2309459 (Refugee)

[2024] AATA 3300

2309459 (Refugee) [2024] AATA 3300 (23 August 2024)

DECISION RECORD

DIVISION:	Migration & Refugee Division
REPRESENTATIVE:	Lisa van Toor
CASE NUMBER:	2309459
COUNTRY OF REFERENCE:	Burma (Myanmar)
MEMBER:	Fraser Robertson
DATE:	23 August 2024
PLACE OF DECISION:	Perth
DECISION:	The Tribunal remits the application for reconsideration with a direction that each of the applicants satisfy s 36(2)(a) of the Act.
Statement made on 23 August 2024 at 10:03am

CATCHWORDS

REFUGEE – protection visa – Myanmar – race – mixed Karan-Bamar ethnicity – particular social group – failed asylum seekers – returnees from Australia – political opinion – imputed opposition to the military regime – gender-based violence – 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

DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1

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

INTRODUCTION

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

2. The primary review applicant ('K') is [an age]-year-old female. The other applicants are her two children, who are [age] years old ('T') and [age] years old ('P'), respectively.

3. The applicants departed Myanmar in November 2022 and travelled to Australia as holders of tourist visas. Following their arrival, K consulted a registered migration agent in November 2022 and appointed that person to act for the applicants on 28 November 2022.[1] The applicants applied for protection visas on 11 December 2022. The protection visa application claimed a well-founded fear of persecution because of, among other things, K's actual or imputed political opinion, travel overseas, and ethnicity.

   [1]        See Form 956 dated 28 November 2022.

4. In June 2023, their application was refused by the Minister's delegate. The delegate found that the K was of Bamar ethnicity, rejecting a claim that the applicant had Chinese ethnicity. The delegate accepted that the children's father had Karan (Kayin) ethnicity and that the children were mixed Karan-Bamar ethnicity. Among other things, the delegate did not accept that K had a profile adverse to the ruling regime or that she would be considered a failed asylum seeker on return. They have applied to this Tribunal for a review of that decision.

5. For these reasons, the application should be remitted for reconsideration with a direction that each applicant satisfies s 36(2)(a) of the Act.

   RELEVANT LAW

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

7. In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs[2] and the DFAT Country Information Report.

   [2]        See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

   Refugee criterion

8. Section 36(2)(a) of the Act 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 decision‑maker 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.[3]

   [3]        Migration Act 1958 (Cth), s 5H(1)(a).

9. 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.[4] Persecution must involve serious harm[5] and systematic and discriminatory conduct.[6]

   [4]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

   [5]        Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.

   [6]        Migration Act 1958 (Cth), s 5J(4)(c).

10. A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[7] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.[8]

    [7]        Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

    [8]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.

    Country information

11. Myanmar experienced a coup in February 2021[9] and remains in a state of civil war at present. DFAT describes Myanmar as having been continuously affected by conflict since independence in 1948.[10] The de facto military dictatorship[11] is fighting for control of large parts of the country, with at least one-third of the country being held by armed ethnic rebel groups.[12] Dozens if not hundreds of armed groups operate in Myanmar, and there are an estimated 20 ethnic armed organisations.[13] The military regime and militia groups it sponsors have been accused of accused of arson, targeted assassinations, attacks on civilians and spreading disinformation.[14]

    [9]        See 'DFAT Country Information Report - Myanmar (version 3)', Department of Foreign Affairs and Trade, 11 November 2022, 20240308075033 ('2022 DFAT Report') [2.19]-[2.23].

    [10]       2022 DFAT Report, [2.30].

    [11]       2022 DFAT Report, [2.19].

    [12]       2022 DFAT Report, [2.31].

    [13]       2022 DFAT Report, [2.32].

    [14]       2022 DFAT Report, [2.35].

12. Following the February 2021 coup, demonstrations broke out throughout the country.[15] The military regime’s response to the protest movement has been harsh and wide-ranging, including restrictions on freedom of expression and assembly, the arrest and detention of protestors, the spreading of disinformation, and the beating, torture and killing of protestors and first aid responders.[16]

    [15]       2022 DFAT Report, [2.46].

    [16]       2022 DFAT Report, [2.47].

13. Myanmar is one of the poorest countries in Asia and has been described as a multidimensional humanitarian crisis.[17] Poverty rates have increased significantly since the coup.[18]

    [17]       2022 DFAT Report, [2.8].

    [18]       2022 DFAT Report, [2.9].

14. Myanmar has a legally enshrined hierarchy of first and second-class citizens based on ethnicity, and racial discrimination in Myanmar is widespread and institutionalised.[19] Children at some schools are taught racist content, including poetry encouraging the hatred of people with ‘mixed blood’.[20] Many ethnic minorities experience violence and displacement due to ongoing conflict in their home states and regions.[21]

    [19]       2022 DFAT Report, [3.3].

    [20]       2022 DFAT Report, [3.3].

    [21]       2022 DFAT Report, [3.3].

15. DFAT assesses 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, although for some groups (such as Rohingya) the risk is much higher. Minority ethnic groups including the Chin, Karen, Karenni and others suffer frequent violence at the hands of the state, largely on the basis of actual or perceived association with armed resistance movements

16. The 'Karen' (Karan, Kayin) people are ethnically and linguistically diverse and comprise around 7% of Myanmar’s population.[22] The areas in which they traditionally live are primarily controlled by ethnic armed organisations opposed to the government.[23] There are numerous reports of soldiers committing human rights violations against Karen people.[24] DFAT assesses that Karen living in Kayin State face a moderate risk of state violence and displacement based on perceived or actual association with armed resistance groups.[25] Outside the ethnic armed organisation-administered areas of Karen State, Karen face similar risks of societal and official discrimination to other non-Bamar ethnicities.[26]

    [22]       2022 DFAT Report, [3.18].

    [23]       2022 DFAT Report, [3.19].

    [24]       2022 DFAT Report, [3.19].

    [25]       2022 DFAT Report, [3.21].

    [26]       2022 DFAT Report, [3.21].

17. There have been reports that since the coup, women who are detained by the security forces for opposing the regime are often subjected to sexualised threats and sexual harassment, and in some cases to sexual assault, rape and torture.[27] DFAT is aware of credible allegations of extreme sexual torture of some female detainees, including gang rape, sexual mutilation and being hung naked from a tree.[28] Female political prisoners are at high risk of sexual harassment and moderate risk of sexual violence and rape.[29]

    [27]       2022 DFAT Report, [3.81].

    [28]       2022 DFAT Report, [3.81].

    [29]       2022 DFAT Report, [3.83].

18. Many children and young people were involved in the anti-coup protests of 2021, both as bystanders and active participants.[30] Children ranging in age from 9 months to 18 years were arbitrarily detained in the subsequent crackdown.[31] To reinforce the point, the reference to "9 months" is not a typographical error. DFAT assesses that young people, including teenagers, face a moderate risk of official discrimination and a low risk of societal discrimination based on their age and presumed association with the resistance movement, regardless of their actual involvement.[32]

    [30]       2022 DFAT Report, [3.94].

    [31]       2022 DFAT Report, [3.94].

    [32]       2022 DFAT Report, [3.96].

19. Returnees to Myanmar are interviewed by Myanmar’s Ministry of Labour, Immigration and Population.[33] DFAT has assessed 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. (emphasis added)

    [33]       2022 DFAT Report, [5.22].

    WHY THE APPLICANTS SATISFY THE REFUGEE CRITERION FOR PROTECTION

20. The applicants claim to be Myanmar nationals. I am satisfied that they are nationals of Myanmar and that Myanmar is their country of nationality and the receiving country.

21. Based on the above country information, I am satisfied that if returned to Myanmar, the applicants would likely be identified as failed asylum seekers or as returnees who have spent a considerable period in a Western country and, as such, will be imputed to be opposed to, or having criticised, the ruling military regime. That information would be readily obtainable from the applicants when they are interviewed. The country information makes it clear that persons returning from Western countries, whether voluntarily or as a failed asylum seeker, face a high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.

22. I am satisfied that this will occur irrespective of their history, profile, and activities in Australia or Myanmar. I am also satisfied that returnees from a Western country and failed asylum seekers are particular social groups within the meaning of s 5L of the Act. I am further satisfied that the imputation of the adverse profile indicated would be for the essential and significant reason that they are members of either or both of those social groups.

23. If the applicants are returned to Myanmar, I accept that they will be suspected of opposing or criticising the regime. If K, in particular, is detained, she faces a high risk of sexual harassment and a moderate risk of sexual violence and rape, even extreme sexual torture.

24. T is [age] years old and will shortly be [age] years old. P is [age] years old. Country information demonstrates that teenagers face being imputed with association with the resistance movement, regardless of their actual involvement. The risk that they will be presumed to be associated with the resistance movement or otherwise be suspected of opposing or criticising the regime will increase because of their time in Australia and the potential of being returned as failed asylum seekers. I add that they are mixed ethnicity. Quite apart from any institutional or societal discrimination on that basis, it is likely to add to their chance of being profiled as opposing the military regime. Moreover, their status as children does not appear to result in the harm they would face on return being lessened but elevates their chance of harm.

25. Based on the above country information, I am satisfied that each applicant faces a real chance of serious harm within the meaning of s 5J(4) of the Act.

26. The essential and significant reason for the risk of harm is the applicant's membership of the particular social groups identified above. I am satisfied that the feared harm involves systematic and discriminatory conduct. I am further satisfied that the risk of harm relates to all areas of Myanmar and that as their putative persecutor would be the ruling military regime, they cannot access effective state protection.

27. I am not satisfied that s 36(3) of the Act applies to the applicants.

28. For the above reasons, I am satisfied that the applicants each have a well-founded fear of persecution within the meaning of s 5J(1) of the Act and that they are refugees within the meaning of s 5H(1) of the Act. On that basis, they each satisfy the criterion in s 36(2)(a) of the Act.

    DECISION

29. The Tribunal remits the application for reconsideration with a direction that each of the applicants satisfy s 36(2)(a) of the Act.

    Fraser Robertson
    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