AH (Disputed Nationality, Risk on return, Rohingya Muslim) Burma

Factual and Procedural Background

The appeal arises from a determination made by Mr Mitchell on 13 October 2003 concerning an asylum claim. The Appellant claims to be a Rohingya Muslim of Bengali ethnicity from the far west of Burma. The Adjudicator concluded that the Appellant was not Burmese and questioned the veracity of his claimed history. The appeal challenges this finding, particularly the Adjudicator's conclusion regarding the Appellant’s nationality.

The Appellant was born on 1 October 1962 and speaks Bengali. He left Burma on 4 February 2003 and arrived in the United Kingdom on 11 February 2003, applying for asylum on 5 March 2003. He stated that he was born and lived in a village in the Maungdaw region of Burma as a farmer. He was arrested in May 1990 for political activities but released shortly thereafter. In March 1992, he and his family were expelled to Bangladesh, residing in a camp until 1996 when they returned to Burma under UNHCR supervision. From 1996 until 2003, he reported living without trouble until a brief detention in January 2003, after which he left Burma.

The Adjudicator doubted the Appellant's Burmese nationality, relying heavily on the Secretary of State’s refusal letter which questioned his dialect, geographical knowledge, Burmese language ability, and references to alleged persecutors called the "Maugh." The Tribunal, however, reviewed additional evidence, including detailed geographical material and linguistic considerations, which led to different factual conclusions.

Legal Issues Presented

1. Whether the Appellant is indeed a Rohingya Muslim from Burma as he claims.
2. If so, whether the Appellant is at real risk of persecution upon return to Burma.

Arguments of the Parties

Appellant's Arguments

• The Appellant asserted his identity as a Rohingya Muslim from the Maungdaw region of Burma, speaking a dialect of Bengali consistent with his ethnicity.
• He contended that his geographical knowledge of the area was accurate, including references to local rivers and towns.
• He argued that his inability to speak Burmese was consistent with the marginalisation of Rohingyas in Burma.
• The Appellant submitted that his ethnicity placed him at real risk of persecution given historical expulsions and discrimination.

Respondent's Arguments

• The Secretary of State challenged the Appellant’s nationality, citing linguistic discrepancies, lack of geographical knowledge, and the absence of Burmese language skills.
• The refusal letter questioned the existence of persecutors named the "Maugh" mentioned by the Appellant.
• It was argued that the Appellant was not at real risk of persecution, noting his prior release after detention and lack of evidence of political profile or ongoing threat.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court undertook a detailed factual reassessment, noting that the Adjudicator had limited materials, particularly regarding geographical and linguistic evidence. The court found that the Appellant’s geographical knowledge was stronger than previously assessed, supported by authoritative maps confirming the existence of locations and rivers he named.

Regarding language, the court observed the lack of any evidence from the Secretary of State to support the claim that the Appellant did not speak the appropriate Bengali dialect. Given the Appellant’s credible testimony and the absence of contradicting evidence, the court accepted that his dialect was consistent with that spoken by Rohingya Muslims in Burma.

The court rationalised that the Appellant’s inability to speak Burmese was plausible given the marginalisation of Rohingyas and their limited interaction with mainstream Burmese society.

The identity of the "Maugh" was clarified by ethnographic evidence, identifying them as the Arakanese people, thus addressing a key factual concern of the Adjudicator.

On the risk of persecution, the court considered the historical context of mass expulsions and repatriations of Rohingyas, noting that while the Appellant’s ethnicity subjected him to discrimination and travel restrictions, there was insufficient evidence to conclude a real risk of persecution existed. The Appellant’s prior detention was brief and appeared to lack political motivation or ongoing threat.

The court concluded that while the Appellant’s factual identity was established on a lower standard, the risk of persecution on return to Burma was not demonstrated to the requisite threshold for refugee status.

Holding and Implications

The court DISMISSED the appeal.

The direct effect is that the Appellant’s asylum claim was rejected despite factual findings supporting his claimed identity as a Rohingya Muslim from Burma. The decision clarifies that marginalisation and discrimination alone do not constitute a real risk of persecution sufficient to grant refugee status. No new legal precedent was established by this ruling.