1605338 (Refugee)

This matter concerned an application for a protection visa by a citizen of Myanmar. The applicant claimed to have participated in the 2007 "Saffron Protests," distributed pro-democracy pamphlets between 2009 and 2011, and protested against the military's forcible land acquisition in 2013. He alleged that following the 2013 protest, the military sought to detain him, leading him to flee Myanmar. The decision under review was made by the Refugee Tribunal, presided over by Member Rosa Gagliardi.

The primary legal issues before the court were whether the applicant had a well-founded fear of persecution for reasons of political opinion, and whether he would face significant harm if returned to Myanmar. Specifically, the court had to consider if the applicant's past political activities, including his involvement in protests and pamphlet distribution, and the alleged military interest in his detention, established a real risk of persecution. The court also considered the applicability of the exceptions to protection outlined in s.36(2B) of the Migration Act, namely whether internal relocation was a viable option, whether effective protection could be obtained from Myanmar authorities, or if the risk faced was general to the population.

The Tribunal found that the applicant had a history of political engagement in Myanmar, including participation in protests and the distribution of anti-government materials, which led to him being warned by authorities and subsequently sought for detention. The Tribunal was satisfied that the applicant did not have effective protection in a third country. Applying the principles of the Refugees Convention and relevant Ministerial Directions, the Tribunal concluded that the applicant had established a well-founded fear of persecution based on imputed political opinion and that Australia had protection obligations towards him.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied the criterion set out in s.36(2)(a) of the Migration Act.