1920349 (Refugee)

The applicant sought a protection visa, claiming to be stateless or a citizen of Myanmar, and facing a well-founded fear of persecution. The dispute centred on whether the applicant was stateless or a national of Myanmar, and consequently, whether they could avail themselves of the protection of Myanmar or a country of former habitual residence. The case was before the Tribunal, presided over by Paul Noonan.

The primary legal issue before the Tribunal was to determine the applicant's nationality, or in the alternative, their country of former habitual residence, in accordance with Article 1A(2) of the Refugee Convention and section 36(2)(aa) of the Migration Act. This determination was crucial for assessing whether the applicant had a well-founded fear of persecution in that country, a prerequisite for granting a protection visa. The Tribunal also had to consider the correct visa class to be assessed, noting that due to legislative changes, the application was to be treated as one for a Temporary Protection (Class XD) visa.

The Tribunal reasoned that nationality is a legal bond between an individual and a state, determined by the nationality laws of that state. It acknowledged the difficulties in establishing nationality due to inconsistent evidence, the passage of time, and the unavailability of documentation, including statements from relatives and a Rohingya organisation. The Tribunal also considered country information indicating a high risk of persecution in Myanmar. Despite the delegate's refusal, the Tribunal found that the applicant satisfied the criterion under section 36(2)(a) of the Migration Act, indicating Australia had protection obligations.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act.