2204231 (Refugee) - [2023] AATA 464

2204231 (Refugee) [2023] AATA 464 (19 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nigel James Dobbie
CASE NUMBER:  2204231
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Jane Marquard
DATE:19 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 19 January 2023 at 8:52am
CATCHWORDS
REFUGEE – protection visa – Stateless – receiving country – determination of nationality – provision of fraudulent documents – Rohingya ethnicity – Myanmar – Pakistani passport – born in the United Arab Emirates (UAE) – country of former habitual residence – particular social group – illegal migrants in the UAE – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S v MIMA (2004) 217 CLR 387
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Taiem v MIMA [2001] FCA 611
VSAB v MIMIA [2006] FCA 239
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 dated 11 July 2013 made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 13 September 2012.
BACKGROUND TO THE REVIEW
The applicant is a [age]-year-old man who was living in the United Arab Emirates (UAE) prior to travelling to Australia. He claims that he is stateless.
He claims that his parents are Rohingyas who escaped Myanmar and arrived in UAE as undocumented migrants. He states that he was born in Dubai where he lived until he came to Australia. The applicant claims that his family used false documents to obtain employment in the UAE after his father was detained and tortured in 1992 and that Rohingyas were exploited and abused. He said that they did not have access to health services or education. Although he had a well-paid job, his employer forced him to resign resulting in the cancellation of his work visa. He states that he has no right to return to UAE or to Pakistan or Myanmar. He claims that he would be persecuted in these countries.
He has [number] brothers and [number] sisters. Some have been granted asylum in [Country 1] and some are living in the UAE. He is married to an Australian of Rohingya background.
The applicant first arrived in Australia [in] June 2012 on a Tourist (UR 676) visa, travelling on a Pakistani passport, which he claims was fraudulent, also emphasising that he has never been to Pakistan. Three months after arrival in Australia, in September 2012, he applied for a protection visa. In his application he claimed that he was persecuted in the UAE, and if he returns there he would be removed to Pakistan where he would be tortured and sent on to Myanmar.
The application was refused by the Department of Home Affairs (the Department) on 11 July 2013, and the applicant applied for merits review before the Refugee Review Tribunal (RRT). The RRT affirmed the decision on 7 November 2014. The applicant then applied for judicial review. The matter was then remitted to the Tribunal by Federal Court order dated [in] March 2020. The court was not satisfied that the RRT considered what would happen to the applicant if he returned to Pakistan, and in particular what he would do if faced with extortion.
THE UAE – CURRENT STATUS
In 1971 UAE became a federation of six emirates – Abu Dhabi, Dubai, Sharjah, Ajman, Umm Al-Quwain and Fujairah, while the seventh emirate, Ras Al Khaimah, joined the federation in 1972. The capital city is Abu Dhabi, located in the largest and wealthiest of the seven emirates. Since its federation in 1971, the UAE has developed rapidly and is now noted for its modern infrastructure, international events and status as a trade and transport hub. The President of the UAE is His Highness (HH) Sheikh Mohamed bin Zayed Al Nahyan. The Ruler of Dubai, HH Sheikh Mohammed bin Rashid Al Maktoum, is the Vice-President, Prime Minister and Defence Minister. The UAE’s federal structure includes a Supreme Council (comprising the Rulers of each emirate), a Council of Ministers and Federal National Council. Each emirate is governed by its own Ruler, with its own local government, courts and police forces.[1] About 90 percent of the population is made up of foreign workers, mostly low wage and semi-skilled from Asia, elsewhere in the Middle East and Africa. Labour migration is governed by a private sponsorship system known as kafala. Political and other restrictions are placed on foreigners, there are breaches of human rights for workers, and there has been suppression of dissent.[2]
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Brief UAE’
[2] Carnegie Endowment for International Peace, < The UAE’s Kafala System: Harmless or Human Trafficking? - Dubai’s Role in Facilitating Corruption and Global Illicit Financial Flows - Carnegie Endowment for International Peace>, 7 July 2020
DECISIONS OF DEPARTMENT OF HOME AFFAIRS AND RRT
The Department found that the applicant was a citizen of Pakistan and was not stateless as claimed. The Department was not satisfied that he had a well-founded fear of persecution or met the complementary protection criteria.
The RRT also found that the applicant was a citizen of Pakistan.
EVIDENCE CONSIDERED IN THIS REVIEW
The applicant appeared before this Tribunal on 19 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the applicant’s wife, brothers, sister and father-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. The applicant was represented in relation to the review and his representative, Nigel Dobbie, was present at the hearing.
In addition to oral evidence taken at the Tribunal hearing, the Tribunal has considered evidence before the Department, written submissions to this Tribunal and independent sources about Pakistan and Myanmar, including the following:
·Protection visa application form dated 13 September 2012 (Application)
·Statutory Declaration of applicant dated 13 September 2012 (Statutory Declaration September 2012)
·Photocopies of pages of applicant’s passport
·Translated copy of parents’ marriage certificate issued in Burma [in] 1971
·Translated copy of family entry document dated [in] 1971 issued in Myanmar
·Certified and translated copy of father’s temporary visa card issued by the UAE in 1973 (stating that the applicant’s father is from Myanmar)
·Translated copy of applicant’s birth certificate issued in UAE on [date]
·Letter from the Burmese Rohingya Community, UAE, dated [in] August 2013 verifying that the applicant was of Rohingya origin and was from Maungdaw
·Letter from the Burmese Rohingya Community in Australia dated [in] July 2012
·Letter from [Mr A] dated 4 August 2012
·Statutory Declaration of [Mr B] dated 3 September 2012
·Statutory Declaration of [Mr A] dated 3 September 2012
·Bank Statement in applicant’s name dated 3 September 2012
·Board of Secondary Education, Karachi, 2000 statement for the applicant (claimed by the applicant to be fraudulent)
·Board of Secondary Education, Karachi, 2000, Secondary School Certificate Examination for the applicant (claimed to be fraudulent)
·Employment documents [Company 1], 2010
·Police Report dated [in] 2013 Pakistan, reporting loss of passport
·Identity Resolution Centre fingerprints documents, September to December 2012
·Confirmation of Pakistani Citizenship from the High Commission of Pakistan dated [in] 2013
·Natural justice letter from the Department to the applicant dated 28 February 2013 (Department natural justice letter February 2013)
·Natural justice letter from the Department to the applicant dated 6 March 2013 (Department natural justice letter March 2013)
·Response by applicant to natural justice letter, 6 March 2013
·Department decision to refuse protection visa application, 11 July 2013
·Transcript of RRT hearing
·Response to section 424A letter sent to the applicant on 15 May 2014, dated 29 May 2014
·Submissions of applicant’s representative dated 10 October 2014
·Decision of RRT dated 6 November 2014
·Federal Circuit Court Orders dated [in] March 2017
·Federal Court Order dated [in] March 2020
·Country information provided by the applicant about the prevalence of fraudulent Pakistani passports
·Witness Statement of [Mr C] dated 12 October 2022
·Witness Statement of [Ms D] dated 12 October 2022
·Witness Statement of [Mr E] dated 13 October 2022
·Witness Statement of [Ms F] dated 10 October 2022
·Witness Statement of [Mr G] dated 10 October 2022
·Decision of Stedman J, [Country 1] [Tribunal], 24 December 2019
·Home Office Asylum Decision, [Mr C], dated 11 March 2022
·Travel document and British residence card for [Ms D]
·Passport – [Mr G]
·Passport – [Ms F]
·Letter from Burmese Community Association, [in] September 2022
·Express post receipt with request to confirm ‘not Pakistani’
·Scanned copy of the applicant’s Pakistani passport
·Scanned copy of the Pakistani passport of the applicant’s father
·Articles provided by the applicant relating to the ease of obtaining fraudulent Pakistani passports and identification documents.
The evidence and material before the Tribunal is referred to where relevant in the findings. Not all the evidence is referred to in the findings, as they incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[3]
[3] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271
RELEVANT LAW AND GUIDELINES
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). 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).
An applicant for a 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. The relevant law is discussed in more detail in the ‘Findings’.
The law in relation to country of nationality is central to the issues in this case and is discussed in detail in the ‘Findings’ paragraphs below.
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.
KEY ISSUES FOR DETERMINATION
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues in this case are:
·The nationality or country of former habitual residence of the applicant in order to determine from which country the applicant seeks protection.
·Whether there is a real chance of serious harm or a real risk of significant harm in the country of nationality or country of former habitual residence.
FINDINGS
What is the applicant’s country of nationality or receiving country?
Legal principles
The applicant has claimed he is stateless. Article 1A(2)of the Convention states that a refugee is a 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 or her 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.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country, or a country of former habitual residence.
The Tribunal must determine therefore the country ‘of nationality’, or if the applicant does not have a nationality, the country of former habitual residence, in order to ascertain whether they have a well-founded fear of persecution in that country. Nationality is a legal bond or attachment conferred by a State and which constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.[4]
[4] Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 at 23
In international law, nationality has been described, in general terms, as:
… a specific relationship between individual and State conferring mutual rights and duties as distinct from the relationship of the alien to the State of sojourn.[5]
[5] P Weis, ‘Nationality and Statelessness in International Law’ (Hyperion Press, 2^nd edition, 1979), at 31
This principle is confirmed in the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930 (the Hague Convention) which states that it is for each State to determine under its own law who are its nationals (Article 1), and any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State (Article 3). Nationality is to be recognised by other states in so far as it is consistent with international conventions, custom and principles of law generally recognised with regard to nationality.[6] As an international law concept, nationality is generally considered by commentators to consist of two elements: the right of a State to provide diplomatic protection for its nationals[7] and the duty of admission, a duty of the State to allow its nationals to settle and reside in its territory.[8] However, a person may be a national of a country, without having an immediate right of entry and residence in that country.[9]
[6] Convention on Certain Questions Relating to the Conflict of Nationality Law, signed 13 April 1930, 179 LNTS 8 (entered into force 1 July 1937) (Hague Convention) art 1
[7] K Hailbronner, ‘Nationality in public international law and European law’, in R Baubock et al, (eds), Acquisition and Loss of Nationality: Policies and Trends in 15 European States, Vol 1 (Amsterdam University Press, 2006), at 71; Weis, above n 43, at 35
[8] Weis, above n 43, at 49
[9] See for example SZOUY v MIAC [2011] FMCA 347 at [42]–[44]
In Australia, the Federal Court has described the concept of ‘nationality’ as it relates to protection visas as:
… a term somewhat lacking in precision. It is generally used to signify the legal connection between an individual and a State. The primary relevance of nationality under international law is to provide a basis upon which a State can exercise jurisdiction over persons. However, the term is employed in different ways in international law, and domestic law.[10]
[10] VSAB v MIMIA [2006] FCA 239 at [48]
An assessment of nationality is made by reference to the nationality laws of the relevant State as these laws are generally determinative of nationality, as demonstrated by the approach of the International Court of Justice in the Nottebohm case.[11]
[11] Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4 at 20–21
In making a positive finding that an applicant holds citizenship of a certain country, the decision‑maker will need to consider whether the applicant meets the criteria for citizenship under the law and how the citizenship was acquired.[12]
What is the applicant’s nationality?
[12] BNZ18 v MICMSMA [2020] FCCA 1614 at [66]
The credibility of the applicant’s claims that he is not a Pakistani citizen
Whether a person has a particular nationality is a question of fact for the decision-maker, based on the law of the country and the claims made. The Tribunal has considered the credibility of the applicant’s assertions and evidence about his nationality, having regard to the individual circumstances of the case and the evidence before the Tribunal.[13] Asylum cases present particular complexities in regard to fact-finding as applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
… refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[13] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]
These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family.
For these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[14] Research in Canada found that refugee decision‑makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[15] An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[16] An Australian study found that Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[17]
[14] Fox v Percy (2003) 214 CLR 118
[15] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511 < Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, < Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[18] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and that there may be factors that consciously or otherwise influence decisions.[19] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[20] in regard to the process of credibility assessment. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court 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. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[18] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website,< H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[20] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims[21]. A similar approach is taken in the Department’s Refugee Law Guidelines[22] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’)[23], which provides useful guidance for this Tribunal.
Is the applicant’s evidence about his Rohingyan ethnicity tainted by the fact that he was prepared to provide fraudulent documents to the Department?
[21] SZLVZ v MIAC [2008] FCA 1816 at [25].
[22] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[23] UNHCR, re-issued February 2019 at 203-204
The applicant provided a copy of his family list and parents’ marriage certificate from Burma to the Department. The certificate stated that his parents were married in 1971 in [Village 1], Myanmar. The family entry document listed his parents as being from Maungdaw City. A copy of his own birth certificate was also provided. At the Departmental interview the applicant was asked why he had a birth certificate showing his parents as Pakistani if he said he was born in the UAE. He responded that this birth certificate was fraudulent.
The delegate also had a number of concerns about the authenticity of the family entry document and his parents’ marriage certificate, as reflected in the following extract from the Department interview referred to in the Department decision dated 11 July 2013:
Q: The next document you presented to me appears to be a family entry document which appears to be issued [in] 1971. The place of issue is in Burma. I would like to make some comments about this which you claim is in an original document. It appears to be a very poor quality photocopy with no security features. It appears to me that the photocopy is clearly a photocopy of another document because I can see the lines of the original document are out of step of the current document, so it is slightly askew. It has been filled in by pen and with some rubber stamps on it. My first impression is that it doesn’t appear to be a genuine document as it is a photocopy of several generations. I once again can put little evidentiary weight on this document. The third document is an extract from a marriage certificate. Once again it spears to be showing the marriage of your father and your mother. It appears that marriage took place according to this document in Myanmar. There appears not to be any security features on this large document.
A: This is not issued by the government. It is issued by the religious leader
D: It was issued [in] 1971. Although the document appears to be aged, I have some concerns that the printing method appears to be a colour photocopy.
A: I don’t know but I got that document from my father
D: If it is an original document I would put to you that that printing arrangement was not available in1971
A: I am sorry I don’t know but I got this document from my father
D: I would like to have these documents examined, do you agree? Okay. Once again, there are no security features on the marriage certificate either so I have no concerns. Do you believe they are original documents?
A: Yes, I got them from my father
On 12 August 2013 the applicant’s representative submitted that the applicant said that according to Rohingya culture, the wedding ceremony is conducted by a religious clerk and is witnessed. The applicant submitted that his father provided him with this document, and as far as he was aware, it was a genuine record.
The original Extract from the Certificate of Marriage was forensically examined by the Department and found to be a counterfeit Myanmar (Burma) Extract from a Certificate of Marriage.[24] The RRT put this information to the applicant for comment or response (as referred to in the RRT decision):
The Department of Immigration and Citizenship Document Examination Unit provided a report in relation to the Burmese marriage certificate which you submitted in support of your claims. It concluded that it exhibits simulations of security characteristics expected in secure documents and has not been printed in a manner expected for documents of this age as it was printed with a colour laser fusion process. It found that there were no security characteristics introduced during the document issuing process and that the personal data was introduced onto a counterfeit document. It concluded that it was a counterfeit Myanmar (Burma) Extract from a Certificate of Marriage.
[24] Natural justice letter dated 6 March 2013 sent by Department to the applicant
The applicant responded as follows:
Before I left Dubai I asked my father for all the documents that he could provide that could help prove that I am a Rohingya.
As far as I was aware there was no existing marriage certificate for my parents from Burma. The marriage was witnessed only. Rohingya cannot register a marriage as we are not recognised as citizens in Burma.
My parents needed a marriage certificate in Dubai particularly after my father was briefly detained in 1992. From what I was aware of, his sponsor had a bad intention to make trouble and exploit my father and my family.
The country had also became more developed and stricter about registration of foreigners at least on the surface and any lack of documents was seen as a way for officials to extract money from foreigners. Being a Muslim country it was also important that couples living together had some recognition of their marriage.
My mother used to be at home for most of the time before these times, as is typical, but after my father was detained, it was important for our family to be seen as more legitimate, or at least have some documents that served the purpose. Even though at the time my father had a passport, my mother did not.
So they got the marriage certificate made in Dubai I think during the 1990s. I don’t know exactly when they obtained this certificate.
It is therefore a counterfeit document in the strictest sense, but it is a true representation that they are married and when and where they were married. As I mentioned in my interview, my father provided me with this document. It is not my intention to provide false documents to the Department, and I have been honest in advising the department about which documents are genuine and which are not.
The existence of the document is a result of the circumstances of Rohingya people in Burma, and the historical conditions for foreigners in the UAE.
At the Tribunal hearing, the applicant was asked how the Tribunal could be certain that any of the documents or information provided was genuine, considering he had provided fraudulent documents to support his case. The Tribunal asked him to comment on the follow paragraph from the RRT decision:
The Tribunal did not find this explanation to be satisfactory or persuasive. The Tribunal considers it reflects very poorly on the applicant’s credibility that he has provided a counterfeit document. Contrary to the applicant’s assertions the Tribunal does not accept that such a counterfeit document is true representation that his parents are married and when and where they married. Contrary to the applicant’s assertions the Tribunal does not accept that the applicant has been honest in advising the Department or Tribunal which documents are genuine and which are not. The applicant continued to claim that the marriage certificate was a genuine one until presented with the evidence of the Document Examination Unit that it was counterfeit. Furthermore, the Tribunal does not find it persuasive that the applicant’s parents would have obtained a fake Myanmar marriage certificate to support their stay in the UAE.
The applicant submitted to the Tribunal that his parents’ main objective was to survive, and they obtained fraudulent documents to ‘save their lives’. He said that at the time of application, he was honest with the Department that he had paid for a secondary school certificate in order to find employment. He said that he had genuinely asked his father for the documents and his father provided the documents. Later his father told him that he was in gaol in 1992 and had to get documents to work and survive in the UAE and so arranged for a fake marriage certificate. He said that his father had to do many things to survive. He said that he said that he did not know at the time that he provided it to the Department that the documents were fraudulent as his father provided them to him to show that he was Rohingya.
The Tribunal has found the applicant to be a generally credible witness overall for reasons discussed later in the decision. While the provision of fraudulent documents can be seen to reflect poorly on an applicant’s overall credibility, the Tribunal is satisfied that he provided the documents initially believing them to be genuine and to demonstrate that he was Rohingya, and that in fact his father obtained these documents fraudulently as he felt it necessary in order to be able to access services in the UAE. The Tribunal is satisfied therefore that the provision of these documents does not taint the applicant’s overall credibility.
Is the applicant of Rohingya ethnicity?
The next question for the Tribunal, which will assist in determination of his nationality, is whether the applicant is of Rohingya ethnicity as claimed.
Notwithstanding the provision of fraudulent documents, the Tribunal is satisfied that the applicant is a Rohingya and that his family originates in Myanmar, taking into consideration all the factors set out below.
Firstly, his evidence about his family’s origins has been consistent in the various recollections of it, and also contained the kind of detail commensurate with actual experience. While stating consistently that he was born in the suburb of [District 1] in Dubai, he has claimed that his family left Myanmar in 1972 for Bangladesh, from where they travelled to the UAE. He has said that his parents have told him how hard life was in Burma and that they went overland and by boats to Bangladesh, stopping in many places and being very frightened. He said that he has been told that the journey took about three months. He heard also that his grandfather died on the journey but his grandmother accompanied his parents to the UAE. The applicant had knowledge of cousins, uncles and aunts they left behind in Myanmar, although some of these relatives later fled to refugee camps in Bangladesh. This kind of consistency and detail is often commensurate with lived experience.
Secondly, the Tribunal accepts his claims in his application that his parents were born in Maungdaw Township, Arakan State, Myanmar, as their experiences as related to this Tribunal accord with the experience of many Rohingyan living in Burma at the time, and his evidence was corroborated by his siblings at the Tribunal hearing. There is significant independent evidence that Rohingya people were persecuted at the time in Myanmar, and it is therefore feasible as claimed in his application that his father was abducted twice by the military for forced labour and was beaten harshly and that men were randomly killed in his village. The Department of Foreign Affairs and Trade reports that, according to Human Rights Watch, large-scale violent attacks against the Rohingya have occurred repeatedly since Myanmar’s independence, and Rohingya have migrated across the region in large numbers to escape violence.[25] The Tribunal accepts that the applicant’s family decided to flee and in July 1972 they crossed the border into Bangladesh. The Tribunal accepts that after crossing the border, they took shelter in a slum area with other Rohingya families, and then moved to the UAE with the help of smugglers, reaching the UAE in 1972. This history has been confirmed by the applicant’s elder brother who said he had spoken to relatives in Myanmar. This brother also witnessed his parents regularly talking with his extended relatives in Rakhine State. He confirmed that when living in the UAE, they were part of the Rohingya community. His sister also corroborated these details.
[25] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 18 April 2019
Thirdly, the applicant’s evidence about the family’s origins generally is supported by other family members. His [brother] confirmed that he was born in [year] in [location], Maungdaw, Rakhine State, Myanmar, and left when he was around [age] year old with his parents. He said that their family had ‘fled from Myanmar during the Nagamin operation in Maungdaw around 1979 to 1980’. In a Statutory Declaration dated 12 October 2022 provided to this Tribunal, his brother confirmed that he was born in Sharja, UAE, but his parents were originally from Maugdaw, Myanmar. He said that both were born in [location], Maungdaw. He said that he had spoken to relatives over the telephone in Myanmar. He also witnessed his parents regularly talk with his extended relatives in Rakhine State. In a Witness Statement dated 12 October 2022 provided to the Tribunal, the applicant’s sister [Ms D] said that her parents told her that they had fled from Myanmar due to persecution. The applicant’s father-in-law said that he knows that the applicant’s parents are from Maungdaw and their villages were not that far from each other. He said that the applicant had told him that his parents had left Burma after 1970 for Bangladesh then went to a foreign country.
Fourthly, the applicant speaks Rohingya and used the services of a Rohingya interpreter at the Tribunal. A language expert used by [Country 1] [Tribunal] found that his brother spoke Rohingya fluently, concluding he was a genuine Rohingyan. He is married to a Rohingya woman who was born in Yangon, Myanmar, and they live in [Suburb 1], Sydney, where many Rohingya live. The applicant’s wife said in a Witness Statement dated 10 October 2022 that she is a Rohingya born in Yangon, Myanmar. She and her two children are now Australian citizens. Her parents were from Myanmar and her paternal grandparents were from Maungdaw, Rakhine State. Her mother was born in Sittwe and moved to Yangon about 40 years ago. Her mother sponsored her and her father and siblings to join them in Australia after she was granted refugee status. She gave evidence that she met the applicant through the small Rohingya community in [Suburb 1] and he told her a bit about his circumstances, including their Rohingya background. She told the Tribunal that she used to speak primarily Burmese but since marriage she has spoken more Rohingya encouraged by her husband and she speaks only Rohingya to her parents and to his parents on the telephone. They are speaking to the children in Rohingya as well. They partake in Rohingya events and gatherings in Sydney, for example, the Eid and Ramadan festivals and fasting as well (iftah). The applicant’s father-in-law said that the applicant is ‘100% Rohingya’. He said that they ‘only accept Rohingyans as family members’. He said that in the Rohingya community they ‘do not marry off daughters to other nationalities due to the difficulty of cultural difference and language’.
Fifthly, the applicant has been involved with Rohingya groups. His wife told the Tribunal at hearing that before she met him he was [specified position] of the Burmese Rohingya Community in Australia. Her [brother-in-law] is the current [specified office bearer]. She said the committee manages sports, activities, meetings and gatherings. The applicant’s father-in-law, who said he is a Rohingya community elder, in a Witness Statement dated 7 October 2022 confirmed that he met the applicant in the Burmese Rohingya community in 2012 at a community gathering, and that the applicant was [specified position]. He said that his son-in-law is now [an office bearer] of the Burmese Rohingya Community.
Sixthly, the applicant has provided supporting documentation verifying his Rohingya ethnicity. With his application he provided a certified copy of his father’s temporary visa card issued by the UAE in 1973 stating that his father was from Myanmar. He also provided a letter dated September 2022 vouching for his Rohingya ethnicity from [Mr H], [office bearer] of the Burmese Rohingya Community in Australia. [Mr H] confirmed that the applicant was of Rohingya origin and his father came from Maungdaw Township in Arakan State. He also provided a Statutory Declaration from a number of relatives who reside in Australia verifying that the applicant is a family member and is a Rohingya by birth. One of these relatives in a Statutory Declaration dated 3 September 2012 stated that he was born in Maungdaw and was granted a refugee visa in 2005 by the Department. He said that the applicant is his cousin on his mother’s side as his grandfather and the applicant’s grandmother are siblings. Another relative in a Statutory Declaration dated 8 September 2012 said that he was granted a refugee visa in 2006. He said that the applicant’s aunt’s husband is his brother. His brother resides in Burma. The applicant also provided a letter from the Burmese Rohingya Community, UAE, dated [August] 2013 verifying that the applicant was of Rohingyan origin and was from Maungdaw. As noted in the RRT Decision, ‘the website of the BRCA lists the applicant as [specified position] in [year]–[year]’.

Considering all these factors cumulatively, the Tribunal is satisfied that the applicant is of Rohingya origin and that his parents left Burma for the UAE before he was born.
Is the applicant a national of Myanmar?
The Tribunal accepts that the applicant’s family, like other Rohingya people, have always been stateless in their home country, Myanmar. According to numerous sources, the government of Myanmar does not generally recognise people of Rohingya ethnicity as citizens.
According to the Department of Foreign Affairs and Trade (DFAT), until the effective implementation of the 1982 citizenship law, Rohingya typically held formal identity cards known as National Registration Cards (NRCs). In 1982, the Citizenship Act made membership of a national race the standard for obtaining citizenship, but the list of races did not include Rohingya.[26] In 1989, authorities introduced full, naturalised or associate citizenship scrutiny cards (CSCs). Everyone could apply for citizenship, which would be granted after a scrutinising process. Officials refused to register Rohingya entitled to the new cards and confiscated the old ones, effectively leaving Rohingya stateless.[27] In 1995, the government began to issue ‘white cards’ to people who had formally held NRCs, conferring lawful status, but not citizenship or passports. From June 2015, new turquoise cards were issued, but only around 1,000 people were issued with them. In June 2016, the government restarted the process to determine who was a citizen under the 1982 law, but applications for the ICNV remained low, and as a result the majority of Rohingya remain undocumented.[28] While under the 1982 Citizenship Law, many Rohingya are formally eligible to apply for associate or naturalised citizenship, in practice government officials have sometimes been unwilling to provide citizenship to them. Many Rohingya also reject the categories as they implicitly deny the existence of Rohingya in Myanmar.[29] As a result, the majority of Rohingya remain undocumented, and effectively stateless and not recognised as citizens of Myanmar.[30] International Crisis Group has reported that since the operations by Myanmar’s military in Rakhine State, Myanmar and Bangladesh have agreed upon a procedural framework for voluntary repatriation, but no Rohingya have returned, and small numbers continue to flee.[31] The report also confirms that the Myanmar Government recognises eight ethnic groups and 135 races, but not the Rohingya. As it currently stands, according to the report, the majority of the Rohingya are undocumented, and in effect, stateless.[32] There have also been egregious human rights abuses against the Rohingya people with many migrating due to violence from security forces, including torture, mass rapes and other brutalities.[33] While there are some categories of Rohingya could perceivably be granted citizenship, for example for those who can demonstrate residence of parents before 1948, the information is clear that it is difficult for Rohingya and there is little evidence of such citizenship being granted.[34] Further, in the applicant’s case, he has not resided in Myanmar at all and there is no documentation he can utilise.
[26] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 10 January 2017
[27] T Gibson et al (eds), ‘Rohingyas – Insecurity and Citizenship in Myanmar’, 1 August 2016
[28] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 10 January 2017
[29] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 10 January 2017
[30] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 10 January 2017
[31] International Crisis Group, ‘The long haul ahead for Myanmar’s Rohingya Refugee Crisis’, Asia Report No 296, 16 May 2018, < International Crisis Group, ‘The long haul ahead for Myanmar’s Rohingya Refugee Crisis’, Asia Report No 296, 16 May 2018,< See for example Human Rights Watch, World Report 2021: Myanmar, < Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 10 January 2017
The Tribunal is not satisfied on the basis of the information set out above that the applicant is a national of Myanmar, in that the State has not conferred ‘attachment’, such as a right of admission or citizenship for Rohingya people.
Is the applicant a national of Pakistan?
The Tribunal is satisfied that the applicant is not a national of Pakistan notwithstanding three aspects of the evidence which pointed towards him being a citizen of Pakistan – the fact that he has a Pakistani passport and was verified by the embassy as a citizen, his well-paid job in the UAE and his extensive travel. These factors are discussed below. After considering all the evidence including consistent evidence that he has never been to Pakistan, evidence of his siblings which has been accepted in UK asylum cases, and country sources about the status of Rohingyas, the Tribunal has concluded that the applicant is not a citizen of Pakistan.
According to the United Nations High Commissioner for Refugees (UNHCR), ‘possession of ... a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise’.[35] There may be circumstances where a person may hold a passport of a particular country, yet not be a national of that country.[36]
[35] UNHCR, < Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating... (unhcr.org)>, January 1992
[36] For example, it may be a so-called ‘passport of convenience’ (an apparently regular national passport that is sometimes issued by a national authority to non-nationals): UNHCR, Handbook, above at [93]; or where the passport was obtained fraudulently, which was the claim in issue in NBKE v MIAC [2007] FCA 126.
The applicant travelled to Australia on a Pakistani passport, which is prima facie evidence that he is a Pakistani national. Photocopies of pages of the passport on the Department file show that the passport was issued in the applicant’s name [in] 2008 expiring [in] 2013. His place of birth was listed as Dubai. It was noted that he had a previous passport. Prior to the Tribunal hearing, he said that he had lost the passport. He told the Tribunal that he had recently found the passport when moving house. A scanned copy of the passport was provided to the Tribunal. There were no stamps provided for entry or exit to Pakistan. Also provided to the Tribunal was a scanned copy of the applicant’s father’s Pakistani passport, which also did not show any stamps of entry or exit into Pakistan.
The High Commission for Pakistan in Australia confirmed to the Department [in] 2012 that the applicant is a Pakistani citizen and that his passport appears to be genuine.
The RRT stated in its decision that it made further enquiries with the Pakistan High Commission in Canberra and the Australian Embassy in Islamabad. On 6 May 2014 the Department of Immigration, following consultation with the Pakistan High Commission, made the following comments:
The Pakistan High Commission confirmed (the applicant) as Pakistani Citizen through checking the National Database and Registration Authority (NADRA) records. NADRA is a lead agency within the Ministry of Interior, Government of Pakistan (GoP) that primarily manages and maintains the registration records of all Pakistani Citizens The High Commission gleaned (the applicant’s) Citizenship number (xxx)-from his Pakistani passport (number) and entered this number on the online live NADRA database. NADRA records confirmed that (the applicant) holds the Citizenship number (xxx). According to the High Commission, the citizenship number for (the applicant) is the fundamental evidence of his Pakistani nationality on the basis of which he has obtained a Pakistani Computerised National Identity Card (CNIC) and a Pakistani Passport.The High Commission did not provide information about (the applicant’s) residence in Pakistan or details concerning his acquisition of Pakistani citizenship.
The RRT also reported in its decision that it received a response from the Australian Embassy in Islamabad [in] September 2014 as follows:
As listed on his passport, (the applicant’s) CNIC number is (xxx). Post used the National Database and Registration Authority’s (NADRA) text-message verification service (known as ‘verisys’) to verify (the applicant’s) Pakistani citizenship. Post sent [the] CNIC number electronically to NADRA. Post received a text-message response from NADRA, confirming that the CNIC in question belonged to (the applicant)’. Our additional written and verbal requests for information to NADRA in this regard have not been responded to.
The applicant submitted to the RRT on 5 May 2014 that: ‘I would question if the Pakistan embassy carried out any other checking other than looking at my passport. For example, birth records, residence records, education records, medical records, citizenship records. Normally I would expect that such checking would take several months, however the speed of response from the Pakistan embassy in Canberra suggests that all they did was look at the passport. I suspect that even if they failed to uncover any other records of my existence as a Pakistan national, they would not admit anything other than that I was a Pakistan national based on the passport alone. I have never been to Pakistan and am not a Pakistani citizen. I have provided reasons for the existence of this passport in my application.’
The information in the embassy’s response was also put to the applicant at the second Tribunal hearing. In response, he reiterated his previous explanation that his National Identification Card and passport were obtained fraudulently, and the Pakistani authorities ‘will not admit to it’. He stated that he obtained the identification card in order to get the passport. He was asked by the Tribunal why he believed the embassy would confirm that he is a Pakistani citizen when he is not. He said that he does not accept that the embassy used proper investigation methods, and that the embassy was ‘relying on bad documents’. He said that they did not consider any other details to confirm who he is. He also told the Tribunal that he went to the Pakistani Embassy in Australia to ask them to certify that he was not a Pakistani and that he is a Rohingya. He showed the Tribunal a docket from the Pakistani Embassy confirming that he had asked them to certify that he was not a Pakistani citizen. He confirmed that they did not provide a response to him.
It was also put to the applicant at the Tribunal hearing that a fingerprint analysis performed by a fingerprint expert dated [September] 2012 matched the fingerprints taken in UAE and NSW and that the facial image analysis conducted [in] September 2012 on photographs of him and the person in his passport indicated that there were similarities between them. He responded that these were based on his passport application which used genuine fingerprints and photographs.
On 10 October 2014 the applicant provided a letter from the Deputy Superintendent of Police Security, Special Branch, in Karachi regarding a different matter, stating that a National Identity Card (NIC) number regarding nationality was not sufficient documentary evidence to confirm that a person has Pakistani citizenship. Asked by the Tribunal where he obtained this letter, he said that his father knew someone who was in a similar situation and they provided the letter to demonstrate that an NIC number is not a sufficient basis for proving nationality, and in the case of the person referred to in the letter, he was deported from Pakistan even though he had an NIC number. The Tribunal has not given this letter weight as it is difficult to see how it applies to the applicant.
However, the Tribunal accepts that the checks on the applicant’s citizenship by the Pakistani Embassy may well have been based on his identification card and passport as checked with NADRA, without other more detailed investigations to verify his citizenship. The embassy and High Commission did not provide details of investigations undertaken other than with NADRA: The Department stated that requests from NADRA were not responded to, and ‘the High Commission did not provide information about (the applicant’s) residence in Pakistan or details concerning his acquisition of Pakistani citizenship’. Thus, it is possible that verification of his citizenship was based on the initial fraudulent documentation, and does not comprise independent verification that he is a citizen of Pakistan.
Another factor which suggested to the Tribunal that the applicant might be a citizen of Pakistan was that the applicant had a high-paying job in the UAE with [Company 1], which allowed significant travel between 2008 and 2012. This kind of well-paid job does appear unusual for a Rohingya in a foreign country, (with reference to country sources).[37] However, it is not inconceivable. The Tribunal accepts the applicant’s submissions to the RRT that he paid an agent four months’ salary in order to get the job and that he used fake qualifications as part of his application. His evidence was persuasive that he felt ‘like it was an act of God’ for someone in his position’ to get such a ‘fantastically paid’ job. He also explained that he had grown up in Dubai, so he understood how the system worked and also spoke a number of languages, which assisted him. The Tribunal accepts that it is feasible that a person believed to be a Pakistani citizen may have attained such a job in these circumstances. He also said in his interview with the Department that his brother worked for [an airline] and got cheap flights, so this was how he was able to travel extensively. He told the Tribunal that he wanted to travel to many places to ‘find his identity’. He said that it was his ‘hobby to travel’. While an unusual situation for a Rohingya person living abroad, it is not an entirely unreasonable proposition.
[37] See for example Human Rights Watch, < 12 September 2017
The Tribunal did have some concerns as to how the applicant was able to travel extensively on his fraudulent passport as this did again suggest it may have been an authentic passport as it could be expected that it would have been picked up at an immigration point at some time. He travelled to [Country 2] (August 2008 for 5 days), [Country 3] (November 2008 for 18 days), [Country 4] (June 2009 for 10 days), [Country 5] (November 2009 for 5 days), [Country 6] (January 2010 for 7 days) and [Country 7] (February 2010 for 5 days).[38] From November 2010 to September 2011 he travelled to [Country 8], [Country 9], [Country 10], [Country 11] and [Country 2].[39] [In] February 2012 he arrived onshore in Australia on a tourist visa, and he departed [in] February 2012. From February to March 2012, he travelled to [Country 1]. In May 2012 he travelled to [Country 12].
[38] Protection visa application
[39] Protection visa application
He told the Tribunal that both his brothers were able to travel on fraudulent passports as well, and immigration officials looked primarily at his Dubai visa rather than whether the passport was authentic. He said that they did not ask many questions about the passport. The Tribunal accepts this as a reasonable explanation, in light of country sources about document fraud (referred to later in these findings).
The Department also had concerns about the applicant’s evidence that he said he had lost his job in 2012 as ‘the Sharjah branch office was permanently closed by the [Company 1] management around April-2012’ and found this undermined his credibility. He claimed that he and other employees were forced to resign and would not get further work permits, however this evidence was inconsistent with a reference provided from his employer. The Tribunal does not share the same concerns that the Department had about this evidence. His explanation that there were different levels of management, and he persuaded the HR division to provide a reference for him, is a reasonable one.
The Tribunal is persuaded that the applicant is not a citizen of Pakistan for a number of reasons. The first reason for this finding is the law of Pakistan and the attitude of the Pakistani Government to Rohingyas. The second is the independent information about obtainability of fraudulent Pakistani passports. The third is that there is no evidence before the Tribunal that the applicant has ever been to Pakistan. Fourthly, the applicant’s explanations about his family background and the issue of passports appear reasonable. Fifthly, his explanation of the treatment of Rohingyas, as foreign workers, in the UAE, to some degree accords with country sources. Sixthly, he told his wife in Australia about the issue of the fake passport. Seventhly, family members have been granted refugee visas in [Country 1] based on their Rohingya stateless status. Finally, he had attempted to get the Pakistani Embassy in Australia to investigate his status. These issues are discussed in more detail below.
The applicant submitted to the Department on 12 March 2013 that as far as he was aware, in accordance with the Pakistan Citizenship Act 1952, the Pakistani Government had never granted citizenship to Rohingya Muslims resident in Pakistan or abroad. This does appear to be the case. Independent country information indicates that the Rohingya have not been able to access Pakistani citizenship.[40] The Pakistan Citizenship Act 1951 is the key legislation covering Pakistan citizenship and is in current use, amended a few times since 1970.[41] The Act automatically granted citizenship to everyone who was born in the subcontinent but was living in Pakistan at the time the law was enacted. Burma was separated from the subcontinent under the Government of India Act 1935, therefore Rohingya Muslims were ineligible from becoming Pakistani citizens under that provision.[42]
[40] Human Rights Watch,< 12 September 2017; The Express Tribune, ‘Invisible Pakistanis: Neither here nor there’,
[41] Pakistan Citizenship Act 1951 <THE (refworld.org)>
[42] The Herald, ‘The woes of Bengalis, Burmese and Iranians of Karachi’, 14 September 2017
In the 1970s, General Muhammad Zia-ul-Haq, then President of Pakistan, offered Rohingya residents permits in Pakistan, though not full citizenship.[43] Historically, small numbers of individual Rohingya have been able to obtain citizenship at various times, with reports suggesting this may have been tied to links with local political outfits.[44] The majority of Rohingyas appear no longer able to legally access National Identity Cards.[45]
[43] The National (Abu Dhabi), ‘Rohingya Muslims who fled Burma decades ago did not escape persecution’, 30 October 2012; Dawn, ‘Karachi's Rohingyas strive for success instead of identity’, 25 August 2019
[44] Ahmed Yusuf, ’The Rohingya of Pakistan’, 17 September 2017
[45] Deutsche Welle, ‘Rohingya in Pakistan living in 'abysmal' conditions, 25 September 2017.
A 2006 information report by the Pakistan Government states that citizens of non‑Commonwealth countries are able to acquire Pakistani citizenship upon application, after they have resided in Pakistan for a period of 5 years according to the Naturalization Act 1965 – that is, ‘12 months continuous stay preceding to the date of application and four years aggregate stay during the 7 years preceding to the said twelve months’.[46] There is no evidence before the Tribunal that the applicant resided in Pakistan for any period such that he could have availed himself of this avenue.
[46] Information Report, Government of Pakistan, 2006

Children born outside of Pakistan to Pakistani national parents are able to acquire Pakistani citizenship upon application.[47] There is no evidence before the Tribunal that the applicant’s parents are Pakistani nationals. The applicant has provided a copy of his father’s passport which does not demonstrate that he has entered and exited Pakistan, at least for the period of the passport, and there is no separate evidence of entry. Further, a Temporary Residence Card UAE from 1973 states that his father was of Burmese nationality living in Dubai.
[47] Pakistan's Ministry of Interior website at >
Pakistan is not party to 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).[48] The Foreigners Act 1946 is relevant to asylum seekers, and ‘prescribes up to three years’ imprisonment and a fine for any who enter without valid travel documents’.[49] There does however appear to be a process of naturalisation for refugees. The Express Tribune reported in 2013 that under the Naturalization Act 1926, political asylum-seekers who spend up to 5 years in Pakistan are able to acquire ‘naturalised citizen’ status.[50] There is no evidence before the Tribunal that the applicant lived in Pakistan at all or sought refugee status.
[48] Herald (Pakistan), ‘The woes of Bengalis, Burmese and Iranians of Karachi’, 14 September 2017.
[49] Foreigners Act of 1946
[50] Rahman, F 2013, ‘Invisible Pakistanis: Neither here nor there’, The Express Tribune, 20 August
The categories of naturalisation referred to above, marriage, children or asylum, were confirmed as avenues for citizenship in information provided by the Australian Embassy in Islamabad to the RRT. The Australian Embassy noted that, according to former spokesman of the Interior Minister of Pakistan Omer Hameed Khan, in the case of Burmese migrants, the government are ‘extra-careful and vigilant considering the community's notoriety for crimes’. He said that Rohingya arriving in the 1970s would not have been granted citizenship although the government does not deport Rohingyas.
The Express Tribune reported in 2013 on the situation for many Burmese Muslim migrants, noting that they remain ‘unregistered citizens’ in Pakistan.[51] A CNN article in 2017 reported that Rohingyas were unable to get citizenship in Pakistan and lived in squalid conditions.[52] Rohingya refugees interviewed for the article told the reporters that only those Rohingya who arrived before the civil war of 1971 could get identification cards, which allowed them to access employment, basic health care and education. The CNN article said that it was Pakistani policy that Rohingya refugees do not qualify for Pakistani citizenship. This was confirmed by Human Rights Watch who said that the 55,000 or so Rohingyas in Pakistan could not obtain citizenship or even identification cards.[53] The following report, published in 2017, quotes a Rohingya refugee who has been living in Pakistan for more than four decades:
Ali said it is hard to make a living in Pakistan. "I lived in Rakhine, escaped genocide there and made my way to Pakistan in the early 1970s" Ali said.
"I have been living in Pakistan for more than four decades but I have not been accepted as a Pakistani. For Pakistanis, we are Bengalis and refugees," Ali added.[54]
[51] Rahman, F 2013, ‘Invisible Pakistanis: Neither here nor there’, The Express Tribune, 20 August
< CNN, ‘Pakistan’s Stateless Rohingya’, 11 September 2017 < Pakistan's stateless Rohingya | CNN>
[53] Human Rights Watch, 12 September 2017,< Pakistan Should Back Rohingya Rights Abroad and at Home | Human Rights Watch (hrw.org)>
[54] Deutsche Welle, ‘Rohingya in Pakistan living in 'abysmal' conditions’, 25 September 2017.
A second reason for a finding that the applicant is not a Pakistani citizen is that the applicant’s story about obtaining a fraudulent Pakistani passport is consistent with country information about the issue of these passports. The applicant referred to the active black market in Dubai for fraudulent Pakistani documents and passports. In submissions to the RRT on 5 May 2014 the applicant said:
I have provided evidence to department and Tribunal of the availability of legitimate Pakistan passports through corrupt means.
This evidence was supported by the applicant’s father-in-law in a Witness Statement dated 7 October 2022 who said that when he was in Dubai a few years back, he met hundreds of Rohingyas who had been living under various conditions. He said that some were under fraudulent passports of different nationalities, and some had no documents. Country sources suggest that many Rohingya have obtained illegal Pakistani documents over the years often taking advantage of corrupt officials.[55] Sources suggest that Rohingya people can bribe officials from the relevant government agency (the National Database and Registration Authority – NADRA), with the going rate varying from 5,000 rupees at the lower end of the spectrum to 30,000–50,000 rupees at the upper end for computerised NICs.[56] In information provided by the applicant, an article in Dawn on 9 July 2021 stated that two assistant directors of NADRA and an agent had been arrested for preparing fake Pakistani identity cards. An article in The Hindu in January 201 referred to Pakistan cancelling 200,000 fake citizen ID cards held by Afghan refugees. An older research paper from the Canadian Immigration and Refugee Board of Canada[57] referred to various sources which confirmed that fake passports were widely available in Pakistan. The Sydney Morning Herald is quoted as suggesting that in Islamabad an average of 6 persons a day were arrested on document fraud. The Consul General of the United States noted that 98 percent of applications for American visas were accompanied by false documents. National identity documentation is available through both official and unofficial means in Pakistan, and document fraud is ubiquitous.[58] Corruption is endemic, and fraudulently obtained genuine documents can be obtained with relative ease, including CNICs and passports.[59] Documentation of all kinds is subject to counterfeiting and being obtained by fraudulent means; for example, one report estimated that up to 200,000 Afghan refugees have managed to obtain CNICs without being formally registered with the UNHCR.[60] A May 2018 report by the Danish National ID Centre recorded that ‘it is easy as well as almost risk-free to bribe officials at all levels of the Pakistani administration … according to a diplomatic source, there is, in general, little or no risk associated with acquiring forged documents or genuine documents with false content’ (emphasis added).[61] The most recent DFAT report about Pakistan states:
Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents.
[55] Deutsche Welle, ‘Rohingya in Pakistan living in 'abysmal' conditions, 25 September 2017.
[56] Herald (Pakistan), ‘The woes of Bengalis, Burmese and Iranians of Karachi’, 14 September 2017; Dawn, ‘Rohingyas of Karachi struggle to deal with identity crisis’, 16 September 2017. 50,000 rupees equals around 486 AUD as at 26 September 2019.
[57] Immigration and Refugee Board of Canada, ‘Pakistan: Fraudulent Documents (2008-2010)’, PAK1036060.FE, 24 November 2010
[58] Department of Foreign Affairs and Trade, < DFAT Country Report: Pakistan>,’20 February 2019, p. 71; Immigration and Refugee Board of Canada, ‘Pakistan: Prevalence and availability of fraudulent documents, including affidavits and court documents’,13 January 2020
[59] Department of Foreign Affairs and Trade, < DFAT Country Report: Pakistan>,’20 February 2019, 5.71.
[60] The Express Tribune, <No country for old Afghans ‘Post-1951 immigrants to be considered illegal’> 3 April 2015
[61] Danish National ID Centre, ‘Pakistan: The Pakistani passport and its trustworthiness’, 30 May 2018, p. 4.
Thirdly, the applicant’s evidence is that he has never been to Pakistan and he was ‘pretty sure’ that his parents had not either. This evidence was corroborated by the evidence of other family members, including his elder brother in a Witness Statement dated 12 October 2022, and evidence of two sisters. They also confirmed that their parents had not been to Pakistan. All three have been granted protection visas in [Country 1].
Fourthly, the information provided about the treatment of Rohingyas in UAE to some degree accords with independent information about the treatment of migrant workers. The applicant submitted in his interview with the Department that many Rohingya were deported and the rest built unregistered houses in slum areas of Kharoun, currently known as Al Nahda, where his family lived. His father worked in [a certain industry] and was [abused]. He said that undocumented people were issued with temporary work visa cards with one year validity. [In] October 1973 his father received one of these cards, which expired after a year. He said that his father was caught a couple of time by police for having no identification while working and he had to bribe them. He said in his application that on 5 February 1992 his father was arrested and tortured by his employer for over a week. His family were not allowed to visit him in [the] detention centre. He said that his father was on the verge of being deported. His brothers bribed someone to get his father out.
He submitted that Rohingyas were also subject to racial abuse and police would extort them on the streets. He explained that in mid-1975 his father got a fraudulent passport in Dubai under his name out of fear or being gaoled or tortured. The applicant also claimed that schooling and health services were not available to them unless located privately, and a religious scholar came to their house. He explained that this was at a time when they did not have passports. He said that there were small clinics that did not require a patient to be a citizen. Both the applicant’s father and the applicant were able to work once they had their fraudulent passports. He worked at a [company] for 7 years, as a [Occupation 1] then as a [Occupation 2], and he also [undertook other work tasks]. He said that he would be made to work overtime and he would be paid half wages, or his pay would be delayed. He claimed that he was beaten and threatened with deportation. In April 2002 he was in the industrial area in Ajman looking for work and was subject to a random immigration police check. He claimed that he could not show his papers, and he was gaoled in [location]. He spent two weeks there without trial and was forced to clean. He was physically abused and racially insulted. His father eventually used contacts to get him out. He said that he was scarred by the experience and since then lived in fear. He said that in 2003 his father contacted a broker to get him a fraudulent passport. He then started looking for a job and bribed recruitment agents. He was employed with an [specified] company as a [Occupation 1] with a very low salary. He was often used as a [Occupation 2] and did personal [errands]. He worked under these conditions for 7 years. He was terminated as his employer wanted to give his brother the job, but they told him he was incompetent. In April 2010 he bribed the agent to get a job at [Company 1], under the title ‘[Position 1]’. He worked in this job from April 2010 until June 2012.
This evidence about his family’s experiences in UAE was corroborated by evidence of his siblings. His sister said that they lived in a rental house with other Rohingya people nearby. She said that she never studied or worked as she had no passport at that time. The applicant’s elder brother also said that he and his siblings were not able to go to school as they had no identity documents and were schooled at home. He also confirmed that after they had been in the country for some time, the UAE authorities started to arrest people without passports or visas.
Country sources confirm that undocumented migrants to the UAE often have not had access to services such as health or education and live in difficult conditions[62] as claimed by the applicant. An Amnesty Report in 2021 stated that ‘The estimated 20,000-100,000 stateless people born in the UAE but denied nationality continued to be deprived of equal access to rights covered for Emirati citizens at state expense, such as comprehensive healthcare, housing and higher education, as well as jobs in the public sector. Stateless individuals only became eligible for Covid-19 vaccinations in June – six months after the beginning of the campaign roll-out.’[63]
[62] Washington Post, <Thousands of undocumented children in the UAE go without education and medical care - The Washington Post>, 20 February 2022; Global Detention Project, ‘Immigration Detention in United Arab Emirates’, <5864d5a14.pdf (refworld.org>) January 2016; Human Rights Watch, “The Island of Happiness Revisited: A Progress Report on Institutional Commitments to Address Abuse of Migrant Workers on Abu Dhabi’s Saadiyat Island,” < March 2012
[63] Amnesty International, ‘United Arab Emirates 2021’, < Everything you need to know about human rights in United Arab Emirates - Amnesty International Amnesty International>, 2021
Fifthly, the applicant has provided consistent and reasonable evidence about the circumstances of his family’s arrival in the UAE and the reasons for obtaining fraudulent passports. He told the Tribunal that his parents started their journey by walking from Burma and crossed borders and used a boat, but he could not recall the exact details. He claimed that they did not have passports. At the RRT interview he confirmed that his nine siblings were all born in Dubai, and all were later issued with fraudulent Pakistani passports. He told the Tribunal that in 1973 UAE issued an identification card and within one year, non‑citizens had to get a passport or go to gaol. As a result, after 1975 his father applied for a fraudulent passport. His mother did not have enough money to get a passport at the time. He said that in 2002 he had been looking for work. He was stopped by authorities in an industrial area, asked for identification and arrested. He was gaoled for two weeks. He called his father who arranged his release through ‘Arabic people’. He said that after this he felt traumatised about the detention and stayed home. In 2003 his father paid for him to get a Pakistani passport. He gave the agent his name, father’s name, date of birth and photographs. He said that there were other Rohingya people also paying for passports in the same way. He claimed to have obtained a genuinely issued passport fraudulently through the payment of bribes to the Pakistani Consulate in Dubai. However, his passport states that the issuing authority for the passport is Pakistan. When this discrepancy was put to the applicant for comment by the RRT, he said that:
I don’t know when or if the system changed or how the passports are issued. I could not go directly to the Pakistani consulate, as I am not Pakistani, and living with a passport that is fraudulently obtained it would have been unwise to go the Pakistani consulate in Dubai to apply for the new passport. To get the passport I used the agent to complete the passport renewal. It takes a few weeks. I assumed it was issued by the consulate in Dubai.
The Tribunal accepts this explanation as it is possible the applicant believed the passport was being issued through Dubai, particularly as he saw other Rohingya people also getting these passports through agents. He explained to the Tribunal that he sought the passport as did family members so they could access employment and services. He said that after he got his passport in the UAE, he was able to work. This evidence was corroborated by his elder brother in a Witness Statement dated 12 October 2022, who has now been granted protection in [Country 1], who said that he got his passport for ‘survival purpose’ in the UAE, as without it he could not move around or work, and his children would have remained stateless. The applicant’s brother said that there were many Rohingya in the UAE and other Middle Eastern countries who lived under various false nationalities for the same reasons. Some had Bangladeshi passports and some had Pakistani passports. His brother [Mr E] said at the Tribunal hearing that they left Myanmar to ‘save their lives’ and from Maungdaw they went to Bangladesh and then to India and then to Dubai. He said that they did not go through Pakistan. He said that it took them about three months to arrive in Dubai. He said that neither he nor his parents had been to Pakistan. Another brother gave evidence that when he was 18, he was arrested by police on the road in the UAE for not having a visa. His father organised two local guarantors to get him released and he was given 30 days to obtain a passport and visa. He engaged a broker to organise a Pakistani passport. He said that at the time the UAE had announced that illegal immigrants would be gaoled. He said that the agent told them that Pakistani passports were easy to get by bribing the officials in the embassy of Pakistan. He said that he left the UAE in 2018 for [Country 1] with his family on fraudulent Pakistani passports. The evidence of the family members is consistent and credible.
Sixthly, the applicant has told others about how he obtained a fraudulent passport, which does add some weight to his claims. The applicant’s wife said in a Witness Statement dated 10 October 2022 that her husband had explained to her that he obtained a Pakistani passport fraudulently and has never been to Pakistan.
A seventh reason for the finding that the applicant does not have Pakistani nationality is that other tribunals have considered the issue in relation to three of his siblings and found them to be stateless Rohingyas. These siblings have been granted refugee status in [Country 1] on the basis of being stateless Rohingyas. This was confirmed in a Witness Statement dated 12 October 2022 of his elder brother and a statement dated 12 October 2022 by the applicant’s sister [Ms D]. A copy of the Determination of Asylum Claim dated 11 March 2022 for his elder brother was provided. The applicant’s brother also provided a Witness Statement dated 25 October 2019 in his refugee claim in the [Tribunal] in the United Kingdom. The evidence in this statement was consistent with evidence provided to this Tribunal, including that the brother was born in [year] in Maungdaw, Burma, and that all of his family came from Burma. He also claimed that his paternal aunt and uncle were kidnapped and tortured as at the time Muslim families were being attacked by Buddhists and the military. He said that after this they lived in the UAE and to survive they had to obtain Pakistani passports as they were not given national ID cards by the government of the UAE. He said that he got a passport after getting into trouble when he was [age] years old. He said that in Dubai people without visas are detained. Also provided and of strong persuasive evidence is a copy of the decision of the [Tribunal], Immigration and Asylum Chamber in relation to the applicant’s brother, [Mr E], on 7 January 2020. It was noted in the decision that [Mr E] and his family entered [Country 1] on a valid visit visa using Pakistani passports that were deemed to be genuine by the Entry Clearance Officer. [Mr E] told the court that the passport was obtained through payment to an agent. He told the Tribunal that the stamps in the passport showing entry into Pakistan were fake and neither he nor his wife had ever travelled to Pakistan. He said that the information on the application form had been completed by an agent. The Tribunal found that he was a Rohingya and therefore could not be returned to the UAE.

Finally, as referred to earlier, the applicant provided to the Tribunal a copy of a docket dated [in] 2013 from the Consulate General of Pakistan in Sydney, with the applicant’s name, and next to the heading, ‘doc type’, the words handwritten ‘Certificate claim non Pakistani’. The applicant has explained that he went into the embassy to try to get evidence that he was not a Pakistani citizen. The Tribunal finds it persuasive that he attempted to do this, as it would not have been in his interests to do so if in fact he was actually a citizen.
For all these reasons considered cumulatively, the Tribunal is not satisfied that the applicant is a national of Pakistan as he does not meet the criteria for citizenship under the law.[64]
[64] BNZ18 v MICMSMA [2020] FCCA 1614 at [66].
Is the applicant a national of the UAE?
The applicant claimed that although he was born in the UAE, he did not have any rights in the UAE and was not eligible for permanent residency or citizenship.
The Tribunal is satisfied that the applicant is not a national of UAE, based on the law of the UAE. A child born in the UAE to two foreign citizen parents would not obtain UAE citizenship by birth. Article 2 of the UAE’s Federal Law No. 17 for 1972 stipulates that a child born in the UAE can only acquire citizenship by birth if (a) their father is a UAE citizen by operation of law; (b) their mother is a UAE citizen by operation of law and ‘whose filiation to his/her father is not substantiated’; (c) their mother is a UAE citizen by operation of law or to a father with unknown citizenship, or who is without citizenship; and (d) they were born in the UAE to unknown parents.[65]
[65] Government of the United Arab Emirates, 'Federal Law No. 17 Of 1972 concerning Nationality and Passports and amendments thereof By Law No. 10 Of 1975 And Federal Decree Law No. 16 Of 2017', 2017, p.3; Human Rights Watch, 'UAE’s Double-Standard on Citizenship Rights', 5 February 2021; US Department of State, 'Country Reports on Human Rights Practices for 2020 - United Arab Emirates', 30 March 2021
There are a number of categories of persons who can acquire naturalisation including investors, doctors, specialists, inventors, scientists, intellectuals and individuals with creative talents.[66] Nationality may also be granted to Arabs from certain countries, not including Myanmar, who have lived in the country for at least 3 years or have legally resided there since 1940.[67] None of the categories for naturalisation apply to the applicant. His residence permit expired [in] 2012.
[66] Official Portal of the UAE Government, 'Emirati nationality', 31 October 2021
[67] 'Federal Law No. 17 Of 1972 concerning Nationality and Passports and amendments thereof By Law No. 10 Of 1975 And Federal Decree Law No. 16 Of 2017', Government of the United Arab Emirates, 2017
The Tribunal has considered whether the applicant meets the criteria for citizenship under the law.[68] The Tribunal is satisfied on the basis of the law of the UAE and the applicant’s circumstances that the applicant is not a national of the UAE.
[68] BNZ18 v MICMSMA [2020] FCCA 1614 at [66].
Is UAE the country of the applicant’s former habitual residence?
The applicant lived from birth until he travelled to Australia in the UAE, and it is therefore his country of former habitual residence.
The Tribunal is satisfied that the applicant does not have a legal right of entry to the UAE and would be denied an entry tourist visa without a passport and return ticket.[69] However, the purpose of the Convention definition is that a person does not need to have a legal right to return to a country before that country can be regarded as a country of ‘former habitual residence’.[70] In Taiem v MIMA, Carr J suggested that the Tribunal would have been in error if it had found that a country was not considered as a country of former habitual residence simply because the applicant had no right to re-enter that country.[71]
[69] National News, <Hundreds of Pakistanis and Indians denied entry into Dubai for failing to meet visit visa requirements (thenationalnews.com)>, 16 October 2020
[70] Rishmawi v MIMA (1997) 77 FCR 421; Taiem v MIMA [2001] FCA 611; MIMA v Savvin (2000) 98 FCR 168. This, however, has been a controversial issue among commentators: see JC Hathaway and M Foster, The Law of Refugee Status (Cambridge University Press, 2^nd edition, 2014), at 69–71; G Goodwin-Gill and J McAdam, The Refugee in International Law (Oxford University Press, 3^rd edition, 2007), at 67.
[71] Taiem v MIMA [2001] FCA 611 at [14].
Does the applicant have a well-founded fear of persecution if he returns to the UAE?
The Tribunal has claimed that if he returns to the UAE, he fears being arrested and deported to Myanmar, where he would be persecuted as a Rohingya person. He told the Tribunal that when undocumented people are found, they are arrested and cannot leave gaol. At the Department interview, the applicant said that he feared returning as he was forced to resign from his job in March 2012 after working there for 2 years, which meant he could not work anywhere else for a year. He claimed that UAE is ruled by an absolute monarchy and human rights were not respected. He claimed that many Rohingyas had no documents and many were arrested and deported. The applicant claimed that the Rohingya community in the UAE is small, and their sufferings have not been well-documented.
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. This element is met.
Second, an applicant must fear persecution. The Tribunal had some concerns as to whether the applicant had a genuine fear of persecution as he had travelled extensively prior to arrival in Australia, but did not seek protection in the countries he visited, including [Country 1] and [Country 10]. When asked about this by the Tribunal, he said that he thought he would be able to continue his job in the UAE and did not realise he would lose his job which then implicated his visa status and meant that he was stateless. The Tribunal accepts this explanation as reasonable, and after hearing the evidence of his fears and those of his family members, the Tribunal is satisfied that the applicant fears persecution in the UAE as well as Pakistan and Myanmar.
Third, 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 percent.
The applicant has told the Department and Tribunal that his Pakistani passport is not genuine. He has also provided evidence to this Tribunal about applying to the Pakistani Embassy in Australia for verification that he does not have Pakistani citizenship. Given that he does not have a genuine passport to use for travel, he would travel to his country of former habitual residence on temporary travel documents, presumably a Certificate of Identity.[72] As referred to earlier, the Tribunal is satisfied that the applicant does not have a legal right to enter and reside in the UAE. The inability to re-enter a country where a person was habitually resident because that person has no right of entry does not, without more, constitute persecution.[73] The correct approach in such circumstances is to consider the hypothetical possibility of whether the applicant has a well-founded fear of being persecuted on the basis of what would happen if they were to return to their country of former habitual residence, not whether they could return there.[74]
[72] Australian Border Force website, < Travel documents (abf.gov.au)>
[73] BZADW v MIAC [2013] FCCA 1229 at [71], citing Diatlov v MIMA [1999] FCA 468. This judgment was upheld on appeal: BZADW v MIBP [2014] FCA 541.
[74] SZSPX v MIMAC [2013] FCCA 1715 at [42], [69]–[70]

100. The Tribunal has thus considered hypothetically what would happen to the applicant if he returned to the UAE and whether there is a real chance of serious harm as a result.
101. The rules governing residency in the UAE are spelled out in Federal Law No. 6 on Entry and Residence of Aliens. The law requires that all foreigners entering the country be in possession of valid passports or travel documents (Article 2) and enter and exit through authorised, designated ports of entry (Article 3).[75] According to UAE regulations issued in 1997, expulsion orders are issued to foreign nationals if (a) the foreign national is caught on board a ship trying to enter the UAE illegally; (b) the foreign national does not hold a Residence Permit; (c) the period of licence granted to the foreign national according to an Entry Permit or visa has expired and they did not attempt to renew it, if allowed, during the prescribed period, and also, if they were exempted from the requirement of obtaining an Entry Permit, they did not attempt to renew their Residence Permit; and (d) the foreign national’s Entry Visa or Permit or Residence Permit was cancelled, and they did not attempt to leave the country within the prescribed period of time. The foreign national’s dependent foreign national family members may also be included in the expulsion order.[76]
[75] Global Detention Project, ‘Immigration Detention in United Arab Emirates’, 5864d5a14.pdf (refworld.org), January 2016
[76] ‘Ministerial Decision No. 360 of 1997’, Government of the United Arab Emirates, 16 July 1997, pp.46-47
102. Illegal migrant workers cannot work and are liable to deportation.[77] The Global Detention Project in 2022 has highlighted the problems for illegal migrants, including prolonged detention and deportation, even where deportation could cause risk for those migrants in their home countries.[78]
[77] UAE government website, <Do you need an entry permit/visa to enter the UAE? - The Official Portal of the UAE Government>
[78] Global Detention Project, <United Arab Emirates Immigration Detention Profile – Global Detention Project | Mapping immigration detention around the world>, 5 July 2022
103. Amnesty in 2022 has reported on mass deportations of illegal workers.[79] According to Amnesty:
[79] Amnesty International, <United Arab Emirates: Dissidents imprisoned and migrants racially targeted: Amnesty International: Submission to the 43rd session of the UPR Working Group, 1–12 May 2023 - Amnesty International>, 25 October 2022
‘From the night of 24/25 June 2021 until autumn 2021, the UAE held hundreds of Black Africans unlawfully detained in a racist mass arrest without trial and in inhuman conditions. the UAE kept the detainees in inhuman and degrading conditions for an average of one to two months before summarily deporting them, with no contestable legal procedures taken against them at any stage. Most detainees were held completely incommunicado throughout their detention. None of the detainees ever saw a court or a lawyer, or even had a phone call with a lawyer … many of these deportations were cases of refoulement. Eleven out of 18 of deportees interviewed by Amnesty International were from the Anglophone region of Cameroon, where there has been armed conflict between the government and separatist groups since 2017. Multiple detainees stated to authorities their fear of return but were ignored.’[80]
[80] Amnesty International, <United Arab Emirates: Dissidents imprisoned and migrants racially targeted: Amnesty International: Submission to the 43rd session of the UPR Working Group, 1–12 May 2023 - Amnesty International>, 25 October 2022

104. The UAE has also deported Syrian refugees.[81]
[81] Euromed Monitor, <UAE carries out forcible deportation of Syrian families (euromedmonitor.org)>, October 2017
105. If the applicant returns to the UAE, the Tribunal is satisfied that the authorities would detain him in inhumane conditions[82] and remove or deport him to Myanmar given that is his country of origin, and that he does not have a passport for UAE or a work visa. Although his brothers and sisters are living with his parents in the UAE, they have Pakistani passports (albeit fraudulent ones) and work visas for the UAE. The applicant cannot return to the UAE as he does not have a genuine passport and his work visa has expired. In any event, he mentioned that family members who remain in the UAE are afraid of being arrested and their children cannot attend school, even though they have visas. If the applicant were to return, he is liable for both arrest and deportation to his country of origin, Myanmar as an illegal migrant. The Tribunal notes that this is a finding consistent with that of the [Tribunal] in [Country 1] in relation to the applicant’s brother, which was in evidence before this Tribunal. The Department and RRT considered that the applicant would be removed to Pakistan on the basis that he is a Pakistani national. This Tribunal has found that the applicant is not a Pakistani national for reasons set out earlier. He has informed the Department that his Pakistani passport is fraudulent and therefore this passport will no longer be used for travel. The Tribunal is satisfied therefore that he would be detained in UAE and/or deported to Myanmar and not to Pakistan.
[82] Global Detention Project, <United Arab Emirates Immigration Detention Profile – Global Detention Project | Mapping immigration detention around the world>, 5 July 2022; Amnesty International, <United Arab Emirates: Dissidents imprisoned and migrants racially targeted: Amnesty International: Submission to the 43rd session of the UPR Working Group, 1–12 May 2023 - Amnesty International>, 25 October 2022
106. The November 2022 Department of Foreign Affairs and Trade Report on Myanmar states as follows in relation to the Rohingya people:
Due to their exclusion from citizenship the 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. The Rohingya are particularly affected by the Burma Citizenship Act of 1982 and the Race and Religion Laws (see Religion), which simultaneously exclude them from citizenship and single them out for discrimination. They have been subjected to repeated waves of violence and displacement in Myanmar since independence: in 1977-1979, 1991-1992, 2012, 2015, and 2016-18. They are also frequently called by racial slurs and subject to hate speech, including on the basis of their Muslim religion.
3.8 In October 2016, the Arakan Rohingya Salvation Army (ARSA) insurgent group (see Armed Conflict) carried out its first attack on Border Guard Police (BGP) facilities in Maungdaw Township, northern Rakhine State. The security forces, led by the military, launched a major ‘clearance operation’ in response, sealing off a large area of northern Maungdaw, and controlling movement of the Rohingya population through movement restrictions, curfews and checkpoints. There were widespread and systematic arson attacks against Rohingya villages, with over 1,500 buildings destroyed between October and December 2016. A UN Fact-Finding Mission reported a range of serious human rights violations against the Rohingya population by the security forces during the 2016 security operations, including arbitrary arrests, ill-treatment and torture, forced disappearances and sexual violence. Violence continued in 2017 as the military, other security forces, Rakhine men, and, in some cases, men from other ethnic minorities attacked Rohingya villages, carrying out targeted and mass killings, extreme sexual violence and gang rapes, and arson. An estimated 13,000 Rohingya were killed, at least 200 Rohingya villages were destroyed, and an estimated 890,000 were displaced by this violence.
3.9 In March 2022, the US Government formally determined the Myanmar military’s actions against the Rohingya constituted genocide and crimes against humanity. DFAT assesses all Rohingya in Myanmar are at high risk of official discrimination, including denial of basic rights and services, on the basis of their ethnicity and Muslim religion. Within Rakhine, Rohingya face a high risk of societal discrimination from other ethnic groups and a high risk of violence from security forces and ethnic militias. Outside Rakhine, Rohingya face a high risk of societal and official discrimination but a lower risk of violence. Undocumented Rohingya outside Rakhine remain at high risk of abuse and exploitation and are subject to arrest and detention by the authorities for ‘illegal’ movements.[83]
[83] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 11 November 2022

107. Human Rights Watch in is most recent world report states:
Authorities have been committing the crimes against humanity of apartheid, persecution, and severe deprivation of liberty against 600,000 Rohingya remaining in Rakhine State. Most Rohingya had fled the country following the military’s campaign of killings, rape, and arson that resulted in crimes against humanity and genocidal acts in 2017.
Approximately 130,000 Rohingya have been confined to open-air detention camps in central Rakhine State since being displaced by ethnic cleansing in 2012, in violation of their fundamental right to return home. They are denied freedom of movement in what amounts to arbitrary and discriminatory deprivation of liberty. Following the coup, restrictions on humanitarian access increased, leading to preventable deaths and illnesses in Rohingya camps and villages.[84]
[84] Human Rights Watch, ‘World Report Myanmar 2022’, < World Report 2022: Myanmar | Human Rights Watch (hrw.org)>

108. 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 percent. The Tribunal is satisfied that there is a real chance, that is not remote or insubstantial, of detention in inhumane conditions in the UAE or of deportation to Myanmar, where the applicant would face detention, physical violence and other ill-treatment.
109. Fourth, 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.

110. The Tribunal is satisfied that the applicant would be a member of a particular social group of illegal migrants in the UAE. Applicant A’s case remains the leading judgment on particular social group. After reviewing statements made in that case, Gleeson CJ, Gummow and Kirby JJ in the joint judgment in Applicant S v MIMA summarised the determination of whether a group falls within the Article 1A(2) definition of ‘particular social group’ in this way:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.[85]

111. The Tribunal is satisfied that illegal migrants are identifiable by the characteristic of being people without a visa in the UAE, which distinguishes the group from society as a whole.[86] Their common attribute is not the shared fear of persecution, but rather their illegality. Sources indicate that there are large numbers of people who fall into this group.[87]
112. The Tribunal is satisfied that the essential and significant reason for the serious harm (such as deprivation of liberty) would be membership of a particular social group of illegal migrants.
113. While the laws of deportation may be regarded as a law of general application, there would still be persecution based on the ill-treatment in detention[88] and refoulment to an area where the applicant would face a real chance of persecution.
[85] Applicant S v MIMA (2004) 217 CLR 387 at [36]
[86] See for example identification of illegal migrants discussed in United Arab Emirates Immigration Detention Profile – Global Detention Project | Mapping immigration detention around the world
[87] Amnesty International, <United Arab Emirates: Dissidents imprisoned and migrants racially targeted: Amnesty International: Submission to the 43rd session of the UPR Working Group, 1–12 May 2023 - Amnesty International>, 25 October 2022
[88] Global Detention Project, <United Arab Emirates Immigration Detention Profile – Global Detention Project | Mapping immigration detention around the world>, 5 July 2022; Amnesty International, <United Arab Emirates: Dissidents imprisoned and migrants racially targeted: Amnesty International: Submission to the 43rd session of the UPR Working Group, 1–12 May 2023 - Amnesty International>, 25 October 2022

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 Tribunal is satisfied that the applicant would suffer serious harm such as ill-treatment in detention or deportation to a country where he would face serious harm for reasons of his ethnicity.[89] The Tribunal is also satisfied that the UAE authorities would be motivated to harm him for reasons of his membership of a particular social group of illegal migrants and that the persecution would be non-random and systemic, amounting to systematic and discriminatory conduct pursuant to s 91R of the Act.
[89] See for example Human Rights Watch, ‘World Report Myanmar 2022’, <World Report 2022: Myanmar | Human Rights Watch (hrw.org)>

115. 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 Tribunal is not satisfied that the applicant would be able to avail himself of protection given the harm he fears is from the State.
116. The Tribunal is also satisfied that the applicant does not have the right to enter and reside in a safe third country.
117. In conclusion, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group of illegal migrants were he to return to the UAE in the reasonably foreseeable future or were he to be deported to Myanmar.
CONCLUDING PARAGRAPH
118. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
119. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jane Marquard
Member

< 20 August 2013

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2204231 (Refugee) [2023] AATA 464

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Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

SZOUY v MIAC [2011] FMCA 347