2005233 (Refugee)

2005233 (Refugee) [2023] AATA 2329 (27 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Daniel Robert Taylor (MARN: 1464666)
CASE NUMBER:  2005233
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:David McCulloch
DATE:27 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 27 March 2023 at 1:48pm
CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – religion – Muslim – interfaith marriage – fear of extremist Buddhist groups – Ma Ba Tha – former military member – left the country without permission – failed asylum seekers – perceived political opinion – aggressive interrogation involving physical harm – prolonged detention – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 March 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Burma (Myanmar), applied for the visas on 21 December 2017. The applicant attended an interview with a delegate of the Department on 14 August 2019. The delegate refused to grant the visas.
[The applicant wife] is the primary visa applicant and [the applicant husband] is the secondary visa applicant.
The applicants were represented in relation to the review.
The Tribunal has proceeded to make a decision in the applicants’ favour without the need for a hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouse and dependent children.
The Tribunal is satisfied on the evidence that the applicant husband is the spouse of the applicant, and therefore is a member of the same family unit as the applicant.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information report – Myanmar, 11 November 2022.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicants and whether on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s migration history is cited from the delegate’s decision record. The applicant applied for a Tourist (Subclass 600) visa on 16 March 2015 offshore, which was refused on 8 April 2015. On 16 March 2016 the applicant applied for a Tourist (Subclass 600) visa offshore, which was granted on 8 April 2016. The applicant entered Australia [in] April 2016 on the Tourist (Subclass 600) visa and departed [in] June 2016. The applicant then applied for a third tourist (Subclass 600) visa on 23 June 2017 which was granted on 7July 2017. The applicant entered Australia with that visa [in] August 2017. The applicant applied for a Protection (Subclass 866) visa on 21 September 2017, however that application was found to be invalid. The applicant applied for another protection visa on 21 December 2017, which is the subject of this review.
The following information is apparent from the protection visa application form. The applicant was born on [date] in [Town 1], North Shan State, Myanmar. The applicant is of Burmese ethnicity, her religion is Islam. The applicant has also been known as ‘[Alias 1]’ which is her religious name. The applicant speaks, reads and writes in Myanmar and English. The applicant has been in a relationship with her husband since 2015, and they were married in 2016 in Brisbane, Australia. The applicant’s father and one of her sisters are deceased. The applicant’s mother resides in Myanmar. The applicant has [number] sisters and one brother. One of the applicant’s sisters lives in Australia, another resides in [Country 1] and two of her sisters live in Myanmar. The applicant’s brother resides in [Country 2]. The applicant is in contact with her mum and one of her sisters once a week via [communication app]. From February 1997 to February 2017, the applicant lived at three different addresses in Yangon, Myanmar. During that period, she spent roughly three months in total in [Country 1], and one month in [Country 3], to visit family. From 2017 she has been residing in Australia. From 1979 to 1994, the applicant completed her basic education program. In 2003 she received a Bachelor of [Discipline 1] from [University 1]. In June of 2002, the applicant completed a Communication in English Course (Basic Level) at [Organisation 1]. In July 2007, the applicant completed another English qualification at [Education Provider 1] in Myanmar. In June 2011, the applicant completed an [Discipline 2 course] at [Education Provider 2] in Myanmar. The applicant in 2014, gained further qualifications and completed a [specified] Course at [Education Provider 3], in Myanmar. From June 1996 to April 2013, the applicant was employed as a [Occupation 1], owning her own business until 2010. From 2010 to 2013, the applicant was employed as a [Occupation 1] from independent businesses. The applicant was unemployed from 2013 to 2014. The applicant worked at a [different industry] from May 2014 to February 2016. The applicant has been unemployed since 2016.
The applicant husband’s migration history is cited from his Movement Record. He arrived in Australia on a Tourist (Subclass 600) visa [in] April 2016. He departed Australia [in] June 2016. The applicant husband then arrived in Australia [in] September 2019 on a Tourist (Subclass 600) visa. He was granted a Bridging visa A on 4 October 2019. That visa remains in effect at the date of writing this decision.
The following information is apparent from the applicant husband’s protection application form and the applicant’s Statutory Declaration. The applicant husband was born on [date]. He is a Burmese citizen, whose religion is Buddhist. He was enlisted in the Burmese Military and worked as [Rank 1], prior to being demoted to [Rank 2] in 2016. The applicant husband indicated on his form that he is currently unemployed, however in the sections where asked to list his previous employment, education and family members, he left those blank. The applicant husband indicated that he was found guilty of a charge under Burmese Military Law Section [number] [in] 2016.
The applicant husband indicated that he was raising his own claims for protection and would provide a separate attachment with his claims for protection. The only claims for protection provided to the Department were that the applicant husband had a fear of harm due to his interfaith marriage, and for leaving the country without permission from the military.
On 12 August 2019, the applicant submitted the following Statutory Declaration outlining her claims for protection (spelling and grammar not corrected):
1.I fear that if I were to be forced to return to Myanmar, I will be seriously harmed on the basis of my religion as a Muslim, as a woman, due to my marriage to my husband who is a Buddhist and was in in the Burmese military.
2.I was born on [date] in Myanmar. I am a Burmese citizen.
3.I am of Burmese ethnicity. I am of the Islamic faith.
4.I am married.
5.I do not have any children.
6.I consider myself to have some Arab heritage as my mother’s father was Arab.
7.I was born in North Shan State, Myanmar. My family was originally from Rangoon, but moved back to North Shan prior to my birth.
8.In 1995, I moved to Rangoon with my family in order for my father to retire there. I lived in Rangoon [until] August 2017.
9.[In] August 2017, I left Myanmar and came to Australia in seek of asylum. I arrived on [date] August 2017.
10.My mother’s name is [Ms A] and was born on [date].
11.My father’s name is [Mr B] and was born on [date].
12.I have five sisters:
a.[Ms C] – Born [date]
b.[Ms D] - born [date]
c.[Ms E] – born [date]
d.[Ms F] born [date]
e.[Ms G] – DOB not sure (passed away)
I have one brother and one brother-in-law:
f.[Mr H] – [date] (brother-in-law, married to [Ms D])
g.[Mr I] – has resided in [Country 2] for 30 years
13.On 1 September 2012, my father was involved in a car accident and as a result, he became permanently paralysed and slowly deteriorated until his death.
14.Both my mother and my sister, [Ms C], do not work.
15.As a result of vision impairment, [Ms C] only attended school until Year 5. After that, she stated at home. In addition, she now suffers from [medical condition].
16.I finished studying a degree at [University 1] in Yangon in 2001, receiving a Bachelor of [Discipline 1].
17.I formerly worked as a [Occupation 1]. I did this for around 10 years during and after university.
18.Because my father worked as a government employee, he had the financial capacity to pay my university tuition fees. When he retired, I was required to pay for our own university ees.
19.I met my [husband] while we were both studying at university. We would sit one table apart while dining there, and got to know each other. During university, he would visit me at my house. He was and is my best friend. After our relationship developed, he eventually asked for my hand in marriage.
20.My parents had a major issue with him due to his religious background. My whole family as Muslims, while he is a Buddhist. There is a lot of tension and prejudice in Myanmar between Muslims and Buddhists, both in society in general and in the government and armed forces.
21.My family recognised that he was a good man; however because he was a Buddhist they were not accepting at first. However, although they disagreed with our relationship when we were dating ultimately they were accepting of him after we got married.
22.His family, however, are all Buddhists and have never accepted me because of my Islamic faith. I was never able to visit his house or his family or his suburb.
23.Because of these family issues, initially, before we were married, my husband would only come to my house as a “friend”, in order to allay some of these tensions and avoid bigger problems.
24.I heard from people that his relatives were very very unhappy about our relationship and that they wanted to kill us. His family was well known as they ran a [specified] shop. My husband told me that his family was really upset and disagreed with our relationship, and that’s why he doesn’t not want me to come to his area.
Problems in Home Country

25.In general, life for Muslims in Myanmar can be very difficult due to the social and governmental attitudes directed towards us, which can result in discrimination and violence.
26.Before my father retired, he worked for the government, as a [Occupation 2], and we lived in government-protected area. As a result, we did not face many problems during that time that my father worked for the government.
27.However, when I started university and my father retired, we needed to live in a general suburb amongst the majority-Buddhist general Burmese public. From this time onwards, I began to experience significant discrimination due to my Muslim faith.
28.The public knew my family and I were all Muslim because our area contained a mixture of different religions and people were generally aware of a family’s religious beliefs, where they lived, and other personal details like that. Because we had grown up in a stable environment where we were relatively free to practice our Muslim faith without hiding, me and my family continued to live our normal lives without hiding our faith. It was common knowledge in the community that my family were Muslim.
29.Our house was covered in religious pictures and we would observe certain Islamic celebrations in certain ways, and would attend Islamic religious events.
30.When my dad retired, he would attend Friday prayers every week as per Islamic religious law and tradition. My father would go the Mosque a few times a week.
31.In Myanmar the mosque was only for men. Normally women would pray at home, and only rarely, maybe once a year, women would attend a woman-only mosque (of which there was only one n my city).
32.In Myanmar, anti-Muslim sentiment is widespread and entrenched.
33.In about 2012 and 2013, the situation regarding the hostilities between Buddhists and Muslims became worse.
34.Prior to getting married, I was renting a room to provide [specified] services. I hired three other [Occupation 1]s and I was [also undertaking Occupation 1 tasks].
35.In about March/April of 2013, some people dressed as Buddhist monks came to my [business], saying they were making some [business enquiries]. After a brief conversation, the monks suddenly became quite aggressive and demanded to see my identification. I lied, and said that the owner of the business was away, and that I just worked there. I told them that my “manager” kept my identification when I started working there, so I didn’t have it on me. I lied about being the owner. To try and calm them I said that if any [Buddhist people] wanted to come to me for [specified services], I would [provide specified service to] them for free. The monks threatened to kill me saying “we will kill you one day”. They also threatened me by saying “we know that you are not just an employee, that you are the owner. We already know everything about you.” Although they did not say it directly I knew I was targeted for being Muslim. After this incident, I noticed that monks would stand outside my [business] on the street and tell my [customers] that they should get [specified service] elsewhere because I was not Buddhist.
36.Due to this constant harassment I started to lose [customers] and I was forced to stop this work. I went to [Country 1] and stayed there for a while to escape the harassment. I stayed in [Country 1] for about a month. After I came back from [Country 1] I [worked] in my parent’s home as a volunteer as I was at a loss what to do. I could not start a new business because I was too scared I would be targeted again.
37.The Burmese government passed a law that legislated against interfaith marriages without community approval. Neither my husband nor I were willing to convert to each other’s religion. The legislation was targeting Islam.
38.The interfaith Marriage Law places requirements and restrictions on marriage between Buddhists and non Buddhists but it is seen to target Muslims. There are many monks who seek to protect the Buddhist religion and persecute Muslims. Many of them are members of a pro-Buddhist Burmese group called the “969” movement and also Ma Ba Tha. Particularly in recent years, this has led to a number of violent incidents and increasing social discrimination targeted at Muslims in Myanmar.
39.In 2016, I arrived in Australia on a visitor’s visa to marry my now-husband who is of Burmese Buddhist faith.
40.We couldn’t get married in Myanmar due to our different religions and the problems we would face. It is commonly known in Burma that people who are Muslim should not marry Buddhist people.
41.We therefore chose Australia, as opposed to other ASEAN countries, because we thought it would be the safest option for us in marrying, as we are from different faiths.
42.While we were in Australia, we called my mother and my sister and told them we got married. My husband also called his family to tell them we were married.
43.Once I told my mother that we got married, she warned me not to go back to Myanmar because she was worried about us.
44.We felt that we had to return however. My husband was in the [military], and if he abandoned the military without being formally discharged he would be seen as a person who has run-away from the military. The military government might cause problems for our families in Myanmar.
45.Further, we feared that if we did not return to Myanmar, our parents would be in danger as the community would realise that Buddhist had left with a Muslim and they could suspect that we had been unlawfully married. I also feared that Ma Ba Tha would want to hurt us, and that if they couldn’t get to us they would instead hurt my family.
Return to Myanmar

46.We returned to Myanmar. My husband had already exceeded his 10 day annual leave (as it took us three weeks in Australia to arrange and conduct the marriage), and needed to return to work in the [military]. If he did not return to work immediately, he would face charged under Burmese Law. When we returned my husband and I lived together in my family home. We tried to keep our marriage quiet.
47.My husband was put in military prison for 2 months because he took unexplained leave but we think that they did not know he had gone overseas. They downgraded his position from [Rank 1] to [Rank 2]. He did not want to tell the Army that he was going overseas to get married. Some of his friends in the Army knew.
48.We did not disclose our marriage to the community as we feared persecution.
49.We were scared that if people found out we would be threated, harassed and also imprisoned. They may even say that we were married in breach of the Interfaith Marriage Law and could be imprisoned.
50.Eventually, people began to suspect that my husband and I were married. I am not sure how the general community found out it may have been one of our friends or family telling others or just general rumours seeing him living in our house.
51.I found myself being followed by monks other men and women. They would follow me when I left my house. I did not confront them as I did not want to cause an issue.
52.I never told my husband. Initially because he was in military prison and then because I didn’t want him to worry about me.
53.If I was the Bazaar or at the shops, Buddhist monks would push into me. They would say “do you want to die”, and they would try to start a fight or confrontation. They would call me “Kalar-ma” which is a slur against Muslim women. They would slap me or push me onto the road and kick me while I was down.
54.They were dressed as monks but I don’t think they were real monks. They had a small amount of hair on their heads.
55.I was assaulted on the street by different people, sometimes they were men and sometimes women.
56.I don’t remember how many times I was attacked like this on the street, it was at least 12 times.
57.Before I was married I experienced some discrimination in public, like being calling me “Kalar-ma”, but I never experienced any physical violence from people.
58.The violence only started after I married a Buddhist man, and I believe I was specifically targeted because they suspected I was married to my husband.
59.When I was assaulted on the street, none of these people ever directly said to me that they knew or suspected I married a Buddhist man, however sometimes they would say something “We shouldn’t have our people with you”, which I took to mean that Muslims shouldn’t marry Buddhists.
60.In May 2016, I went to visit a friend. By the time I walked back it was dark. I remember two men approaching me and asking me “what do I want” and “what are you doing here?” I did not respond because I did not want to cause an issue. The two men, who said they were monks, pushed me to the ground and attacked me. I remember the men knocking me over and kicking me directly in the stomach while shouting verbal abuse.
61.I was about 6 weeks pregnant at the time of this attack. I believe as a result of the incident, I had a miscarriage.
62.I could not report the attack this to the authorities nor to the hospital. I could only report my pregnancy complications. I was scared the authorities would find out about my mixed marriage.
63.I knew if I went to the police it would not help, but make things worse because I am a Muslim. I have had family friends who were Muslim that went to report attacks by fake monks and nothing happened. Therefore I avoided reporting to the police.
64.I didn’t tell my husband about the assaults. I thought my husband would report the incident to the police and that would cause me more problems.
65.I was worried also that the Police would report the incident to Ma Ba Tha, or that some of the police were Ma Ba Tha.
66.I didn’t tell my husband that I miscarried because of the assault but I was just crying when he saw me. My husband took me to the woman hospital. I attach the medical reports showing my miscarriage, enclosed as Annexure A.
67.After my miscarriage, I did not leave my house much and avoided the general public. I would leave the house only to make important medical appointments. I would only use a taxi to avoid public exposure.
68.My mother told me that sometimes people would come to our house and ask personal questions about me. They would not leave their name and say that they would come back later when I was home. Similar incidents happened a few times.
69.I would also hear from the shopkeepers at the nearby grocery store, or snack store, that people would be asking about me and my husband. We were friendly with the local shopkeepers and they would tell us when we spoke with them that people would be asking about us.
Leaving Myanmar

70.I asked my husband to leave the military as I was aware of the widespread discrimination based on religion in the military. I was in fear for his safety, as if people found out that he secretly married me and secretly left the country the consequences for him would be serious. He could face imprisonment and would likely be treated more harshly as he was in the military.
71.My husband eventually quit the military. When he resigned from the military he was discharged as “single”.
72.My husband arranged for me to leave Myanmar due to fear of further persecution against me.
73.I am in contact with my husband everyday, as we have been best friends for so many years. I contact him over the internet using [communication applications], which are voice chat programs. We have hundreds of messages between us.
74.My husband remained in Burma is he is somewhat protected as a Buddhist, as long as people did not feel a need to continue pursuing him because of our inter-faith marriage. We thought that people assumed that we had separated because I had gone away.
75.My husband moved back to this mother’s house for short while in order to make it more believable that our marriage was over and that we were no longer together.
76.If my husband left Myanmar, I fear the anti-Muslim groups would harass my mother and sister and destroy my family home.
77.While my husband is in Myanmar, people will continue to think that we are separated.
78.If I return Myanmar, or if my husband leaves Myanmar, people will become suspicious once again of our relationship, and it would place both us and my family whole family at risk societal violence.
79.I am worried that if the Burmese authorities find out that I have applied for protection that they might harm my family.
Since arriving in Australia

80.I continue to practice my Muslim faith in Australia;
81.I am a member of [a Sunni] Association and participate in some activities particularly around Ramadan.
82.My husband has moved to a small village outside Yangon as he was scared that the authorities and the military may hear about our marriage and previously leaving country.
What I fear would happen if I was forced to return to my home country

83.If I return to Myanmar I fear being seriously harmed by the government, military, and/or society including particularly extremist Buddhist on groups such as Ma Ba Tha. I fear that they would harm me on the basis of my Muslin religion, and interfaith marriage.
84.In relation to the Burmese government, I fear that I could be arrested or detained and targeted as a Muslim who has married a Buddhist and someone from the military.
85.If I was arrested I think that government would treat me particularly harshly because I married someone from the military, and that this might be an embarrassment for them.
86.If I returned to Myanmar, to avoid harm, I would have to keep my marriage with my husband secret my whole life. This is not possible. We want to live together openly, without fear from the community or from the government. Our previous concealment of our marriage was only due to fear of the harm that would happen if we were open about our relationship.
87.I am worried also that if I return Ma Ba Tha would harm to me, my husband and my family, based on their hostility to Muslim’s and interfaith marriages. There is no justice from Ma Ba Tha’s violence, as they are run by people in the government and military.
88.I also fear farm from other similar Buddhist extremist groups, and Buddhist members of Myanmar society with extreme views against Muslims.
89.I don’t believe that the could protect me from Ma Ba Tha or other similar groups, as some of the police are likely in Ma Ba Tha or Ma Ba Tha sympathizers. Additionally, the police and the authorities are among those from whom I fear harm due to my interfaith marriage.
90.I fear that if I return, my mother and sisters may be in danger and will be constantly in fear of my imminent arrest.
91.I also fear that if I returned my husbands relatives may once again threaten me and carry out violence toward me or tell others who would carry out this violence.
92.I do not believe there is any other part of Myanmar where my husband and I would be safe. It is unsafe for Muslims all over Myanmar.
93.Further, the harm that we fear includes harm from the Myanmar government, and as the Myanmar government controls the entire country there is nowhere I could be safe from them. Especially because husband in the army.
94.I do not have the right to enter and reside in any country apart from Myanmar.

The applicant husband provided to the Tribunal the following statutory declaration, declared on 10 March 2023 in [Suburb 1], New South Wales (not corrected for spelling or grammar):
I am former military. My [wife] and I support the NUG and People’s Defence Force in their struggle for the rights of the people and against genocidal military junta. We give donation to the NUG and PDF.
We do not attend protests because we are frightened that our family will be killed because of us.
We have provided to the Tribunal copies of our donations to the PDF. We are both frightened for our families remaining in Burma and have decided to close our [social media] accounts even though they have been public up till today.
I have sister and brother in Burma still and my brother’s family. I am worried for them being harmed because of me. My sister and brother are in CDM and are in hiding. My brother’s family are in Yangon and are vulnerable.
I understand that former military who support the PDF will be killed and their families. I have also heard of family members and children being taken hostage by the military to force former military to come back and surrender.
I am very frightened of this happening because I have no control over it and would feel responsible for their deaths. My wife’s mother passed away in December 2022.
My wife’s remaining sister in Burma is in Yangon. Out of her three children, one with [medical condition] is with her in Yangon, another is fighting with the PDF against the military, and the third is a [occupation] who has fled Burma and is frightened to return.
The applicant’s representative provided a written submission to the Tribunal dated 17 March 2023. It is submitted that both would be subject to requisite harm due to strong local and financial support for the NUG and PDF. As a former military member the husband would summarily be executed for treason. The same applies to the applicant as a family member. A number of extracts from the 2022 DFAT report are referred to. Independent evidence is cited as to harm being faced in Myanmar from critics of the military regime. Anti-Muslim hostility and the conversion of the applicant husband is referred to. Submissions are made as to harm being faced by the applicants as a result of being failed asylum seekers.
The applicants provided additional media reports and reports of various organisations citing harm faced by individuals in Myanmar on various grounds. Facebook extracts are provided indicating the applicants supporting critics of the regime in Myanmar.
INDEPENDENT INFORMATION
The 2022 DFAT report on Myanmar provides the following information (original emphasis removed and underlining added):
Recent History

2.4 In November 2015, Myanmar held credible national elections for the first time in 55 years. The NLD won almost 80 per cent of the available seats, assuming power in 2016. While Aung San Suu Kyi could not become president due to a constitutional clause drafted to exclude her (see Political System), she was appointed State Counsellor and Foreign Minister. The NLD government was popular, but it was slow to make reforms and progress the national peace process, and its international reputation was tarnished by its failure to prevent mass atrocities against the Rohingya in Rakhine State, which caused an estimated 700,000 people to flee the country in 2016-2018 (see Rohingya).
2.5 In government, the NLD hoped to reduce the influence of the military and pave the way for Aung San Suu Kyi to become President. But after the NLD won the November 2020 election in a landslide, the military rejected the result and seized power under the leadership of Senior General Min Aung Hlaing on 1 February 2021. Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.[1]

[…]

Political System

2.19 On 1 February 2021, a military junta under the leadership of Commander in Chief Senior General Min Aung Hlaing seized control of the Myanmar Government apparatus, hours before a parliament led by the NLD was due to convene. The junta declared the results of the election – which the NLD had won in a landslide and whose results were widely seen as credible – invalid and assumed all executive, legislative and judicial powers of the state. The country has thus become a de facto military dictatorship.
[1] DFAT, Country Information Report – Myanmar, 11 November 2022, p.8.
2.20 During the coup, State Counsellor Aung San Suu Kyi and President Win Myint were arrested, along with ministers, their deputies and members of parliament. Citing unsubstantiated electoral fraud, the junta claimed to be acting under Article 417 of the 2008 Constitution, which requires the President to declare a state of emergency in response to a threat to Myanmar’s sovereignty, and Article 418, which requires the President to hand over power to the Commander in Chief of the Army in such a situation. The enactment of these provisions by Vice-President Myint Swe (a former army officer and member of the military-backed USDP) was described by the International Commission of Jurists as a violation of ‘principles of rule of law, international law and Myanmar’s Constitution’.
2.21 The day after the coup, the junta announced Myanmar would henceforth be under the control of an executive governing body known as the State Administration Council (SAC). The SAC consists of nine military officers and ten civilians, the latter drawn from a range of ethnic groups and rival parties to the NLD. On 1 August 2021, Min Aung Hlaing was announced as Prime Minister of a so-called ‘caretaker government’, which would rule the country under a state of emergency until February 2023, after which a ‘free and fair multiparty general election’ would take place. Observers do not consider these commitments credible.
2.22 In February 2021, a group of almost 300 politicians opposing the military regime formed the Committee Representing Pyidaungsu Hluttaw (CRPH), which claims to be the legitimate legislative authority for Myanmar. In April 2021, the CRPH announced the formation of an opposition government named the National Unity Government (NUG), including representatives from the NLD, ethnic minority groups, civil society and minor parties. The NUG and its representatives have met with officials from the US, UK, Australia, ASEAN, EU and others. In September 2021, the NUG announced its intention to begin a nationwide armed struggle against the military regime, to be carried out by units of the ‘People’s Defence Force’ (PDF). The NUG and PDF have since been designated as terrorist organisations by the SAC, along with the CRPH and the National Unity Consultative Council (NUCC), a dialogue platform for opposition groups. See Security Situation, Political Opinion.

2.23 Administratively, Myanmar is divided into seven regions, seven states, six self-administered zones or divisions, and one ‘union territory’ (where the capital, Nay Pyi Taw, is located). The six self-administrated zones/divisions are governed by ethnic minority groups; five within Shan State and one within Sagaing Region. Each state and region has its own legislature, comprising elected officials and appointed administrators. Since the coup, many regional and local officials have been arrested by the military regime or have resigned, some in protest against the coup and others under threat of reprisals by various PDFs.[2]

[…]

Civil Unrest

2.46 Following the February 2021 coup, demonstrations broke out throughout the country, including in Yangon, Mandalay and Nay Pyi Taw, as well as in smaller cities, with some reportedly drawing as many as
[2] DFAT, Country Information Report – Myanmar, 11 November 2022, pp. 11–12.
150,000 protestors. Healthcare workers and civil servants launched a nationwide civil disobedience movement, which was also joined by railway workers, garbage collectors, bank workers, electricity workers and others.
2.47 The military regime’s response to the protest movement has been harsh and wide-ranging, including restrictions on freedom of expression and assembly, the arrest and detention of protestors, the spreading of disinformation, and the beating, torture and killing of protestors and first aid responders. As of November 2021, the Assistance Association for Political Prisoners, an NGO, listed more than 1,200 confirmed killings and over 10,000 arrests in relation to the anti-coup protest movement, though numbers are likely much higher. At least 1,200 people had been sentenced for anti-coup activities as of July 2022. A video analysis by Amnesty International recorded more than 50 instances of security forces using live ammunition and military weapons to systematically attack unarmed protestors between 28 February and 8 March 2021, a trend which has continued since. In July 2022, the military regime carried out the death penalty against four men involved in anti-coup activities, including two prominent pro-democracy activists (see Death Penalty).[3]

[...]

Muslims

3.27 There are a number of distinct Muslim communities living throughout Myanmar, including the Kaman, Pantay, Pashu, Rohingya and Zerbadee. Most follow the Sunni sect. According to the 2014 census, Muslims made up approximately 4 per cent of the population, although this figure undercounts Rohingya Muslims, who were effectively excluded from participating. The majority of Muslims live in northern Rakhine State, but there are also Muslim communities in Yangon, Ayeyarwady, Magway, and Mandalay.
[3] DFAT, Country Information Report – Myanmar, 11 November 2022, p. 8.
3.28 Muslims in Myanmar experience discrimination and restrictions on their ability to practise their faith. They are underrepresented in the public sector. There were no Muslim ministers under the previous NLD government, nor are there any Muslim members of the regime’s SAC. Muslims are reportedly excluded from a range of government jobs, including as public school teachers and health workers. In recent decades many mosques have been burned down or vandalised, especially in Rakhine State, and authorities have prevented communities from rebuilding them. In June 2021, a mosque in Ahlone Township, Yangon was burned down in what the Burma Human Rights Network says was a deliberate arson attack. One source told DFAT more than 100 mosques had been destroyed and no new mosques built in the country since 1962. Authorities often withhold permission for Muslim worshippers to publicly celebrate religious events including Ramadan. In satellite towns without established mosques, Muslims are often forced to pray in makeshift prayer houses, which are sometimes too small to accommodate the number of worshippers. A report by the Burma Human Rights Network in 2017 found at least 21 villages had been declared ‘Muslim-free zones’ by local authorities, with signs erected in some villages stating ‘Muslims are not allowed to buy or rent properties’.
3.29 Muslims are frequently denied basic rights and services on the basis of their religion. An estimated 65 per cent lack citizenship cards, and many find it difficult or impossible to obtain them, even if they are theoretically qualified. Reasons vary, ranging from the Muslim applicant being unable to provide extensive and often difficult-to-obtain documentation to prove family lineage before 1824, to the refusal of immigration authorities to register a Muslim person as Bamar, the majority ethnicity. Some have been required to choose a ‘foreign’ ethnicity (such as Bengali) to self-identify as Muslim on applications for citizenship cards. Under the ‘Preservation of Race and Religion Laws’, a Muslim man is not allowed to marry outside of his religion.

3.30 Anti-Muslim sentiment is prevalent in Myanmar and is circulated through social media, state institutions and mainstream news websites. Muslims are often called by racial slurs and subject to hate speech. Since 2011, ultranationalist Buddhist movements such as Ma Ba Tha (the Association for the Protection of Race and Religion) and the 969 Movement (an anti-Islamic religious group) have been influential in fomenting anti-Muslim hatred in Myanmar. During that time, Ashin Wirathu, a prominent monk and leader of the Ma Ba Tha movement, repeatedly incited violence against Muslims in speeches and online, including by spreading conspiracy theories that Muslims were planning to take over the country by marrying and converting Buddhist women. In 2018, Wirathu’s hate speech led Facebook to ban him and the national monastic council to bar him from speaking publicly. Ma Ba Tha was banned in 2017 and afterwards rebranded as the Buddha Dhamma Philanthropy Foundation. Wirathu, who had been in hiding since May 2019, turned himself into authorities in November 2020 and was arrested for ‘exciting disaffection against the government’. The military regime released him in September 2021.

3.31 There are strong links between ultranationalist Buddhism and the military. Soldiers are reportedly indoctrinated to see Islam as an existential threat to the Union of Myanmar. A 2018 New York Times investigation found anti-Muslim social media disinformation campaigns had been carried out on a large scale by the military. Anti-Muslim propaganda has continued in the aftermath of the 2021 coup. For instance, in December 2021, military aircraft dropped leaflets on villages in Sagaing claiming the Organisation of Islamic Cooperation was providing money and ammunition to support the killing of monks and insulting of Buddhism. Pro-military Facebook users have also made false claims linking PDFs and the political opposition to Islamic extremist groups such as ISIS and the Taliban.

3.32 DFAT assesses that Muslims in Rakhine State, regardless of ethnicity, face high levels of official and societal discrimination and a moderate risk of violence on the basis of their religion and perceived association with the Rohingya (who face specific, higher risks). DFAT assesses that Muslims outside of Rakhine State face moderate levels of official and societal discrimination and a low risk of violence on the basis of their religion.[4]

[…]

Conditions for Returnees

5.22 Myanmar’s Ministry of Labour, Immigration and Population is responsible for interviewing returnees, with the exception of Rohingya returnees, who are managed by the Ministry of Social Welfare, Relief and Resettlement. The International Organisation for Migration (IOM) provides a range of services for returnees, including assistance with quarantine requirements, legal assistance, training courses, and help to access schooling and health services. About 40-60 per cent of returnees are able to access these services. Following the coup, an estimated 100,000 people fled overland to Thailand from Myanmar. Of this number, about 60,000 are thought to have returned. Before the coup, refugees from Thailand (primarily Karen) could return to Myanmar via a formal assisted voluntary returns process, undergoing ‘national verification’, which could take up to a year, before being issued a CSC (see National Identity Cards) which allows them to exercise rights and access services in Myanmar. Sources told DFAT no one had returned from Thailand under this scheme since the coup and there was little interest from anyone in doing so.
[4] DFAT, Country Information Report – Myanmar, 11 November 2022, pp. 23–24.
5.23 DFAT is aware of migrants being returned to Myanmar since the 2021 coup, primarily from neighbouring countries. Three days after the military coup, Malaysia accepted an offer by the military regime to return 1,086 people to Myanmar on three navy ships, despite a Malaysian court order they be allowed to remain in Malaysia. Malaysia claimed all those who returned did so voluntarily and none of them were asylum seekers. DFAT understands these returnees were required to quarantine in Yangon before being returned to their communities. Returnees to Myanmar who departed the country illegally are technically subject to up to five years’ imprisonment for having illegally crossed a border; in 2020 the government announced it would enforce this law as part of measures to prevent the spread of COVID-19.
5.24 In November 2017, the governments of Myanmar and Bangladesh signed an ‘Agreement of Return of Displaced Persons from Rakhine State’. According to the agreement, Myanmar will receive former residents of Rakhine State who left for Bangladesh after the violent attacks of October 2016 and August 2017, if they can prove their former residency of Rakhine State. Myanmar and Bangladesh agreed to commence the repatriation of displaced Rohingya in January 2018 and to complete the process within two years. A May 2021 article in The Global New Light of Myanmar, a regime-controlled newspaper, claimed 790 Rohingya had returned to Myanmar from Bangladesh ‘on their own’ since the agreement was signed. Largescale repatriation of Rohingya from Bangladesh remains a distant prospect.
5.25 DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries (see Political Opinion), a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[5]
[5] DFAT, Country Information Report – Myanmar, 11 November 2022, p. 44.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicants are citizens of Myanmar and accordingly their claims will be assessed against Myanmar.
The Tribunal considers it readily apparent that the applicants meet the protection criteria in Australia given that they would be considered failed asylum seekers on return to Myanmar. The extracted components of the DFAT report are definitive that this would lead to a risk of requisite harm due to a perception of such individuals criticising the current regime in Myanmar. The Tribunal considers that it would be readily assumed by officials in Myanmar that the applicants, having spent a number of years in Australia, would likely have claimed protection in Australia.

The Tribunal considers that the harm that the applicants have a real chance of facing as a result of being considered failed asylum seekers would be aggressive interrogation involving physical harm and possible prolonged detention. The Tribunal considers that this would constitute serious harm. The Tribunal considers that the reason for the harm would be the perceived political opinion of the applicants in opposition to the military regime in Myanmar. The Tribunal considers the perceived political opinion of the applicants would be the essential and significant reason for the harm. The Tribunal considers that the persecution would involve systematic and discriminatory conduct.
As the risk of harm to the applicants is from instruments of the state and would arise in the course of arrival in Myanmar seeking entry to the country, the Tribunal considers that the risk of harm to the applicants exists in all parts of Myanmar.
The Tribunal is satisfied that the applicants do not have the right to enter and reside in any third country.
Given these findings, the protection criteria are met. The Tribunal has been able to make findings in the applicants’ favour on the basis of them being failed asylum seekers without any need to consider other claims such as specific anti-regime postings by the applicants and their support of anti-regime organisations, the applicant’s religion, issues relating to the interreligious marriage of the applicants, and harm to the applicants as a result of the applicant husband leaving the military. Without making definitive findings on these issues in the absence of a hearing, the Tribunal is prepared to accept that these issues may exacerbate the risk of harm to the applicants.
In summary, the Tribunal is satisfied that the applicants have a well-founded fear of persecution for a reason set out in s 5J(1) of the Act.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
David McCulloch
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2329

27 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction

Natural Justice