2007370 (Refugee)

2007370 (Refugee) [2024] AATA 2375 (15 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Walid BABAKARKHIL
CASE NUMBER:  2007370
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Wendy Banfield
DATE:15 March 2024
PLACE OF DECISION:  Canberra
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 15 March 2024 at 12:32pm
CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – Karen ethnicity – political opinion – political activities in Australia – attending post-coup demonstrations – posting anti-regime messages on social media – failed asylum seeker – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
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 who claims to be a citizen of Burma (Myanmar), applied for the visa on 20 November 2019. The visa was refused for the following reasons:
The delegate was not satisfied the applicant is a refugee as defined by s5H of the Act and is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. The delegate was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Myanmar, there is a real risk he will suffer significant harm as defined in s36(2)(aa) of the Act. The delegate also found the applicant is a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 29 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal 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.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection visa application
The Department summarised the applicant’s claims for protection in the decision record dated 9 April 2020 as follows:
·It is hard to earn a decent salary to support his family.
·It is no point to move within Myanmar, as it would be a waste of time and money and the situation would be worse elsewhere.
·If he returns to Myanmar he would become bankrupt and homelessIn Myanmar the authorities ignore citizens that need help.
·In Myanmar the authorities ignore citizens that need help.
The decision indicates the Department sent the applicant a letter under section 56 of the Act requesting further information as follows:
1. None of your claims appear to relate to any of the refugee grounds contained in subsection 5J(1)(a) of the Migration Act. Subsection 5J(1)(a) states:
(a) The person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion
You are invited to provide any additional information and evidence regarding any reason as to why you would face persecution if you return to Myanmar for reasons of race, religion, nationality, membership of a particular social group or political opinion.
2. None of your claims appear to amount to a claim that you would face significant harm as defined in subsection 36(2A) of the Migration Act if you return to Myanmar. Subsection 36(2A) states:
(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.
You are invited to provide any additional information and evidence regarding any reason as to why you would face significant harm as defined in s 36(2A) if you return to Myanmar.
The applicant provided the following response:
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 this matter. I'm really appreciate if the Government Australia give me the protection in this country. However, with this opportunity given to me, i will turn my life around and give back to Australia who allowed me into their home.
Evidence to the Tribunal
The applicant provided the following submissions to the Tribunal:
·     Department of Home Affairs notification and decision record dated 9 April 2020.
·     Applicant’s passport biometric information and driver’s licence copy.
·     Written submissions dated 20 June 2022, 30 October 2022 and 14 October 2023.
·     Evidence of the applicant participating in protests while in Australia including social media posts and photographs.
·     Documents identified as evidence of social media activists targeted by the police and military in Myanmar.
·     Submission and links to articles regarding the legal and human rights situation in Myanmar.
·     Evidence of the applicant’s support for human rights causes in Myanmar.
·     Information related to allegations of threats to Myanmar citizens living abroad.
·     Documentary evidence and links to articles related to political prisoners in Myanmar.
·     Statutory declaration of [the applicant] dated 23 September 2023.
·     Translation of marriage certificate between [the applicant] and [Ms A] dated [in] November 2016.
·     Translation of birth certificate for the applicant’s child born on [date].
·     Copy pages from the applicant’s social media accounts containing details of political activity in Australia.
In his statutory declaration of 23 September 2023, the applicant gave the following information:
Background
I have some health issues which may affect my ability to concentrate or provide long answers at the hearing. I suffer from sleep issues and often struggle to fall asleep until the late hours of the night. I do not have a formal diagnosis because I have avoided medical treatment but believe I may suffer from insomnia.
I believe my health issues are because of the stress and pressure I have encountered for several years. This includes being away from family and trying to support them from afar while they reside in dangerous Myanmar. I never expected to be away from them for this long and this has all taken a toll on my health.
I have attached a copy of translations of my marriage certificate and my son’s birth certificate demonstrating that I have a family. I understand these relations were not disclosed in my visa application and I will explain the reasons for this below.
Previous application:
On 20 November 2019 I submitted a protection visa application. I would like to elaborate on
issues with this application, and why I could not provide an accurate or correct application. I
have already provided some detail about this in my letter to the Tribunal dated 20 June 2022, once again attached with this statement.
I acknowledge the application was poorly completed, drafted, and managed. I did not prepare the application myself but was assisted by someone who I believed was a professional, but later discovered was not and had duped me since I did not understand the asylum process.
I was introduced to this person after asking for help regarding claiming asylum from people in [City 1]. I was introduced to this person who met with me and asked me to explain my situation. In response, she did not explain the process to me in any detail but told me she would handle the paperwork to claim asylum and afterwards I would need to wait a long time. She took $1200 from me which was all of my money. She created an ImmiAccount on my behalf and lodged the application.
On 5 March 2020 I received a letter from immigration which I couldn’t understand because my limited English. At this point I attempted to contact the lady in [City 1] again, but she wouldn’t respond. I then found a member of the Burmese community who told me he knew what it was about and wrote my response, but I didn't really know what was in it. When my application was refused, they again helped me to file this review.
In the community I met many people from Myanmar. One of them has an Australian partner who I was introduced to through work in 2020, and again during the protests in February and March 2021. I confided in this couple about my application issues, and they agreed to help me.
It took a lot of effort just to get access to my own account and it wasn’t until 2022 that I managed to log in to my own ImmiAccount. After locating the lady who originally set it up, I then needed to negotiate for her top give me my own login and password. I ended up paying her another $100 just to get the log in credentials.
We soon realised that there were disparities between the information submitted to immigration, and my actual circumstances. We discovered much of the original application is incorrect. The only parts that are correct are from the documents I had on me which I showed including my passport and visa details, which she copied information from. The address in Myanmar is completely wrong and I have not lived at that place, nor have I lived in the same place in Myanmar my whole life. The place of birth is incorrect. The form states that I have no family members outside of Australia which is completely wrong. I got married in 2016 and have a son. I did not know that the application asked for this information since the ‘agent’ never asked me any of these questions when we met.
Now, I've talked to others and learned that the person who helped me might be involved in
a scam. They bring people from Malaysia to Australia on tourist visas and then try to get them permission to stay. They only want a special work permit and then work until their passport is about to expire before going back to Malaysia. I didn't know about this when I first asked for help, and I really needed asylum. I am willing to make a complaint about the conduct of this person, but do not believe I can make a complaint to either the Law Society or Migration Agent authority given they are not registered with these bodies.
Karen ethnicity
I come from a rural village in Myanmar. In the village, the military would often visit my home and demand money. They did this because I am mixed race and look more like my Karen mother, particularly my face shape and darker skin. I became an easy target for them, and they routinely bothered me. It was only the military who bothered me. Everyone else in the village got along fine. I couldn't always give them money and sometimes suffered beatings as a result. This happened multiple times and I have tried to supress these memories.
This is a part of life in Myanmar for ethnic Karen. I did not know any other life and ignorantly tolerated it until I eventually relocated to Yangon.
In Yangon I managed to save up some money and this allowed me to visit Australia on a Tourist visa. I could only afford to travel alone. While in Australia my wife called me and told me military men had come to the home looking for me. Apparently, the military from the village had tracked me and had passed on my information to someone in the military in Yangon who wanted to continue extorting me. They didn’t physically harm my wife or young son but were aggressive causing my family to become very frightened. This all happened in late October 2019 and was the precise reason I first sought asylum in Australia.
Military coup and political opinion
When Aung San Suu Kyi entered politics in our country, I was very excited and became a strong supporter. She was a real representative of the people and brought big positive changes to our country. The whole country was undergoing positive changes. She improved everything right down to the transport and roads. We had positive relations with the outside world and saw foreign tourists and businesspersons coming in. This in turn gave the local people more opportunity and jobs, improving the general standard of living.
On 1 February 2021 there was a military coup in Myanmar resulting in the ousting of Aung
San Suu Kyi and the return of brutal military dictatorship. This coup made me feel hopeless for Myanmar.
Before Aung San Suu Kyi we were stuck in the past. Living in Myanmar was very hard, and we had never experienced the freedom that her election brought us. It wasn’t until the military ripped our democracy away that we knew exactly what we were losing.
We had grown used to the military and tolerated them before they detained Aung San Suu Kyi and destroyed our democracy. The thing that really hurt me the most and turned me strongly against them was when they started killing innocent protesters on the street. Before this we felt we could still protest and possibly get our elected government back. This convinced me that we had to resist from Australia.
I engaged members of the Myanmar community in Australia attempting to raise awareness. I became actively involved in protesting and supporting the exiled government and the People’s Defence Force (PDF) from Australia.
I provide financial support to groups fighting directly and indirectly against military dictatorship in Myanmar. I have provided financial support to opposition groups including the National Unity Government (NUG) and the Committee Representing Pyidaungsu Hluttaw (CRPH), starting around April 2021.
I reached out directly to the NUG and CRPH representatives in the ACT and asked how I could provide financial support to the cause. My monthly donations have averaged $100, and initially, were mostly made in cash to protect my identity. I have provided one certificate of appreciation confirming my donation, however, the NUG stopped providing these certificates because around about the time mine was issued the military began charging people and even giving death penalty for people financial donors. There is an example of a lady who donated just $10 via bank transfer, and she was given a life sentence.
I have also provided screenshots of my novice membership in the NUG People’s Revolution Supply Family. This reflects that I provided consistent donations of $100 per month. Due to my poor financial circumstances in Australia, I have only donated this amount but would like to donate more.
I have attended protests regularly whenever they have been scheduled. My [social media] page reflects my strong condemnation of the military's actions in Myanmar, and I am constant in sharing my anger with the military and what they have done to my country. I cannot accept what they have done remain committed to supporting the opposition.
My first protest in Australia was on [date] February 2021, shortly after the coup. I have photographic evidence of my attendance, and I learned about this protest through contacts within the community. We jointly organised this protest through phone communication.
Since then, I have attended every other protest organized in Canberra. These include the protest on 19 March 2021 outside the Myanmar Embassy in Canberra, and on 20 May 2021, which began at the Myanmar Embassy and involved a march to the Chinese Embassy before finishing at Parliament House.
Due to COVID lockdowns, physical protesting had to be paused but resumed around mid- 2022. In particular, on 6 August 2022 I was present for the opening of the National Unity Government (NUG) office in Canberra, and then in late July participated in protests at the Myanmar Embassy in Canberra. On 26 October 2022 I attended a protest at the Myanmar Embassy and Australian Parliament House.
More recently in 2023, I attended protests on 9 February at Parliament House and the Myanmar Embassy, and on 27 March at the US Embassy and the Myanmar Embassy.
In total I have about 58 photographs of my participation in protests. Some are posted online and I have included extracts of both the photographic and video evidence of my protest participation as an attachment. Some of the content was also extracted, or directly hyperlinked in the submission made to the Tribunal on 22 July 2022. These remain active on my [social media] page.
Aside from attending protests and rallies, I also routinely post against the military and in support of the opposition using my public [social media] page. I have extracted a small number of screenshots across 2021, 2022 and 2023 which demonstrate that I routinely post, share and engage in the above content online.
Some of the more high-profile or sensitive online groups and pages I engage with include:
• Australian Burmese association ([social media] group with 17,500 members)
• National Unity Government of Myanmar (public official page with 1.3 million following)
• NUG Representative Office – Australia (public official page with 38,000 following)
• CRPH / NUG Support Group – Australia (public official page with 14,000 following)
My activity on social media is highly visible and it has been shown that the military are monitoring all Myanmar citizens living abroad. There have been many cases of Myanmar people returning to the country and being detained as soon as they enter immigration at the airport because of their activities abroad.
My involvement in these activities makes it dangerous for me to return to Myanmar. My wife who is stuck in Myanmar has been visited by police who have interrogated her about my whereabouts and the date of my expected return. She managed to remain safe by explaining that I cut ties with her, and we are no longer in contact.
Despite the dangers I remain committed to the cause and will not stop supporting the CDM and NUG in particular. I believe that life in Myanmar under military dictatorship is both unreasonable and unacceptable. This is more so the case now having lived in, and adapted to, life in peaceful, liberal and democratic Australia.
I believe my activities in Australia have resulted in the military taking an interest in me and fear they will harm me as soon as I re-enter the country.
I fear increased harm for the combination of my political views and my Karen ethnicity.
If I return to Myanmar today, I will need a travel document given my passport has expired. I believe entering on a travel document will result in the airport and military authorities taking an increased interest in me and interrogating me to understand what I have been doing in Australia.
I fear they will be suspicious that I have remained abroad for an extended period to enable me to criticise the regime. This suspicion will exist even before they ask me my name and will be confirmed as soon as they discover my identity.
For all of the above reasons, I am unable and unwilling to return to Myanmar voluntarily.

The applicant attended a Tribunal hearing. He provided evidence regarding his circumstances in Myanmar and Australia that was consistent with his written submissions. The applicant also gave an explanation for the claims made to the Department being different to those provided to the Tribunal.
Country Information
DFAT’s most recent ‘Country Information Report Myanmar’, published on 11 November 2022 contains the following:[1]
Political Opposition
… DFAT assesses anyone opposing, or perceived as opposing, the military regime 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. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.
…
Returnees
… 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. …
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 11 November 2022.
The OHCHR report ‘Situation of Human Rights in Myanmar since 1 February 2022’,[2] published on 02 March 2023 contains the following:
[2] Office of the High Commissioner for Human Rights (‘OHCHR’) ‘Situation of Human Rights in Myanmar since 1 February 2022’, 02 March 2023.
Two years after the military coup, people in all parts of Myanmar remain exposed to daily human rights violations. While some pre-existing conflicts between the military and ethnic armed organizations (EAOs) have reignited, violence has spread nationwide, dramatically changing Myanmar’s conflict landscape and heightening concerns for the protection of civilians. Global advocacy for peace and restraint have remained unheeded, and the military, emboldened by continuous and absolute impunity, has consistently shown disregard for international obligations and principles.
By late 2021, and throughout 2022, violence intensified especially in the north-western and south-eastern parts of Myanmar, with the military employing its “four cuts” strategy including through indiscriminate airstrikes and artillery shelling, mass burnings of villages to displace civilian populations, and denial of humanitarian access. Punishing individuals and communities that they perceive as opposing them, the military also adopted rules intended to target anti-coup opposition and severely restrict the civic space that had significantly contributed to Myanmar’s democratic transition.
Whilst the military has stated commitment to restore a multiparty democratic system through elections in 2023, it has actively designated its opponents, publicly, as terrorists, arbitrarily detained them and prosecuted them primarily on specious charges of treason, sedition, incitement or other crimes in secretive courts without any semblance of due process. These actions take place against a backdrop of killings and extrajudicial executions, use of the death penalty, enforced disappearances, arbitrary arrests, torture, sexual violence, and denial of fair trial rights, among other violations. Credible sources reported having verified 2,940 deaths and 17,572 arrests by the military and its affiliates since the coup.
UN data indicates that since February 2021 over one million people have been newly displaced, and that 17.6 million people now need humanitarian assistance. Nearly half of the population, 25 million people, currently live in poverty, with rural populations reported to be at risk of starvation as the military imposed further physical and administrative restrictions on access to areas affected by violence and conflict. Main supply routes and waterways across the country have been blocked, preventing humanitarian actors from reaching people in need. Minority communities, including the Rohingya, that have suffered decades’ long discrimination, continue to face discrimination.
As noted in previous reports, a catastrophic human rights situation continued to fester. There are reasonable grounds to believe that acts by the military constitute human rights violations and violations of international humanitarian law, some of which may amount to international crimes, including widespread use of indiscriminate airstrikes and artillery attacks against populated areas, village raids and burnings, arbitrary arrests, use of torture, extrajudicial killings, and sexual violence. OHCHR documented consistent tactics and patterns of abuse across the country confirming that the military operates as a solid and coherent structure, implying knowledge of its leadership.
…
OHCHR continued to receive information and document cases of enforced disappearances with the military and its affiliated militias reported as main perpetrators. While the nature of the violation makes it challenging to verify the full extent of its occurrence, the information received indicates that prominent political figures, religious and community leaders opposed to the military’s purported seizure of power are targeted.
Credible information was received about cases in which the military failed to arrest the intended target, such as members of the National League for Democracy, political activists, anti-military armed group members, and individuals associated with the civil disobedience movement, and disappeared their family members to force them out of hiding. In April, in Yangon, the military targeted a family accused of supporting anti-military armed groups. After arresting the mother, plain clothes individuals took from kindergarten the three-year-old son. On 19 December, she was reportedly sentenced to 20 years’ imprisonment. No additional information about her son has been received since.
…
Since 1 February 2021, the military has arrested 17,572 individuals, including 3,610 women, and 381 children on politically motivated grounds. … According to credible sources, as of 31 January 2023, at least 13,763 people remained in detention.
Numerous interviewees stated that anyone can be arrested at any time. They noted that the military had progressively targeted individuals accused of association with anti-military groups and their families. Notably, family members of persons with outstanding arrest warrants increasingly faced arbitrary arrest and detention, including through repeated abductions and hostage-taking of children, as young as three, constituting in some cases enforced disappearances.
Credible reports persisted that the military continued to rely on tactics amounting to torture and ill-treatment against detainees, mostly in interrogation centres. Interviewees described instances of severe beatings; mock executions; being suspended from ceilings without food or water; electrocution; forced nudity in front of others, and sexual violence, including against men and LGBTIQ+ individuals. While previously interrogations aimed at identifying leadership of protests, they have increasingly focused more recently on inquiries about detainees’ connections with anti-military groups. OHCHR received consistent reports about inadequate conditions in detention, which may amount to torture, including overcrowding; insufficient sanitation and hygiene; and lack of access to or denial of healthcare services, food, and water. Deaths in detention due to torture, ill-treatment, or inadequate access to medical care, continued to be reported at alarming levels.
…
Since 1 February 2021, the military has adopted measures severely limiting civic space, including restrictions on the rights to freedom of expression, association, peaceful assembly, and movement, and public participation. Those opposing the military continue to be harassed, arrested, and prosecuted for the peaceful exercise of their rights, both online and offline. On 20 September, the military criminalized social media activity determined to be acts of opposition, including “liking” posts that the military deemed to be supportive of anti-military armed groups. Such acts carry penalties of up to 10 years’ imprisonment. ….
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant submitted a copy of his Burma (Myanmar) passport. On the basis of this document and the applicant’s other written evidence the Tribunal is satisfied he is a citizen of Burma (Myanmar). The Tribunal assesses the applicant’s claims against Burma (Myanmar) as his country of nationality and receiving country.
The applicant’s evidence regarding his original visa application is somewhat questionable given its stark difference from the information presented in his initial Protection visa application. It is difficult to accept the applicant would allow another person to have complete control of an important application without ensuring the accuracy of the content. However, the applicant provided an explanation that has some credibility, particularly when the applicant does not have English as a first language and could be exploited by others in the community.
The DFAT report referred to above states quite clearly that the risk of serious harm to someone who has sought asylum in Australia is high, regardless of the reasons they originally left Myanmar. Ministerial Direction No.84 stipulates that the DFAT report is a mandatory consideration which the Tribunal must take account of in determining protection obligations owed to the applicant.
Regarding the applicant’s claim that he has been politically active in Australia through attending post-coup demonstrations and posting anti-regime messages on [social media], the Tribunal notes that the applicant has provided photographs and related evidence of his active participation. The Tribunal also notes that there has been widespread negative reaction to the coup and the abuses of the regime by the Myanmar diaspora, with demonstrations occurring around the world. The Tribunal therefore accepts that the applicant participated in political activity in Australia against the coup and military regime in Burma (Myanmar).
Fear of Harm in Myanmar
The available current country information highlights that anyone who has been accused of sympathy with political opposition in Myanmar is at risk of detention by the authorities. DFAT’s latest report concluded that the threshold for falling under official suspicion is extremely low.[3] DFAT has assessed that anyone who opposes, or is perceived as opposing, the military regime is at high risk of official discrimination and violence.
[3] Office of the High Commissioner for Human Rights (‘OHCHR’) ‘Situation of Human Rights in Myanmar since 1 February
The Tribunal accepts that the applicant’s activities in Australia will be perceived adversely by the regime in Myanmar. The available current country information indicates that, despite the relatively low-level nature of his political participation to date, he will be considered an opponent of the regime.
DFAT’s report highlights that there are severe consequences for anyone suspected of opposing or criticising the regime in Myanmar or having links to Western countries.[4] According to this information the applicant will be at high risk of official discrimination and violence, including detention, illegal property seizures, enforced disappearance, torture, beating, extrajudicial killing, and/or application of the death penalty.[5]
[4] ibid
[5] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Myanmar’, 11 November 2022
Significantly, the applicant would be returning to Myanmar as a failed asylum seeker from Australia. As set out above, DFAT currently assesses that a failed asylum seeker returning to Myanmar from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left the country.[6]
[6] ibid
In view of this information the Tribunal is satisfied there is a real chance that the applicant will face serious harm on return to Myanmar for the essential and significant reason of his political opinion, due to his political activity in Australia and having sought asylum in Australia.
The Tribunal is satisfied that the serious harm the applicant will face in Myanmar is a result of systematic and discriminatory conduct in that it will be done to him intentionally and selectively.
The Tribunal considers that the real chance of serious harm to the applicant exists throughout Myanmar in that he would be of adverse interest to the security forces in all areas of Myanmar. Given the state is the agent of harm the Tribunal finds there is no effective protection available to the applicant in Myanmar.
The Tribunal is therefore satisfied that the applicant has a well-founded fear of persecution in Myanmar as defined by s.5J of the Act.
Section 36(3)
There is no indication that the applicant has a right to enter and reside in any other country. On the information before it the Tribunal accordingly finds he has no such right. The Tribunal is therefore satisfied that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.
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.
Wendy Banfield
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.
…

2022’, 02 March 2023 [3.46] – [3.48].

[2024] AATA 2375

15 March 2024

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