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 remittedLEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2CASES
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 239Any 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,…
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CaseChat Overview and Summary
This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse the applicant a protection visa. The applicant, who claimed to be stateless and of Rohingya ethnicity, had applied for the visa after arriving in Australia on a Pakistani passport, which he alleged was fraudulent. He asserted that he was born in the United Arab Emirates (UAE) to undocumented Rohingya parents who had fled Myanmar, and that he faced persecution if returned to the UAE, Pakistan, or Myanmar. The initial decision to refuse the visa was affirmed by the Refugee Review Tribunal (RRT), but the Federal Court later remitted the matter for reconsideration, finding that the RRT had not adequately considered the applicant's circumstances if faced with extortion in Pakistan.
The court was required to determine whether the applicant was stateless, whether he belonged to a particular social group, and whether he had a well-founded fear of persecution or met the criteria for complementary protection. Specifically, the court needed to assess the applicant's claims regarding his Rohingya ethnicity, his birth and residence in the UAE, the alleged fraudulent nature of his Pakistani passport, and the risks he would face upon return to Pakistan or Myanmar. The court also had to consider the applicant's status as an illegal migrant in the UAE and the potential for him to be removed to Pakistan, where he claimed he would face torture and further removal to Myanmar.
In its reasoning, the court considered extensive evidence, including the applicant's oral testimony, evidence from his family members, and various documents such as birth certificates, marriage certificates, employment records, and country information relating to Pakistan and Myanmar. The court noted that the RRT had previously found the applicant to be a citizen of Pakistan and not stateless. However, the court's previous order highlighted a deficiency in the RRT's consideration of the applicant's potential treatment in Pakistan, particularly concerning extortion. The court's task was to re-evaluate these issues, taking into account the applicant's claims of being a Rohingya, born in the UAE, and the potential for fraudulent documentation to obscure his true identity and circumstances.
The court ultimately found that the applicant was not stateless and was a citizen of Pakistan. It concluded that the applicant did not have a well-founded fear of persecution and did not meet the criteria for complementary protection. Consequently, the application for review was dismissed.
The court was required to determine whether the applicant was stateless, whether he belonged to a particular social group, and whether he had a well-founded fear of persecution or met the criteria for complementary protection. Specifically, the court needed to assess the applicant's claims regarding his Rohingya ethnicity, his birth and residence in the UAE, the alleged fraudulent nature of his Pakistani passport, and the risks he would face upon return to Pakistan or Myanmar. The court also had to consider the applicant's status as an illegal migrant in the UAE and the potential for him to be removed to Pakistan, where he claimed he would face torture and further removal to Myanmar.
In its reasoning, the court considered extensive evidence, including the applicant's oral testimony, evidence from his family members, and various documents such as birth certificates, marriage certificates, employment records, and country information relating to Pakistan and Myanmar. The court noted that the RRT had previously found the applicant to be a citizen of Pakistan and not stateless. However, the court's previous order highlighted a deficiency in the RRT's consideration of the applicant's potential treatment in Pakistan, particularly concerning extortion. The court's task was to re-evaluate these issues, taking into account the applicant's claims of being a Rohingya, born in the UAE, and the potential for fraudulent documentation to obscure his true identity and circumstances.
The court ultimately found that the applicant was not stateless and was a citizen of Pakistan. It concluded that the applicant did not have a well-founded fear of persecution and did not meet the criteria for complementary protection. Consequently, the application for review was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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 2020DECISIONS OF DEPARTMENT OF HOME AFFAIRS AND RRT
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 2020DECISIONS 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.
Ratio Decidendi
Legal Principle Established
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