Refugee v Minister for Immigration and Multicultural Affairs
[2024] ARTA 693
•25 November 2024
1927780 (REFUGEE) [2024] ARTA 693 (25 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1927780
Tribunal:General Member S Kamandi
Date:25 November 2024
Place:Perth
Decision:The Tribunal affirms the decision under review.
Statement made on 25 November 2024 at 1:44pm
CATCHWORDS
REFUGEE – Protection Visa – Brunei – race – Chinese ethnicity – religion – Sunni Islam – a stateless permanent resident from Brunei – stateless Chinese Muslim – political opinion – holds opposite political opinions to the Brunei authorities – membership of a particular social group – a stateless woman married to a foreigner – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
The applicant is a [age]-year-old female and permanent resident of the Kingdom of Brunei Darussalam (Brunei).
The applicant was granted a Tourist Stream Visitor visa (Class FA) (Subclass 600) and arrived in Australia on [date] July 2017. She applied for a protection visa on 12 October 2017, which was refused by a delegate of the Minister for Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act) on 20 September 2019.
On 2 October 2019, the applicant applied for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT was abolished and replaced by the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant was born in [a] District of Brunei and is of Chinese ethnicity. She was raised as a Catholic but decided to convert to Sunni Islam in 2007.
Whilst most of the applicant’s immediate family, including her mother and 2 younger siblings, are citizens of Brunei, the applicant and her father are not citizens of Brunei. The applicant is recognised as a permanent resident of Brunei and has been issued with certificates of identity allowing her to travel and re-enter Brunei as a permanent resident of the country.
The applicant completed 11 years of schooling in Brunei between the years of 1982 and 1995. She attended [a] high school in [Country 1] and completed grade 12 in 1995. The applicant also completed [courses] in Brunei.
The applicant commenced working in1995 in Brunei and worked in various roles with various companies and institutions as [various occupations], until her departure for Australia in 2017.
The applicant has travelled extensively in the period between 1987 (when she was [age] years old) until her departure for Australia in 2017. She has visited many countries, including [for] holidays, and for work and to study. She also travelled to and resided in [Country 1] for a year in 1996 to complete grade 12, travelled to Australia in 2003 for a period of a week for a holiday, and travelled to [Country 2] in 2004, for a period of 2 months, to visit her grandmother.
The applicant’s parents and siblings continue to remain in Brunei. Her parents worked for the [a company] and are currently retired and receiving pensions. The applicant’s brother operates a business with the assistance of his wife and the applicant’s sister is a teacher. The applicant is in contact with her family members on a regular basis.
The applicant was married to her first husband in March 1999. At the time she was a Catholic and her husband was a Buddhist. They divorced in August 2004 due to relationship difficulties. She has a daughter from that marriage, who she travelled with to Australia and who is currently residing in Australia.
The applicant married her current husband, an [Country 3] citizen, in July 2011. She changed her name to the name reflected in her current identification documents after her marriage. Her husband is also a Muslim and continues to reside in Brunei and has been working since the grant of his initial working visa in 2013. They do not have any children. The applicant has maintained regular contact with her husband while in Australia.
The applicant applied for a student visa for Australia in May 2012, which was refused. In her written statement, the applicant explains that her student visa was rejected on the basis that the studies she wanted to do in Australia did not match her previous work experiences.
In June 2017, the applicant was granted a tourist visa, and travelled to Australia with her daughter, who was granted a student visa. The applicant funded her, and her daughter’s, travel to Australia, and they arrived in Australia on [date] July 2017. The applicant applied for a protection visa on 12 October 2017, a day prior to the expiry of her visitor visa.
While the applicant has been employed in Australia, her husband has also been assisting her financially in the 7 years that she has remained in Australia.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant’s protection visa application was lodged with the assistance of her former representative (from the Humanitarian Group). The applicant was interviewed by the delegate on 10 June 2019 in the presence of her former representative.
The applicant’s claims for protection before the delegate can be summarised as follows:
·The applicant’s father faced discrimination and was forced to work at a very young age due to his family’s statelessness. He had limited opportunities, with work opportunities given to local Malays.
·As a stateless Chinese Muslim, the applicant was restricted from doing many things that ‘are considered normal’.
·The applicant faced discrimination and interrogation from the immigration officials when she travelled. Her travel documents were often scrutinised by immigration officials as they thought they were bogus documents, and they could not comprehend that she was stateless.
·After her marriage to her husband in 2011, her husband had to sign a declaration to acknowledge that he would not be able to be sponsored by the applicant or family members to obtain permanent residency or citizenship. As a result, the applicant’s husband could not apply for jobs, could not open bank accounts in his name, and could not obtain a driver’s licence. He had to apply to immigration for a visitor’s visa every three months, during which the applicant and her husband experienced discrimination.
·The applicant and her husband were denied a visitor visa to go to [Country 1] in 2011 for their honeymoon. The applicant believes that they did not meet some of the criteria for this visa. They were also refused visitor visas to [Country 2] in 2015 and she suspects that it was probably for the same reasons as the refusal of the [Country 1] visas.
·The applicant’s husband was granted a work visa after the applicant’s family formed a private limited company and employed him. He has had to reapply and renew this visa every one to 2 years.
·The applicant’s husband had to sign a declaration that any children they may have will adopt his nationality and that it is preferable that the applicant give birth in another country (the husband’s home country). This meant that they were prevented from having children.
·As a stateless woman married to a foreigner, the applicant’s husband was not able to access medication and other health services for free. The applicant‘s husband became sick a few times in Brunei and they had to pay a lot of money for his medical expenses. As Brunei is a predominantly Muslim country, they used the law to say that a woman should not support her husband.
·The applicant applied for Bruneian citizenship in May 2013. She sat the written test but has not been notified about the results of the tests. She has been advised that even if she passed the test, it would not automatically grant her citizenship.
·The lack of citizenship does not allow the applicant to own land or property.
·In August 2017, the applicant wrote a letter to [Mr A], a [politician] in Brunei. At that time the applicant was feeling quite depressed about the discrimination that she and her husband had experienced and the limited opportunities they had in Brunei.
·The applicant asked [Mr A] for advice about how to change her situation. She outlined the discrimination that she and her husband faced, such as not being allowed to apply for visas in Brunei, difficulties with obtaining citizenship, and restrictions placed on their ability to have children.
·The applicant did not include her full name on the letter. She put the name ‘[name]’ and included her email and mobile phone number. She posted the letter, and inserted the letter inside a blank card as she was scared that if it was sent as a normal letter and envelope, the authorities would be more likely to open it. She cleaned the envelope to try to remove any fingerprints. The applicant also posted a card to a friend in Malaysia on the same day.
·In Brunei people are not permitted to express themselves freely. The applicant was not able to voice her frustrations as a stateless person in Brunei. Censorship laws in Brunei have become stricter and people are not permitted to talk about sensitive topics such as religion and politics.
·The applicant fears that the letter to [Mr A] may have come to the attention of the authorities and that they may have identified her due to the information she provided in that letter, such as having sat the citizenship test, being married to a foreigner, and that her daughter resides in Australia. The applicant also fears that [Mr A] may have given the letter to the authorities.
·The applicant fears that she will face serious consequences for her actions. She fears she will face arrest and interrogation for sending the letter and that the letter will be seen as critical of the Brunei government, causing them to accuse her of being a conspirator who is inspiring other people to voice their frustrations.
The applicant provided a copy of the letter she claims she sent to [Mr A] in support of the protection visa application.
The applicant’s protection visa application was refused on 20 September 2019.
The delegate accepted the applicant is a stateless permanent resident from Brunei. In noting the applicant’s extensive travel history, her education and employment history, and her evidence that she was not denied employment opportunities, access to education, accommodation, and health services, nor had any restrictions placed on her movements or the practice of her religion, the delegate found that the applicant was not subjected to serious discrimination or harm as a permanent resident in Brunei.
While the delegate noted that the applicant and her husband experienced sarcasm when he submitted paperwork to immigration officers in Brunei, and that the applicant may face instances of discrimination in the future in respect of a lack of entitlement to fully subsidised health care, higher education, and the inability to own property, the delegate was not of the view that this amounted to serious discrimination or persecution as defined in the Act.
The delegate expressed concerns about whether the applicant sent the letter to [Mr A] and whether she did so for the sole purpose of creating a claim for protection in order to extend her time in Australia. In noting information about Bruneians and permanent residents expressing their views in respect to issues pertaining to their permanent residency status and their rights with no consequences, the delegate was not satisfied that, even if the applicant sent the letter as claimed, she would face any consequences as a result. In making this finding, the delegate also noted that the applicant has made no claims about any incidents, threats, or issues involving her family members in Brunei by the sending of this letter. The delegate was not satisfied that the authorities in Brunei are aware of the letter, have identified the applicant as claimed, or that she has an adverse profile with the authorities due to the sending of the claimed letter or because of her circumstances as a stateless Chinese permanent resident of Brunei.
Evidence before the Tribunal
The applicant lodged a review application with the Tribunal on 2 October 2019. The applicant provided the Tribunal with a copy of the delegate’s decision.
On 24 July 2024, the Tribunal emailed the applicant indicating that her review application was being prepared to be given to a Tribunal member and that information was being sought to assist the member in conducting the review. The email asked the applicant to complete a form which sought updated information regarding her contact details and claims for protection.
On 1 August 2024, the Tribunal received a completed appointment of representative form indicating that the applicant will be represented before the Tribunal by a legal practitioner from Tang Law, and that she will be providing further information and attending a hearing before the Tribunal with her representative.
On 2 August 2024, the applicant was invited to a hearing before the Tribunal to be held on 11 September 2024 (the first hearing). The applicant’s representative responded to the hearing invitation indicating that the applicant would be attending the hearing with her representative, that she would not be requiring an interpreter to assist her at the hearing, and that a personal statement and submissions would be provided to the Tribunal.
The applicant and her representative attended the hearing. At the hearing, it became clear that a 328-page document that the applicant’s representative emailed to the Tribunal was not received by the Tribunal. The applicant provided the Tribunal with a hard copy of the document, which entailed the following:
·A copy of a submission prepared by the applicant’s representative.
·A copy of the applicant’s statutory declarations dated 5 September 2024.
·A copy of an application to marry a permanent resident of Brunei.
·Copies of screenshots of messages between the applicant and her friend in Malaysia, pertaining to the applicant’s letter to [Mr A].
·Copies of various country information reports relating to the situation of stateless and minorities in Brunei.
·A copy of the [Country 3] Nationality Act.
The applicant also provided the Tribunal with copies of her identify documents, including a photograph of a Brunei passport issued to citizens and a certificate of identity issued to permanent residents to illustrate the differences between the 2 forms of travel documents, and a handwritten copy of the letter to [Mr A], which she confirmed was the basis of the typed letter provided to the delegate. She stated that she had to give her current representative the handwritten copy because she was unable to locate the typed version of the letter.
Given the volume of the information provided at the hearing, the applicant’s representative suggested an adjournment of the hearing to allow the Tribunal to consider the information. The applicant’s representative indicated that the submissions and information provided to the Tribunal raised new claims for protection, including claims arising based on the applicant’s religion and membership of a particular social group. When asked about the applicant’s failure to raise these claims before the delegate, the applicant’s representative indicated that the applicant was not advised and did not have sufficient time with her former representative to mention the newly raised claims.
While the applicant gave evidence regarding her background and circumstances in Brunei, the hearing was adjourned to allow the applicant’s representative to provide the Tribunal with further submissions pertaining to the reasons why the new claims were not raised before the delegate, noting that the applicant was represented before the delegate, and to allow the Tribunal to consider the large volume of information provided at that hearing.
On 27 September 2024, the Tribunal received further submissions from the applicant’s representative addressing the issue of the applicant’s failure to raise all claims before the delegate.
I have considered the submissions and further information referred to above in my assessment of the applicant’s claims, and where relevant, I have referred to the evidence in my discussions below.
The applicant was invited to a further hearing on 6 November 2024 (the second hearing). The applicant and her representative attended the hearing.
The hearings were held in person at the Tribunal’s Perth registry. The applicant, who is fluent in English, confirmed that she did not require an interpreter, and gave evidence in English. I am satisfied that the applicant was able to participate at the hearings and was given a real and meaningful opportunity to engage in the process. Where relevant, the applicant’s evidence given at the hearings is referred to in my consideration of her claims set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs. There are no reports prepared by the Department of Foreign Affairs and Trade (DFAT) relating to Brunei.
Issue to be determined
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Brunei for reasons of her race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Brunei, there is a real risk that she will suffer significant harm.
For the reasons set out below, I have decided to affirm the decision under review.
REASONS AND FINDINGS
Country of reference
The applicant has consistently claimed, and I accept, that she was born in Brunei. She has provided copies of her Brunei national identity card and birth certificate.
The applicant’s evidence, which I accept, is that although her mother is a national of Brunei, her father, who was born in Brunei, does not hold citizenship of the country and is a stateless permanent resident.
Regarding her and her 2 siblings’ status in Brunei, the applicant claims that given her father’s status in Brunei, she and her siblings did not acquire citizenship at birth. The applicant claims that her mother made an application for her and her 2 siblings to acquire citizenship. She claims that while her 2 younger siblings were granted citizenship, she was denied citizenship because of age limitations for such an application at the time.
The applicant claims that in 2013, she applied for citizenship and sat the written ‘culture and language’ test but has not been informed of the results. She made inquiries while in Brunei but was advised to await the results.
Country information[1] indicates that most stateless residents in Brunei are reported to be native-born, of Chinese heritage, and from families that have lived in the country for generations. It is reported that while a small number of ethnic Chinese were granted citizenship after the country’s independence in 1962, most were not because ethnic Chinese were not included in the specific ethnicities provided for in the Brunei Nationality Act 1961, which commenced on 1 January 1962.
[1] US Department of State , ‘Country Reports on Human Rights Practices for 2019’, 11 March 2020; Freedom House, ‘Freedom in the World 2020 - Brunei’, 2020; US Department of State, ‘2023 Country Reports on Human Rights Practices for Brunei’; 2023; Freedom House, ‘Freedom in the World 2022 - Brunei’, 2022.
It is reported that while citizenship is automatically inherited from citizen fathers, citizen mothers may pass their nationality to their children only through an application. Stateless persons may also apply for citizenship if they are adults born in the country and resident for 12 of the last 15 years, provided they pass a test demonstrating sufficient knowledge of Malay culture and language. Many have reported that they have not been granted citizenship 5 to 10 years after they have passed the test. It is reported that women who are married to a Brunei national may also apply for citizenship and that most who are awarded citizenship had married Muslim citizens and were not members of the ethnic Chinese community.
Considering the applicant’s consistent evidence in the context of country information cited above, I accept that given her father’s status in Brunei, she and her siblings did not acquire citizenship at birth. I accept that the applicant’s mother, as a Brunei citizen, made an application for the applicant and her 2 siblings to acquire citizenship, and that while her 2 younger siblings were granted citizenship, she was denied citizenship and her mother was advised that this was because of an age limitation which the applicant did not meet. I note that her certificate of identity issued in 2016 indicates that she is a permanent resident of Brunei, which supports the applicant’s claim that she was not granted citizenship as a result of an application made by her mother.
I accept that the applicant also made an application for citizenship in 2013. At the second hearing, the applicant was asked if she had made any inquiries about the progress or outcome of her application. She stated that while in Brunei she was told to wait and that she has not made any inquiries in the last 7 years that she has been in Australia. In response to my concerns about her lack of interest or failure to make inquiries about the outcome of her application, given her desire to obtain citizenship, the applicant said that if she was granted citizenship, she would have received notification of that outcome.
The applicant provided copies of her certificate of identity, which is issued to stateless permanent residents in Brunei, who are not entitled to passports, and use their certificate of identity to undertake international travel.[2] Her certificate of identity expired on 12 July 2021. The applicant’s evidence is that she has not taken steps to renew her certificate of identity while in Australia.
[2] The Brunei Project, the Global Campaign for Equal Nationality Rights, and the Institute on Statelessness and Inclusion, ‘Joint Submission to the Human Rights Council at the 33rd Session of the Universal Periodic Review : Brunei Darussalam’, Statelessness Network Asia Pacific, 4 October 2018.
Based on the applicant’s oral evidence and her identity documents provided in support of her protection visa application, I accept that the applicant is not a citizen of Brunei, or any other country and that Brunei is her country of former habitual residence, and the receiving country for the purposes of this review.
Claims for protection
Before the delegate, the applicant claimed that she had experienced many instances of discrimination at the hands of the Bruneian authorities and that she left the country due to increasing difficulties and discrimination faced by stateless people, which became worse after her marriage to her [Country 3] husband in 2011. She claimed that as a stateless Chinese Muslim she was prevented from doing ‘many things that are considered normal’. She stated: that her lack of citizenship meant she has not been able to own land or property, whereas Bruneian citizens are permitted to receive ‘a free house’; that as a stateless woman married to a foreigner she had to pay money for her husband’s medical treatment because she does not have access to benefits available to Bruneian women; that her husband was initially unable to apply for jobs, open a bank account, obtain his driver’s licence, and that his visa application to go to [Country 1] for their honeymoon and to visit [Country 2] in 2015 were rejected because he did not meet all the visa criteria.
In addition, the applicant claimed that she holds views against the Bruneian authorities and that in August 2017, she wrote a letter to [Mr A], a [politician] in Brunei, asking him for advice about her situation. She stated that in Brunei people are not permitted to express themselves freely and that she was unable to voice her frustrations about being stateless. The applicant claimed that, as a stateless woman, she feared discrimination at the hands of the Bruneian authorities and that she would face severe consequences because of the letter she sent to [Mr A].
In a submission to the Tribunal, which was also presented orally at the hearing, the applicant’s representative argues that the applicant, in possessing the ‘particular vulnerabilities of being a stateless woman in Brunei who is married to a foreigner’, fears being subjected to a higher risk of persecution and discrimination based on her gender, race, nationality and membership of a particular social group, and that she holds ‘opposite political opinions to the Brunei authorities’. It is argued: that it is unreasonable and impractical for the applicant to be forced to find protection from the risk of harm with the above-mentioned vulnerabilities; that the applicant cannot avail herself of the Brunei authorities as she believes they cannot or will not provide reasonable protection from harm; and that, in the alternative, the applicant is entitled to complementary protection because there is a substantial basis for believing that, as a necessary and foreseeable consequence of being removed from Australia to Brunei, there is a real risk of harm. In support, the applicant’s representative provided the Tribunal with country information reports about the situation of stateless people in Brunei. I have considered the information provided to the Tribunal, including the applicant’s representative’s oral submissions made at the conclusion of the second hearing, and where relevant have referred to these submissions in my assessment below.
In response to the Tribunal’s request for an explanation about the applicant’s failure to present the arguments raised before the Tribunal in her protection visa application or at the interview before the delegate, noting that she was represented at the time, the applicant’s representative outlined the circumstances relating to the applicant’s referral to the Humanitarian Group, her interactions with the organisation prior to and after the refusal of her protection visa application and the engagement of her current representative. It is submitted that the applicant had limited knowledge of the ‘five convention grounds’ and that after explaining these grounds and assessing the delegate’s findings, it is noted that the delegate did not make any findings on the ground of the applicant’s membership of a particular social group. It is argued that the ground is now raised based on facts that were known to the Tribunal and should not have any impact on the applicant’s overall credibility, and that the Tribunal is to consider the cumulative effect of the intersecting forms of discrimination that the applicant suffered from.
I have considered the submission and agree that the further claims raised before the Tribunal, relating to her gender, race, nationality, and membership of a particular social group, which appears to have been defined as ‘a stateless woman married to a foreigner’, are based on information about the applicant’s background and experiences in Brunei that were broadly presented to the delegate. I have assessed these claims without drawing any adverse inferences as to the credibility of the applicant or her claims on this basis.
Stateless woman of Chinese ethnicity married to a foreigner
The applicant claims that as a stateless woman in Brunei she has faced discrimination in the past and has a well-founded fear of persecution due to her lack of Bruneian nationality, which is exacerbated in her case due to her gender, Chinese ethnicity and being married to a foreigner. The submissions before the Tribunal express and argue that the issues, referred to below, when considered cumulatively, amount to serious harm that will be directed at the applicant for the essential and significant reasons referred to in s 5J(1) of the Act, or in the alternative, that the harm that she will face will amount to significant harm. I have considered the issues/claims, taking into account the applicant and her representative’s written and oral submissions and country information reports, in my overall assessment.
In the submission to the Tribunal, it is argued that nationality laws in Brunei are discriminatory, in that race is the primary criterion by which nationality is acquired by operation of law. It is submitted that in accordance with the Brunei government’s interpretation of the Quran and Sharia, Muslim women and men are accorded different rights. The law restricts women from serving in certain military combat roles, such as the infantry. Women are prohibited from working in certain jobs, at night, or on offshore oil platforms. In addition, it is submitted that Brunei citizen women cannot pass their nationality to their children, whereas citizenship is automatically inherited from Brunei citizen fathers, and that even if the applicant were granted Bruneian nationality, she could not pass her nationality to her children or husband.
Regarding the specifics of issues faced by stateless persons and the situation of the applicant, it is submitted that she does not hold a passport, has restricted freedom of movement, is excluded from accessing fully subsidised healthcare or higher education and is prohibited from owning property, land and business.
Country information, including information provided in support of the applicant’s review application,[3] indicates that Brunei enjoys a high standard of living. High incomes and a small population enable the country to adopt an income tax-free and generous welfare system. The Brunei people continue to enjoy free education, subsidised water, housing, electricity, petrol and various essential foods and high-quality health care. The crime rate in the country is low and law enforcement measures have continued to be strengthened. Brunei is well-known as a peaceful country and people of different races and religions live side-by-side in harmony. Incidences of racial disharmony or attacks are non-existent and unheard of in Brunei. There is no record of racial tension in the country. The right to practice one’s religion is safeguarded by Article 3(1) of the 1959 Constitution of Brunei Darussalam and Islamic principles. While the government prohibits public celebration of religions other than Islam, Christmas remains an official national holiday. The Government practises transparent, fair, and non-discriminatory policies. Intermarriages between people of different races are historically common in Brunei dating as far back as the 13th century.
[3] Human Rights Council. ‘National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21’, 17 May 2019; US Department of State, ‘ Country report on human rights practices for 2023’, 2023.
While there is a sizeable stateless population (in 2023 reported to be around 20,863, equating to almost 5 percent of the total population[4]), including people who are native-born, of Chinese heritage, and from families that have lived in the country for generations, non-nationals, and stateless people, who are permanent residents, can be naturalised subject to the fulfilment of certain criteria, including their period of domiciliation, fluency in the Malay language and knowledge of Bruneian culture and tradition. It is reported that a total of 1,275 stateless persons were granted citizenship between 2013 and December 2018. Due to favourable socio-economic conditions coupled with political stability, Brunei attracts foreigners to stay for various purposes, including work and business.
[4] Equality Now, Global Campaign for Equal Nationality Rights, Institute on Statelessness and Inclusion Nationality For All, Statelessness and Dignified Citizenship Coalition - Asia Pacific, ‘Universal Periodic Review – joint submission to the Human Rights Council at the 47th Session of the Universal Periodic Review’, Brunei Darussalam, November 2024.
Information presented in joint submissions to the Human Rights Council[5] indicates that as a member state of the United Nations, Brunei has international obligations to protect the right to a nationality, without discrimination, including on the basis of sex, and protect the rights of stateless persons on the basis of other UN and regional treaties to which it is a party. However, with reference to Brunei’s nationality laws and its operation, the submissions make note of issues such as: that a Bruneian woman who is married to a foreign national is required to submit an application under the Nationality Act in order to transmit her Bruneian citizenship to her children, while the children of a Bruneian father and a non-Bruneian mother automatically acquire such nationality; that according to the Brunei Nationality Act, children of Bruneian women married to foreign nationals may be accorded Brunei nationality only upon application, while the children of Bruneian fathers are granted Brunei citizenship automatically; that the national laws contain both racial and gender discriminatory elements, in that citizenship is automatically conferred to children born to male citizens, but not to those of female citizens. It is noted that gender discrimination in the Nationality Act jeopardises family unity, and undermines affected persons’ equal access to education, healthcare, formal employment, financial services, inheritance, property rights, and freedom of movement. When a woman is exposed to the risk of statelessness due to abandonment by a foreign husband, she also faces difficulties in obtaining maintenance for her children and to provide for their needs. Furthermore, discrimination in Brunei’s nationality laws inhibits women’s ability, in practice, to freely choose a spouse. Discrimination against Bruneian women under the Nationality Act further contributes to gender-based violence. Affected women are denied family stability, and their children are denied citizenship, stable residency, the right to equal education and healthcare, and social services.
[5] Equality Now, Global Campaign for Equal Nationality Rights, Institute on Statelessness and Inclusion Nationality For All, Statelessness and Dignified Citizenship Coalition - Asia Pacific, ‘Universal Periodic Review – joint submission to the Human Rights Council at the 47th Session of the Universal Periodic Review’, Brunei Darussalam, November 2024; Statelessness and Dignified Citizenship Coalition, The Brunei Project, Global Campaign for Equal Nationality Rights and Institute on Statelessness and Inclusion, ‘Joint submission to the Human rights Council at the 33rd Session of the Universal Periodic Review’, Brunei Darussalam, October 2018.
Regarding the acquisition of nationality for stateless people, the submissions refer to the need to pass Malay language and cultural tests, that even passing the requisite test does not guarantee citizenship, and that many have not been granted citizenship 5 to 10 years after meeting the requirements. It is argued there are administrative barries in acquiring citizenship through this process and that many are in a state of limbo, and that pervasive uncertainty and the dearth of information accessible to individuals undergoing this process continue to exacerbate the challenges they face.
According to a 2016 article,[6] due to the difficult and slow bureaucratic measures around immigration, many ethnic Chinese residents of Brunei remain permanent residents. Many claim that the difficulties in gaining citizenship “are simply used as legal way of discriminating against non-Malays, in an effort to preserve a false myth of homogeneity and tightly control who is ‘Bruneian’”.
[6] New Mandala, ‘Brunei’s stateless left in a state of confusion’, 8 April 2016.
Information in the submissions to the Human Rights Council[7] indicate that the most prominent cohort of stateless persons in Brunei is persons of Chinese heritage who are not considered citizens at birth due to racially discriminatory provisions in the Brunei citizenship law. Most members of this population have lived in Brunei for generations and possess regularised permanent residence status in Brunei and identity documents that provide some access to education, healthcare and freedom of movement. However, the status of this segment of the population bars them from holding passports, excludes them from accessing fully subsidised healthcare or higher education, and prohibits them from owning property, land or businesses.
[7] Equality Now, Global Campaign for Equal Nationality Rights, Institute on Statelessness and Inclusion Nationality For All, Statelessness and Dignified Citizenship Coalition - Asia Pacific, ‘Universal Periodic Review – joint submission to the Human Rights Council at the 47th Session of the Universal Periodic Review’, Brunei Darussalam, November 2024; Statelessness and Dignified Citizenship Coalition, The Brunei Project, Global Campaign for Equal Nationality Rights and Institute on Statelessness and Inclusion, ‘Joint submission to the Human rights Council at the 33rd Session of the Universal Periodic Review’, Brunei Darussalam, October 2018.
Recommendations for reform of the nationality laws include: amendments to ensure women have nationality rights equal to men, in particular, in relation to the acquisition and retention of their own nationality, and the conferral of their nationality on their children and non-national spouses; removal of discriminatory barriers to citizenship including the Malay language proficiency test and to ensure that those who lack documentation are not denied citizenship on that basis; and changes to ensure that all stateless persons have equal access to government-issued identity documentation and to passports.
I accept that on the applicant’s evidence she has not been able to acquire citizenship and that she is a permanent resident of the country. As discussed at the second hearing, while there is a sizeable population of permanent residents or stateless persons in Brunei, the majority of whom are of Chinese ethnicity, the information cited above indicates that there are processes, albeit lengthy and administratively burdensome, for stateless people, which include permanent residents of Chinese ethnicity, foreign wives of Malay Muslim men, and members of indigenous tribes, to apply for citizenship. While many making such applications are stateless people of Chinese ethnicity, the information does not suggest that ethnic Chinese are denied nationality based on their ethnicity or that gender is a factor in processing or determining applications. I noted that the applicant’s sister, a female of Chinese ethnicity, was granted citizenship and her evidence is that she was denied citizenship not because she is Chinese or a woman, but rather because she did not meet the age restrictions that were in place at the time and because she was married to a citizen of Brunei.
At the hearing, I referred to an article published by the Asia Research Institute[8] and provided by the applicant, which indicates that as of July 2023, at least 3 citizenship-granting ceremonies have been held with thousands of people, including local Chinese receiving Bruneian citizenship and that this uptrend is considered promising, given the typically lengthy process. In addition, I noted that the article refers to the Chinese ethnic group’s contribution to the country, that they can attend state schools, which are free for citizens and heavily subsidised for permanent residents, concluding that, overall, the prospects of the ethnic Chinese in Brunei remain positive.
[8] Asia Research Institute, ‘Culture, Education and Literature: How are Chinese Faring in Brunei Darussalam?’, 9 July 2023.
I explained that on the information before me, there is a process that stateless people can access to be considered for and obtain citizenship, which the applicant’s mother and the applicant have availed themselves, resulting in her siblings having been granted citizenship. I noted that while it is well acknowledged that the process is lengthy and has caused uncertainty and frustration, the information does not support the assertions that race, or gender, are determinative factors in processing these applications. In addition, there is no indication that people of the Chinese ethnic group are subjected to systemic discrimination or denied access to essential services. The country information cited above is not supportive of these arguments. The applicant stated that most women granted citizenship were married to Brunei nationals. While I accept that some citizenships are granted on that basis, I do not accept that Chinese ethnicity or gender are the determinative factors or that the applicant has been denied citizenship on those bases, but rather due to the historically lengthy delays in processing such applications.
As expressed at the second hearing, while it is correct that male citizens can pass on their nationality to their children and that female citizens must make an application, which was the case in relation to the applicant’s mother, this is not an issue that arises in the applicant’s case. It is the applicant’s lack of citizenship that prevents her from passing on citizenship to her children, rather than her ethnicity, gender, or her marriage to her foreigner husband. While the applicant stated that she is prevented from having children with her foreigner husband due to their inability to pass on Bruneian citizenship to them, she did not engage with the issue put to her.
I accept that the applicant has been married to an [Country 3] national since 2011. The applicant has provided a copy of a document referred to as ‘an application to marry a permanent resident of Brunei Darussalam’, which her [Country 3] husband had to sign. The document requires a declaration: that the marriage is not to be entered into as an objective or reason to obtain permanent residency or to obtain status of nationality; that the status of the children of the marriage must subsequently be handled and determined according to the applicant’s husband’s nationality; and that any guarantee to stay in Brunei, be it under the guarantee of the applicant or her family, is not to be entertained.
As discussed at the second hearing, while the applicant’s husband signed the document in order to obtain permission to marry the applicant and agreed to the terms of that permission, which included being barred from seeking permanent residency or citizenship as a result of the marriage, and that the children from the marriage would follow their father’s citizenship, the document does not indicate that they are barred from having children or that their children are to be born in Algeria or outside of Brunei as claimed. The information before me does not support a conclusion that the applicant or her husband have been barred from having children due to the applicant or her husband’s lack of citizenship or the applicant’s marriage to a foreigner. But rather that if they were to have children, due to the applicant and her husband’s lack of Bruneian citizenship, their children would not be granted Bruneian citizenship. Apart from general assertions about the significance of this on her life and that she longed to have children with her husband, the applicant did not directly engage with what was discussed at the hearing.
Country information supports the applicant’s evidence that as a stateless permanent resident, she holds a certificate of identity which functions as a passport. It is reported[9] that certificate of identity holders has access to subsidised healthcare and education; they do not, however, have access to fully subsidised health care or higher education, and cannot own property, land, or a business in their own right, but rather must be sponsored by a Brunei citizen. They are unable to apply for certain government jobs or join the military, and laws of the country ban non-citizens, including foreign investors and permanent citizens, from owning land outright.
[9] US Department of State, ‘Country Reports on Human Rights Practices for 2019’, 11 March 2018; Statelessness and Dignified Citizenship Coalition, The Brunei Project, Global Campaign for Equal Nationality Rights and Institute on Statelessness and Inclusion, ‘Joint submission to the Human rights Council at the 33rd Session of the Universal Periodic Review’, Brunei Darussalam, October 2018.
I accept that there are some restrictions placed on permanent residents. As discussed at the second hearing, while the applicant claims that discrimination has been part of her life since she was born and that her stateless father and grandfather lived a life inferior to Brunei citizens, on her consistent evidence regarding her experiences in Brunei, including her education, employment, and travel history, it does not appear that she faced any form of treatment or discrimination, or any issues that amounted to serious harm while residing in Brunei.
The applicant’s evidence is that she completed 11 years of private education in Brunei, which her parents, including her stateless father, funded. She was granted a visa and travelled to [Country 1] where she completed grade 12. She has undertaken further study [in] Brunei to allow her to work in multiple industries. She has continuously been employed in Brunei in various fields working with private companies and as a [occupation]. In addition to a year of study in [Country 1], she has an extensive travel history, including having been granted visas to travel to [Country 2] and Australia to visit family and for holidays. She has had the funds to travel extensively, visiting countries including [deleted] for holidays and work purposes. I also note that the applicant, as a permanent resident, was able to marry a citizen, has a citizen child, and was able to divorce her husband. She has been able to sponsor her [Country 3] husband; he was granted a visa and they were able to marry in Brunei.
While the applicant claims that her husband was not able to work while on a visitor visa, which was a condition placed on all visitor visa holders, the applicant and her family members were able to establish a company to allow her husband to apply for and be granted a work permit/visa, which he has held since 2013. While the applicant claims that her husband was not granted a visa to travel to [Country 1] for their honeymoon and a visa to travel to [Country 2], she states that the visas were denied because a criterion was not met, rather than because of the applicant’s or husband’s status in Brunei or for any other reason.
As discussed at the second hearing, while I accept that the applicant and her husband had to pay for her husband’s medical expenses, it does not appear that was in any way linked to the applicant’s ethnicity, gender, or her marriage to a foreigner, but rather because her husband does not hold permanent residency or citizenship in Brunei.
I accept that the applicant does not a have a passport and that as a permanent resident she has been issued with a certificate of identity, which has enabled her to travel extensively to various countries. In her statement, the applicant claims that although the title of stateless persons were changed to permanent residents about 20-30 years ago and the look of the certificate of identity was changed from the bigger blue booklet to a brown coloured booklet, which is the same size as a passport, she has often faced scrutiny when using it and had to ensure that she has a valid re-entry visa stamp on her passport, as without it she would not be able to enter the country. At the first hearing the applicant confirmed her travel history and that she was granted visas to travel to various Asian and Western countries. When asked if she faced any issues while arranging for her travels or upon exiting Brunei or entering other countries, the applicant referred to having anxiety when approaching immigration officers at airports and that she was delayed and asked questions and that they could not understand that her certificate of identity was operating as her passport. She confirmed that apart from some delay and questioning when arriving in foreign countries, she did not face any other difficulties relating to her certificate of identity. As expressed at the second hearing, while I accept that she may have faced questioning and delay when entering a foreign country, she has not been denied entry to countries as a holder of a certificate of identity issued by the Bruneian government, nor has she been denied visas to travel because of her lack of citizenship.
I accept that it is easy to distinguish citizens from permanent residents based on the colour of their national identity cards, as claimed. Apart from some general assertions at the second hearing that people always support citizens over permanent residents and that permanent residents live in constant fear, the applicant did not articulate any incidents or issues that she faced as a result of the colour of her national identity card. In her statement to the Tribunal, the applicant refers to permanent residents’ inability to apply for library cards or access scholarship without the sponsorship of a Brunei citizen, but she has not outlined any incidents of harm or challenges that she faced because of the colour of her national identity card.
In addition to the discussion above, as noted in the submission to the Tribunal and discussed at the hearing, while it is the case that in Brunei there are restrictions on women serving in certain military combat roles and that women are prohibited from certain jobs, at night, or on offshore oil platforms, the applicant has not expressed any desire to engage in such activities or that she was prevented from doing so. The applicant was able to access private education and enjoy continuous employment while in Brunei. I also note that the applicant’s father, a non-citizen, and permanent resident of Brunei, worked in the [same] company, [where] the applicant’s mother, a citizen of Brunei, also worked. He was a supervisor and travelled extensively for work and was able to contribute to financing the applicant’s private education, including towards her expenses while she resided and studied at a private institution in [Country 1]. Furthermore, the applicant’s evidence is that both her parents are on a pension based on their employment with [a company].
At the second hearing, I also noted the applicant’s evidence in her statement regarding her experiences in Brunei. I noted that in her written statement, the applicant has made references to having been shouted at by nurses at the hospital after childbirth for not making her bed and the nurses’ use of derogatory language, and an incident when some boys assaulted her when she was young and waiting for her mother outside a shop. I also acknowledge her evidence that she and her husband experienced sarcasm and rudeness displayed by the authorities during the process of her husband’s visa renewal process. I explained that I have no reason to doubt the occurrence of these incidents. I made references to the exhaustive definition of significant harm in the Act and the non-exhaustive instances of serious harm outlined in the Act, which are illustrative of the types and level of treatment that may amount to serious harm. I explained that these sporadic incidents did not appear to meet the definition of significant harm or can be said to have amounted to serious harm. The applicant expressed her understanding.
In addition, as discussed with the applicant at the second hearing, given her evidence that she has faced discrimination her whole life, I expressed concern that she failed to apply for protection when she was studying and residing in [Country 1] for a year in 1996, or when she visited [Country 2] in 2004 and Australia in 2007. While the applicant’s evidence is that she was only [age] when she was in [Country 1] and that it did not occur to her to seek protection, as expressed at the hearing, she visited Australia and [Country 2] when she much older and returned to Brunei without seeking protection. Given the applicant’s educational background and the fact that she is fluent in English, I do not accept that she was too young to seek protection or that it did not occur to her to do so on the 3 occasions when she had the opportunity to do so. Considering this, together with her evidence about her background and experiences in Brunei, I do not accept that the applicant faced continued or persistent discrimination in Brunei. In addition, as noted at the hearing, she applied for protection in 2017, a day prior to the expiry of her visitor visa, and I consider this delay to also detract from the credibility of her claim that she lived a hard life of discrimination and ill treatment in Brunei.
The matters outlined above were fully ventilated at the second hearing and the applicant and her representative were given opportunities to respond and to present further arguments. While the applicant maintained that she faced discrimination and came to Australia to make a change, ‘break the cycle’, and to live freely, she did not refer to any further instances of harm nor articulated any other fears (apart from what is discussed above) based on her ethnicity, gender, lack of citizenship, or her marriage to her [Country 3] husband.
On the applicant’s evidence and her overall experiences in Brunei, I am not satisfied that she faced any discrimination or treatment that amounted to serious harm while residing in Brunei. I accept that as a non-citizen, she faces certain restrictions as outlined above and that she may face some isolated incidents as she has in the past, including delays or further questioning by immigration officials while traveling. Considering these matters both individually or cumulatively, I am not satisfied that she faces a real chance of any treatment/discrimination/challenges that will amount to serious harm, as a result of the combination of her profile as a permanent resident woman of Chinese ethnicity who is married to a foreigner or for any other reasons, if returned to Brunei now or in the reasonably foreseeable future.
Letter to [Mr A]/political opinion/return to Brunei
At the first hearing, the applicant confirmed that she was not involved in any political activities in the 40 years that she lived in Brunei. She explained that people are not allowed to do so, and she did not dream of engaging in such activities. The applicant did not express that she has made known her views about her status as a stateless person or her frustrations in this regard to anyone in Brunei.
The applicant’s evidence is that she wrote a letter to [Mr A], a former [politician] in Brunei, in August 2017 and while in Australia.
In her statement dated 11 January 2018, the applicant claims that she wrote the letter because of the discrimination that she and her husband faced and after realising that her opportunities in Australia would be unlimited. She states that in Brunei, due to strict censorship laws, she was unable to voice her frustration, and that stateless people are ignored when they raise their voice about their citizenship status. The applicant claims that she wrote the letter to ask [Mr A] for advice about how to change her situation as a stateless woman in Brunei and thought that writing to him would be good as he had, in the past, once raised citizenship exams as a topic of public discussion as a [politician]. The applicant explains that she was scared to put her full name on the letter, and only put ‘[name]’ as her name and included her email and mobile phone number. She posted the letter by inserting it into a blank card and cleaned the envelope to try to remove fingerprints. The applicant states that on the same day, she also posted a card to a friend in Malaysia, and because her friend received the card, she assumes that the letter was delivered to [Mr A].
A typed copy of the letter was provided to the delegate. The information in the letter indicates that ‘[name]’ is residing in Perth, and that she wishes to inform [Mr A] of the discrimination that she faced and to thank [Mr A] for the countless support of and standing up for stateless people in Brunei. The letter refers to matters such as lack of belonging, being acknowledged as ‘Aliens’ in travel documents and visas for overseas, constant rejection of visas and feeling ‘unwanted’. It indicates that her situation got worse after marrying a foreigner and references are made to matters such as her husband’s inability to work while on a tourist visa, that her family had no choice but to establish a company, which led to financial difficulties for her family, having to pay for medical costs, and senseless regulations which have prevented them from having children.
The letter indicates that the applicant wishes to remain in Australia where there are many opportunities and that she wants to work before she gets too old. It refers to having sought advice from immigration agents and having been advised that being stateless is not enough to stay in Australia as a refugee. The content suggests that the applicant and her husband lack finances and qualification and don’t qualify for permanent residency. It refers to only ‘a month plus’ left before [name]’s visitor visa for Australia expires and that she is really depressed about having to return to Brunei.
At the second hearing, I discussed the content of the letter, the applicant’s motivation for writing this letter and what she hoped to achieve as a result. In addition, I asked about the address the letter was sent to and queried if anything has happened in connection with the letter.
The applicant stated that [Mr A] is well-known and a very wealthy man in Brunei. She said that she is unsure of whether he continues in his role as a [politician], but he may have retired as he is very old. In response to my questions, the applicant confirmed that she did not approach [Mr A], or any other person, while in Brunei. She said that while in Australia, she decided to write to [Mr A] to ‘break the cycle’ and that she was scared and desperate at the time. The applicant explained that she is unsure of what she was trying to achieve, but at the time she was depressed and had read that [Mr A] raised issues on behalf of stateless people. When asked about when she read this information, the applicant said that she could not recall the time, but it was when she was in Brunei. Noting that the letter did not include the address she posted the letter to, I asked if she sent the letter to [Mr A]’s office. The applicant said that she searched on the internet and found out that he owned a [business] called ‘[name]’ and that she sent the letter to that address, which she can no longer remember.
I noted that in her statement, the applicant claims that she sent a card to a friend in Malaysia on the same day she sent the letter to [Mr A], and that based on her friend having received the letter, she is assuming that [Mr A] also received her letter. The applicant confirmed that to be the case and that, apart from the screenshots of messages the applicant claims she sent to her friend in Malaysia about having sent the letter, she had no other evidence to support her claim that she in fact sent the letter or that it was received by [Mr A] or anyone in Brunei. The applicant confirmed that she has not hear from [Mr A] or anyone else about this letter and that her family members in Brunei have not been approached by the authorities, or any other person, about this letter or otherwise. The applicant also confirmed that her assertions that [Mr A] may have passed the letter to the authorities are speculative and that she has no evidence to support these assertions.
When asked if, apart from sending this letter in August 2017, she has undertaken any other activities, political or otherwise, in support of the stateless people in Brunei or for any other reason, the applicant responded in the negative.
Regarding her fear of harm in connection to this letter, which she claims she sent in 2017, the applicant said that the authorities would be aware of the letter, will be able to link the letter to her, and that she would face consequences as a result because she has expressed views against the Brunei authorities and will be accused of being a conspirator who is inspiring other people to voice their frustrations.
In noting the applicant’s evidence that she purposefully did not include her full name or other personal details such as her date of birth or identification numbers, included an Australian mobile telephone number and an email which she said she created for the purposes of this letter and does not use, I asked about her reasons for coming to a conclusion that the authorities would be able to link the letter to her. Apart from vague references that the authorities monitor people and would identify her, the applicant was unable to explain this with clarity. I noted that in her statement she has said that the letter indicates that she is in Australia, has a daughter in Australia and is married to a foreigner, and that this information would allow the authorities to identify her as the writer. The applicant said that would be the case. I expressed concern that on the one hand she is claiming that she was very careful not to include information that would link the letter to her and took steps to clean the envelope of her fingerprints, and on the other hand she is claiming that she has included information that would allow the authorities to identify her. The applicant said that she understood my point. As expressed at the hearing, I find it very difficult to accept that the limited information, in an unsigned, undated letter, which does not include the applicant’s personal identification details, would be linked to the applicant who has been absent from the country for over 7 years and has not heard anything from anyone about the letter.
In addition, I noted that apart from outlining her struggles to secure citizenship and her husband’s situation, there is nothing in that letter that can be viewed as sensitive or against the Brunei king or the authorities. The applicant said that what is in the letter would be considered sensitive and against the authorities. I noted that, as expressed in the delegate’s decision, there is country information about stateless people voicing their frustrations about the lengthy process of citizenship application and there is no indication that they have faced any issues in this regard. In addition, the country information provided by her representative to the Tribunal indicates that there are no reports of: political prisoners or detainees; the government or its agents committing arbitrary or unlawful killings, including extrajudicial killings; or disappearances on behalf of the government.[10] The applicant maintained that she would face consequences.
[10] US Department of State, ‘Country report on human rights practices for 2023’, 2023.
I also noted the information, which is referred to by the applicant’s representative in the submission to the Tribunal and at the hearing, that an information system was part of the government’s internal security apparatus for monitoring suspected dissidents, religious and ethnic minorities, and those accused of crimes. Persons who published comments on social media critical of government policy, both on public blogs and on personal sites such as Facebook, reported that authorities monitored their comments.[11] I stated that the applicant did not have a profile of interest with the authorities while in Brunei, apart from claiming that she has sent an anonymous letter to a former [politician] (and there is no evidence that it was sent or received), and noted that she has not engaged in any activities, including online activities, while in Australia. I indicated that given these matters, it does not appear to me that she is of any concern to the authorities or would face any issues in this regard. While the applicant maintained that she would, that things are different in Brunei and only those who have lived there would understand this, she did not offer any other explanation for her fear that she will be subjected to arrest and detention due to the content of the letter she claims she sent to [Mr A].
[11] US Department of State, ‘Country report on human rights practices for 2023’, 2023.
At the hearing, I also expressed concerns about her motivation to write this letter. I noted that she claims to have never expressed her views in the past, and that the letter indicates that she only had a month before the expiry of her visitor visa and her imminent return to Brunei, and that at the time she was advised by immigration agents that being stateless alone is not enough to engage Australia’s protection obligations. I referred the applicant and her representative to s 5J(6) of the Act and that I was obliged to disregard any conduct engaged by her in Australia unless I am satisfied that she engaged in the conduct otherwise than solely for the purpose of strengthening her claims to be a refugee and that this did not apply with respect of the assessment of her claims under Australia’s complementary protection obligations. I indicated that given the timing of the letter, considered in the context of her lack of any engagement with such activities in the past, and the content of the letter relating to having been advised that she would not engage Australia’s protection obligations based on being stateless, I may conclude that she wrote the letter solely for the purposes of strengthening her claim to be a refugee. The applicant maintained that she wrote the letter to break the cycle and wants to remain in Australia to live a better and free life.
100. In light of the discussion above, I accept that the applicant has not engaged in any political activities, including voicing her dissatisfaction or frustrations as a stateless person in Brunei, in the past. Given her evidence discussed above, I am not satisfied that the applicant sent the letter to [Mr A] in 2017 as claimed. I found her evidence about her motivation to write and send the letter to [Mr A] unpersuasive. Apart from her evidence that she sent the letter to an address at a business owned by [Mr A], the applicant has not provided any other evidence to support the assertion that she sent the letter to the claimed address in Brunei. The applicant has not received any correspondence in reply, and I found her evidence about creating an email address just for [Mr A] to correspond with her, an email address that she does not use, unconvincing. While she has provided a typed copy of the letter, which she states she can no longer locate, I am not at all convinced and do not accept, that she has sent the letter to Brunei. This issue was raised at the second hearing, and the applicant did not offer to present any further evidence to substantiate the contention that she has sent the letter. Given that having sent the letter is a crucial part of her claim that she will face harm on return to Brunei, one would expect that she would have taken a copy or screenshot of the envelope, which she claims she wiped her fingerprints from, in support of her claim that she sent the letter to [Mr A] at the address that she claims she can no longer recall.
101. Even if I were to accept, which I do not, that the applicant did send the letter and it was to seek advice about her and her husband’s lack of citizenship (notwithstanding my thoughts on s 5J(6) of the Act discussed at the hearing), given the issues discussed above, I am not satisfied that the applicant has been monitored, that the letter has come to the attention of the authorities or can be in anyway linked to the applicant, or that the content of the letter will be perceived as sensitive, against the authorities or an incitement for others to voice their opinions, or that she would face any issues in this regard. While I accept that the applicant is frustrated with her status as a permanent resident and the delays in obtaining citizenship, and prefers to remain and live in Australia, given her evidence, which does not demonstrate any real commitment to current or future political activities or the expression of her views on the Brunei government/policies, I am not satisfied that the applicant will engage in any activities that would be of any concern or considered sensitive by the authorities in the future. I am not satisfied that the applicant has any intention, desire, or commitment to engage in such activities, or that she would refrain from such activities for fear of persecution.
102. On the evidence before me, I am not satisfied that the applicant has any profile of concern with the authorities in Brunei. I am not satisfied that the applicant faces a real chance of any harm, for reason of her political views, including views against the authorities/policies in Brunei, or for having sent the letter as claimed, if returned to Brunei now or in the reasonably foreseeable future.
Religion
103. The applicant’s evidence, which I accept, is that she was born a Catholic and was practising the religion until she decided to convert to Sunni Islam, Brunei’s state religion, in 2007, when she was [age] years old. At the hearing the applicant confirmed that she was able to practise her religion and that she attended Sunday school. She further stated that her parents are practising Catholics and did not claim that her parents have suffered any issues in the course of or as a result of their religion.
104. In her statement to the Tribunal, the applicant claims that before her conversion to Islam, she was asked to stay back at work and do more work during the month of Ramadan because she was not fasting. She states that this was the case even after she had converted to Islam but kept it a secret. The applicant states that this made her sad as it was a misuse of religion and refers to incidents where children of her non-Muslim friends were told to eat in the toilets during Ramadan.
105. These incidents relate to a time that the applicant was not a Muslim or when her conversion was not known to her employer. As discussed at the hearing, while I am willing to accept that these incidents may have occurred, her evidence does not suggest that she was prevented from accessing employment or other services. I note that she married and divorced her Bruneian citizen husband. Her family remain practising Catholics and she has not articulated any incidents of harm or issues faced by her family members in Brunei. In any event, I explained that she has converted to Islam, the national religion of Brunei, and is a practising Muslim, meaning that she will not be at risk of encountering any issues due to her religion that she faced while she was a Catholic. The applicant expressed agreement and said that she has raised these issues to provide an overall picture of the situation in Brunei.
106. Given the applicant’s religion and religious practices, she has not claimed, and I am not satisfied, that she faces a real chance of any harm if returned to Brunei now or in the reasonably foreseeable future.
Returned asylum seeker/renewal of certificate of identity
107. I accept that the applicant has not renewed her certificate of identity, which expired in 2021. The applicant claims that due to her fear of the Brunei authorities, linked with the letter to [Mr A] discussed above, she has not renewed her certificate of identity.
108. in her statement to the Tribunal, the applicant indicates that as an unsuccessful asylum seeker applying for her certificate of identity, the authorities would ‘certainly’ be aware of her claims, and she would be subjected to persecution. At the second hearing, the applicant stated that because she has sought asylum in Australia, the authorities would be aware of her application and claims for protection, and that this has deterred her from renewing her certificate of identity.
109. As expressed at the hearing, there is no information to indicate that she is unable to renew her certificate of identity prior to returning to Brunei or that the confidential process of her application for a protection visa or the details of her claims has been communicated to the authorities in Brunei. The applicant maintained that the authorities in Brunei know how to get a hold of this information and that they would know. In suggesting this, the applicant has not pointed to any objective or independent evidence. The applicant’s representative also did not point to any evidence that would support these assertions.
110. On the evidence presented, and the lack of information to the contrary, I do not accept that the process of renewal of the applicant’s certificate of identity or having applied for protection in Australia, or returning as an unsuccessful asylum seeker, would place her at a real risk of any harm, if returned to Brunei now or in the foreseeable future.
Refugee assessment
111. At the conclusion of the hearing, the applicant and her representative confirmed that, apart from the matters addressed above, there were no other issues or claims on the basis of which the applicant was seeking protection.
112. Considering the applicant’s overall profile and her circumstances as a whole, including her status in Brunei and her marriage to a foreigner, her ethnicity and gender, her prior Catholic religion and conversion to Islam, her claims relating to her political views and, and having sought asylum in Australia, I am not satisfied that she faces a real chance of persecution if returned to Brunei now or in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
113. The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet the refugee criterion in 36(2)(a).
Complementary protection assessment
114. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Brunei, there is a real risk that she would suffer significant harm.
115. Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if: he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
116. I accept that the applicant, as a permanent resident of Brunei, faces certain restrictions as outlined above and that she may face some isolated incidents as she has in the past, and that she may be delayed or undergo questioning by immigration officials while travelling. However, having regard to the applicant’s evidence and country information cited above, I am not satisfied that there is a real risk of the applicant experiencing treatment or discrimination at a level that would, individually or cumulatively, involve the level of pain, suffering or humiliation described in the definition of torture, cruel or inhuman treatment or punishment or humiliating treatment or punishment. I am also not satisfied that the applicant will face a real risk of being arbitrarily deprived of her life or be subject to the death penalty or tortured. I am not satisfied that the applicant faces a real risk of significant harm as defined.
117. I have otherwise found that the applicant does not face a real chance of any harm for any other reason in Brunei. The Federal Court[12] has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. On the evidence and discussion set out above, I find that there is no real risk that she would suffer any treatment that would involve significant harm as a consequence of her removal from Australia to Brunei.
118. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Brunei, there is a real risk that the applicant would suffer significant harm for any reason. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
[12] MIAC v SZQRB (2013) 210 FCR 505.
Family membership criteria
119. Under s 36(2)(b) or s 36(2)(c) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who: (i) is mentioned in s 36(2)(a) or (aa); and (ii) holds a protection visa of the same class as that applied for by the applicant.
The applicant has not claimed and there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
DECISION
121. The Tribunal affirms the decision under review.
Hearing Dates: 11 September 2024 and 6 November 2024
Representative: Ms Qijing Briony Chen
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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