2007111 (Refugee)

2007111 (Refugee) [2023] AATA 4551 (16 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007111
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Nicole Burns
DATE:16 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 October 2023 at 11:34am

CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – mixed (Indian/Bamar) race – political opinion – attended anti-coup/pro-NLD protests in Australia – particular social group – failed asylum seeker – women in Myanmar – gender-based violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65, 360
Migration Regulations 1994 (Cth), Schedule 2
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 9 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old woman from Yangon, the capital of Burma (Myanmar). She came to Australia [in] October 2019 holding a visitor (Subclass 600) visa and applied for the protection visa on 20 November 2019.
The issue in this case is whether the applicant is a refugee or complementary protection provisions apply, based on the criteria set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). A summary and extract of the relevant law is attached to this decision record.
For the following reasons, the Tribunal concluded the matter should be remitted for reconsideration. In reaching this decision the Tribunal was able to decide the review in the applicant’s favour without the need for a hearing pursuant to s 360(2)(a) of the Act.
The Tribunal, in accordance with Ministerial Direction No.84, made under s 499 of the Act, 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 most recent report on Myanmar from DFAT was published on 11 November 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
The applicant provided to the Department an uncertified copy of her Myanmar passport. On this basis the delegate accepted her claimed identity and nationality, as does the Tribunal on review.
The Tribunal finds Myanmar is her receiving country for the purposes of assessing her protection claims.
Background, claims and evidence
In her visa application form the applicant claimed she left Myanmar because:
·It is hard to earn a decent salary to support her family.
·There is no point in moving within Myanmar, as it would be a waste of time and money and the situation would be worse elsewhere.
·If she returns to Myanmar she would become bankrupt and homeless.
·In Myanmar the authorities ignore citizens that need help.
In an email dated 20 March 2020 responding to the delegate’s request for additional information (contained on the Departmental file) to support her protection claims the applicant stated:
I facing the persecution if i going back to my Myanmar . In our community we having the affair of the political opinion and it makes my family including the family member have the same impact . I really not secure to get back .Since we having a global infection , i heard my country have facing worst situation , But at the moment , i can't provide the official evidence for ther matter . I'm really appreciate if the Government Australia give me the protection in ther country . However , with ther opportunity given to me , i will turn my life around and give back to Australia who allowed me into their home.
[errors in original]
The delegate was not satisfied the applicant’s concerns about economic hardship or COVID-19 related to refugee reasons. Further, given the limited information submitted in the applicant’s email about having a political opinion, the delegate was not satisfied she would face serious harm on this basis on return to Myanmar. The Tribunal notes the applicant was not interviewed by the delegate. Her visa application was refused on 9 April 2020.
On review the applicant provided a typed (translated) statement dated 22 February 2022 to the Tribunal in which she provides additional claims and an update about her circumstances, summarised as follows:
·She is a Myanmar citizen, Buddhist and of mixed race as her mother is pure Burmese (known as ‘Burman’ or ‘Bamar’) and her father the son of Indian immigrants. Her father was Muslim until he married her mother.
·She fears being arbitrarily arrested, charged under Article 505(a) of the Penal Code, tortured, raped and/or possibly killed by Burmese soldiers and police if she returns due to her longstanding political opinion (her own and her family’s) against the military dictatorship, her involvement with activities against the last Myanmar military coup, and her being a descendant of a Muslim immigrant from India.
·She was born and grew up in [Township 1] in Yangon; she attended local schools until she completed grade 10; and studied two years toward a degree in [Discipline 1] at [University 1] as a distant learning student.
·All of her family members live in Myanmar.
·Her father is a son of Indian immigrants who have never been naturalised in Myanmar and are Muslim. As a result her father and his siblings have suffered unfair treatment at the hands of the authorities in Myanmar; he has been denied having his national identity card (known as a Citizenship Scrutiny Card (CSC)) renewed. As a result his children have been denied from upgrading their identity cards from child to adult versions, which is a ‘monumental obstacle’ for travelling and employment.
·The applicant and her younger brother were issued adult versions of identity cards in 2016 after paying a huge bribe to immigration officials. Her older brother still holds the same child version card which is useless as an adult.
·Without an updated CSC citizens in Myanmar cannot access government services such as applying for a passport and police clearance which is why her siblings have been unable to obtain decent or proper employment and have been under enormous financial hardship.
·They experienced intimidation and harassment by the authorities for not being able to produce the adult version of the cards when asked.
·Having suffered greatly their family have always been outspoken against the military regime and their agenda. Her father has criticised the regime and supported a genuine democracy and experienced targeted oppression as a result, being denied his right to an identity document as an example.
·Due to her father’s political stance for a genuine democracy she and her siblings from a young age have been convinced the military regime is evil. The National League for Democracy party (NLD) led by Daw Aung San Suu Kyi is the only hope for the people of Myanmar.
·In 2012 the applicant’s older brother, who was working for a corporation called [Company 1], owned by a tycoon known to be a crony of the military regime, was dismissed after laying a wreath at the Burmese Martyrs’ day ceremony with NLD members. He was the family’s only breadwinner then. They learnt the hard way there is zero tolerance towards pro-democracy activities in the economy entirely monopolised by the regime and its cronies.
·Before the applicant came to Australia in October 2019 she ran a [shop] (for about a year) in [Township 1] and had accessed a private business loan with a high interest rate. Frequently police and local municipal officials visited the shop intending to illegally solicit money. It became more frequent when they found out she is a descendant of Indian/Muslim grandparents. The shop has now been taken possession of by creditors.
·She initially came to Australia to visit friends and sightsee.
·She was disappointed and depressed to see Myanmar fall into civil unrest after the military coup on 1 February 2021. Her two brothers have gone into hiding after taking part in the anti-coup movement.
·The applicant took part in a protest organised by the Myanmar community living in NSW in Sydney [in] February 2021, and Coffs Harbour subsequently.
·Myanmar’s military regime has announced publicly that every citizen of Myanmar who took part in any form of anti-coup movement overseas shall be prosecuted under Article 505(a) of the Penal Code on return.
·Even if she could sneak back into the country there is no place she would be safe as the security forces are hunting down people who oppose them. There is no other country where she has a right to enter and/or remain.
·She could not change her opposing behaviour and attitude towards the military regime and the recent coup to avoid being harmed, particularly after living in a genuine democratic nation – Australia – for more than two years, as her desire to eradicate the military regime has become stronger.
·Due to her political opinion for genuine democracy, being a descendant of Indian/Muslim immigrant grandparents and her participation in protests against the military coup in Australia the applicant fears serious harm on return to Myanmar by the authorities.
On 17 June 2022 the applicant submitted to the Tribunal photographs showing herself at a protest purportedly in Sydney (the date is unclear). These include a photograph of the applicant (and [others]) holding large posters of Aung San Suu Kyi calling for her to be ‘free now’; of Aung Sun, referred to as ‘our national hero’; and of the elected president of Myanmar. Another photograph is of the applicant holding a portrait of Aung San Suu Kyi and another of her and someone else holding a sign which reads: ‘Stop the Dictatorship # Save Myanmar!’.
The applicant provided an additional typed (translated) statement dated 16 July 2022 to the Tribunal in which she advises most of the information provided in her protection visa application form was provided with the help of someone she met whilst travelling at the time and it was incorrect and provided without her knowledge. She then lists the correct information about certain matters including her place of birth as [Township 1], Yangon; her parents and two brothers being resident in Myanmar; and her ethnic group as ‘Indian/Burmese’. In answer to questions about why she left Myanmar, what she thinks may happen on return, whether she thinks she will be harmed or mistreated on return, whether the authorities can and will protect her (and if not why not), and whether she would be able to relocate within Myanmar to an area where she would not be able to be harmed, the applicant refers to her 22 February 2022 statement, summarised above (paragraph 11).
The applicant also provided to the Tribunal certified translated copies of CSC for herself; [Mr A] (her father); [Ms B] (her mother); [Mr C] (her brother); and [Mr D] (her brother).
Findings about the applicant’s claims and assessment of her future fears
Based on the evidence before it, including copies of her Myanmar passport and CSC (and the CSC of her immediate family members) the Tribunal accepts the applicant is a national of Myanmar, and of mixed (Indian/Bamar) race. It notes against ‘race/religion’ in her CSC and her brothers’ CSC it states ‘India Bamar=Bamar/Bamar Buddhist’. The Tribunal also accepts the applicant is from Yangon, where her parents and two brothers currently reside.
As to her specific protection claims the Tribunal notes they have grown considerably since she applied for protection. That is, from initial concerns about being unable to make a decent salary in Myanmar to concerns about facing persecution from the authorities for several reasons including: being a descendant of Indian/Muslim immigrant grandparents; her father’s pro-democracy political opinion and activities in Myanmar; one of her brother’s political activities against the coup; and her participation in protests against the military coup in Australia. Whilst participation in activities against the military coup is an understandable omission given the most recent coup took place on 1 February 2021 after the applicant applied for protection, the applicant’s failure to raise the other protection claims earlier casts doubts on whether or not they are true.
Nonetheless, it is not necessary for the Tribunal to make findings about the applicant’s claims in these (and related) respects given, for the reasons that follow, it accepts she faces a well-founded fear of persecution from the military authorities on return to Myanmar based on her involvement in political activities in Australia, returning as a failed asylum seeker and gender.
Based on copies of photographs and her written statement provided to the Tribunal, the Tribunal accepts the applicant has attended anti-coup/pro-NLD protests in Australia as claimed. Even if she may not have been politically active prior, and she may have been motivated in part to strengthen her refugee claims, given the February 2021 coup and significant political upheaval following that (and related security issues), the Tribunal does not find it surprising that the applicant has become politically active and participated in protests in Australia as claimed. It therefore has not disregarded that conduct.
The Tribunal accepts the applicant may be politically active on return to Myanmar, if not for fear of persecution in doing so.
Given these findings the Tribunal has considered country information about the situation in Myanmar for someone with the applicant’s profile and the current circumstances there.
Presently, Myanmar is a military dictatorship, controlled by the State Administration Council (SAC) headed by Commander in Chief Senior General Min Aung Hlaing.[1]
[1] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.44.
Myanmar has had a history of military coups since independence from Britain in 1948, most recently on 1 February 2021, after the NLD won the November 2020 election in a landslide. At the time Aung San Suu Kyi and other NLD leaders were detained, arrested and a state of emergency declared. The coup sparked large-scale, nationwide protests which were severely suppressed by security forces.[2] In response the NLD and ethnic party representatives formed a government in exile known as the National Unity Government (NUG) including representatives from the NLD, which since November 2021 has launched an armed revolutionary struggle against the military regime. Fighting has continued since with renewed fighting between the miliary and various ethnic armed organisations.[3]
[2] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary.
[3] DFAT Country Information Report: Myanmar, 11 November 2022 at 2.5, 2.19 and 2.22; Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary, p 10.
In a recently published country information report by the Danish Immigration Service it is stated that whilst the recurring cycles of violence continue and have intensified in Kachin, Chin and Kayin (Karen) states, new conflict zones have developed in regions such as Sagaing, Magway and other areas previously unaffected by conflict in Myanmar.[4] It is also stated in the report that:
Globally, the highest number of incidents of violence against civilians by state forces in 2022 has been recorded in Myanmar. During 2023, the military has progressively increased its use of air power and shelling targeting civilians to maintain control of the country.[5]
[4] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary.
[5] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary.
Further, they report that in an effort to control and suppress anti-military actors the military has established its own paramilitary forces:
These include the Pyusawh Pyu Saw Htee, a hardline Buddhist ultranationalist group, and Thway Thauk, the name of which roughly translates to 'blood drinking group.' The Pyu Saw Htee groups have been formed across the country and are using brutal and cruel methods to counter the anti-military movement. The Thway Thaukoriginates from Mandalay but appears to have extended its operations to Yangon.[6]
[6] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, p 14.
Furthermore, since the coup, and in response to widespread protests, the military has cracked down on pro-democracy protestors (and their families), political leaders, journalists, lawyers, health workers and activists.[7] Hundreds have been systematically detained; family members of pro-democracy activists have been targeted with arrest; and the military has encouraged other pro-military groups to target pro-democracy groups and their families. In July 2022 four political prisoners (three NLD members and a pro-democracy activist) were executed,[8] and death sentences continue to be issued by military-controlled courts.[9] Those who participate in protests or post about them on social media risk arrest, imprisonment and torture.[10]
[7] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, p 12.
[8] Human Rights Watch (HRW), World Report 2023 – Myanmar, 12 January 2023.
[9] OHCHR, Report of the Special Rapporteur on the situation of human rights in Myanmar, Thomas H. Andrews, 9 March 2023.
[10] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023; and UK Home Office: Country Policy and Information Note – Myanmar: 2021 coup and protests (2021), March 2021.
In September 2022 the military in Myanmar warned even liking or sharing pro-democracy/anti-military content on social media could result in a prison sentence of up to 10 years.[11]
[11] OHCHR, Report of the Special Rapporteur on the situation of human rights in Myanmar, Thomas H. Andrews, 3 October 2022, pp. 4, 7
In their report DFAT chronicle the impact of the February 2021 coup on Myanmar’s citizens and government and other administrative architecture, as well as the decline in the security situation as a widespread armed insurgency has emerged since that seeks to attack the military regime and its officials and restore democracy. DFAT state that the military remains the principal armed actor and is ‘overwhelmingly the main violator of human rights and international humanitarian law’.[12]
[12] DFAT Country Information Report: Myanmar, 11 November 2022 at 2.30.
Within this context DFAT identifies several at-risk groups and individuals, including opponents of the military regime ranging from senior political leaders to casual participants in street protests, who have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearances. DFAT state:
People of all ages, including doctors, nurses and teachers, who have participated in anti-regime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest). Sources in Yangon told DFAT they had experienced random police searches of their homes and vehicles, some on multiple occasions. Police also make random checks for anti-regime content on individuals’ mobile phones, leading some people to carry a second ‘politically clean’ phone as a precaution. Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[13]
[13] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.47.

DFAT assess that anyone opposing or perceived as opposing the military regime (and their family members) is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty.[14] The SAC have declared NLD and others as terrorists.[15]
[14] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.51.
[15] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.50.
Furthermore, participants in the widespread Civil Disobedience Movement (and their family members) that emerged after the coup are assessed by DFAT as at high risk of official discrimination in the form of job losses, property seizures, threats and arbitrary arrests and at moderate risk of violence in the form of extrajudicial killings, beatings and torture in custody.[16]
[16] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.54.
DFAT also report that Myanmar’s military has long been accused of gender-based violence and using rape as a weapon of war, stating that:
In June 2021, the UN Special Representative on Sexual Violence in Conflict expressed grave concern over ‘patterns of sexual violence perpetrated by the military against women from ethnic and religious minority groups, as well as against individuals on the basis of their sexual orientation and gender identity’ including in Chin, Kayah and Rakhine States. Since 2017, Myanmar has been listed by the UN Secretary General as a party ‘credibly suspected of committing or being responsible for patterns of rape or other forms of sexual violence in armed conflict’. Since the coup, local media have reported on soldiers committing sexual violence against civilians in conflict areas…Soldiers who commit sexual violence are rarely prosecuted, and sources told DFAT a culture of ‘extreme impunity’ prevailed.[17]
[17] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.80 and 3.81.
Further, DFAT report that torture is common in detention,[18] and that female political prisoners are at a high risk of sexual harassment and moderate risk of sexual violence and rape.[19] DFAT state that:
Reports suggest that since the coup, women who are detained by the security forces for opposing the regime are frequently subjected to sexualised threats and sexual harassment, and in some cases to sexual assault, rape and torture. DFAT is aware of credible allegations of extreme sexual torture of some female detainees, including gang rape, sexual mutilation and being hung naked from a tree. Sources told DFAT female political prisoners were particularly vulnerable while being held in military interrogation centres and while being moved between locations.[20]
[18] DFAT Country Information Report: Myanmar, 11 November 2022 at 4.6.
[19] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.83.
[20] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.80 and 3.81.
With respect to the treatment of returnees and failed asylum seekers to Myanmar, 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, 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.[21]
[21] DFAT Country Information Report: Myanmar, 11 November 2022 at 5.25.
In a report documenting human rights concerns in Myanmar by the Office of the United Nations High Commissioner for Human Rights (OHCHR) between 1 February 2022 and 31 January 2023 it is stated that:
People in all parts of Myanmar, in the two years since the military coup, remain exposed to daily human rights violations. In addition to the use of violence by the military itself, some pre-existing conflicts between the military and ethnic armed organizations have been reignited and violence has spread nationwide, dramatically changing the conflict landscape in Myanmar and heightening concerns for the protection of civilians. Global advocacy for peace and restraint have remained unheeded and the military, emboldened by absolute impunity, has consistently shown its disregard for international obligations and principles.[22]
[22] United Nations Human Rights Office of the High Commissioner, ‘A/HRC/52/21: Situation of human rights in Myanmar since 1 February 2022 – Report of the United Nations High Commissioner for Human rights’, 3 March 2023.
The United Nations Special Rapporteur on the situation of human rights in Myanmar, Thomas H. Andrews published a report on 9 March 2023 about the situation two years after the military coup, describing the country as being in ‘freefall’. He states that as opposition groups gain strength and the SAC’s control over territory and the people of Myanmar erodes, ‘the military has doubled down on its brutal tactics, sowing violence and chaos across an ever-widening sphere of conflict’. The military campaign of terror and violence has reportedly intensified, and includes aerial attacks, bombing villages, schools, medical facilities and internally displaced persons encampments, and mass arson. Indiscriminate attacks and the targeting of civilian populations have been a hallmark of the SAC’s post-coup strategy.[23]
[23] United Nations Human Rights Office of the High Commissioner, ‘A/HRC/52/66: Situation of human rights in Myanmar – Report of the Special Rapporteur on the situation of human rights in Myanmar, Thomas H. Andrews’, 9 March 2023.
In a recent report about the human rights situation of Rohingya Muslims and other minorities in Myanmar by the UN Secretary General published on 14 August 2023 it is noted that all states and regions across Myanmar continued to be affected by armed clashes involving the Myanmar armed forces, ethnic armed organisations and resistance forces, including People’s Defence Forces.[24] The report states that:
Conflict actors, especially the Myanmar armed forces, continued to use tactics designed to instil fear not only among enemy combatants but also among the civilian population in and around areas affected by conflict. Reports of beheadings and dismemberment allegedly perpetrated by the Myanmar armed forces, mostly in the Sagaing Region, are part of this trend. The number of mass killings, in which 10 or more people were killed, also increased substantially, according to the Institute for Strategy and Policy – Myanmar.[25]
[24] United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraph 32.
[25] United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraph 33.
Additionally according to the report arson attacks continued to increase; continued air strikes and bombardments by the Myanmar armed forces resulted in many civilian casualties; and there are credible reports that detainees are also beaten, forced to do hard labour and subjected to other punishments, including sexual and gender-based violence.[26]
[26] United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraphs 34–36.
This report also notes that because young people have emerged as key leaders in resistance movements since the coup, gatherings or organisations led by young people are targets for SAC investigations, as well as arrest and attack.[27]
[27] United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraph 49.
Such country information indicates that anyone accused of having sympathy with political opposition in Myanmar is at risk of detention; that the threshold for falling under official suspicion is low; and that there are severe consequences for anyone suspected of opposing or criticising the regime in Myanmar or having links to Western countries including arrest, detention and torture. Women detainees are at particular risk of sexual violence. Young people are also being targeted. Additionally, DFAT assesses that failed asylum seekers returning to Myanmar face a high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.
Given this country information the Tribunal accepts the applicant – who would be returning to Myanmar as a young woman who has protested against the military in Australia and as a failed asylum seeker – faces a real chance of serious harm from the military authorities on return to Myanmar in the foreseeable future.
Accordingly the Tribunal finds that there is a real chance that the applicant will face serious harm at the hands of the SAC and/or military if she returns to Yangon, Myanmar in the form of being subjected to threats to her life or liberty, significant physical harassment and significant physical ill treatment. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are due to her imputed political opinion, r gender (based on membership of a particular social group of women in Myanmar: particularly if detained), and membership of the particular social group of failed asylum seekers in Myanmar as required by s 5J(4)(a).
Additionally, the Tribunal is satisfied that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves her selective harassment for reasons of her (actual or imputed) political opinion and/or membership of a particular social group of failed asylum seekers and/or gender (based on membership of a particular social group of women in Myanmar).
In this case the applicant fears serious harm at the hands of the military dictatorship in Myanmar, controlled by the SAC. Although reports indicate that since the February 2021 coup, the military has lost control of large parts of the country, it is also reported that Myanmar’s military maintains a significant level of control over Yangon, Mandalay, Naypyidaw and other major urban areas.[28] The August 2023 UN Secretary General’s report (referenced earlier) notes that a culture of impunity continues unabated in Myanmar; the military continued to maintain effective control over judicial processes, circumventing legal procedures and shielding its soldiers from legal repercussions for criminal acts; and that the renewed state of emergency maintained the control of the SAC, at least in parts of the country and over much of the public administration at the Union level, against competing claims of authority and public administration services by ethnic armed organisations, the NUG and others.[29]
[28] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, p 14.
[29] Such as the Committee Representing Pyidaungsu Hluttaw and National Unity Consultative Council; United Nations General Assembly, ‘Situation of human rights of Rohingya Muslims and other minorities in Myanmar – Report of the Secretary General (A/78/278)’, 14 August 2023, paragraph 57.
Given this, and DFAT’s advice that the military remains the principal armed actor and is ‘overwhelmingly the main violator of human rights and international humanitarian law’[30] in Myanmar as noted, the Tribunal is not satisfied that the effective protection measures as per s 5LA are available to the applicant in Yangon provided by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Myanmar for the purposes of s 5LA(2).
[30] DFAT Country Information Report: Myanmar, 11 November 2022 (Version 2) at 2.30.
For similar reasons and based on such country information (as well as noting the changeability of the situation and significant reach of the military) the Tribunal is not satisfied that there is any part of Myanmar in which the applicant would be safe from the persecution that she fears based on her actual or imputed political opinion, gender and/or membership of a particular social group of failed asylum seekers. The Tribunal accepts the applicant would face a real chance of persecution in all areas of Myanmar and therefore she satisfies s 5J(1)(c).
The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to alter her political beliefs or conceal her true political beliefs, alter her sexual orientation or gender identity or conceal her true sexual orientation, gender identity or intersex status, and/or conceal an innate or immutable characteristic which is impermissible as per ss 5J(3)(a), 5J(3)(c)(iii) and 5J(3)(c)(vi).
For these reasons the Tribunal finds that the applicant faces a well‑founded fear of persecution from the authorities due to the combined reasons of her imputed or actual political opinion, membership of a particular social group of failed asylum seekers and/or membership of a particular social group of women in Myanmar if she returns to Myanmar, now or in the reasonably foreseeable future. The Tribunal finds that the applicant has a well-founded fear of persecution for the purposes of s 5J.
In considering whether she comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that she is outside the country of her nationality and unable to return to it owing to her well‑founded fear of persecution. Therefore, she meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.
Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions, including risks she may face based on her mixed race/ethnicity and in respect of problems her family members in Myanmar have purportedly experienced post-coup.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nicole Burns
Member

ATTACHMENT A – 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–5LA, 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.

ATTACHMENT B – 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 4551

16 October 2023

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness