AEI19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 188
•17 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AEI19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 188
File number(s): SYG 90 of 2019 Judgment of: JUDGE ZIPSER Date of judgment: 17 February 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal – whether Tribunal failed to consider claims – whether Tribunal failed to consider evidence – whether Tribunal failed to consider or misunderstood country information – whether applicants concealed their ethnicity or race – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) s 5J(3)(c)(ii)) Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 31 January 2025 Place: Parramatta Counsel for the Applicants: Mr J.F Gormly Solicitor for the Applicants: Sydney West Legal and Migration Counsel for the Respondents: Ms F. McNeil Solicitor for the Respondents: Minter Ellison ORDERS
SYG 90 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEI19
First Applicant
AEJ19
Second Applicant
AEK19 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
17 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The first and second applicants pay the first respondent’s costs in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 15 January 2019, the applicants lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 3 January 2019. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection (Class XA) visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In April 2014, the applicants arrived in Australia on visitor (Class FA) (subclass 600) visas.
In May 2014, the applicants lodged an application for protection visas. The first applicant (Applicant) was the primary applicant. The second applicant is the Applicant’s wife. The third to seventh applicants are children of the first and second applicants. The eighth applicant, a child born in October 2015, was added to the application in November 2015.
On 17 July 2015, the delegate of the first respondent, after interviewing the Applicant on 5 June 2015, made a decision refusing to grant the visas. The delegate, after finding that the Applicant was not a credible witness, concluded that Australia did not have protection obligations to the Applicant or his family members.
On 4 August 2015, the applicants applied to the Tribunal for review of the delegate’s decision.
On 14 May 2018, the Tribunal invited the applicants to appear at a hearing to give evidence and present arguments on 29 June 2018.
On 29 June 2018, the Applicant appeared before the Tribunal and gave evidence.
On 16 July 2018, the Tribunal sent the applicants a letter containing an invitation to comment on adverse information. On 27 July 2018, the Applicant responded to the invitation. The response included a statutory declaration of the Applicant dated 27 July 2018.
On 3 January 2019, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants protection visas.
TRIBUNAL’S DECISION
The Applicant claimed to be a Rohingya Muslim who, at the time he left Myanmar in April 2014, was being pursued by the Myanmar authorities. The Applicant gave evidence concerning the manner in which the Myanmar authorities were pursuing the Applicant:
(a)in a statement accompanying the protection visa application in May 2014;
(b)at an interview with the first respondent’s delegate in June 2015; and
(c)at a hearing before the Tribunal in June 2018.
The Tribunal had significant concerns about the Applicant’s credibility. The Tribunal, in its decision, identified and discussed the concerns under the sub-headings:
(a)evidence about the applicant’s travel in and out of Myanmar;
(b)evidence about ceasing to operate his fish export business; and
(c)evidence about an incident in January 2014 when the applicant’s native village was burned down.
The Tribunal concluded that the Applicant “is not a witness of truth and the account of events that he advances … on which his protection claims are in essence based is false”. The Tribunal accepted that the Applicant was a Rohingya Muslim. However, in light of the significant adverse credibility finding, the Tribunal rejected most of the Applicant’s claims concerning his experiences in Myanmar.
A question before the Tribunal was whether the Applicant was a citizen of Myanmar as the Applicant claimed to be stateless. The Applicant and his family held Myanmar passports in their names which they used to travel from Myanmar to Australia. In addition, Myanmar authorities issued the Applicant with a Citizenship Scrutiny Card in March 1993. The Tribunal found that the applicants were Myanmar citizens.
The Tribunal concluded that the risk of the applicants suffering serious harm if required to return to Myanmar was remote, there was no real chance they would suffer harm on the basis of discrimination for being Rohingyas, and the Tribunal was not satisfied that any of the applicants were persons in respect of whom Australia had protection obligations.
PROCEEDINGS IN THIS COURT
Application and amended application
On 15 January 2019, the applicants filed an application in this Court. On 3 January 2025, the applicants filed a second further amended application (Amended Application). The four grounds in the Amended Application are as follows (as written):
1.The Tribunal misunderstood and failed to consider evidence and the claims made by the first applicant that he had obtained his residence in Yangon and his Myanmar passport by fraudulently passing himself and his family off to the Myanmar authorities as being of an ethnicity other than Rohingyan, that is, a ‘Bengali-Bamar’ (or ‘Burmese muslim’) from Maungtaw (the claims).
Particulars
A.The first applicant claimed he had lost his citizenship by operation of the 1982 Burma Citizenship Law against Rohingya however the Tribunal found the applicants were citizens on the basis of their Myanmar passports.
B.Bamar is a different ethnicity to Rohingyan ethnicity. DFAT and COISS Departmental information before the Tribunal was that the 1982 Burma Citizenship Law entitled Bamars and certain other ethnicities to citizenship, but was implemented to disentitle Rohingyans from citizenship.
C.The Tribunal accepted the first applicant and his wife were Rohingyans originally from the Rakhine state.
a.The evidence of the means by which the applicants passed off the false Bengali-Bamar ethnicity to the Myanmar authorities included:
i.The first applicant’s claimed use of a ‘fake’ Burmese name to acquire residency in Yangon;
ii.The first applicant’s identification of his and his family’s ethnicity as Bengali-Bamar on the two documents required for citizenship, the Citizenship Scrutiny Card and the Household List showing the first applicant and his family’s residence in Yangon;
iii.The information provided by the first applicant on his childrens’ birth certificates that their parents’ ethnicity was Bengali-Bamar.
b.In failing to consider the evidence at 1(a)(ii)-(iii) and misunderstanding the claims, and additionally upon the misunderstanding of the DFAT country information set out in Ground 2, the Tribunal presumed a regularity in the issue:
i.of the documents entitling and recognising the first applicant and his family to live in Yangon; and
ii.of the first applicant’s and his family’s Myanmar passports, and other travel documents issued upon the passport as if they were genuine and not issued upon false information of Bamar ethnicity.
c.In failing to consider the evidence and misunderstanding the claims, and additionally, upon the misunderstanding of the DFAT country information set out in Ground 2, the Tribunal assumed the authorities which issued the documents were aware of the first applicant’s Rohingyan ethnicity.
d.As a result of these errors the Tribunal’s assessment of the risk of the applicants suffering serious harm as Rohingya in Myanmar, including Yangon, was distorted.
2.The Tribunal misunderstood the DFAT country information it was required to consider under Direction No. 56 and s 499(2) of the Act and/or failed to take into account information in the July 2017 COISS report to conclude the first applicant’s passport was genuine, and that the first applicant was a citizen of Myanmar who was free to move around and out of Myanmar.
Particulars
a.The Tribunal considered relevant DFAT country information that:
“Burmese Muslims (which Rohingya in Yangon typically register as) holding national ID cards and residency documents have a legal right to a passport.”
b.The Tribunal misunderstood this information to mean that there was an official designation of “Burmese muslims”, which applied to Rohingya and under which Rohingya could officially and regularly obtain the national ID cards and residency documents required for legal entitlement to a passport.
c.The Tribunal misunderstood that to be recognised as “Burmese muslims”, Rohingya would have to dissemble their true ethnicity, as the first applicant had claimed to have done.
d.The 2017 COISS report referred to at footnote 14 of the Tribunal decision stated
“To obtain passports however, the identities used are either organised by the broker or obtained by falsely claiming a different ethnicity.”
Further or in the alternative
3.If the Tribunal did not misunderstand the first applicant’s claims that he had fraudulently passed himself and his family off as being of an ethnicity other than Rohingyan or failed to consider or take into account the country information as pleaded in Grounds 1 or 2, the Tribunal erred in finding, contrary to s 5J(3)(c)(ii) Migration Act 1958, that the applicants had not modified their conduct to conceal their true race, ethnicity or nationality and should live discretely from their true ethnicity as Rohingyans in Yangon to avoid harm.
Further
4.The Tribunal unreasonably rejected the first applicant’s claims regarding a massacre on 13 January 2014 in the first applicant’s native village Du Chee Yar Tan (AKA Kilaidong) in Maungtaw, Rakhine Province first given in his original written statement and again in a later Statutory Declaration in response to a s 424A Notice; and also failed to take into account additional corroborative evidence regarding the massacre on 13 January 2014.
Particulars
a.In his original written statement, the first applicant claimed that on 13 January 2014 there was an ‘incident’ in Du Chee Yar Tan village in which the authorities arbitrarily arrested and summarily executed a large number people from the village and that the international media had given extensive coverage of this incident.
b.In the same statement, the first applicant claimed that on 28 January 2014 the authorities had burned down the entire village.
c.The applicant later provided to the Tribunal contemporaneous country information of the 13 January 2014 massacre and the events in January 2014 leading up to it.
d.In response to a s 424A Notice of a discrepancy between a later account by the first applicant that he had left Myanmar after and in response to the burning down of his village on 28 January 2014, when in fact he had left Myanmar two days earlier on 26 January 2014, the applicant again admitted the error and provided further corroborative evidence of the 13 January 2014 massacre and the international media coverage of it prior to the 28 January 2014 burning.
e.The Tribunal accepted that Du Chee Yar Tan was the first applicant’s native village and that it was burnt down on 28 January 2014.
f.The Tribunal unreasonably rejected the applicant’s account and disregarded the corroborative evidence of the 13 January 2014 massacre, and the events in January 2014 leading up to it, as if the additional evidence and further account of ‘the incident’ on 13 January 2013 and the events leading up to it concerned ‘another’ and different incident to that claimed in the first applicant’s original written statement.
g.In coming to these conclusions, the Tribunal misunderstood the burning down of the village on 28 January 2014 as the real occasion of the violent incidents in January 2014, including the massacre.
h.The Tribunal made adverse credibility findings on the first applicant’s response to the s 424A Notice, without taking into account the corroborative evidence.
Evidence
At the hearing in this Court on 31 January 2025, the first respondent tendered a court book (CB) which contained the documentary evidence before the Tribunal. The applicants tendered an affidavit which annexed some country information reports before the Tribunal, two of which are referred to below. The applicants also tendered an affidavit which annexed a transcript of the hearing before the Tribunal in June 2018.
Applicant’s submissions
On 3 January 2025, the applicants filed a written submission (AS). At the hearing on 31 January 2025, Julian Gormly of counsel appeared for the applicants and made oral submissions. There were occasionally divergences between the written and oral submissions. The submissions are addressed below.
First respondent’s submissions
On 20 January 2025, the first respondent filed a written submission. At the hearing on 31 January 2025, Fiona McNeil of counsel appeared for the first respondent and made oral submissions.
CONSIDERATION
Grounds 1 to 3 – introduction
As stated by Mr Gormly, grounds 1 to 3 are connected or interrelated.
To understand grounds 1 to 3, it is useful to refer to some country information before the Tribunal which was tendered at the hearing on 31 January 2025.
The following is stated in paragraphs 3.1, 3.2 and 3.3 of “DFAT Country Information Report Myanmar” dated 10 January 2017 (DFAT Report):
3.1 The Myanmar Government recognises eight major ethnic groups (the Kachin, Kayah/Karenni, Kayin/Karen, Chin, Bamar, Mon, Rakhine and Shan) as part of 135 ‘national races’…
3.2 The Muslim population who identify as Rohingya are not among the 135 recognised ethnic groups; nor are people of Indian, Chinese, Anglo-Burmese or Nepali descent. The formal restrictions on people who do not hold full citizenship are broad…
3.3 The Bamar are the majority ethnic group in Myanmar, comprising approximately 68 per cent of the population.
The following is stated on pages 6, 9 and 10 of a report published by Department of Immigration and Border Protection titled “Rohingya: Issues relating to statelessness (Myanmar, Bangladesh and Malaysia)” dated 14 July 2017 (DIBP Report) (excluding footnotes):
The (mis)application of the Act, and the failure of authorities to implement it, led to most Rohingya becoming de facto stateless. Implementation of the Act did not correspond with its promulgation; in the late 1980s authorities began a new citizenship scrutiny exercise in which NRCs were replaced with Citizenship Scrutiny Cards (CSCs). CSCs were issued in one of three colours – pink, green and blue – corresponding to the three tiers of citizenship outlined in the 1982 Act (full citizenship, associate citizenship and naturalised citizenship).
…
A few Rohingya in Yangon have obtained citizenship status; greater numbers have obtained other forms of identity documentation. A small number of Rohingya in Yangon have full citizenship and have obtained pink registration cards (CSCs), at times through bribing authorities or falsely registering as Kaman. While it was reported in 2015 that this had become almost impossible in recent years, it was more recently reported in April 2019 that according to local sources, Rohingya can pay bribes to officials to obtain a Kaman identity card. Typically, Rohingya in Yangon are registered as ‘Burmese Muslims’ or ‘Bamar Muslims’. A person willing to record their ethnic group as a Burmese/Bamar Muslim is generally able to access either full, associate or naturalised citizenship, depending on their family history, including national identity cards and residency documents which provide a legal right to a passport. Most Rohingya in Yangon hold an NRC, which remains a valid document. The NRC is, however, not proof of citizenship but rather of identity and of permanent residence.
…
Documented Rohingya in Yangon have been able to obtain passports. A significant number of Rohingya in Yangon possess NRCs and can obtain passports. Rohingyas possessing CSCs have used these to obtain passports. Alternatively, passports can be obtained by bribing officials or using a broker. To obtain passports however, the identities used are either organized by the broker or obtained by falsely claiming a different ethnicity. Since the Burmese government wants Rohingya and Muslims to leave the country, bribery can smooth the passage through airport immigration. Burmese Muslims (which Rohingya in Yangon typically register as) holding national ID cards and residency documents have a legal right to a passport.
There were a number of documents before the Tribunal concerning the applicants issued by government bodies. During the hearing on 31 January 2025, Mr Gormly, in connection with grounds 1 to 3, directed the Court to the following information in the following documents:
(a)English translation of birth certificate of one of the applicant children which records the race of the Applicant and his wife as “Bengali and Bamar” (CB 203);
(b)English translation of Citizen Scrutiny Card which records the race of the Applicant as “Bengali and Bamar” (CB 365); and
(c)English translation of “Family member list” which records the race of the applicants as “Bengali and Bamar” (CB 366).
As part of the background to grounds 1 to 3, Mr Gormly contended:
(a)The applicants were not “Bengali and Bamar”. They were Rohingya.
(b)To obtain the documents in the above paragraph, the Applicant “had fraudulently passed himself and family off as being of an ethnicity other than Rohingya in order to obtain the right to live in Yangon and to obtain official Myanmar passports”: AS [51].
To understand ground 1 as developed by Mr Gormly at the hearing on 31 January 2025, it is also necessary to understand the following. The Applicant’s passport, and other documents issued by some government and other bodies in Myanmar such as the documents in paragraph 24 above, record the Applicant’s name as comprising two words preceding the symbol “@”, and then two words following the symbol “@”. The Applicant’s evidence before the Tribunal was that the two words following the symbol “@” were the Applicant’s Rohingyan birth name, and the two words preceding the symbol “@” were a Burmese name for the Applicant needed to obtain these documents: see CB 665.
In considering grounds 1 to 3, it is relevant to also note the following. In March 2014, the Applicant applied for a visitor visa for his family to visit Australia. The visitor visa application dated 20 March 2014 and accompanying documents were before the Tribunal. In the visitor visa application, the Applicant wrote, in response to the question “Nationality of passport holder”, “Myanmar”. The Applicant included a number of documents with the visitor visa application to demonstrate his employment in Myanmar and his ties to Myanmar. One document was an English translation of a Citizenship Scrutiny Card in the Applicant’s name dated 15 March 1993. The relevancee of this document is explained in the country information in paragraph 23 above. There is a tension between:
(a)the Applicant’s acknowledgement in the visitor visa application that he was a national of Myanmar, and the holding of a Citizenship Scrutiny Card issued in 1993; and
(b)what appears to be an attempt in the applicants’ application to this Court to try to undermine the Tribunal’s finding at [54] that the applicants had Myanmar citizenship.
Ground 1
Ground 1, excluding particulars, states:
The Tribunal misunderstood and failed to consider evidence and the claims made by the first applicant that he had obtained his residence in Yangon and his Myanmar passport by fraudulently passing himself and his family off to the Myanmar authorities as being of an ethnicity other than Rohingyan, that is, a ‘Bengali-Bamar’ (or ‘Burmese muslim’) from Maungtaw (the claims).
While there is an overlap between the concepts of a decision-maker failing to consider evidence and failing to consider a claim in a manner which involves jurisdictional error (see, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]), there are also differences between the concepts.
Failure to consider claim
At the hearing on 31 January 2025, Mr Gormly pressed the contention that the Tribunal failed to consider a claim made by the Applicant. In ground 1 of the Amended Application, the claim is stated to be that the Applicant “had obtained his residence in Yangon and his Myanmar passport by fraudulently passing himself and his family off to the Myanmar authorities as being of an ethnicity other than Rohingyan, that is ‘Bengali-Bamar’ …” At the hearing on 31 January 2025, Mr Gormly described the claim differently, being that the Applicant was not entitled to use the Burmese name referred to in paragraph 26 above and the Applicant’s use of the Burmese name was fraudulent.
The applicants’ written submission relies on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE). In that case, the Full Court stated at [55]-[63]:
[55] … Where the Tribunal fails to make a finding on a “substantial clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction …
[58] … There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it … The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.
[61] … the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it …
[63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
Ground 1 of the Amended Application complains that the Tribunal failed to consider, or misunderstood, a “claim” made by the Applicant. At the hearing on 31 January 2025, Mr Gormly stated that the “claim” arose from the following materials before the Tribunal:
(a)The Applicant stated in his protection visa application that he was “stateless”: CB 12.
(b)According to the delegate’s decision, the Applicant stated at an interview with the delegate that he was “stateless as the Burmese government does not recognise the Rohingya people as citizens since the introduction of the 1982 Burmese citizenship law” (CB 472) and the Applicant “is a citizen of Burma but the government itself does not recognise him as a citizen of Burma” (CB 474).
(c)The Applicant stated in a submission provided to the Tribunal in August 2015: (CB 536)
I find the decision of the case officer absolutely unacceptable as I have repeatedly stressed that there are many political dissidents and Rohingya people who are able to use the Burmese passport and other documents by using brokers who are very familiar with the corrupted officials and procedure of the government agency.
(d)At the hearing before the Tribunal in June 2018, the Applicant stated:
There is no mention that I am a Rohingya on my passport or Bengali … So this means they cannot recognise me as a Rohingya.
(e)At the hearing before the Tribunal in June 2018, the Applicant stated:
I had to put my Burmese name along with my Rohingya name [on my national identity card and Burmese passport] because they don’t want to call us with the Rohingya name.
(f)The Applicant stated in a letter provided to the Tribunal in November 2018 (CB 665):
My real name from birth is [redacted]. [redacted] is a fake name Burmese name to fraudulently acquire residence in Yangon.
As explained in paragraph 26 above, where the Applicant’s name is written in documents issued by government bodies in Myanmar, the Burmese name precedes the symbol “@” and the Rohingyan birth name appears after the symbol “@”.
At the hearing on 31 January 2025, Mr Gormly appeared to acknowledge that the Applicant did not expressly make the claim Mr Gormly contends was not considered by the Tribunal. The remaining question is whether there was a claim, case or argument which was “raised squarely on the material available to the Tribunal” (NABE at [58]) and which the Tribunal did not address or deal with.
The Applicant expressly claimed in his protection visa application that he was stateless. The Tribunal dealt with this claim by finding at [54] that the applicants had Myanmar citizenship. In finding that the applicants had Myanmar citizenship, I consider that the Tribunal took into account and had regard to the matters stated by the Applicant in paragraph 32 above. More specifically:
(a)In relation to the matters in paragraph 32(a) and (b), in response to the Applicant’s claim that he was stateless, the Tribunal found at [54] that the Applicant had Myanmar citizenship.
(b)In relation to the matter in paragraph 32(c), while the Applicant referred to some people who use “brokers who are very familiar with the corrupted officials and procedure of the government agency”, the Applicant did not claim that he used such a broker. The information provided by the Applicant to the Tribunal did not give rise to a separate claim concerning the Applicant that the Tribunal was required to separately address.
(c)In relation to the matters in paragraph 32(d) and (e), first, there is a tension between these two statements to the Tribunal to the extent that the Applicant said on one occasion that he could not be recognised as Rohingya from his passport and on another occasion that he could be recognised as Rohingya from his passportSecond, to the extent that the Applicant’s representations to the Tribunal about using a Burmese name and not a Rohingya name might suggest some form of discrimination against Rohingya, the Tribunal dealt with this issue at [57]-[58]. Third, the Tribunal at [17] expressly referred to the Applicant’s evidence that “he had to specify a Burmese name along with a Rohingya name”, and thus took this matter into account in making its findings at [54] – [58].
(d)In relation to the matter in paragraph 32(f), while the Applicant described his Burmese name as a “fake name”, the Applicant did not state or claim that he was not entitled to use the name. In relation to the Applicant’s statement that he used the Burmese name to “fraudulently acquire residence in Yangon”, the Applicant did not claim that he faced any risk of harm associated with the circumstances in which he commenced residing in Yangon over 20 years earlier, or that he risked being expelled from Yangon.
To the extent that the Applicant may have claimed that, despite being a citizen of Myanmar, he was not treated as a citizen and thereby faced a real chance of serious harm, the Tribunal dealt with this claim by finding at [57] that “the risk of the applicants suffering serious harm in Myanmar is remote” and at [58] that “there is not a real chance the applicants will suffer serious harm on the basis of discrimination for being Rohingyas”.
Further, in response to the manner in which Mr Gormly articulated the “claim” at the hearing on 31 January 2025, I do not accept that there was a claim by the Applicant before the Tribunal that he was not entitled to use the Burmese name referred to in paragraph 26 above or that the Applicant’s use of the Burmese name was fraudulent. In relation to the Applicant’s statement to the Tribunal that he used the Burmese name to “fraudulently acquire residence in Yangon”, which is different to the broader alleged claim that his use of the Burmese name was fraudulent, see paragraph 35(d) above.
Failure to consider evidence
To the extent that ground 1 includes a claim that the Tribunal failed to consider evidence, during the hearing on 31 January 2025, Mr Gormly identified the evidence as the information concerning the race of the applicants in the documents in paragraph 24 above (Race Information).
I do not accept that the Tribunal failed to consider the Race Information in a manner which involved jurisdictional error. The Tribunal is not required to refer in its reasons for decision to every piece of evidence before it (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at 46 ), let alone every line of information in each piece of evidence before it. The Applicant’s claims to fear harm if required to return to Myanmar did not refer in any way to the Race Information. It was not necessary for the Tribunal to refer to the Race Information in order to address the Applicant’s claims. In these circumstances, that the Tribunal did not expressly refer to the Race Information does not support a conclusion that the Tribunal did not consider the Race Information.
Mr Gormly also appeared to contend that the Tribunal failed to consider a document, or information in a document, concerning the Applicant’s brother, specifically a temporary identity card at CB 633. Again, the Tribunal is not required to refer in its reasons for a decision to every piece of evidence before it. I do not accept that the Tribunal overlooked or failed to consider this document.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
Ground 2, excluding particulars, states:
The Tribunal misunderstood the DFAT country information it was required to consider … and/or failed to take into account information in the July 2017 COISS report to conclude the first applicant’s passport was genuine, and that the first applicant was a citizen of Myanmar who was free to move around and out of Myanmar.
The Tribunal stated at [54]:
Country information indicates that there are Rohingya living in Yangon who have obtained citizenship status and a significant number of Rohingya in Yangon have national registration cards and are able to obtain passports.14 The applicants all hold Myanmar passports. Even if, as the applicant claims in a letter dated 8 November 2018, they are issued in Burmese names and not the applicants' true Rohingya names, the Tribunal is satisfied that, in line with country information, they are Rohingyas who do have Myanmar citizenship.
The text to footnote 14 states:
Department of Immigration and Border Protection, Country of Origin Information Services Section (COISS) Rohingya: Issues Relating to Statelessness (Myanmar, Bangladesh and Malaysia) Thematic Briefing 14 July 2017 at p 9 Rohingya in Yangon.
The relevant country information on the lower half of page 9 of the DIBP Report is set out in paragraph 23 above.
It is stated at AS [67]-[69] that the Tribunal failed to take into account, or alternatively misunderstood, the following sentences from the lower half of page 9 of the DIBP Report:
Rohingyas possessing CSCs have used these to obtain passports. Alternatively, passports can be obtained by bribing officials or using a broker. To obtain passports, however, the identifies are either organised by the broker or by falsely claiming a different ethnicity.
The applicants held Myanmar passports which they used a number of times between 2012 and 2014 to exit and re-enter Myanmar. The Applicant also possessed a Citizenship Scrutiny Card issued in 1993. Based on the country information on page 9 of the DIBP Report, these documents supported the Tribunal’s finding at [54] that the applicants were “Rohingyas who do have Myanmar citizenship”.
In relation to the contention that the Tribunal failed to take into account the two sentences on page 9 of the DIBP Report referred to in paragraph 46 above, Mr Gormly’s argument appears to be that, because the Tribunal did not include in its summary at [54] the two sentences, therefore the Tribunal did not have regard to the sentences. I do not accept this contention. It is clear from the Tribunal’s decision at [54] that the Tribunal had regard to the information on page 9 of the DIBP Report. That the Tribunal did not summarise a particular sentence from the DIBP Report in its decision does not mean the Tribunal did not have regard to the sentence.
In relation to the contention that the Tribunal misunderstood the two sentences on page 9 of the DIBP Report, at the hearing on 31 January 2025, I asked Mr Gormly to specify how the Tribunal misunderstood the information. Mr Gormly did not provide a clear reply. I do not accept that the Tribunal misunderstood the information.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
Ground 3 states:
If the Tribunal did not misunderstand the first applicant’s claims that he had fraudulently passed himself and his family off as being of an ethnicity other than Rohingyan or failed to consider or take into account the country information as pleaded in Grounds 1 or 2, the Tribunal erred in finding, contrary to s 5J(3)(c)(ii) Migration Act 1958, that the applicants had not modified their conduct to conceal their true race, ethnicity or nationality and should live discretely from their true ethnicity as Rohingyans in Yangon to avoid harm
Section 5J(3)(c)(ii) of the Act states:
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: …
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
…
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
The Tribunal stated at [59]:
The Tribunal is also aware of statements by DFAT that Rohingya living away from the Rakhine state do not publicise their ethnicity and maintain a low profile in that respect. However, there is no credible evidence that this has led to the applicants suffering serious harm. The Tribunal has acknowledged that they have used Burmese names in their dealings with officialdom but the Tribunal does not accept that they have had to modify their conduct in any way to avoid serious harm. Finally, the Tribunal infers from the country information that the risk of the applicants suffering serious harm in Myanmar because they have sought protection in Australia is also remote.
It is contended at AS [70] that the applicants, by using Burmese names in their dealings with officialdom, had “concealed their Rohingyan ethnicity”. It is contended at AS [72] that “the Tribunal’s finding at AAT [59] that the applicants’ use of Burmese names to live in Yangon was not a modification of conduct to avoid serious harm was contrary to s 5J(3)(c)(ii). The evidence on which Mr Gormly relied for these contentions was the appearance of a name for the Applicant on his passport and some other documents issued by government and other bodies in the form explained in paragraph 26 above, that is a Burmese name preceding the symbol “@”, and then the Applicant’s Rohingyan birth name following the symbol “@”. I do not accept that the appearance of a Burmese name for the Applicant on these documents involved a concealment by the Applicant of his race or ethnicity. That the Applicant was provided with, or used, a Burmese name does not mean that he concealed, or needed to conceal, his race or ethnicity. I also do not accept that use by the applicants of Burmese names in their dealings with officialdom, involved a concealment by the applicants of their race or ethnicity. Further, as pointed out by Ms McNeil, the Applicant described his birth name to the Tribunal as his “Rohingya name”:see paragraph 32(e) above. Therefore, on the Applicant’s evidence to the Tribunal, his Rohingya ethnicity was evident on any of the documents on which Mr Gormly relies.
In addition, the Applicant never gave evidence in connection with his protection visa application, or claimed, that he concealed, or was required to conceal, his race or ethnicity. To the contrary, an aspect of the Applicant’s claims before the Tribunal was that he associated himself with the Rohingya cause: see statement accompanying protection visa application at [9], [10] and [12] (Applicant “decided to advocate for the plight of Rohingyas vigorously”).
At the hearing on 31 January 2025, Mr Gormly contended that the recording of the applicants’ race as “Bengali-Bamar” on the documents in paragraph 24 above also involved a concealment by the applicants of their race or ethnicity. I do not accept this contention. That the documents record that the applicants’ race was “Bengali-Bamar” does not establish that the bodies which issued the documents did not know that the applicants were Rohingyas, or that the applicants had to conceal their Rohingyan ethnicity to obtain the documents. In addition, as stated above, the Applicant never gave evidence in connection with his protection visa application, or claimed, that he was required to conceal his race or ethnicity when he was in Myanmar.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 4
Ground 4, excluding particulars, states:
The Tribunal unreasonably rejected the first applicant’s claims regarding a massacre on 13 January 2014 in the first applicant’s native village Du Chee Yar Tan (AKA Kilaidong) in Maungtaw, Rakhine Province first given in his original written statement and again in a later Statutory Declaration in response to a s 424A Notice; and also failed to take into account additional corroborative evidence regarding the massacre on 13 January 2014.
Country information before the Tribunal indicated that:
(a)On 13 January 2014 people in the village in which the Applicant was born and spent his childhood in Rakhine state were attacked and killed by local security forces and civilians.
(b)On 28 January 2014 the village, or some houses in the village, were burned down.
The Tribunal considered these events at [35]-[41] in the course of considering the Applicant’s credibility. The Tribunal’s concern was that the Applicant stated at the hearing before the Tribunal in June 2018 that after the village was burned down on 28 January 2014 he left Myanmar because the authorities wanted to apprehend him believing that he had informed the media about those events. But, according to his passport, he left Myanmar on 26 January 2014 which was before the village burned down. The Tribunal was concerned about the discrepancy between the Applicant’s version of events and a contemporaneous document before the Tribunal.
The Tribunal at [35]-[41] discusses:
(a)the Applicant’s evidence concerning this issue up to and including his evidence at the hearing in June 2018;
(b)the sending of a letter by the Tribunal to the Applicant on 16 July 2018 putting the discrepancy to the Applicant and inviting him to respond; and
(c)the Applicant’s response which included a statutory declaration dated 27 July 2018 (July 2018 Statutory Declaration).
Mr Gormly sought to establish a jurisdictional error in some aspect of the Tribunal’s reasoning process and findings at [35]-[41]. The nature of the asserted error varied as between the wording of ground 4, the applicants’ written submission and Mr Gormly’s oral submission.
It is stated in the opening paragraph of ground 4 that the Tribunal “unreasonably rejected” the Applicant’s claim concerning the massacre on 13 January 2014. Similarly, AS [74] refers to “the Tribunal’s rejection of the [Applicant’s] claims of a massacre on 13 January 2014”. However, the Tribunal did not dispute that the incident on 13 January 2014 occurred. I do not accept that the Tribunal made a finding rejecting that the incident on 13 January 2014 occurred.
At AS [78], the complaint is put differently, being “the unreasonableness of the Tribunal’s rejection of the claim that the [Applicant] had left the country in response to the events on 13 January 2014, rather than the burning down of the village on 28 January 2014”. This complaint appears to misunderstand the purpose of the Tribunal’s discussion at [35]-[41]. Mr Gormly did not dispute that, as stated by the Tribunal at [38], the Applicant gave evidence “to the Tribunal … a number of times … that after his native village was burned down on 28 January 2014 he left Myanmar because the authorities wanted to apprehend him”. I do not accept that there was any error by the Tribunal in not accepting the Applicant’s new version of events in the July 2018 Statutory Declaration that he left Myanmar in response to the events on 13 January 2014 rather than in response to the burning of the village on 28 January 2014.
It is asserted at AS [87] that “the Tribunal’s consideration is unintelligible in that it confuses the original claim of the 13 January 2014 massacre as if it occurred when the village burned down on 28 January 2014”. I do not accept that the Tribunal confused the massacre on 13 January 2014 and the burning down of the village on 28 January 2014. Mr Gormly did not identify a sentence in the Tribunal’s reasons which indicated confusion. I also do not accept that the Tribunal’s reasons were unintelligible. Mr Gormly did not identity a sentence or step in the Tribunal’s reasons which was unintelligible.
At the hearing on 31 January 2025, the focus of Mr Gormly’s oral submission was different. As stated above, by letter dated 16 July 2018, the Tribunal put to the Applicant the discrepancy in his evidence and invited him to comment. The Applicant then provided the Tribunal with the July 2018 Statutory Declaration in which the Applicant attempted to reconcile the obvious discrepancy in his evidence to the Tribunal explained in paragraph 60 above. In the July 2018 Statutory Declaration the Applicant stated that “the authorities were looking for me since the beginning of the incident in my village on 13 January 2014” (CB 648 [12]) and so he left Myanmar on 26 January 2014 in response to the 13 January incident, and before the burning down of the village on 28 January 2014.
The Tribunal at [41] commented on the Applicant’s evidence in the July 2018 Statutory Declaration. The Tribunal stated:
The Tribunal has carefully considered these further submissions from the applicant. However, the Tribunal finds that the applicant has invented yet another account to conceal the obvious discrepancy between his initial claims to have fled from Myanmar after his native village burned down on 28 January 2014 and his passport which indicates he actually left the country two days before.
At the hearing on 31 January 2025, Mr Gormly contended that it was not open to the Tribunal to describe the Applicant’s account in the July 2018 Statutory Declaration as “yet another account” because the account was identical to the account in the Applicant’s statement accompanying his protection visa application in May 2014. I do not accept this contention. A comparison between the account in the Applicant’s statement accompanying his protection visa application at CB 76 and the account in the July 2018 Statutory Declaration indicates a number of differences between the two accounts. A significant difference is that the Applicant stated in the July 2018 Statutory Declaration that “the authorities were looking for me since the beginning of the incident in my village on 13 January 2014”, while in the May 2014 statement the Applicant gave “late January 2014” as the first date the authorities looked for him. Another difference is that the Applicant stated in the July 2018 Statutory Declaration that in January 2014 he was a “resident” of the village, while in the May 2014 statement his evidence was that he resided in Yangon in January 2014.
Ground 4 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, it was agreed that I would hear submissions on costs at the time of handing down a judgment in this matter.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 17 February 2025
SCHEDULE OF PARTIES
SYG 90 of 2019 Applicants
Fourth Applicant:
AEL19
Fifth Applicant:
AEM19
Sixth Applicant:
AEN19
Seventh Applicant:
AEO19
Eighth Applicant:
AEP19
0
3
1