2206240 (Refugee)

[2023] AATA 4468

2206240 (Refugee) [2023] AATA 4468 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rabiah Khawaja

CASE NUMBER:  2206240

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:Brendan Darcy

DATE:13 September 2023

PLACE OF DECISION:  Melbourne

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 13 September 2023 at 2:34pm

CATCHWORDS

REFUGEE – protection visa – Myanmar – race – Pashu Bamar – religion – Muslim – imputed political opinion – humanitarian work – particular social group – failed asylum seeker – returnee from a Western country – educated woman – employment – arbitrary detention – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437 at 451
Selvadurai v MIEA & Anor (1994) 34 ALD 347         

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of the Union of Myanmar (Myanmar) which was formerly the Union of Burma, applied for the visa on 25 January 2018. The delegate refused to grant the visa on the basis that the available information and the country information did not support the applicant holding a real chance of serious harm or a real risk of significant harm based on the applicant’s ethnicity, religion, political opinion or being a failed asylum seeker or any other claimed basis.

3. The applicant appeared before the Tribunal on 24 August 2023 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Myanmar, there is a real risk she will suffer significant harm.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

13. The applicant was born on [date] in Myiek in Tanintharyi State what was then known as the Union of Burma.

14. As outlined below, the official name of the applicant’s country of birth is now the Union of Myanmar.

15. The applicant arrived in Australia [in] December 2017 while holding a [visitor] visa. According to the applicant’s 886C form, she applied for and was granted a visa to visit [Country 1] in September 2017.

16. On 24 January 2018, the applicant applied for a Class XA Subclass 866 protection visa. A departmental file [number] was created in relation to this visa application.  On this file is a copy of the applicant’s written claims were vaguely contained in the applicant’s submitted 866C Form. The applicant claims that:

    ·     She is a Muslim woman from Myanmar.

    ·     She fears the Myanmar authorities and Buddhist extremists due to her religion and ethnicity.

    ·     In returning to Myanmar, she faces persecution due to her previous employment with a non-government organisation (NGO) and her humanitarian activities;

    ·     Due to the current political situation in the country, she fears being targeted because her humanitarian and employment background and her actual and imputed political opinion;

    ·     The migration agent who assisted her in lodging a tourist visa application for Australia, and has threatened to report her to authorities as they have become aware of her protection visa application in Australia;

    ·     Due to her relationship with a Rohingya Muslim man in Australia, the applicant will also be targeted by the authorities;

    ·     She also fears persecution due to the membership of a particular social group as a well-educated woman as well as a failed asylum seeker, if she were to return to Myanmar; and

    ·     Furthermore, the applicant fears hare arising from the current COVID situation in the country.

17. The applicant claimed in her 866C form that she had never been married or engaged to be married or lived in a de facto relationship; that she can speak, read and write Burmese and some English; and that she had a number of tertiary educational qualifications including in [multiple qualifications].

18. A copy of the applicant’s now expired passport was provided to the Department at the time of application for this visa under review.

19. The applicant attended a protection visa (PV) interview with a Departmental official on 3 September 2021.

20. On the same date, the applicant submitted evidence of the applicant’s household registration (with a translation into English), her high school graduation certificate, her tertiary qualifications, her citizenship scrutiny card, her previous employment and a completion certificate as a community facilitator.

21. Also attached was a statutory declaration dated 31 August 2021 that had been signed by the applicant. It elaborated on incidents of past harm or harassment, her fears of Buddhist extremist, namely from member of the 969 movement, her outspoken advocacy for human rights and the risks she faces as an identifiable Muslim woman.  The statutory declared also claimed that since the military coup that had occurred earlier in 2021, the military are patrolling all home to enforce a curfew after 8 o’clock in the evening and that [her specified relatives] fled the applicant’s home area towards a border town. The applicant claimed the military are searching for her [Relative A] who is a nurse as has the keys to a hospital. The applicant also mentioned that her friend and fellow Muslim [Friend A] back in Myanmar ad been detained for being vocal and being Muslim and had subsequently died while imprisoned. 

22. On 17 September 2021, the applicant’s representative forwarded a legal submission with an accompany country information document; a copy of the applicant’s household registration card, a witness letter that indicating that the applicant was married in an Islamic ceremony and a further statutory declaration from the applicant dated 16 September 2021. (No marriage certificate was provided.) The statutory declaration from 16 September 2021 clarified a number of issues raised during the 3 September 2021 interview.

23. A delegate acting on behalf of the government refused to grant the protection visa on 4 April 2022.

24. The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal on 28 April 2022 with a copy of the notification of the decision and the decision record attached.

25. The Tribunal received a further statutory declaration dated 5 August 2023 which further outlined specific harm incidents that had allegedly occurred in the past and her fears of harm should she be returned to Myanmar.

26. As mentioned above the applicant appeared before the Tribunal at a scheduled hearing on 23 August 2023. The applicant was assisted by an interpreter in the Burmese and English languages. In attendance at the hearing was the applicant’s putative spouse, [Spouse A], a holder of a temporary protection visa.

27. No further documents or submissions were required at the end of the hearing.

    Country information

28. According to the most recent DFAT report issued on 11 November 2022, provides the following outline about Myanmar’s recent history.

    RECENT HISTORY  

    2.1 Myanmar (known until 1989 as Burma) achieved independence from Britain in 1948, initially as a parliamentary republic. A military coup overthrew the government in 1962. Myanmar has since been ruled mostly by military regimes and has experienced internal conflict and lengthy periods of international isolation.

    2.2 General Ne Win ruled from 1962-1988 under a totalitarian socialist regime that isolated Myanmar from the world. Many ethnic groups sought greater independence during this time, including through armed struggle, which continues today. In 1988, widespread pro-democracy demonstrations led to Ne Win’s resignation. The military (known as the Tatmadaw) responded by announcing a military-backed State Law and Order Restoration Council (SLORC) and carrying out a violent crackdown in which some 3,000 people were killed.

    2.3 Opposition groups won the 1990 election in a landslide, but the SLORC did not recognise the results and imprisoned senior opposition figures, including Aung San Suu Kyi, leader of the opposition National League for Democracy (NLD). Following an election in 2010, a military-backed parliament appointed General Thein Sein as President. His government initiated political and economic reforms that rapidly transformed Myanmar. Hundreds of political prisoners were released, including Aung San Suu Kyi, who was elected to parliament in 2012.

    2.4 In November 2015, Myanmar held credible national elections for the first time in 55 years. The NLD won almost 80 per cent of the available seats, assuming power in 2016. While Aung San Suu Kyi could not become president due to a constitutional clause drafted to exclude her (see Political System), she was appointed State Counsellor and Foreign Minister. The NLD government was popular, but it was slow to make reforms and progress the national peace process, and its international reputation was tarnished by its failure to prevent mass atrocities against the Rohingya in Rakhine State, which caused an estimated 700,000 people to flee the country in 2016-2018 (see Rohingya).

    2.5 In government, the NLD hoped to reduce the influence of the military and pave the way for Aung San Suu Kyi to become President. But after the NLD won the November 2020 election in a landslide, the military rejected the result and seized power under the leadership of Senior General Min Aung Hlaing on 1 February 2021. Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.

29. The same report further states the following about Myanmar’s demography and its economic situation.

    DEMOGRAPHY

    2.6 The World Bank estimated Myanmar’s population in 2020 at 55 million, with an annual growth rate of approximately 0.7 per cent. The last national census was conducted in 2014. Urbanisation has been slow compared to neighbouring countries, and about 70 per cent of the population lives in rural areas. The population is relatively young, with about a quarter aged under 15 years and about half under 30, although in recent decades the national birth rate has slowed to 2.14 births per woman, below the global average of 2.4. The largest cities are Yangon (4.5 million), Mandalay (1.2 million) and the capital, Nay Pyi Taw (925,000).

    2.7 More than 100 languages are spoken in Myanmar, many of them mutually unintelligible. The national language is Burmese, spoken as a first language by an estimated 32 million people. English was the medium of instruction during the colonial period, but it was gradually replaced by Burmese after independence. Today English is spoken by only about 5 per cent of the population. For ethnic demography, see Race/Nationality. For religious demography, see Religion.

    ECONOMIC OVERVIEW

    2.8 Myanmar is one of the poorest countries in Asia, with a GDP per capita of USD 1,400. The economy contracted by about 18 per cent in 2020-21, first as a result of COVID-19 and then the February 2021 military coup. This has had far-reaching effects on all aspects of life for most Myanmar people. In February 2022, the International Labour Organization (ILO) described the economic situation in Myanmar as a ‘multidimensional humanitarian crisis’. Agriculture, forestry and fishery account for almost half of GDP and employ two-thirds of the workforce. Other major industries include textiles, tobacco production and food processing. There is a significant shadow economy in illicit drugs, gemstones, human and wildlife trafficking, and illegal logging.

    2.9 The economic crisis has led to widespread job losses. While poverty almost halved in the decade following the country’s economic opening in 2005, the World Bank expects it to double again in 2022. An estimated 1.2 million salaried workers lost their jobs in the second quarter of 2021, dozens of factories shut, and the informal sector (which employs 83 per cent of workers) was also heavily affected. Poverty rates have increased significantly since the coup, with UNDP estimating a rise from 24.8 per cent of the population in 2017 to up to 48.2 per cent by mid-2022. UNDP ranked Myanmar 147 out of 189 countries in its 2019 Human Development Index, putting it in the medium human development category. The World Bank ranked Myanmar 165 out of 190 countries for ease of doing business, but this was prior to the coup.

    2.10 Spending on social welfare programs increased eleven-fold between 2011 and 2018, but still accounts for only 0.5 per cent of the national budget, very low by regional standards. Myanmar has had two main social welfare programs: the Maternal and Child Cash Transfer (MCCT), which provided 15,000 kyats (AUD 11) per month to mothers from pregnancy until their child is 24 months; and the National Social Pension (SP), which provided 10,000 kyats (AUD 8) per month to people over the age of 85. DFAT understands payments under these programs ceased following the coup.

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of reference

30. On the basis of the copy of her Burmese or Myanmese passport submitted to the Department,4 the Tribunal accepts that the applicant is a citizen of the Union of Myanmar and that her identity is as claimed. The Tribunal accepts that Myanmar is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Third country protection

31. The Tribunal finds that the applicant does not have the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act and therefore finds that this section does not apply in her case.

    Credibility findings

32. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

33. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees, ‘Handbook on Procedures and Criteria for Determining Refugee Status’, Geneva, 1992, at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

34. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

35. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

1. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

2. In this decision, the Tribunal did not accept the veracity of a number of the applicant’s past harm incidents prior to departing Myanmar for Australia to have occurred. The applicant has either exaggerated or fabricated these incidents to create impression with decision makers that she and her family have suffered significantly harmful discrimination or physical maltreatment based on her Islamic religion and faith tradition.  Some adverse credibility findings are outlined below.

   Accepted personal circumstances

   Nonetheless, the Tribunal accepts the following aspects about the applicant’s personal background, including:

   ·     The applicant was born in [year] in a village in Myanmar’s southern region, Tanintharyi State, and that she was born into a Muslim family.

   ·     The applicant’s family owned and operated a successful [produce] farm;

   ·     The applicant’s parents and [specified family members] all reside in the Tanintharyi region. 

   ·     The applicant was completed a number of degrees and diplomas as claimed, and that the applicant’s family largely paid for her tuition fees,

   ·     When the applicant departed for Australia she did so via [Country 1] and that it was her first time travelling internationally.

   ·     When the applicant departed for Australia, she had not been married, engaged to be married or lived in a de facto relationship or had any dependants. 

3. The applicant’s marital status since arriving in Australia was somewhat confusing. The applicant claimed to have undertaken a Muslim ceremony (nikkah) in Queensland to marry [Spouse A]. Her putative husband arrived in Australia as an irregular maritime arrival and had been granted refugee status on the basis he is a Rohingya and a Muslim from Myanmar’s Rakhine State. After considerable evasive prevacation, the applicant admitted to the Tribunal her marriage was not a formal marriage and that no marriage certificate would likely be issued in Australia as it was apparent during the hearing that the applicant’s putative spouse had a wife and children in Myanmar or elsewhere overseas and may not have been divorced. This introduced the prospect that the applicant’s marriage with [Spouse A] was polygamous and would be void under Australian law. Whether that is the case has not been germane towards considering whether the applicant is a refugee in this matter. Nonetheless, the Tribunal accepts the applicant and [Spouse A] have been living together for substantial period since her arrival in Australia in genuine spousal relationship, but not one that is necessarily to the exclusion to all others.

4. It has been claimed Between 2007 and 2016 the applicant has worked as [in two specified roles] for [NGO1] from 2016. The applicant remained with [NGO1] until May 2017 before departing for Australia in May 2017. The applicant provided a certificate of completion issued by [NGO1] in January 2017. During the hearing, the applicant explained that it was funded to undertake community engagement for infrastructure projects in underdeveloped parts of Tanintharyi State. On balance and based on the submitted evidence, the Tribunal accepts the applicant worked for [NGO1] in that recorded role.  

   Some adverse credibility findings

5. Of critical credibility concern to the Tribunal has been the inclusion of incorrect information and a bogus document in the applicant’s visitor visa application form to temporarily visit Australia. During the interview with the Dearest, the applicant was provided a copy of the [business name] business licence registered under her own name and [Person A] in June 2017. As the decision record outlines, when questioned about the ownership of this business, the applicant stated that she neither owned this business, nor worked at this business. The applicant claimed that the agent who assisted her in applying for a visitor visa for Australia obtained this licence for her, so she wasn’t aware of the contents of the licence. In her post interview statement of claims, the applicant reiterated that this document provided by the migration agent in Myanmar was fake and she neither created nor asked the agent to provide this document with her application. The Tribunal concurs with the delegate that the explanation is not plausible. It finds the applicant deliberately set out to deceive Australian officials to obtain entry into this country.

6. The applicant has also made an implausible claim that the agent that arranged her visa to come to Australia has threatened her on the basis of her applying for a protection visa. As explained at the hearing, the Tribunal did not find it convincing or plausible that the applicant would be threatened by a migration agent in Myanmar on the basis she applied for a protection visa in Australia. There was not reasonable explanation as to how an agent in Myanmar would become aware of this unless the applicant disclosed it – which she did not claim.  Neither does applying for a protection visa in a Western country somehow threaten the agent’s business back in Myanmar.

7. Both these aspects of the applicant’s visa history and claims lack credibility. The Tribunal does not accept the explanation she was unaware of incorrect information and her submission of a bogus document in her visitor visa application or the claim that she holds a well-founded fear of some kind of harm from a migration agent back in Myanmar on the basis on applying for a protection visa. In making these findings, the applicant has invited further adverse credibility findings about other claims and her overall credibility.

8. The applicant elaborated to the Tribunal a number of claims she had advanced in where written statements about her past experiences in Myanmar. The applicant outlined three incidents, each of which the applicant claimed to be motivated based on her and her family’s Islamic religion.

9. Specifically, it was claimed in 1989, the house belonging to the applicant’s family in Tanintharyi region had been burnt down when a fire spread from neighbour houses, that this was an arson attack was undertaken by Buddhist extremist and that it was motivated by the applicant’s belonging to a Muslim community or an ethnic minority who are Muslim. No country information such as media reports about this incident was submitted to the Tribunal.

10. The Tribunal notes at around the time when the applicant’s home or neighbourhood was alleged attacked it was a year after the Burmese 8888 or People Power Uprising. The 8888 Uprising was a series of nationwide protests marches, and riots in Burma that peaked in August 1988. Those pro-democratic protests were notably organised and led by university students and Buddhist religious leaders.[1]  The Tribunal is unable to find any country that there were anti-Muslim or anti-ethnic minority attacks by Buddhist’s militants in any part of Myanmar.

    [1] 8888 Uprising, Wikipedia, ttps://en.wikipedia.org/wiki/8888_Uprising

11. The country information indicates that some anti-Muslim activities by Buddhist first occurred in any serious or organised way in the 1990s. On 16 March 1997, in Mandalay, a mob of 1,000–1,500 Buddhist monks and others shouted anti-Muslim slogans as they targeted mosques, shop-houses, and vehicles that were in the vicinity of mosques for destruction. Looting, the burning of religious books, acts of sacrilege, and vandalizing Muslim-owned establishments were also common. At least three people were killed and around 100 monks arrested. The unrest in Mandalay allegedly began after reports of an attempted rape of a girl by Muslim men. Myanmar's Buddhist Youth Wing asserts that officials made up the rape story to cover up protests over the custodial deaths of 16 monks. The military has denied the Youths' claim, stating that the unrest was a politically motivated attempt to stall Myanmar's entry in ASEAN.

12. This is not to discount the discriminatory practices and laws undertaken by Burmese authorities before democratisation emerged in the late 1980s, as the applicant has suggested. However, given the lack of independent reporting of the incident, the applicant attributed this very serious incident to Buddhist extremists and not the military and the country information indicates that militancy from nationalistic, militant, and opportunistic elements with the Buddhist community did not emerge in Myanmar, there is insufficient reasons to accept that the incident claimed in 1989 occurred. It is in this context that the Tribunal finds the applicant fabricated this claim and it does not accept the applicant’s family or neighbours were subjected to arson attack by Buddhists or even the military in 1989 because of their religion or ethnicity or both.

13. The applicant has advanced a 2001 indecent whereby the applicant had been stopped by the authorities while checking her paid ticket or her general permission to travel between her home area and another destination. The authorities, she claimed, did not accept the travel authority to genuine because she was a Muslim. When the applicant became outspoken about it, the applicant was taken to a police station and missed the train.  At the hearing, the applicant described the incident as scary. Otherwise, the applicant was released without being physically harmed but she had only inconvenienced and frightened. She did not claim a similar incident occurred while travelling by train.

14. However, the applicant claimed a similar incident of sectarian discrimination at an domestic airport occurred when travelling back to her home area in 2002. The applicant specifically claimed she was at the Yangon airport with her friend, whose father was a senior police officer. She was following her friend to a prohibited area. After seeing the applicant’s ID card, she was excluded from the area. After protesting, the authorities interviewed her until they released her without harm. The applicant did not claim a similar accident occurred again.

15. In the context of the Tribunal’s above mentioned adverse credibility findings, the Tribunal accepts the applicant had been inconvenienced as claimed in the 2001 and 2002 incidents, but it does not accept the authorities were motivated by anti-Muslim or bias against ethnic minorities.

16. The applicant has claimed that she has experienced anti-Muslim insults from members of the public including Buddhist extremists. The Tribunal accepts the applicant experienced being called derogatory names based on her religion including being labelled as a ‘kallah’. However, it does not accept such sectarian verbal slurs amount to her having experienced serious or significant harm in the past or that this indicated imminent threats of violence, as claimed by the applicant.

17. As mentioned above, the Tribunal accepts the applicant worked for [NGO1]. As the decision record outlined, open-source country information about the project confirms that the project is funded by [Agency 1] and is delivered in collaboration with the [named department] in Myanmar. The Tribunal does not accept the characterisation that the applicant was employed in a non-government organisation. [NGO1] was not independent of government in either its operation or funding. Furthermore, the Tribunal does not accept the applicant was an outspoken whistle-blower or she complained to a Member of Parliament or lost her job with [NGO1] when she pushed back on attempts to corrupt the funding by local officials or for political opinions, or this was the triggering event for her to leave Myanmar, as claimed. The Tribunal has reached these specific findings in the context of the applicant’s lack of overall credibility as outlined above. 

18. Overall, the Tribunal found that applicant had either fabricated past harm incidents or significantly embellished otherwise actual incidents. Perhaps that is understandable given the deplorable security and human rights situation in Myanmar and its limited economic achievements since 1989. The threads of written and oral evidence indicate the applicant departed Myanmar for economic reasons and to a lesser degree, difficulties with discriminatory practices against educated Muslims in employment. Regardless, the applicant’s lack of general credibility has been relevant in making some of the findings below.

    Ethnicity

19. At Question 29 in the applicant’s 866C Form, the applicant indicated the ethnic group the applicant belonged to was ‘Pashu Bamar’ and her religion as Muslim.

20. Pashu Bamar or Burmese Malays[2] primarily reside in the Tanintharyi region in southern Myanmar. Pashu Bamar are believed to be of Kedahan Malay by descent, settling in Burma in the 1860s. Pashu Bamar speak a Malay dialect similar to the Malay spoken in the Kedah-Perlis area of northern Malaysia. Pahsu Bamar are not ethnically related to the largely Rohingyas or the ethnically distinct from other Muslim minorities in Myanmar such as the Moken.

    [2] Burmese Malays, Wikipedia, >

    The applicant’s citizenship scrutiny card⁸ provided by the applicant in support of her identity lists her religion as Islam, and ethnicity as ‘Pashu+Bamar’. The card was issued in Myeik Township [in] 1995. The applicant has provided a household register and its English translation that also lists her religion as Islam and her race as ‘Pashu+Bamar’.

21. During the scheduled hearing, the applicant claimed that her ethnicity and that of her family had been recorded as her actual ethnicity as Bamar (Burmese) prior to 1995. The applicant explained her Bamar antecedents had converted from Buddhism to Islam in the nineteenth century. With rising Bamar nationalism in 1990s, the authorities associated the Bamar ethnicity with being Buddhist so designated her Muslim family and the authorities treated her as a Pashu Bamar when she encountered them at checkpoints or at airports.

22. As the most recent DFAT report outlines ethnicity in Myanmar is a determinant of citizenship and basic rights, a factor in political and armed conflict, and a source of discrimination, particularly for the Rohingya. While section 347 of Myanmar’s 2008 Constitution theoretically guarantees “any person to enjoy equal rights” and protections before the law, many people are denied these rights in law and practice. Myanmar officially recognises 135 ethnic groups, which it categorises into eight ‘Major National Ethnic Races’: Kachin, Kayin, Kayah, Chin, Mon, Bamar, Rakhine and Shan (notably excluding Rohingya). These divisions are often arbitrary and reflect colonial era understandings of racial classification rather than the reality of ethnic diversity in Myanmar. The CIA World Factbook describes the population as 68 per cent Burman (Bamar), 9 per cent Shan, 7 per cent Karen, 4 per cent Rakhine, 3 per cent Chinese, 2 per cent Indian, 2 per cent Mon, and 5 per cent Other. Identity in Myanmar is complex, involving elements of ethnicity, religion, language and geographic location. Different members of the same family may identify as different races, and people’s officially recognised race or religion may be different to how they self-identify.

23. It further states that racial discrimination in Myanmar is widespread and institutionalised, in a way that privileges Bamar Buddhists over other groups, especially over people with darker skin and those who do not speak fluent Burmese. People belonging to or perceived as belonging to so-called ‘mixed races’ (a term used to refer those of South Asian or Chinese heritage) are forced to queue separately when accessing government services and sometimes report racial abuse and discrimination from officials, including the use of ethnic slurs and refusals or delays when accessing public services.

24. On balance, the Tribunal accepts this background about her ethnicity and accepts that her actual ethnicity is Bamar or Burmese and that officially authorities and documentation have imputed her with Pashu Bamar ethnicity, conflating her and her family’s accepted relgion as Muslims with belonging to a minority ethnicity living outside the Bamar heartland areas of Mandalay, Yangon, Sagaing and Magway.

25. The Tribunal is unable to find any country information that Myanmese nationals who Bamar are targeted by the authorities or other groups for the essential and significant reasons that they are Bamar. Neither is the Tribunal ablet to locate any information that Pashu Bamar are specifically targeted by the authorities on the basis of any actual or perceived association with armed resistance, which is the case for Chin and Karen.  However, the DFAT report does assess that members of non-Bamar (minority) ethnic groups in Myanmar face a moderate risk of societal and official discrimination on the basis of their ethnicity, but not a a higher risk such as Rohyingas or frequent violence such as the Chin or Karen.

26. Based on the country information, the Tribunal finds that the applicant only has a remote and far-fetched chance of being seriously harmed for the essential and significant reasons arising from her actual Bamar ethnicity, should she return to her home area of Tanintharyi State or else within Myanmar.

27. As the real risk test is the same standard as the real chance, the Tribunal finds that there are no substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Myanmar, will suffer a real risk of significant harm arising from the applicant’s ethnicity as Bama.

28. The Tribunal notes that the applicant since 1995 when her citizenship card was adjusted to indicate her imputed ethnicity is Pashu Bamar or Pashu + Bamar by the authorities, the applicant has never been discriminated against to the extent that she has been denied in accessing basic services, higher education, or being able to obtain employment or that she has faced significant economic hardship because of this ethnicity. This strongly indicates to the Tribunal that any discrimination to be encounter into the foreseeable future will not amount to serious or significant harm. Accordingly while the Tribunal accepts the applicant has a real chance of encountering discrimination, the level of harm does amount to serious harm as non-exhaustively listed under s 5J(5) or as required by s 5J(4))(b) as on her imputed ethnicity as Pashu Bamar or any other ethnic minority, should she return to her home area or to most areas or Myanmar outside Rakhine State.

29. Correspondingly, neither does the Tribunal accept the real risk of harm will amount to significant harm as required by s 36(2A) based on the same considerations. 

30. In this regard, the applicant does not satisfy the criteria under ss 36(2)(a) and 36(2)(aa) based on being either Bamar or being imputed as belonging to a ethnic minority.

    Religion

31. DFAT assesses that Muslims in Rakhine State, regardless of ethnicity, face high levels of official and societal discrimination and a moderate risk of violence on the basis of their religion and perceived association with the Rohingya (who face specific, higher risks).

32. It further reports that Muslims in Myanmar experience discrimination and restrictions on their ability to practise their faith. They are underrepresented in the public sector. There were no Muslim ministers under the previous NLD government, nor are there any Muslim members of the regime’s SAC. Muslims are reportedly excluded from a range of government jobs, including as public school teachers and health workers. In recent decades many mosques have been burned down or vandalised, especially in Rakhine State, and authorities have prevented communities from rebuilding them. In June 2021, a mosque in Ahlone Township, Yangon was burned down in what the Burma Human Rights Network says was a deliberate arson attack. One source told DFAT more than 100 mosques had been destroyed and no new mosques built in the country since 1962. Authorities often withhold permission for Muslim worshippers to publicly celebrate religious events including Ramadan. In satellite towns without established mosques, Muslims are often forced to pray in makeshift prayer houses, which are sometimes too small to accommodate the number of worshippers. A report by the Burma Human Rights Network in 2017 found at least 21 villages had been declared ‘Muslim-free zones’ by local authorities, with signs erected in some villages stating ‘Muslims are not allowed to buy or rent properties’.

1. Anti-Muslim sentiment is prevalent in Myanmar and is circulated through social media, state institutions and mainstream news websites. Muslims are often called by racial slurs and subject to hate speech. Since 2011, ultranationalist Buddhist movements such as Ma Ba Tha (the Association for the Protection of Race and Religion) and the 969 Movement (an anti-Islamic religious group) have been influential in fomenting anti-Muslim hatred in Myanmar. During that time, Ashin Wirathu, a prominent monk and leader of the Ma Ba Tha movement, repeatedly incited violence against Muslims in speeches and online, including by spreading conspiracy theories that Muslims were planning to take over the country by marrying and converting Buddhist women. In 2018, Wirathu’s hate speech led Facebook to ban him and the national monastic council to bar him from speaking publicly. Ma Ba Tha was banned in 2017 and afterwards rebranded as the Buddha Dhamma Philanthropy Foundation. Wirathu, who had been in hiding since May 2019, turned himself into authorities in November 2020 and was arrested for ‘exciting disaffection against the government’. The military regime released him in September 2021.

2. Muslims are frequently denied basic rights and services on the basis of their religion. An estimated 65 per cent lack citizenship cards, and many find it difficult or impossible to obtain them, even if they are theoretically qualified. Reasons vary, ranging from the Muslim applicant being unable to provide extensive and often difficult-to-obtain documentation to prove family lineage before 1824, to the refusal of immigration authorities to register a Muslim person as Bamar, the majority ethnicity. Some have been required to choose a ‘foreign’ ethnicity (such as Bengali) to self-identify as Muslim on applications for citizenship cards. Under the ‘Preservation of Race and Religion Laws’, a Muslim man is not allowed to marry outside of his religion.

3. As mentioned above, the applicant accepts that the applicant’s oral claims to belong to an ethnically Bamar family that converted from Buddhism to Islam four to five generation ago and that she is a Muslim by religion or faith tradition. It also accepts that the applicant’s father and brother have leadership roles in a local mosque and madrassa in a village in Tanintharyi State and it is also willing to accept her father is considered an imam in his local community. It also accepts that the applicant experience insults and discriminatory practices limiting her employment based on her Muslim religion.

4. For Westerners observers of Burma, the notion of Buddhist militancy or extremism is somewhat baffling, given the role of Buddhist leadership and follows in the pro-reformist 8888 Uprising and the 2007 Saffron revolution.  Paul Fuller, a lecturer on Buddhism at Cardiff University has explained that:

   This is a Buddhism alien to the romantic, pacifistic, meditative and compassionate Buddhism of popular imagination, and – one would hope – much of Buddhist history. It is a Buddhism in which the Buddhist faith should be protected against the supposed threat of other religions (primarily Islam) overrunning Buddhist Myanmar.

   Led by the Mandalay-based monk Ashin Wirathu, it is a religion which campaigns to punish those who offend Buddhism. In its organised form in Myanmar these nationalistic Buddhist ideas coalesce around a group popularly known as MaBaTha – the organisation for the protection of race and religion.[3]

   [3] Myanmar and Buddhist extremism, by Paul Fuller, published by The Conversation: November 15, 2017, Myanmar and Buddhist extremism (theconversation.com)

5. Although Buddhist hostility and militancy towards Muslims exists throughout Myanmar along with a number of anti-Muslim laws and discriminatory practices, the Tribunal does not have sufficient credible reasons to accept the applicant and her family experienced direct violence to themselves, or property based on their religion by either the authorities or by Buddhist militants, or that they will experience such harm into the foreseeable future. Based on the applicant’s accepted personal circumstances, the Tribunal finds that the DFAT assessment is not applicable to the applicant and her family, whereby Muslims face a moderate, and therefore a real chance of violence, including significant physical harassment or physical maltreatment based on their religion.  The applicant has spent a great deal of her adult life travelling between her home area and Yangon without any significant incident motivated by sectarian prejudice, largely enjoying a relatively comfortable life in higher education and some limited employment that her middle-class family or a family with above average wealth and security could accommodate. Her parents and siblings have not face harm whereby they have been displaced or have been forced to relocate or have been seriously harmed in the past. The Tribunal does not accept the situation since the 2021 military coup has deteriorated to such an extent that the applicant and her relatively privileged family face a real chance of serious harm into the reasonably foreseeable future by either the military or Buddhist extremists.

6. As mentioned above, the applicant is in an ongoing relationship with Rohingya Muslim who has been granted refugee status in Australia and is likely to granted permanent residency. The applicant has argued her marital status with a Royinga will contribute to her likelihood in being persecuted based on her religion.  The Tribunal considers it far-fetched to believe that her partner as a Rohingya would return to Myanmar with the applicant or that the authorities would place any additional weight on this if her spouse is not returning with her. The Tribunal does not accept the applicant’s chances of persecution or risks of significant harm based on her religion are raised because of her marital status or any association with Rohingya, should she return to Myanmar.  The applicant’s home state is neither from the Rakhine State. She is not a member of ethnic minority perceived to have an association with Rohingyas. Her parents and numerous siblings are the capacity and inclination to support her as they have in the past while seeks out employment. 

7. While she has endured insults and some discriminatory practices based on her religion in the past, the applicant is a well-educated woman with no dependents and has no significant barriers to obtaining a livelihood of some kind. She will not be faced with a real chance of a denial of access to any basic services or a capacity to earn a livelihood of any kind or face significant economic hardship where the denial threatens her capacity to subsist, should she return.  It is the Tribunal’s assessment that that applicant’s family and herself have been able to practice their religion and receive Islamic instruction without any serious harm.

8. In summary, it is the Tribunal’s assessment arising from the applicant’s accepted circumstances as a Muslim woman, that she does not have a chance of serious harm, should she return to Myanmar, but that chances are remote and far-fetched and not equal to or more than a real or substantial chance of serious harm. 

9. Neither does the Tribunal have any substantial grounds for it to accept that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Myanmar, will suffer a real risk of significant harm for the same ‘real chance/real risk’ reasons.

10. In this regard, the applicant does not satisfy the criteria under ss 36(2)(a) and 36(2)(aa) based on being a Muslim, a Muslim woman and/or a Muslim woman with an association with Rohingya.

    Political opinion claims

11. The applicant has made claims that she holds a strong sense of justice along with anti-government opinion and that this has caused her harm. She has cited her involvement with small group of politically interested women interested in issues about the maltreatment of women in Myanmese society. She has also mentioned that she was outspoken about corruption from local officials when she was working with [NGO1 variant].

12. The Tribunal accepts her characterisation of herself as outspoken and involved in various activities that reflect her view critical of the authorities in Myanmar.

13. However, the applicant has demonstrated to the Tribunal a propensity to embellish such memberships as her being of interest to the authorities.  The Tribunal does not accept in the context of adverse credibility findings, that she has never been arrested or apprehended by the authorities because of her political opinions, memberships or activities or that she had been a person of interest prior to her departure or that her political opinions were the reasons for her fleeing Myanmar. Neither is it accepted that she has any real personal motivation to participate in any dissenting anti-regime movements should she be able to return to the general community within Myanmar.

14. In summary and not withstanding claims about her as a forced returnee, it is the Tribunal’s assessment that the applicant does a chance of serious harm, should she return to Myanmar, but that chances are remote and far-fetched and not equal to or more than a real or substantial chance of serious harm based on her political opinions, imputed or otherwise, should she return to Myanmar. Neither does the Tribunal have any substantial grounds for it to accept that the applicant, as a necessary and foreseeable consequence of being removed from Australia to join her family in Myanmar, will suffer a real risk of significant harm, based on her political opinion.

15. Nonetheless, the Tribunal does not discount that the applicant will be impute with anti-government political opinion should she return to her country of nationality as forced returnee. This is discussed below. 

    A well-founded fear as a failed asylum seeker or forced returnee

16. Despite the applicant presenting a number of implausible and unreliable claims, it remains salient that should the applicant not be granted a protection visa, there is a real chance she will be required to return to Myanmar.

17. Accordingly, the Tribunal has considered whether the applicant faces a well-founded fear of serious harm for the essential and significant reason that the applicant has a membership of a particular social group, namely as failed asylum seekers or as forced returnees.

18. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. This provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal finds that being a failed asylum seeker returning from Australia to Myanmar is a particular social group as defined by s 5L as the characteristic of being a someone who has applied unsuccessfully for a protection visa in Australia is shared by each member of the group and the applicant shares this characteristic. Further, the characteristic is an innate or immutable characteristic, and the characteristic distinguishes the group from society. The Tribunal is satisfied that the characteristic is not a fear of persecution.

19. The Tribunal accepts that the asylum seekers who have not been successful and are forced to returned to Myanmar hold as membership of a particular social group, and it accepts that the applicant holds such a membership.  In considering this, the Tribunal finds there is a related or overlapping nexus reason arising from the applicant’s political opinion, imputed or otherwise.

20. In the current circumstances it is reasonably likely that, as a failed asylum seeker, the Myanmar authorities would assume the applicant has criticised the current regime in Myanmar as part of her protection claims even though the authorities would not be aware of the specific details of her claims, and she would be imputed with anti-regime political opinions. In particular, the applicant’s imputed political opinion is heightened for two reasons.

21. The first is the considerable time spent in a Western country, namely Australia. The country information – set out below – strongly indicates that links to a Western country who have imposed international and other sanctions on the current military leadership of Myanmar attract adverse attention for returnees.

22. The second heightening factor is the applicant’s accepted tertiary educational attainment. Tertiary educated people have been associated with Myanmar’s widespread Civil Disobedience Movement (CDM) and imputed with anti-government political opinion. According to the most recent DFAT report, CDM emerged in Myanmar immediately after the February 2021 coup, with activities including rolling strikes, protests and office shutdowns. Initially led by doctors and other healthcare workers, it spread to include teachers, university lecturers, civil servants, public bank employees, railway workers and others. Hundreds of CDM participants have been arrested under Section 505(a) of the Penal Code and sentenced to up to three years in prison. Others have been beaten, tortured or killed by security forces. Sources told DFAT that authorities maintained lists of CDM participants, which they shared via social media apps such as Telegram. People exiting the country are checked against these lists and some have been detained. Many CDM participants have gone into hiding or fled their homes, either to neighbouring countries, rural areas or areas controlled by ethnic armed organisations. DFAT assesses that participants in the CDM are at high risk of official discrimination in the form of job losses, property seizures, threats and arbitrary arrest. They are at moderate risk of violence in the form of extrajudicial killings, beatings and torture in custody. Family members face similar risks of official discrimination and violence.

23. The Tribunal does not accept, however, that the applicant’s Islamic faith is a notable or significant heightening or relevant factor leading the applicant to holding a well-founded fear of persecution as a failed asylum seeker, should she be forcibly returned to Myanmar.

24. In the delegate’s decision record, the country information it relied upon pre-dated the February 2021 coup in Myanmar. The April 2019 DFAT report for Myanmar discussed DFAT’s awareness of aware of a small number of voluntary returnees entering Myanmar via international airports during 2017 and 2018, but has not received reports of questioning of or adverse treatment towards returnees by government officials following their return to Myanmar.[4] According to the 2017 UK Home Office[5], Myanmar nationals do not require a passport to enter/return to Myanmar, and instead may do so using a Certificate of Identity obtainable from Myanmar embassies. There are circumstances in which Myanmar nationals could be imprisoned, but that is in the case when not only do they not hold a valid passport but are also unable to obtain any other relevant documentation.

    [4] DFAT Country Information Report Myanmar', Department of Foreign Affairs and Trade, 18 April 2019, 20190418091206

    [5] Country Policy and Information Note – Burma: Critics of the Government’, UK Home Office, March 2017, OG6E7028817, para 3.1.6, pp. 8 and 31

25. The current DFAT Report contains the country information indicates a substantial deterioration for political dissent and forced returnee in Myanmar. In relation to political opinion (actual or implied), the current DFAT report states the following:

    3.44 As a result of the February 2021 coup, Myanmar is a military dictatorship, controlled by the State Administration Council (SAC) headed by Commander in Chief Senior General Min Aung Hlaing. The SAC has promised to hold elections in 2023 (see Political System). The 2008 Constitution, technically still in effect as of October 2022, describes the political system of Myanmar as a ‘genuine, disciplined multi-party democratic system’, but since the coup all state power is concentrated in the hands of the SAC. Under Sections 404-406 of the Constitution, political parties theoretically have the right to form, organise freely and participate and compete in elections. Likewise, freedom of expression, association and peaceful assembly are theoretically guaranteed under Section 354 ‘if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality’. In practice, these rights and freedoms were not always respected before the military takeover and have been routinely violated since. …

    3.47 Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in anti-regime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest). Sources in Yangon told DFAT they had experienced random police searches of their homes and vehicles, some on multiple occasions. Police also make random checks for anti-regime content on individuals’ mobile phones, leading some people to carry a second ‘politically clean’ phone as a precaution. Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition. …

    3.51 DFAT assesses anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.

26. On conditions for returnees, the same DFAT states:

    5.25 DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries (see Political Opinion), a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.

27. The Tribunal also has had regard to other sources, namely, the Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on Situation of Human Rights in Myanmar since 1 February 2022 (issued on 2 March 2023). The OHCHR report, which describes the situation as ‘catastrophic’, states:

    69. The overall human rights situation in Myanmar during the second year since the military coup has worsened, with multiple serious violations occurring daily across the country. People throughout the country are exposed to continuing violations of their rights and to crime, including killings, enforced disappearances, displacement, torture, arbitrary arrests and sexual violence. There are reasonable grounds to believe that the military and its affiliated militias are responsible for most of such violations, some of which may constitute crimes against humanity and war crimes.

    70. Forces opposing the military have also committed human rights abuses, in particular in the targeting of non-combatant officials, their family members and others whom they believe to be assisting the military in some way. Violence directed at civilians violates basic principles of human rights and, where applicable, international humanitarian law. While reports of abuses have increased, they are not grounds upon which to justify the unlawful actions of the military perpetrated in the name of “anti-terrorism”, nor are they comparable in scale and breadth to violations committed by the military.

1. DFAT’s assessments that the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition is supported by other recent sources. The report strong invites the Tribunal to consider that the risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar, to be high. The Tribunal accepts the relevant country information’s assessment as compelling and applicable to the applicant’s current circumstances whereby if the applicant returned to Myanmar in the foreseeable future, she would face a real chance of serious harm for this reason.

2. The Tribunal is satisfied that the applicant’s subjective fears being persecuted on arrival as forced returnee if she returns to Myanmar are genuinely, deeply and urgently held. Objectively speaking, the Tribunal assesses that the chances of persecution are neither remote nor far-fetched. They are real and substantial, should the applicant return to Myanmar in the reasonably foreseeable future.  

3. The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reasons of her membership of the particular social group comprising failed asylum seekers returning from Australia to Myanmar and an imputed anti-regime political opinion, it involves serious harm to the applicant and involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant and a threat to her life or liberty.

4. Given it is the Myanmar State that is the agent of persecution in this case, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Myanmar State and that the Myanmar State is not willing and able to offer such protection. On this basis, the Tribunal finds that effective protection measures are not available to the applicant in Myanmar.

100.   As the applicant’s real chance of serios harm will foreseeably occur on arrival, it is not necessary to consider that the real chance of persecution relates to all areas of Myanmar.

101.   The Tribunal finds that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of that country. Accordingly, the Tribunal finds that the applicant meets the definition of refugee in s 5(H)1 of the Act.

102. As the applicant meets the definition in s 5H(1), the Tribunal is satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).

103.   In light of the Tribunal’s findings above, it is not necessary for the Tribunal to consider the detail of the applicant’s any other substantive or residual claims in her protection visa application.

104.   As mentioned above, the applicant does not have the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.

Conclusion

105.   For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

106. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Brendan Darcy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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