2007370 (Refugee)

The applicant, a person of Karen ethnicity from Myanmar, sought a protection visa. The dispute arose when the Department of Home Affairs refused his application, and this decision was subsequently reviewed by the Tribunal. The applicant claimed he feared persecution upon return to Myanmar due to his ethnicity and his political activities undertaken in Australia, including attending demonstrations and posting anti-regime messages on social media.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which concerns a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Additionally, the Tribunal considered the complementary protection criterion under section 36(2)(aa), which applies if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, the applicant faces a real risk of suffering significant harm.

The Tribunal found that the applicant had established a well-founded fear of persecution under section 36(2)(a) of the Migration Act. This conclusion was based on the applicant's evidence detailing his Karen ethnicity, which made him a target for extortion by the military in Myanmar, and his active political engagement in Australia following the 2021 military coup. His participation in protests, financial support for opposition groups, and public social media commentary were considered significant and visible activities that would likely attract adverse attention from the Myanmar military. The Tribunal noted that the applicant's fear was not diminished by his conduct in Australia, as this conduct was undertaken to strengthen his claim for protection.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria under section 36(2)(a) of the Migration Act. This means the applicant is considered a refugee in respect of whom Australia has protection obligations.