and Muslim religion.
I further understand that [the applicant] has never held any identity documents in Burma/Myanmar. Persons belonging to the Rohingya ethnic group have normally no access to official identification documents.
Despite [the applicant] not having access to identity documents, he was able to attend school until Grade 10, work in the informal sector, and rent a home for his family to live.
However, he was not able to attend university, work in other roles, or own or purchase property because of his ethnicity.
I have been asked to provide an expert opinion on the likelihood of Rohingya persons without identity documents being able to access basic socio-economic rights in the Yangon area.
To begin with, it is very common for Burmese immigration officials to deny any such documentation (including birth certificates) to persons of Rohingya origin regardless of whether they live in Rakhine State or elsewhere in the country. This situation is the result of a clear discriminatory policy against Rohingya and other minorities not recognised as “national races” (taingyingtha) under the 1982 Citizenship Law. Persons belonging to such minorities are often denied any personal documentation. Hence, they are used to live in the margins of society and to seek their livelihoods and access to services without official documentation.
Accessing education, health and other services without documentation is part of their normal coping strategies due to the discriminatory framework in place.
In this sense, accessing limited basic socio-economic rights in the Yangon area is indeed the regular coping strategy of persons belonging to Rohingya and other non–recognised groups in urban centers such as Yangon. The loss of documents due to floods and other natural disasters as well as conflict is also a common occurrence for vulnerable groups in Myanmar.
Outside Rakhine State, it is quite normal for children belonging to the Rohingya group to be able to attend primary school without personal identification documents. For example, sometimes the requirement of a birth certificate to access schooling is replaced by a recommendation letter from a local authority. In other occasions the requirement may be waived. Under the current framework, a child can theoretically receive an ID Card starting from the age of 10, when the child is on Grade 6. Secondary schools (Grades 10 to 12) often require an identification card (e.g., a Citizenship Scrutiny Card). However, due to the uneven, arbitrary and often unpredictable application of the laws in Myanmar, it is perfectly plausible for a Rohingya to reach up to Grade 10 without having a CSC. Indeed, what I have learned through research (including interviews and Focus Group Discussions) is that beyond Grade 10 the requirements to have identification documentation become stricter. Then, access to University is certainly not possible for members of the Rohingya ethnic group, save exceptions.
In this regard, Rohingya outside Rakhine State are often undocumented and usually manage to access both limited education and health services despite not having even birth certificates.
Sometimes, they may access personal and civil documentation through the payment of bribes to immigration officials. This difference of hardship between the situation of Rohingya in Rakhine State and those in the rest of Myanmar (where limited access to socio-economic rights is possible to a certain extent) is well reflected in my own studies and the statements of key informants in Myanmar.

The second letter, dated 3 May 2023, is from Dr [B] at [a named institute] where she is responsible for managing their projects relating to statelessness in Myanmar and Rohingya nationality and human rights issues. This letter, is also included in full:
I further understand that [the applicant] has never held any identity documents in Burma/Myanmar. I find his account credible and consistent with multiple other accounts of Rohingyas living in the Yangon area of his generation. [The applicant] states that he was born in [year] and was born and grew up in Yangon. Prior to the end of the 1980s Rohingya were free to travel, live and work throughout Myanmar including in the Yangon area. They did not need national identity cards to travel within the country. The stringent and draconian travel restrictions relating to Rohingyas were implemented only in Northern Rakhine State (NRS) from early 1992 onwards (with the establishment of the ‘NaSaKa’ hybrid military forces in the area). From the early 1990s onwards “white cards” (Temporary Residents Cards) were issued en masse to Rohingya in Rakhine State. Elsewhere in the country “white cards” were only issued to those who had applied for replacement cards. There is therefore no reason why [the applicant] would have been issued with a white card in Yangon.
During the 1950 and 1960s some but not all Rohingyas were issued “NRCs” or National Registration Cards which were the same documents issued throughout the country. This is consistent with [the applicant]’s account that his mother held an NRC. His mother’s documentation does not recognise her as a citizen under the current legal framework. This document alone would not have enabled him to apply for citizenship under the law. The current ID system in Myanmar was rolled out from 1989 onwards to document people under the 1982 Citizenship Law which excluded Rohingya. The cards issued to citizens since then until now are called ‘Citizenship Scrutiny Cards’ or CRCs. Since Rohingya and many others in Myanmar (including political opposition) were unable to meet the evidentiary criteria for this new documentation, they retained the NRCs issued prior to this time and, in areas such as Yangon, continued to function relatively effectively in society using these documents. Others who were too young or were never issued with NRCs or other identity documents also continued to function without individual state issued identity documents. This was particularly the case when they were born in the area and known within local communities, as with [the applicant].
There would have been no advantage to [the applicant] to apply for citizenship or ID documents since he would not have been entitled to citizenship under the law. Some Rohingyas in the Yangon area were able to obtain citizenship cards after 1982 by paying large bribes to state officials. There is comprehensive literature on endemic corruption in the Myanmar administrative system. The costs are excessive and insurmountable for many families. This is consistent with [the applicant]’s account.
The ‘family list’ or household registration card is often referred to in human rights reports about the Rohingya in Rakhine State. Specifically in Rakhine State, Rohingya households are subject to routine regular house-to-house immigration checks, spot checks, and other forms of intrusive surveillance. In these areas, it is very difficult to function without being accounted for on a family list. However, this is not necessarily the case elsewhere in the country, particularly in cities such as Yangon. Since households were not subject to regular checks, it would have been possible to function normally either without a family list, or without knowledge of a family list, in Yangon during that period.
Despite [the applicant] not having access to identity documents, he was able to attend school until Grade 10, work in the informal sector, and rent a home for his family to live. However, he was not able to attend university, work in other roles, or own or purchase property because of his ethnicity. This is consistent with many other accounts. School enrolment criteria during this period depended on individual schools, but generally IDs were not needed. National ID cards are not required for children under 10. After this they are issued through schools. This is often the time that children can become aware of their lack of legal status. This is also consistent with [the applicant]’s account. Indefinite delays to administrative decision-making relating to citizenship documentation, as he describes, are extremely common and more often than not people never receive a negative decision. During this period there was no appeal process for delays or negative decisions.
Many children in Myanmar schools do not meet significant problems in attending and progressing in school until they try to a school certificate or evidence of their educational attainment. It can be hard to obtain certificates without proof of citizenship. Lack of school certificates and lack of other identity documents generally prevents access to higher education and to work in formal sectors of the economy. Rohingyas and Myanmar Muslims are also formally barred from working in specific ‘professional’ sectors. The informal economy is large and accessible in Myanmar, and Rohingya and Myanmar Muslims have often been able to find work and earn a living. Non-citizens cannot own property officially but were generally able to rent homes during this period. I therefore find [the applicant]’s account that he was able to function both in the education system and in the informal sectors of the economy without ID to be credible and consistent with the experiences and accounts of others in Yangon during this period.
Many Rohingyas living in Yangon and other parts of Myanmar beyond Rakhine State are forced to hide their Rohingya identity to minimise discrimination and persecution. Many only use Rohingya language in the home and some lose their mother tongue. Avoiding persecution for Rohingyas in Myanmar, including in Yangon, has become increasingly difficult over the years. Socio-economic rights have deteriorated significantly for many Rohingya and Muslims in Myanmar, fuelled by anti-Muslim and anti-Rohingya rhetoric and violence. [The applicant]’s experiences of discrimination, the struggles he faced in Myanmar, and the ways in which he attempted to overcome the barriers presented by his lack of legal identity are consistent with many other accounts.
Findings of fact
Determining whether the applicant is stateless or holds Burmese citizenship is influenced in large part by the applicant’s claims of being unable to progress his education. As the two experts referenced above have explained in their submissions it is difficult for stateless individuals to progress beyond Grade 10. Did the applicant cease his education at Grade 10 as claimed or did he continue through to Grade 11 as indicated on his application form and is suggestive by the claim that he undertook a university entrance exam?
Country information available online explains that ‘Students are enrolled in High School from the ages of 17 to 19, where they complete Grades 10 and 11.’[11] The applicant explained that the school year runs from May through to April. As such the ages of students in Grade 10 would be 17/18 and Grade 11 18/19. The applicant gave oral evidence that he completed his education at Grade 10 when he was [approximate age]. Completing Grade 10 at [age] or [age] does not align with country information.
[11] >
Based upon his claim of being [age] years of age, he would have completed his education around [two years before Year 1] as he was born in [year].
At an earlier hearing he said that he completed his education at Grade 10 [about one year later than Year 1].
In his application form he wrote that he completed his education in [Year 1]. If the evidence in his application form is taken to be correct, he would have completed his education when he was [age] or [age] years of age. The wide range of answers is of concern.
As the school year extends across two years, I find that he completed his schooling in [approximately Year 1] as this is roughly the range of dates he has repeatedly provided and not [two years earlier] as was inferred based upon the age he gave at the hearing based on when he graduated.
In his application form there is a gap in evidence of what he was doing after he graduated. His final year of education is written as [Year 1] and his first year of work is [Year 2]. That is a four-year gap. A university degree in Burma takes four years.
This is relevant as Dr [A] noted in the evidence extracted from his submission,
it is perfectly plausible for a Rohingya to reach up to Grade 10 without having a CSC. Indeed, what I have learned through research (including interviews and Focus Group Discussions) is that beyond Grade 10 the requirements to have identification documentation become stricter. Then, access to University is certainly not possible for members of the Rohingya ethnic group,
If the applicant completed Grade 11 and went on to university then it is strongly indicative of the applicant being a citizen of Burma or having some documentation such that it would allow him to complete university. If I accept that he ended his studies at Grade 10 then it would minimise the probative value of this evidence when considering whether he is stateless as he could have ended his education for many reasons and not just his claimed statelessness.
When I put to the applicant that there are concerns arising from his claims of having left his education after completing Grade 10, he provided unconvincing evidence including that the 11 years of education listed on his application form included a pre-primary school year. He then claimed that he had to redo Grade 4 and that in addition, time was lost during the 1988 unrest when schools were closed. This evidence was unconvincing as a pre-primary school year and a repeat of Grade 4 alone would mean that the applicant while having completed 11 years of education would have ended his schooling in Grade 9 and not Grade 10 as he was claiming.
I note that the applicant said at the hearing:
When I actually finished my high school, about to go to university, they changed the law that says that whoever holds an identity card they will be able to go further to university, anyone not holding citizenship or identity card they will not be able to go to university. [40.04 of first hearing]
In this statement he claims that he was about to go to university which is after Grade 11. I note that no evidence was provided of this claimed change of law which is central to the applicant’s claims. But I acknowledge that Dr [A] did mention that there were exceptions to the general rule that Rohingya would not be able to access university.
Even were I to give the applicant the benefit of the doubt acknowledging that the applicant’s years of education and dates may be confused as a result of time and trauma, that the applicant claimed that he sat the university entrance exam, which country information provided by the applicant states only occurs after the final year of high school is strongly indicative that the applicant completed Grade 11. It is possible that the applicant did not go to university, despite sitting his university entrance exams, for reasons other than a legal impediment arising from a lack of citizenship. Maybe he didn’t do well in the exams, or he and his family did not have the funds to see him through, the key issue is that he admitted to sitting the university entrance exams which are only available to students after Grade 11.
This evidence is strongly congruent with a view that he completed Grade 11 which aligns with the evidence in the application form, namely that he completed 11 years of education.
On the other hand, citizenship requirements including documentation and access to services have changed repeatedly over the period between when he was at school and the various sources of research available to the Tribunal. It is likely that there are gaps in the country information available to me not only spanning the laws at different times but also how they were applied in different geographic locations. In addition, the prevalence of bribery makes it possible that non-citizens access certain services even if they are not eligible.
The applicant asked rhetorically, was he a citizen and had he completed a university degree, why would he leave the country. I am unconvinced by this argument. There are many educated Burmese migrants who legally work in countries such as Malaysia and Thailand as was referenced from country information above, because their labour is cheaper than locals and yet pays more than they would earn at home. This is the nature of many migrant workforces. In my experience as a supervisor on an engineering site in Singapore in the late nineteen-nineties I worked with numerous Burmese university graduates who were working in the country legally.
In summarising the evidence and making findings, I find that the applicant did proceed through to completing Grade 11. It is not necessary for this decision to make a finding on whether the applicant attended university.

100. I accept that he was treated poorly at school due to his ethnicity.
101. Regarding his work history he claims that he had to piece together work opportunities as he was deprived of his rights and that he had to work seven days a week despite others who were citizens not requiring to do so. I accept that he pieced together work, it may not necessarily be for the reason of a lack of identity, but possibly for other reasons such as studying concurrently or his family required additional support.
102. He claims that his paternal grandparents are from Rakhine state where the Rohingya are from and the applicant speaks some Rohingya, a fact attested to by witness statements and aligning with the country information about freedom of movement before 1980s. There is no reason for the applicant to speak any Rohingya other than if he was raised by a Rohingya parent. That he doesn’t speak it fluently is explained by the applicant having a mother who is Karen and did not speak Rohingya and that he went to school on the outskirts of Yangon where they taught Burmese. I accept this as fact.
103. The applicant claimed that he and his parents did not have a household list. It is not clear why his parents could not access one, the explanation given was that they had to provide a bribe and could not afford to pay but whether the bribe was required for all applicants, as corruption is rife,[12] or just those who were Muslim or those who are Rohingya is unknown. Regardless, Dr [B] explains that in places such as Yangon it would have been possible that people would not have had family lists. In one research survey 71% of respondents said that the biggest challenge in obtaining a household list was discrimination and other reasons. Other reasons included a lack of transportation (79%), expense (68%) and unable to provide sufficient documentation(60%).[13] I accept that he did not have a family list but place limited weight on this as being indicative of his lack of citizenship as there are numerous other reasons for why this could be the case.
[12] DFAT [5.61]
[13] ‘Rohingyas: Insecurity and Citizenship in Myanmar’ p104
104. In summary, the evidence does not preclude the possibility that the applicant is a non-citizen but neither does it sufficiently support his claims that he is. Instead, I turn to the applicants’ credibility to make a finding.
105. I found the applicants wanting in their credibility. On numerous occasions, as noted above, the evidence changed or was corrected without plausible reasons for the shift. This was of concern and necessitated repeated hearings and lengthy adjournments to allow information to be composed coherently and even when it was, further questions arose. Based on my credibility concerns and noting the inconclusive nature of the evidence in of itself, I find that the applicants have some form of right to access citizenship or have existing citizenship in Myanmar.
106. The 1982 Citizenship Act allows for three types of citizenship, one for those who are of a national ethnicity, such as the applicant’s wife, another for those who can prove that their ancestors settled in Burma before 1823 and the third being for people who qualified under the 1948 citizenship law but not the 1982 law. I find that the second named applicant has rights to the first type of citizenship whereas the applicant has rights to the second but most likely third. The three categories are: “citizen”, “associate citizen” and “naturalized citizen.”
107. But country information states that even those Rohingya who have been able to access naturalized citizenship face barriers:
The few Rohingya who have been successful in obtaining citizenship in the past received the lesser “naturalised citizenship”.[14] To qualify for naturalised citizenship, Section 44 of the 1982 Citizenship Law requires applicants to be over 18 years of age, speak one of the ethnic languages, be of good character and of sound mind. Naturalised citizenship falls short of full citizenship in that naturalized citizens may not hold political office or form a political party, and their citizenship may be revoked on various grounds.[15]
[14] Irrawaddy, Rohingya trading identity for partial citizenship in Rakhine, available from See also census form available from Report of the Independent International Fact-Finding Mission on Myanmar (A/HRC/42/50) at [64]

108. The basis upon which the citizenship may be revoked includes: ‘communicating with a hostile organization; showing disloyalty to the State; conviction for a crime of moral turpitude (e.g., theft, adultery); committing an act likely to endanger Myanmar’s sovereignty and security; or on an executive order in the interest of the State.’
109. In considering the applicant’s claims I note that he is Rohingya, and the second named applicant is, Karen, an ethnicity that has its own successionist fighters and as such bears heavily on her status. They are both Muslim as are the children. Relevantly, there is considerable country information that is indicative of a difficult situation faced by Muslims and minorities even if they are citizens.
110. I now turn my mind to the question of whether the applicants have a well-founded fear of persecution despite having a form of citizenship.
111. Dr [A] notes:
To begin with, it is very common for Burmese immigration officials to deny any such documentation (including birth certificates) to persons of Rohingya origin regardless of whether they live in Rakhine State or elsewhere in the country. This situation is the result of a clear discriminatory policy against Rohingya and other minorities not recognised as “national races” (taingyingtha) under the 1982 Citizenship Law. Persons belonging to such minorities are often denied any personal documentation. Hence, they are used to live in the margins of society and to seek their livelihoods and access to services without official documentation.

112. Dr [B] also notes that:
Indefinite delays to administrative decision-making relating to citizenship documentation, as he describes, are extremely common and more often than not people never receive a negative decision. During this period there was no appeal process for delays or negative decisions.
Socio-economic rights have deteriorated significantly for many Rohingya and Muslims in Myanmar, fuelled by anti-Muslim and anti-Rohingya rhetoric and violence.

113. DFAT country information[16] states that:

[16] DFAT, ‘DFAT Country Information Report: Myanmar’, 18 April 2019 [3.60]-[3.80]
Muslims experience a range of limitations on their ability to practice their faith freely. Muslims in Yangon have described increasing restrictions on their ability to practice their faith in recent years.
Muslims in Yangon described to DFAT their decision to practice a less conservative form of Islam, including changing their dress and beards, to avoid visibly demonstrating elements of Bangladeshi or Indian Islam.
Muslims have also been denied access to basic rights and services.
Anti-Muslim sentiment is prevalent in Myanmar, especially outside of major cities, and is circulated through social media, some state institutions and mainstream news websites… In its most extreme form, this has resulted in violent incidents against the Muslim community.
Muslim university students without CSCs (see National Identity Cards) are only permitted to attend classes and sit examinations, and are unable to graduate or receive qualifications
DFAT assesses that Muslims outside of Rakhine state face moderate levels of official and societal discrimination and a low risk of societal violence on a day-to-day basis, on the basis of their religion.

114. A BBC News video report from 2019 interviewed Myanmar Muslim citizens who have been targeted as terrorists, detained and attacked as a result of nationalist efforts focusing on Muslims on social media.[17] Another interviewee explained that government bureaucrats either draw out requests or outright deny them. While this information is case specific, it provides insight into the circumstances of some Muslims in Myanmar. The government responded to the BBC report that they had cracked down on nationalist harassment of Muslims.
115. In summary, the applicants are Muslim, a faith that is the target of official and societal discrimination and at times violence. He is of a minority ethnic group that is being widely persecuted and she of a group that according to DFAT faces a low but present risk of official or societal discrimination. As I have found the applicant to have a form of citizenship that is not of the type granted to indigenous groups, there is evidence that he will hold fewer rights. They would not have any obvious support structures to return to and instead would be exposed to societal discrimination. The second named applicant has mental health challenges, limiting any ability that she may contribute to support the family while transitioning into a community, a challenge compounded when noting that I am satisfied they will have limited to no family support. The issue isn’t that they would face economic challenges, which is certainly the case, but rather that they would face extensive discrimination in establishing themselves such that it would lead to harm.
116. In addition, I note that DFAT has identified severe challenges facing individuals with certain profiles that could align with the profile of the applicant, depending upon how government officials approach the situation. The relevant information is:
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.

117. The Australian government had a data breach on February 2014, prior to the delegate’s rejection of the application, when 9,250 asylum seeker names and limited details were posted on line.[18] In an investigation of the incident led by the Australian Privacy Commissioner, on behalf of the Office of the Australian Information Commissioner (OAIC), it was found that the inadvertently released information included full names, gender, citizenship, date of birth, period of immigration detention, location, boat arrival, details and reasons why the individual was deemed to be unlawful.[19] The High Court in Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 (27 July 2016) at [90] noted that in the circumstance of the data breach that assuming a foreign government had accessed the information, ‘was sensible because the true extent of access to the personal information of each affected applicant must in practical terms have been unknowable. Once downloaded from the Department's website, the document containing the personal information of the 9,258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time.’ As such I accept that the above listed information is available to the Myanmar government.
118. I also note regarding the children that the 1982 citizenship law declared only children born to two taingyintha [national races] parents to be citizens by birth, requiring all other individuals to apply for citizenship based on “their family’s genealogy and a dossier of documents to prove their claims” to Myanma citizenship.[20] As such, despite evidence suggesting that the second named applicant has an ability to access taingyintha citizenship, it would require the children to undergo the arduous bureaucratic process of obtaining their genealogy to prove their claims. As noted above, this in of itself is an uncertain process fraught with corruption and discrimination that may not lead to an outcome.
119. When considering the cumulative level of harm the applicant and his family face, I am satisfied that it amounts to a real chance of serious harm for the reason that it is driven by both the state and society and the risks identified above are compounding risks.
[17] Myanmar Muslims: 'We're citizens too' - BBC News
[18] accessed 11 July 2016
[19]
[20] Erin L. McAuliffe, ‘The Ancestral Line is through the Father”: The Gendered Production of Statelessness in Rural Myanmar,’ Law and Social Inquiry, 1-31, 2023

I find that the essential and significant reason for the fear of persecution is religion and as such s 5J(4) is met as religion is one of the reasons mentioned in s 5J(1)(a).

121. I also find that the harm the applicants faces is systematic and discriminatory in that it is targeted at the applicant and not others, as required by s 5J(4)(c).
122. I have considered whether there is another part of the country where the real chance of persecution does not exist (s 5J(1)(c)). Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81]. As the persecution is by the state and by society there is no place in Myanmar where it would be safe.
123. With regards to the applicants’ ability to modify their behaviour so as to reduce the level of risk, I note that s 5J(3) prevents certain modifications as being reasons to find that a person does not have a well-founded fear of persecution. The applicants have a faith that is fundamental to their conscience which requires particular behaviour that makes them identifiable as Muslims. The Act precludes an expectation of modification of such behaviour.
124. I have also considered whether the applicant has a right to enter and reside in a third country. There being no evidence before me to suggest that he does, I find that Australia’s protection obligations remain present.
125. For the reasons given above I am satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
126. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Denis Dragovic
Deputy President

Office of the Australian Information Commissioner, “Department of Immigration and Border Protection: Own motion investigation report”, November 2014 [accessed 3 August 2016]

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2114731 (Refugee) [2023] AATA 2558

Cases Citing This Decision

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Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29

ABT16 v Minister for Home Affairs [2019] FCA 836