1830129 (Refugee)

This matter concerned an application for a protection visa by a Christian man from Chin state, Myanmar. The applicant had previously been granted a humanitarian visa to enter Australia in 2010, sponsored by his father who had previously fled Myanmar due to political persecution. However, his visa was cancelled in 2015 following his conviction for sexual assault offences against his stepmother, for which he received a sentence of six years and two months imprisonment. The applicant claimed he could not return to Myanmar due to fears of arrest and persecution based on his ethnicity, religion, his father's dissident status, his desertion from military service, and his illegal departure from Myanmar. The delegate had refused his protection visa application, finding he was not a refugee and that there were no substantial grounds to believe he would suffer significant harm upon removal to Myanmar. The review before the court was a de novo merits review.

The primary legal issues before the court were whether the applicant met the definition of a refugee under the Act and, consequently, whether Australia owed him protection obligations. This required the court to assess whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Myanmar, he would suffer significant harm. The court was required to consider all available information, including country information assessments and departmental guidelines, and make an assessment of Australia's protection obligations at the time of the decision, taking into account foreseeable future events.

The court considered various country information reports, including a report from the Department of Foreign Affairs and Trade (DFAT) dated 18 April 2019, and a Situational Update report from the Country of Origin Information Services Section (COISS) dated 31 August 2021, which detailed the situation in Myanmar following the military coup. The court also reviewed the delegate's decision and the evidence presented, noting discrepancies in identity documents submitted by other family members for the original humanitarian visa, but finding the applicant's documents to be consistent. The court acknowledged the applicant's criminal convictions and the victim's identity as his stepmother, which was consistent with evidence provided by the applicant and a clinical psychologist's report. The court was required to make its own assessment of the applicant's claims afresh, considering all available information.