1601830 (Refugee)

[2017] AATA 1788

1601830 (Refugee) [2017] AATA 1788 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601830

COUNTRY OF REFERENCE:                  Burma (Myanmar)

MEMBER:Christopher Smolicz

DATE:4 October 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 04 October 2017 at 4:08pm

CATCHWORDS

Refugee – Protection visa – Burma (Myanmar) – Ethnicity – Chin – Social group – Chin Christians woman – Religion – Christian – Political opinion – National League for Democracy (NLD) – Fear of arrest

LEGISLATION

Migrations Act 1958, ss 36, 65, 91R, 499

Migrations Regulations, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Burma (Myanmar), applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] January 2016.

3. The applicant appeared before the Tribunal on 12 September 2017 to give evidence and present arguments. The Tribunal also received evidence by telephone from [Pastor A] and the applicant’s [sister]. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. 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 a protection 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 the applicant 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9. The issue in this case is whether the applicant meets the refugee or complementary protection criteria because:

   ·     of her Chin ethnicity

   ·     of her Christian religion

   ·     of her membership of the particular social group comprising Chin Christian Women.

   ·     of her imputed or actual political opinion as a member of the National League for Democracy (NLD) and

   ·     her husband (deceased) was a member of the Zomi National Congress (ZNC) (now known as Zomi Congress for Democracy).

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The applicant’s factual claims and the Tribunal’s findings

11. First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, statements of claim and her agent’s submissions.

12. The applicant presented in a manner the Tribunal perceived to be truthful and credible, and her evidence was consistent with the country information applicable to her particular circumstances which are detailed below. The Tribunal has decided to wholly accept the applicant’s evidence.

13. The applicant is [an age] year old widowed woman from [Town 1], Chin State, Burma. She is of Chin ethnicity and described her religion as Christian. She has [children] who have remained in Burma. The applicant completed [a number of] years of schooling and worked as a [shop] owner.

14. [In] September 2013 she was granted a Sponsored Family Visitor subclass 600 visa and arrived in Australia [in] November 2013.[1] She travelled to Australia as the holder of a Republic of the Union of Myanmar passport issued [in] 2013.

    [1] The applicant had previously applied offshore for a Sponsored Family Visitor visa [in] May 2013 and [in] June 2013. Both applications were refused by the Department.

15. The Tribunal accepts that the applicant is a national of Burma. Accordingly the Tribunal has assessed the applicant’s claims against Burma as her country of nationality for the purpose of the Convention.

16. The applicant travelled to Australia to visit her [sister], an Australian citizen. The applicant’s visitor visa was valid until [February] 2014.

17. The applicant said that she was able to obtain the passport and apply for the visa with the assistance of members of her church in Burma.

18. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in a third country. Accordingly, the Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.

19. The applicant married in 1994. Her husband was a political activist from the time of the 1998 democratic uprising to his death in 2009. He was not an elected politician but worked at a local level. His political activities involved being a local member of the ZNC, secretly helping political activists escape, carrying political information, supporting the ZNC with transportations and making flyers advertising for the students’ democracy movement. He was one of the few people who had a car in the Chin hill area and worked as a driver. He was regularly asked to transport members of the opposition student movement.

20. In 2002 her husband escorted some political activists to the Burma-Indian border. He was arrested and interrogated by border patrol officers. His [car] was confiscated by the army battalion stationed in [location]. He was detained in [Town 1] and was sent to [prison]. The applicant lost contact with her husband for months and was forced to take care of herself and her [children]. She subsequently heard that he was sent to a labour camp located in the [valley]. He was subjected to appalling conditions.

21. The Tribunal questioned the applicant about how her life changed after her husband disappeared. The applicant said she and her family were financially dependent on her husband and life became difficult. The applicant claims that because of her husband’s arrest and disappearance she became interested in politics. In April 2003 she attended a meeting in [Town 1] [Township]. The applicant decided to commit herself to the NLD party and was opposed to the military government. After the meeting the Township authority called her to their office and investigated her involvement in politics. She was warned about her future involvement.

22. In 2007 officers came to her house making enquiries about her husband. It was at this point that she became aware that her husband and other detainees escaped to the Indian side of the border. She was interrogated and physically assaulted by the soldiers. At the hearing the applicant was able to show the Tribunal [scars] where the soldiers had hit her. She claimed the soldiers tortured her sister and grabbed her [son] and would dangle him upside down by his legs to scare her.

23. The applicant said that she lived in constant fear of arrest and was subjected to random questioning and checking by the authorities. Her business ownership papers were confiscated by the township officers to prevent her family from leaving [Town 1] and operating her business. An order was passed to prevent her from leaving the town. The Tribunal questioned the applicant about the order. The applicant said there was no proper court or document preventing her from leaving the village, she was simply told by the soldiers.

24. In late 2009 she learnt that her husband had been killed by the Burmese army and prisoners on the Indian border. His body was never found and she does not know where he is buried.

25. In 2010 she decided to escape to [City 1] because she needed to financially support her family after her husband’s death and to escape from the soldiers who were harassing her. She said that her children were upset and crying and she found it difficult to cope. Her [brother-in-law] organised for her to move to [City 1] to live with a local pastor. The applicant said she was not mentally well at the time and has little recollection of life. She would live on land owned by the church and do [work].

26. She arrived in [City 1] in January 2011 and was able to seek shelter at a church compound. The church helped her obtain her passport. The Tribunal asked the applicant why the authorities would issue her with a passport in [2013]. The applicant said that she actually applied for the passport in 2010 and it took time to be processed. She had been trying to come to Australia for some time to visit her sister who was expecting a child at the time. The applicant said that there is no law and order in Burma and no computer records. The applicant said that with the assistance of her brother-in-law she paid a “broker” and he helped her obtain the passport and depart Burma.

27. The Tribunal questioned the applicant about her Christian faith. The applicant said her parents were Catholics but she became a Baptist when she married her husband. She said that both religions shared the same God but had different practices. She was actively involved in the church and would teach young children at a “Sunday school”. The Tribunal asked the applicant if she engaged in proselytising (the act of attempting to convert people to another religion). The applicant said that other members of the Baptist church did but she was busy at the time looking after her [children] and teaching at the Sunday school.

28. The applicant said that Buddhism is the majority religion in Burma and minority religions such as Muslims and Christians face discrimination. The applicant said she was able to attend church but would have to practice discreetly when the soldiers came to their town.

29. The Tribunal noted that since she had travelled to Australia the government had changed and the NLD were now in power. The applicant said that the military were the ones who were in power and little had changed in reality and she still fears she will have problems because of her association with the NLD. By way of example, the applicant said that the military were still in control of key ministries and were above law and order. The applicant said that she has no interest in politics anymore and was only interested in the welfare of her children.

30. The Tribunal questioned the applicant about the recent introduction of the “Protection of Race and Religion Laws” in Burma and what impact this would have on her as a Christian Chin female. The applicant said that the laws prevent Buddhists from converting to other religions and Buddhist women are prevented from marrying Muslim men.  She said the laws are intended to indirectly target all ethnic minorities and religions and not just Muslims.

31. The Tribunal asked the applicant if she returned to Burma would she re-engage with the pastor and get involved with members of her religious community. The applicant said she has a close connection with the Church. Her sister’s husband is a pastor in Australia, her brother-in-law is a senior member of the church and the pastor who assisted her in [City 1] is a relative. The applicant said it was very difficult to openly promote Christianity in Burma. She fears the authorities and does not believe she has any rights to promote her religion in Burma.

32. The applicant’s [sister] gave evidence at the hearing that she was in Burma when the applicant was beaten and was able to corroborate the applicant’s evidence. [The applicant’s sister] said that the applicant’s husband was often under pressure to drive student activists and also local soldiers because he had the only car in the village. The demands placed him in a difficult position. [The applicant’s sister] said that she fears for her sister as a single Chin women returning to Burma because Buddhist soldiers rape Chin women. She said that the soldiers had raped their [sister] and she now has a [child]. The Tribunal found that the applicant’s sister gave her evidence in a credible, natural and forthright manner. 

33. [Pastor A] is an Australian citizen and is married to the applicant’s sister. He gave evidence in support of the applicant’s claims.

34. He has been a Pastor at [a church] since 2010. The Church website describes the Church in the following terms:

    [Details deleted]. [2]

    [2] [Source deleted].

35. [Pastor A] said that he is also a member of [an organisation]. He said that the applicant is an active member of the [Church]  and Zomi community. She takes part in many social events and reaches out to the needy people in the community. She is a member of the [church].

36. [Pastor A] said that he travelled back to the State of Chin, Burma in 2016 and provided evidence regarding the harassment and intimidation of Chin Christians living in Burma. [Pastor A] said that when he was in Burma he heard a lot of stories about political imprisonment and harassment of local Chin Christians. He said that although it may appear that the political situation has improved in Burma the same army officials are still in power and local administrative structures still oppress and discriminate against the Chin ethnic group.

37. [Pastor A] said he spoke to his father-in-law who confirmed that the applicant’s husband was killed by the authorities. He said that since the arrest of her husband her life was in turmoil both physically and mentally.

    Discussion

38. DFAT’s most recent Country Information Report provides the following information on Christians in Burma:

    Christians can face low levels of official and societal discrimination in Myanmar. For example, Christians are rarely promoted to senior levels in the government, military or police. Human rights groups in Myanmar told DFAT that Christians find it difficult to obtain land on which to build new churches (although building new churches on existing land is generally possible), and there are reports of isolated attacks on new or repaired church buildings. Credible sources also told DFAT that hard-line Buddhist groups occasionally build pagodas on church property. [3]

    [3] DAFT Country Information Report Myanmar 10 January 2017 para. 3.34 & 3.35

39. On the other hand it was submitted by the applicant’s representative that the applicant faces generalised persecution on the basis of her combined ethnicity/religion. In support of this claim the Tribunal was referred to the UN Report on Minorities in Burma tabled on 29 June 2016 which states:

    For many years, Christian communities in Myanmar have faced restrictions in their freedom of religion or belief, especially in Chin, Kachin, Kayin and Kayah States. Special procedure mandate holders have reported allegations of human rights violations targeting Chin Christians, including of forced labour for the construction of monasteries and pagodas, the forcible confiscation of land, induced or coerced conversions to Buddhism, the closure of churches and “house” churches, and the destruction of crosses (A/HRC/22/67, p. 127). Allegations of arbitrary arrest, detention and torture of religious leaders, missionaries, church workers and others have also been reported (A/HRC/25/74, p. 105). Like Muslim communities, Christian groups report difficulties in obtaining permission to renovate, extend or construct religious buildings (see A/69/398, para. 40).

40. The applicant’s representative also referred the Tribunal to the U.S. Commission on International Religious Freedom (USCIRF) Report called ‘Hidden Plight: Christian Minorities in Burma’ released in December 2016, which reported a range of restrictions against religious freedom in Burma. The Tribunal notes that the USCIRF has designated Burma as a “country of particular concern” for its systematic, egregious and ongoing violations of religious freedom.

41. The report states that although the most dire human rights crisis in Burma is the situations of the Rohingya Muslims in Rakhin state, the violation of religious freedom cuts across many faiths and has been a long challenge in Burma. The report makes the following key findings which the Tribunal finds support the applicant’s claims:

    The enduring, constitutionally entrenched power of the military and the elevation of Buddhism as the de facto state religion are key factors in understanding violations of religious freedom currently affecting Christian communities in Burma. 

    Many of the discriminatory policies and practices instituted under the military regime continue today. The renamed Ministry of Religious Affairs and Culture, the military-run Ministries of Border Affairs and Home Affairs, and the military itself are directly responsible for religious freedom violations. The Committee for the Protection of Race and Religion, better known as Ma Ba Tha, and other ultra-nationalistic monks have played a key role in abusing the right to religious freedom and inciting violence against Christian pastors and missionaries. 

    Discriminatory restrictions on land ownership for religious purposes affects Christian communities across Burma. Militarized bureaucratic procedures are designed to obstruct permission for land ownership rather than facilitate it. In order to have a place to gather for worship, Christian communities have no other choice but to circumvent the restrictions. In some majority Buddhist areas—especially the Ma Ba Tha heartlands—Christians are almost entirely unable to congregate for worship, resulting in violations of freedom of religious assembly. Such violations are taking place in the context of continued state spending on the construction of pagodas and monasteries as part of the state’s promotion and propagation of Buddhism. 

    This report documents incidents of intimidation and violence against Christians, the forced relocation and destruction of Christian cemeteries, violent attacks on places of worship, and an ongoing campaign of coerced conversion to Buddhism, particularly in Chin and Naga areas. In Kachin areas, religious freedom violations are inextricably linked to the ongoing conflict and its root causes. The military routinely occupies churches and summons entire congregations for interrogation. Tatmadaw (Burmese Army) troops have desecrated, damaged, and destroyed churches. The military continues to perpetrate grave human rights violations with near total impunity, including sexual violence in church compounds and the torture of pastors, church workers, and ordinary civilians. To date, approximately 120,000 people have been forced to flee. After more than five years of conflict, many Kachin face protracted displacement and are desperate to return home. As long as the conflict continues, there is no real prospect for internally displaced persons (IDPs) to return in safety and with dignity.  These issues underscore the major challenge facing Aung San Suu Kyi’s National League for Democracy (NLD) government: bringing the military under civilian control. Undertaking substantive reforms to ensure religious freedom for all—in law, policy, and practice—must be a cornerstone of ongoing peace and national reconciliation efforts in Burma. [4]

    [4] Hidden Plight: Christian Minorities in Burma, The US Commission on International Religious Freedom (USCIRF) December 2016 p.4

1. It was further submitted by the applicant’s representative that if the applicant was to return to Burma in the foreseeable future she, too, will be subject to an increased likelihood of harm given her inclusion in the broader category of Chin Women. The Tribunal was referred to the article published by The Irrawaddy, ‘Women Protest Sexual Violence by Soldiers in Chin State’ dated 25 June 2014. The Tribunal has had regard this information and finds that it supports the applicant’s fear of being raped by Buddhist soldiers:

   More than 130 ethnic Chin women participate in a protest against the Burmese military’s alleged use of rape as a weapon of war in Matupi Township. Protest leaders said the demonstration on Tuesday aimed to draw attention to sexual violence perpetrated by soldiers against women and children in Matupi, as well as to enhance awareness of women’s rights issues among local residents. Al Li, secretary of the Chin Women’s Association, said six local women in Matupi had been raped by Tatamadaw soldiers, with the latest case on June 10… The local women said increased Burmese Army troop deployments in Chin State since 2010 had left many locals fearing for their safety and reluctant to cultivate their farmlands due to the presence of soldiers in the area. In a January 2014 report, the Thailand-based Women’s League of Burma accused members of the military of raping more than 100 women since 2010. The rape incidents’ “widespread and systematic nature indicates a structural pattern: rape is still used as an instrument of war and oppression,” the report said.[5]

   [5] The Irrwaddy, ‘Women Protest Sexual Violence by Soldiers in Chin State’ 25 June 2014 >

   It was submitted that Physicians for Human Rights (PHR) conducted a random survey of 702 households in Chin state in 2011, documenting 2,951 abuses of Chin Christians over a 12-month period. The report found that “government authorities may have killed an estimated 1,000 household members, tortured 3,800 individuals and raped 2,800 adults and children over the course of the 12-month reporting period.”[6]

   [6] Sollom, R 2011, Chin state abuses are the tip of the iceberg, Democratic Voice of Burma, 25 February < Accessed 5 September 2012.

2. The Tribunal was also referred to a 2012 report entitled ‘License to rape: How Burma’s military employs systematic sexualized violence,’ issued by the Women Under Siege Project, which noted that the 2009 report of the UN secretary-general to the Security Council on Resolution 1820 “expressed concern about the high levels of sexualized violence against ethnic minorities including the Rohingya, Shan, Mon, Karen, Palaung, and Chin groups and the impunity accorded to the perpetrators”. The report went on to state:

   Not much has changed in the ensuing years—and, in fact, now impunity for rape by the military is a constitutional guarantee. The 2008 Burmese Constitution places the military outside the purview of the civilian courts and includes an amnesty provision which precludes the prosecution of military perpetrators of crimes, including sexualized violence; raising global concern, including from the special rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana.[7]

   [7] Sann, P P & Radhakrishnan, A 2012, License to rape: How Burma’s military employs systematic sexualized violence, Women Under Siege Project, 15 March < Accessed 4 September 2012.

3. The Tribunal was referred to the April 2016 ‘Report of the Secretary-General on conflict-related sexual violence’ which considered the plight of women in Myanmar with particular attention to conflict-affected regions:

   Women and girls face a heightened risk of sexual assault when performing livelihood activities such as collecting firewood, grass or water, going to markets or tending fields, as in the Central African Republic, the Democratic Republic of the Congo, northern Nigeria, South Sudan and the Sudan (Darfur), or when herding cattle, as in remote areas of Myanmar… The process of political reform in Myanmar presents an opportunity for advancing women’s rights and combating conflict-related sexual violence… However, there continue to be serious concerns about impunity for conflict-related sexual violence. Military justice lacks transparency, despite the Defence Services Act (1959), which provides for the transfer of cases of rape by military personnel to civilian courts. Moreover, State health practitioners continue to request a police report before authorizing the provision of medical care to rape survivors, contributing to a rise in unsafe abortions and maternal mortality. This practice persists despite the requirement under the Emergency Treatment of Patients Law (2014) that service providers ensure access to life-saving medical care.

   Sexual violence has been exacerbated by conflict and displacement… linked to the collapse of social protection mechanisms, the increased presence of armed actors, and military camps in proximity to civilian centres. Fear of reporting, which is generally due to shame and cultural narratives that define women’s issues as “unspoken” issues, is greater when crimes are committed by members of armed groups, given the risk of retaliation. When traditional mechanisms are used, “reparation marriages” of the victim to the perpetrator may be ordered, which deters reporting. A rise in trafficking for the purposes of sexual exploitation and forced marriage was noted, with 45 cases recorded early in 2015. Stateless women and those who lacked identity documents were at greatest risk, including while travelling on crowded boats and staying in smugglers’ camps.[8]

   [8] April 2016 ‘Report of the Secretary-General on conflict-related sexual violence’ S/2016/361 available at >

   The Tribunal has also had regard to the recent introduction of the Protection of Race and Religion Laws in Burma. It has been reported that the “Religious Conversion Law unlawfully restrict the rights to freely choose a religion, interferes with proselytizing and could be used to criminalize such activities. The General Secretary of the Chin Baptist Convention explained “Some Buddhists want to convert, they tell us they want to be Christians, but they are afraid of this law. People are afraid of choosing their own religion. We tell our missionaries that they have to be careful. They are fearful of explaining their own faith. If they are reported to the authorities, they may face problems.”[9]

   [9] Hidden Plight Christian Minorities in Burma, The US Commission on International Religious Freedom (USCIRF) December 2016 p.9

4. The Tribunal accepts and relies on the submissions and country information referred to by the applicant’s representative detailed above.

   Does the applicant have a well-founded fear of persecution for a convention reason?

5. The next issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings and the country information detailed above.

6. As detailed above the Tribunal found the applicant to be a credible witness and accepts that she is a member of the Chin Christian minority group in Burma.

7. The Tribunal accepts that the applicants husband was a member of the ZNC/NLD and operated as a low level political activist in his local area. The Tribunal accepts that the applicant’s husband was detained, imprisoned and killed due to his Chin ethnicity and political profile. The Tribunal accepts that as a consequence of her husband’s profile the applicant also came to the attention of the local authorities who have questioned her and subjected her to unlawful beatings and harassment. The Tribunal accepts that the Buddhist soldiers raped the applicant’s [sister] in 2002 because she is a Chin Christian woman.

8. The Tribunal accepts that Chin Christians who are active within their church can face discrimination and human rights abuses by the Burmese government because of their faith, their ethnicity and imputed opposition to the ruling government. The Tribunal also accepts that the government discourages and restricts proselytising, particularly amongst religious minorities and that Chin Christian activists have been victims of human rights abuse.

9. The Tribunal finds that the applicant is an active member of her Baptist church in Burma. The Tribunal finds that the applicant’s involvement in the religious and cultural affairs of the Chin community go beyond that of an ordinary parishioner. She has taught religion to young Chin children in Burma, she is a member of [an organization] and is a Member of [the] Church. The Tribunal finds that if the applicant was to return to Burma she would re-engage with the Baptist community and continue to be an active member supporting the religious education of young Chin children and those interested in converting to the Christian faith.

10. The Tribunal also accepts that the government discourages and restricts proselytising, particularly amongst religious minorities and that Chin Christian pastors and missionaries have been victims of human rights abuse.

11. As detailed above, USCIRF’s comprehensive report has documented incidents of intimidation and violence against Christians, the forced relocation and destruction of Christian cemeteries, violent attacks on places of worship, and an ongoing campaign of coerced conversion to Buddhism, particularly in Chin and Naga areas.[10] The Report also detailed ongoing violations by the Burmese army, the Tatmadaw, in Chin State committing human rights violations with impunity, including sexual violence, forced recruitment, and arbitrary arrest, detention, and torture of civilians.[11]

    [10] Hidden Plight: Christian Minorities in Burma (2016) U.S. Commission on International Religious Freedom (USCIRF) available at accessed 31 Jan 2107, page 4.

    [11] Hidden Plight: Christian Minorities in Burma (2016) U.S. Commission on International Religious Freedom (USCIRF) available at accessed 31 Jan 2107.

12. The Tribunal also finds that the applicant’s fear of persecution needs to be seen against the virulent Buddhist nationalism which is current evident and is destroying a multi-religious and multi-ethnic society in Burma. Looking into the reasonable foreseeable future, the Tribunal accepts the conclusions of the International Crisis Group’s report Buddhism and State Power in Myanmar, that while many of the atrocities currently being perpetrated are directed at the Muslim Rohingya people, they will inevitably become part of the Buddhist nationalist narrative, which will further complicate social and political dynamics of religion and ethnicity in Burma.[12]

    [12] Buddhism and State Power in Myanmar; 5 September 2017 >

    Having considered the country information the Tribunal is satisfied that the applicant, as a Christian Chin woman who is an active participant in the Baptist community, would face a real chance of serious harm if she was to return to Burma now or in the reasonably foreseeable future. The Tribunal finds that the applicant’s fear of persecution because of her particular social group, religion and ethnicity is well-founded.

13. The Tribunal considers that the persecution the applicant fears involves systematic and discriminatory conduct, as required by s.91R(1)(c) of the Act.

14. As the persecution feared by the applicant is from the Burmese authorities, the Tribunal finds that adequate state protection is not available to the applicant. Given that the Burmese government is responsible for the persecution that the applicant fears, the Tribunal accepts that there is no part of Burma to which the applicant could reasonably be expected to relocate where she would be safe from the harm she fears.  

15. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Christopher Smolicz
    Member