1931485 (Refugee)

This matter concerned an application for a protection visa by a grandmother and her young adult granddaughter, both from Burma. The applicants claimed they feared persecution due to an imputed political opinion as separatists or supporters of separatism, stemming from their state and ethnic origin. Their fear was heightened by the fact that the son and father had been killed as a suspected insurgent, and the daughter-in-law and mother had also deceased. The applicants had returned to Burma, failed to seek asylum, and were now seeking protection in Australia.

The central legal issue before the Tribunal was whether each applicant individually satisfied the criteria for a protection visa, specifically whether they were refugees within the meaning of section 5H(1) of the Migration Act 1958 (Cth), by having a well-founded fear of persecution under section 5J(1) of the Act. This required an assessment of whether there was a real chance of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether such persecution would involve serious harm and systematic, discriminatory conduct. The Tribunal also had to consider the country information regarding the military coup, ongoing civil war, racial discrimination, arbitrary detention, and gender-based violence in Burma, and whether effective protection measures were available to the applicants.

The Tribunal considered the country information, which indicated intense fighting in the applicants' home state and the general risks of arbitrary detention and gender-based violence. It found that each applicant separately satisfied the criterion under section 36(2)(a) of the Act, meaning Australia had protection obligations because they were refugees. The Tribunal determined that the imputed political opinion, based on their ethnic origin and the persecution of their family members, constituted a well-founded fear of persecution. The Tribunal remitted the application for reconsideration with a direction that each of the applicants satisfy section 36(2)(a) of the Act.