1606601 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant's claims were based on well-founded fears of persecution in their country of nationality and countries of former habitual residence. The AAT was required to determine whether Australia had protection obligations towards the applicant under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

The legal issues before the Tribunal included whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, specifically the 'refugee' criterion. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether they were outside their country of nationality and unable or unwilling to avail themselves of its protection. The Tribunal also considered the applicant's status as a stateless person and the implications for their claims.

The Tribunal's reasoning involved a detailed examination of country information regarding Myanmar, Bangladesh, and Malaysia, as well as the applicant's personal circumstances. It found that the applicant faced a real chance of serious harm in Myanmar due to systematic and discriminatory conduct based on their race/ethnicity, with no effective state protection available. Similarly, the Tribunal was satisfied that the applicant faced a real chance of serious harm in Bangladesh, including the risk of refoulement to Myanmar, again due to their race/ethnicity and a lack of state protection. The Tribunal also concluded that the applicant faced a real chance of serious harm in Malaysia, including the risk of refoulement, based on their race/ethnicity and the lack of adequate protection. Consequently, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention.

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