2217348 (Refugee)

2217348 (Refugee) [2023] AATA 4106 (25 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Thomas Edmond Meagher
CASE NUMBER:  2217348
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Paul Noonan
DATE:25 August 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 25 August 2023 at 10:26am

CATCHWORDS
REFUGEE – protection visa – Burma – political opinion – pro-democracy supporter opposed to military government – assessed as refugee – right to enter and reside in third country – country information – third country’s requirement that to renew re-entry permit, an applicant must hold valid travel document – applicant’s Burmese passport expired with significant barriers to renewing in Western country – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (3)(c), (5), 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 November 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Burma (Myanmar), applied for the visa on 7 July 2021. The delegate refused to grant the visa on the basis that, while the applicant is assessed to be a refugee, she does not engage Australia’s protection obligations as she currently has a right to enter and reside in [Country].
The delegate was satisfied that the applicant’s country of nationality is Myanmar and the Tribunal is also satisfied, on the basis of the biodata with respect to her Myanmar passport, a copy of which is retained on the Department’s systems and file, and it accordingly has assessed her claims with respect to Myanmar as the country of reference or receiving country for the purposes of this appeal.
The applicant is represented in relation to the review and comprehensive written submissions were made to the Tribunal in this matter.
The Tribunal decided upon review of this matter that it was appropriate to proceed to decide the matter on the papers without needing to proceed to a hearing as per s 360(2)(a) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant is a refugee and, if so, whether she has a current right to enter and reside in [Country]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant applied for the protection visa after the military coup in Myanmar which took place in February 2021 deposing the previously democratically elected leader Aung San Suu Kyi.[1] In her application for protection, the applicant stated that she fears persecution from the military junta in Myanmar due to her actual and imputed political opposition to the military junta. She was and remains a supporter of the deposed leader Aung San Suu Kyi.
[1] DFAT Country Information Report, November 2022, p.8
The Tribunal notes the following relevant country information with respect to the military junta in Myanmar. The most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report, published on 11 November 2022, sets out significant concerning information with respect to a person with this profile returning involuntarily to Myanmar. The Report sets out that in 2021 there was a military coup in Myanmar which sparked widespread protests that were violently supressed by the military. This has resulted in ongoing and widespread fighting in the country.
DFAT assesses that the military regime has no direct control over large parts of the country, and Action on Armed Violence, a non-government organisation, estimates that at least one‑third of the country is in the hands of ethnic rebel groups. Armed groups operate along Myanmar’s borders with China, Thailand, Laos, Bangladesh and India. The ‘Bamar heartland’, including Mandalay, Yangon, Sagaing and Magway, was once relatively peaceful, but since the coup this region has seen a sharp rise in violence, as local People’s Defence Forces (PDFs) and ethnic armed organisations clash with security forces, and the military regime targets civilians that they perceive are supporting their enemies.[2]
[2] Ibid, p. 13
Since the coup, Yangon and Mandalay have seen persistent violence for the first time in recent Myanmar history. For instance, in February 2022, there were 118 improvised explosive device (IED) incidents and 34 attacks involving small arms in Yangon, while over the same period there were 47 IED incidents and 21 small arms attacks in Mandalay. IED attacks have targeted government buildings or security forces, as well as businesses perceived as having connections to the military regime. Gun violence includes targeted shootings by PDFs of security forces and perceived collaborators, and raids by security forces of PDF hideouts.[3]
[3] Ibid, p.14-15
With respect to the applicant’s status as an involuntary returnee from the West, and having spent considerable time in a Western country, DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[4]
[4] Ibid, p.44
With respect to the applicant coming to the adverse attention of the Myanmar authorities for this reason, DFAT assesses that amongst other atrocities torture is commonly employed, and it finds as follows:
There are widespread, credible reports of the use of physical and psychological torture by Myanmar security forces, including beatings, stress positions, burning, mutilation, electric shocks, mock executions, rape and other forms of sexual violence, sleep deprivation, and denial of food, water and medicine. Other types of mistreatment include threats and verbal abuse, being made to strip naked, and being forced to drink from a toilet bowl. Before the coup, torture was more common in areas affected by ethnic conflict. The Special Rapporteur on the Situation of Human Rights in Myanmar reported in March 2021 that torture and ill‑treatment had been documented in the ‘overwhelming majority of cases of arbitrary detention’ in Rakhine and Chin State. Since the coup, torture has been reported throughout the country, especially against political prisoners and suspected members of PDFs and ethnic armed groups. Torture is common in places of detention, in particular military interrogation centres, but also prisons, police stations and military bases. Bodies of people who have been forcibly disappeared often show signs of torture.[5]
According to the AAPP, over 10,000 people have been arrested, charged or sentenced for political crimes since the coup, most under Section 505 of the Criminal Code, which criminalises expression intended to incite mutiny or ‘cause fear’ (see Political Opinion). Many are held for weeks or even months before they are charged. Most detainees cannot afford legal representation, and while some lawyers will take clients pro bono, there are not enough lawyers to meet demand. Authorities interfere in the ability of lawyers to defend their clients, and most accused only see their lawyer in court, on the day of their trial. There are widespread reports of torture and mistreatment of political detainees, especially in military interrogation centres. If security forces are unable to locate a person of interest, they often detain family members in their place, including the elderly and very young children, to coerce the person into giving themselves up.[6]
[5] Ibid, p.38
[6] Ibid, p.39
CONCLUSIONS
The Tribunal finds as follows:
·The applicant fears being persecuted for reason of her actual and imputed political opinion. Given the country information set out in these Reasons, there is a real chance that if the applicant returned to Myanmar, she would be persecuted for this reason.
·Given the agent of persecution is the Myanmar authorities and the country information indicates a real chance of persecution upon her immediate entry into the country, the real chance of persecution relates to all areas of Myanmar, and effective protection measures would not be available to the applicant.
·As the applicant’s reasons for fearing persecution are due to her actual and imputed political opinion, she meets the exception set out at ss 5J(3)(c) of the Act with respect to the question of behaviour modification.
·The applicant’s reasons for fearing persecution are the essential and significant reasons for which she would be persecuted. Given the country information with respect to the prevalence of violence and discrimination perpetrated against persons with an actual or imputed political opinion adverse to the military junta, due to their status as a returnee from the West, who DFAT assesses will come to the adverse attention of the authorities upon their arrival and be arbitrarily detained, and the country information with respect to the widespread and egregious levels of torture perpetrated by the authorities against people held in detention, the Tribunal finds that the persecution feared would involve serious harm to the applicant as per the instances of serious harm set out at s 5(J)(5). Further, the Tribunal finds that this persecution involves systematic and discriminatory conduct.
With respect to the applicant’s right to enter and reside in [Country] the Tribunal accepts the submission, dated 10 August 2023, from the applicant’s legal representative, and accompanying documentation, that reflects her Myanmar passport expired [in] 2022. The Tribunal notes that there are currently significant barriers to renewal of Myanmar passports in Western countries due to fear of retribution against family members of applicants who remain residing in Myanmar and the practice of the regime of confiscating passports submitted as part of the renewal process and stripping opponents of citizenship.[7]
[7] Myanmar nationals in Australia face passport limbo as calls for sanctions against military junta grow – ABC News (accessed 23 August 2023)
The Tribunal also notes that [Country] Government information states that to renew a [Country] re‑entry permit an applicant must hold a valid travel document with at least three months validity.[8] Further, if a [Country] permanent resident remains overseas without a valid re-entry permit, they will lose their permanent residence status. They will then be assessed for re‑entry into [Country] as a foreign visitor.[9] The Tribunal notes that the applicant has submitted a copy of her [Country] re-entry permit to the Tribunal. The permit reflects an expiry date of [February] 2023.
[8] [Government agency] | Apply for/Renew Re-Entry Permit (accessed 23 August 2023)
[9] [Government agency] | Apply for/Renew Re-Entry Permit (accessed 23 August 2023)
Given the above information and evidence, the Tribunal finds that the applicant does not currently have a right to enter and reside in [Country]. The Tribunal has considered the Refugee Law Guidelines at point 3.18.3.4 with respect to the lapsing of the re‑entry permit. The Tribunal notes that the Guidelines specify that there is no bad faith element in s 36(3).
There is no information in this matter that may indicate that the applicant has a right to enter and reside in any other country.
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Paul Noonan
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.
…

[2023] AATA 4106

25 August 2023

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