AQF19 v Minister for Home Affairs

[2019] FCCA 3461

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQF19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3461

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

N/A

Applicant: AQF19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 69 of 2019

Judgment of: Judge Vasta

Hearing date: 9 October 2019

Date of Last Submission: 9 October 2019

Delivered at: Brisbane

Delivered on: 9 October 2019

REPRESENTATION

The Applicant appearing in person with the assistance of an interpreter

Counsel for the First Respondent: Ms Oliver

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 20 February 2019 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A.  That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 69 of 2019

AQF19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 5 February 2019, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, AQF19, a protection visa.  On 20 February 2019, the Applicant filed an originating application asking this Court to review that decision. 

2. The background to the matter is as follows.  The Applicant claims to be an undocumented, stateless person of Rohingya ethnicity who was born in Myanmar, or as it was formally known, Burma.  He claimed that he was constantly at risk of harm from police and local authorities because he had no documentation.  He said he was denied access to education and he was unable to find employment, except as a street vendor who repaired umbrellas. 

3. He claims that he is at risk of harm for reason of his religion because he is a Sunni Muslim and Buddhist groups in Myanmar persecute Muslims. 

4. He claims that he was arrested by police in 2010 together with his brother, and, because they were undocumented, they were forced to work as porters for the Myanmar Army on the front line.  He said they escaped from the army 15 days later and fled to Malaysia. 

5. He said that he fears harm if he returns as a failed asylum seeker who sought protection in a Western country; and he cannot seek protection in Myanmar as it is the authorities who perpetuate harm against undocumented Rohingya, and the harm he fears relates to all areas of Myanmar. 

6. The only documentation that the Applicant provided to the department was a certified copy of a UNHCR card with a photo ID and the first name only. 

7. The IAA accepted that the Applicant was born in Myanmar, lived there until 2010 when he went to Malaysia, and then he stayed in Malaysia, working illegally as a cleaner, until April 2013 when he came to Australia by boat. 

8. At his entry interview on 15 April 2013, the Applicant said that he was born in Thingangyun in Yangon in Myanmar. 

9. In his written application in April 2017, he said he was born in Nasi Fara Village in the Sittwe city region in Rakhine State and he moved to Yangon when he was an infant. 

10. In his protection visa interview in July 2018 he said that he was born in Yangon and it was his father who came from Nasi Fara Village. 

11. He said that his father was a stateless Rohingya and his mother a stateless Burmese Muslim.  He said that he has nine siblings and that the entire family are stateless and undocumented. 

12. He said that his father died when he was about 12 years old when he, the father, was forced to work as a porter for the Burmese Army.  He also said that his older brother is now deceased but his mother and the other siblings reside in Yangon.

13. He said that his family has never applied for identity documents in Myanmar and that he is not eligible for citizenship there. 

14. There has been a number of versions given as to the origin of copy of the UNHCR card.  The certified copy indicates that the card was issued on 30 October 2012 and only has his given name and not his family name.  When asked why he did not have the original the Applicant has provided inconsistent explanations.  One, that he had to give the original to the UN when it came time to renew it, or secondly, that he lost it, and thirdly, that he was given a piece of paper instead and was due to have an interview in the next six months to get the original back, but by that time he was already in Australia. 

15. The IAA had regard to the fact that those cards are valuable to Rohingya in Malaysia as it is their only form of identity.  The Applicant himself said that he was told the card would prevent police from detaining him so he had to memorise the registration number.

16. The country information shows that these cards are very valuable and that there are a number of instances of fake UNHCR cards being available for sale or genuine cards being provided to individuals who did not meet the criteria for UNHCR registration.  The IAA said that given the Applicant’s inconsistent evidence as to why he had no original card, no weight was placed on this certified copy. 

17. The Applicant said that his father did not speak his own language within the family and only spoke Burmese so that the Applicant has no working knowledge of any Rohingya language. 

18. At the entry interview, the Applicant said that he attended Middle School No.4 in Yangon for five years from 1989 to 1994.  In the SHEV application he said he never attended school and that it must have been a mistake when the department recorded that he had attended school from kindergarten to year 4.  At the SHEV interview, the Applicant said that Rohingya were not allowed to go to school so he had not been to a formal school, but he did have religious lessons for six months when he was six years old and that is how he learnt to read and write in Burmese. 

19. He said to the delegate, when the delegate put to him that he said he attended a specific school for five years, that he thought that he had made a mistake in saying that because he was young and overwhelmed.

20. He was asked to identify specific cultural Rohingya customs and he could not.  He was asked about specific restrictions that Rohingya people faced in Myanmar, and, other than saying that he did not have documentation or they did not get an education, he could name no other specific restriction. He was asked how he personally identified as Rohingyan and he said:

    For my grandfather and father and my ancestors we are considered because we had that language so we consider ourselves descendants from those people.

21. As the IAA noted, the Applicant has no Rohingya language at all and this explanation does no really make any sense. 

22. The IAA did not accept the Applicant would have made such a mistake but that he has fabricated his evidence that he did not attend formal school to strengthen his claim of being stateless.  He was asked to describe some examples of racial discrimination he suffered and only said:

    Regarding my own personal suffering when I was in Rangoon, because I did not have a registration card I was detained once and also people look down on you.  That is how I have suffered.

23. In his written application he said that:

    The police and Burma Army would always ask us for our identification papers.  If we did not have our identification papers they would arrest us.  This happened to me once.

24. The delegate asked the Applicant on a number of occasions about various documents, such as the household registration list, temporary white cards and travel permits, and the Applicant appeared to have little knowledge of these documents and claimed that his family never had any documentation.  But despite claiming to have no documentation, he said that he had only been detained once by authorities when asked for his documentation. The Applicant said this happened in June 2010 just before he left the country. 

25. That incident occurred in this way according to the Applicant.  He and his brother were repairing umbrellas on the roadside.  They saw the police coming towards them.  They dropped everything and ran away.  He said that the police must have been able to tell from his belongings who he and his brother were, and later that night they came to their house.

26. He said that the police asked for his and his brother’s national ID cards and when it was said to them that they did not have one, the police arrested them, confiscated their belongings and locked them up in prison at the police station for seven days.  He said that they were mistreated and, after the seven days, the Burma Army authorities came and took them away and they were sent to the front line to work as porters for the army. 

27. He said that after 15 days of mistreatment, he and his brother fled in the middle of the night and crossed the land border into Thailand. 

28. The IAA then looked at the country information which showed that most Rohingya held national registration cards, NRCs, prior to 1989.  In 1995 authorities began issuing Rohingya with temporary registration cards which are TRCs or white cards. 

29. The NRCs were replaced with a series of new identification documents where Myanmar citizens were given pink cards, naturalised citizens were given green cards, and associate citizens were given blue cards, and that non-citizens were issued foreign registration certificates.  These cards grant relative freedom of domestic travel within Myanmar and are used to access some services including voting and government schooling.

30. The information was that very few Rohingya had their NRCs replaced with any of the above identification documents, and it was in 2015, some five years after the Applicant had left the country, according to his version, that the president declared the white cards were invalid, thus removing the formal documentation that was available to a Rohingya.

31. The country information also speaks of a household list.  A household list provides identification of residential status including date of the record, name of state, township, city, village, street, where the house is physically located, room number, building number;  personal information including name, date of birth, gender, father’s name, relationship with the household head, and a number of other important personal identification factors.

32. This means that the household list is very important for Rohingya as it is the main form of identification and is often the only form of documentation available to Rohingya.

33. At its protection interview, the IAA noted that the applicant said that he lived all of his life in the same house which was 10 minutes’ walk from the local mosque.  The IAA found that this strongly suggested that the family had a whole sold registration card.  The IAA did not find the evidence of the applicant to be credible when he said that he lived for several decades in the same location yet had no household registration.

34. At paragraph 24 of their reasons, the IAA said:

    Based on the above country information and the applicant’s lack of knowledge about Rohingya history, language or culture, his claimed lack of various documentation that would have been important to Rohingya over the past several decades, the fact that he claims he was only picked up once in over two decades the failing to have any documentation when he was working on the streets and living in the same area all his life, and his generally inconsistent and vague evidence I am not satisfied that the applicant is of Rohingya ethnicity or that he is an undocumented person or stateless.

35. The IAA was satisfied the Applicant was a documented national of Myanmar who identifies as a Burmese Muslim.

36. The IAA looked at the Applicant’s description of his being taken to the police station, then taken to the front lines and eventual escape and found that it was vague and confusing. At paragraph 29, the IAA said:

    29. I am prepared to accept the Applicant may have been harassed as a street vendor and asked to provide his ID and/or pay bribes to local police, but given the Applicant’s contradictory evidence about his household’s registration or lack of it, I am not prepared to accept the Applicant was arrested because he had no identification or documentation and then taken by the army to work as a porter on the front line.  The Applicant only provided very vague details about the location and what the army was doing there.  He had previously stated the same thing happened to his father when the Applicant was about 12 years old in about 1996.  I consider that he has conflated these stories and fabricated this incident in respect of himself to strengthen his claim for protection. I accept the Applicant is relatively uneducated, has no vocational skills, and earned his living on the street as a vendor or umbrella repairer.  He undoubtedly earned very little income in this capacity and possibly suffered occasional harassment from local authorities.  I consider this as being his primary motivation for crossing the border into Thailand and then, a year later, going to Malaysia where he worked in construction and as a cleaner for some three years.  I note he stated he left Malaysia to come to Australia because he couldn’t earn enough money to send back to his family in Myanmar.

    30. I am not satisfied the Applicant was forced to work for the army as a porter or that he will be arrested for having left the army without permission on his return to Myanmar. 

    31. Based on those findings, I am satisfied the Applicant is not stateless and there is no serious chance he will suffer serious harms for reasons of his ethnicity or race.

37. The IAA then looked at his religion and came to the conclusion that whilst accepted that the Applicant will suffer some discrimination and possibly harassment due to his identification as a Muslim, the IAA was not satisfied that there was any real chance that the discrimination and harassment he may experience meets the standard of serious harm.

38. The IAA then looked at the Applicant’s coming back to Myanmar as a failed asylum seeker and after looking at the country information, was satisfied that even if the Applicant was identified as an asylum seeker who departed Myanmar illegally, there is no real chance he will be arrested by authorities on his return or that he will suffer serious harm from Myanmar authorities, the police or the army on his return.

39. The IAA then cumulatively considered all of the claims and came to the conclusion that the Applicant didn’t meet the definition of “refugee”. 

40. The IAA then looked at the complementary protection criteria.  After looking at this criteria, the IAA summarised at paragraph 51 the following,

    51. Considering the treatment, I’ve accepted, the Applicant will experience as a whole, I’m not satisfied that it cumulatively amounts to significant harm, nor am I satisfied there is a real risk the Applicant will suffer significant harm based on the cumulative effect of his circumstances and profile.

41. Having come to the conclusion that the Applicant did not meet the complementary-protection criteria, the IAA then affirmed the decision not to grant him a protection visa. 

42. The Applicant had three grounds of review.  Those are grounds are:

    1. I disagree with the decision to place no weight on the certified copy of the UNHCR card. 

    2. I disagree with the decision that I am not Rohingya ethnicity nor stateless. 

    3. I believe there has been a judicial error with the assessment of my application.  I disagree with the country information applied in the assessment of my application.

43. Those grounds, simply, assert an error and have no particularisation whatsoever.  They do not in themselves show that there has been any jurisdictional error.  I have gone through the IAA decision in some detail, which would show that the decision to place no weight on the certified copy of the UNHCR card was a conclusion that was well and truly open to the IAA upon the evidence before it. 

44. The Applicant said to me, when he appeared before me today with the assistance of an interpreter, that his UNHCR card was legally obtained by him and that the Authorities had given him a paper that said he would get a card in the next number of months. 

45. All of the information that he gave to me today, including that the mistake about his card was because of some problem with the interpreter and that the card was issued from the Malaysia camp, were all matters that were before the IAA. 

46. The IAA has, as I’ve said, made a decision that was open to it on the evidence.  Therefore there is no validity in ground 1. 

47. The IAA went through very thoroughly the evidence before it and, in my view, came to a conclusion that was open to it.  That was that the Applicant was not of Rohingya ethnicity nor was he stateless.  The Applicant said to me, or re-iterated to me, today that his father was Rohingya but his mother is a Muslim and that he is mixed but” it is taken from my father’s side”, that he is therefore a Rohingya but he himself can’t speak Rohingya and that his brother can speak Rohingya but he, himself, can only speak Burmese.  The Applicant said that, when his father passed away, he was living with his mother and his mother has now given him a copy of his father’s NRC card to support his case. 

48. However, this material was not before the IAA, nor was it before the delegate; nor was it even suggested to the delegate that such a card was in existence and that the Applicant could have procured such a card. 

49. It is not a matter that I can consider, and even if I could, simply having the card does not in any way amount to a circumstance where it could have caused a different conclusion – especially when one considers the material that the IAA had about fake cards.  So there is no merit in ground 2. 

50. With respect to the third ground, I have already, in some detail, gone through everything that the IAA has said in regard to the assessment of the application.  The Applicant has failed to identify any judicial error.  He simply disagrees with the conclusion that has been made. 

51. The Applicant in his oral submissions before me today re-iterated that he said that he has been discriminated against, that he has no citizenship, he can’t go back to Burma, the Government won’t identify him as a citizen and that the Authorities will arrest him, torture him and then kill him if he goes back. 

52. All of those submissions were before the IAA and they were dealt with, and the conclusions made were open to the IAA.  It seems to me that the Applicant simply disagrees with the conclusion and has attempted to undertake an impermissible merits review today. 

53. The other matter that the Applicant raised with me today was this – he said that when the IAA gave him an appointment, he tried to get his support people to help him, but they were on holidays and he wanted the IAA to give him another chance, but they would not let him.  He said that he had changed his address and he had lost his ImmiCard, but the IAA just went ahead without him. 

54. There is a final note in the Court Book, at page 111, that was made on 16 January 2019.  It reads that, at 12.48pm, the Applicant phoned with the use of a telephone interpreter service (Burmese interpreter) where he confirmed his address and telephone number.  The note says:

    he stated he was phoning because he had received a letter from the IAA.  I explained that the letter lets him know that the IAA was reviewing the departmental decision to refuse him the visa.  He asked if he can come in for an interview and provide the IAA with a document. I noted that the IAA does not hold interviews except in very rare circumstances.  I explained the department refers to the IAA material that he or an agent on his behalf provided to the Department of Home Affairs before the departmental decision was made.  I asked if the document he wished to provide to the IAA had been given to the departmental decision-maker already. He stated that he wished to check if a copy of his UNHCR card had been provided to the IAA.  He stated this was issued by Malaysia.  I confirmed that the IAA had been referred this card as well as a certified copy of this card.  The Applicant stated he was not able to answer all of the Rohingya questions put to him at the departmental interview because he had been living in Yangon.  The Applicant asked if he could be issued with another ImmiCard, as this had been lost or stolen.  I directed him to contact the department regarding his ImmiCard.  The Applicant had no further questions. 

1. There is nothing untoward about this exchange and it illustrates that the IAA has acted properly.  There is nothing in this exchange that could ever amount to a jurisdictional error. 

2. Having looked at all of the matters that can be looked at, I am of the view that there has been no jurisdictional error illustrated in the reasoning of the IAA. 

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 5 December 2019