2011064 (Refugee)

2011064 (Refugee) [2023] AATA 4422 (23 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2011064

COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER:Nicole Burns
DATE:23 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 1958 (Cth).

Statement made on 23 October 2023 at 10:47am

CATCHWORDS
REFUGEE – protection visa – Myanmar – race – Chin – religion – Christian pastor – political opinion – suspected Chin National Army supporter – particular social group – failed asylum seeker – detention – air strikes – Civil Disobedience Movement – attacks on churches – financial support for armed groups in Chin state – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 360, 499
Migration Regulations 1994, 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 dependants.
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 24 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man from Burma (Myanmar) who came to Australia holding a [visitor visa] [in] April 2017. He applied for the protection visa on 19 October 2017.
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 has concluded that 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 notes in accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The 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 a copy of the biodata page of his Myanmar passport (valid until [2022]), his Myanmar Citizenship Scrutiny Card (CSC) and Government of the Union of Myanmar Family Registration card. On this basis the delegate accepted his claimed identity and nationality, as does the Tribunal on review.
The Tribunal finds Myanmar is the applicant’s receiving country for the purposes of assessing his protection claims.
Background, claims and evidence
In his visa application form the applicant claimed he left Myanmar because (in summary):
·He feared arrest due to an incident between Chin National Army (CNA) and the Burmese military in his village in [1999]. Specifically the killing of [CNA soldiers] by [Mr A] who resided with the applicant and was believed to be a ‘Burmese soldier intelligent’.
·Due to this incident the applicant was targeted by Burmese soldiers and his name might be on their blacklist for arrest.
In support of his protection visa application the applicant provided to the Department a statement of claims dated 17 October 2017 in which he sets out his background, experiences in Myanmar and fears upon returning there. He states, among other things, that before he fled Myanmar he was a [Denomination 1] pastor (since 1993) at [a Village 1] Church, Chin state; that his parents currently live in [Village 1], Chin state; that [most] of his [siblings] reside in Myanmar; and that his wife and [children] reside in [City 1], [in] Chin state.
In his statement the applicant details the circumstances leading up to and following the killing of [CNA members] in his village in [1999] by [Mr A] who had been residing at the applicant’s home since he converted from Buddhism to Christianity in March 1998. This included problems the applicant faced from the Burmese army after [Mr A] accused him of being involved with the CNA, including detention for two days at [Camp 1] and release on condition he report to the soldiers, and ongoing questioning, monitoring and threats. He states matters calmed down after the [Camp 1] captain and his soldiers transferred away from his village, until a new military battalion transferred to [Camp 1] in early 2012 and started questioning him again, after he was reported by the head of the village.
The applicant goes on to state that he left his village on 1 February 2012 and went to his brother’s home in [Village 2], [in Country 1]. His brother had left their village in 2006 for fear of persecution by the Burmese soldiers as he was head of the village and frequently faced arrest and detention, suspicious of being linked to the CNA. The applicant stayed with his brother for nine months then moved to [a named city] in mid-2013 where he studied theology for [period]. He returned to Myanmar [in] March 2016 but did not return to his village. He states he went to [City 1] where his wife and children resided (after he told them to move earlier). There he was told by the former head of his village that he was still wanted by [Camp 1] and he advised him to leave.
The applicant states further that he had been offered admission at [College 1] in [Country 2] to study and went there from mid-2016 to February 2017, then he returned to Myanmar. He stayed for a few months in [City 1] (and Yangon) and was told by the head of his village that the [Camp 1] soldiers had been enquiring about him. Therefore he decided to leave Myanmar again, arriving in Melbourne [in] April 2017 on a visitor visa.
The delegate held several concerns about the applicant’s core claims and did not accept he was of adverse interest to the Burmese military in 1999 due to the incident with [Mr A] (or for any other reason) or subsequently. The delegate accepted the applicant was a Christian pastor of Chin ethnicity from Chin state who would be returning to Myanmar as a failed asylum seeker but based on country information did not accept that he faced a well-founded fear of persecution (or a real risk of significant harm) on return to Myanmar on these bases. His visa application was refused on 23 June 2020.
On review the applicant provided the following documents to the Tribunal:
·A 14-page typed written statement from the applicant[1] dated 13 July 2020 in which he addresses specific concerns raised by the delegate (such as his delay in applying for protection). As well, he clarifies what he considers were misunderstandings between the delegate, himself and the interpreter during his interview on 6 March 2020 due to the interpreter’s lack of understanding the [City 1] Chin language on some matters: for example the delegate stated in the Decision Record that the applicant returned to Myanmar from [Country 1] in 2016 at the airport with his passport, however the applicant clarified at that time he entered on foot in a border area and did not use his passport. The applicant elaborates and provides further details about problems (and interest) from the Burmese army after [Mr A] – a former Buddhist monk and of Burmese ethnicity (who he suspects was a Burmese army spy) – accused him of supporting the CNA after [Mr A] killed [CNA men] in [1999]. The applicant also refers to country information about Buddhist Burmese soldiers preventing Christian leaders from doing their ministry and interrupting worship services, among other things.
[1] The Tribunal notes the statement is unsigned but has the applicant’s name at the end. Reference is made to ‘the applicant’ throughout the document, but at other times is written in first person.
·A letter dated 10 May 2023 from the applicant who states he needs help because:
…of the military junta is changed to the terrorist group and they continue to fight the cities, the villages, the countryside, and the refugee camps, by the Air force with bombing, burning the civilians’ properties, killing and persecution the civilians everyday and night from August 1, 2022 to now day. [errors in original]
·A three-page typed statement dated 10 May 2023 from the applicant in which he provides an update about his circumstances in Australia and that of his family in Myanmar. This included the political and security situation in Chin state since the military coup in Myanmar on 1 February 2021. He states, among other things (in summary) that:
o50 townships are under martial law in Chin state and other states where the army has targeted Chinland Defence Force (CDF) and civilians including by jet fighter bombing which have killed and injured people and destroyed houses and other infrastructure including churches.
oThe fighting (and related deaths) between several actors including the military junta and the People’s Defence Force (PDF)/CDF, and a military group called Thahmah 77 (special commando force) and CDF.
oPresently his family members are divided into four parts in Chin state, some are living in the countryside in Myanmar and [Country 1], some are living in the jungle nearby the villages and some are moving around for their safety. They are struggling mentally and physically.
oBefore his passport expired [in] 2022 he applied for a renewal to the Myanmar Embassy in Canberra, however, was told by an officer there that his passport cannot be renewed because he had applied for protection. They returned his passport and all the documents in January 2023.
oHe is wanted by the military government in Myanmar (and his name is on ‘the blacklist in their record book’) because he supports the people of Myanmar against the military there; financially supports the CNA/CDF/PDF financially through the Chin community in Australia; sponsors his family; and has participated in Zoom meetings and fundraising concerts for the Spring Revolution in Myanmar.
·An undated typed statement (received on 27 July 2023) from the applicant in which he provides a further update about the situation in Myanmar after the coup (and related protests) including impact on civilians in Chin state due to fighting between military and civilian groups and ethnic revolution groups. He also provides an update on his and his family’s circumstances, advising (among other things) that after the coup his family in Myanmar were divided; [in] February 2021 his wife and younger [children] fled to [Village 2], in rural [Country 1], his [specified child] and [their spouse] (who is [an occupation 1] who had participated in the Civil Disobedience Movement (CDM)) fled to [a named] Town, and [another child] and [their spouse] (formerly [occupation 2s] in [City 1], Chin state) fled to [Village 3], [in Country 1]. His family members are effectively homeless and landless and struggling with physical and mental sickness.
Findings about the applicant’s claims and assessment of his future fears
Based on the evidence before it, including copies of his Myanmar passport, CSC, and household registration document, the Tribunal accepts the applicant is a national of Myanmar, of Chin ethnicity, from Chin state. It accepts he is a Christian and was a [Denomination 1] pastor in Myanmar as claimed.
For the reasons that follow the Tribunal accepts the applicant faces a well-founded fear of persecution from the military authorities on return to Myanmar based on his imputed political opinion, being a Chin Christian (and religious leader), and his membership of a particular social group of failed asylum seekers. It is therefore not necessary for the Tribunal to make findings about his core claims presented to the Department about, in essence, fearing persecution from the military on return due to imputed CNA links.
Based on his statements provided on review the Tribunal accepts since the military coup in Myanmar on 1 February 2021 the applicant’s family members there have disbursed throughout Chin state and in some cases moved to [Country 1], seeking safety. It also accepts in Australia he has provided financial support to groups fighting the military in Myanmar through the Chin community here and supported fundraising efforts and attended meetings.
Given the significant political upheaval following the February 2021 coup (and related security issues, including in Chin state), the Tribunal does not find it surprising that the applicant has become active supporting groups who oppose the military in Myanmar in Australia in these ways. 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.[2]
[2] 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 National League for Democracy (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 brutally suppressed by security forces.[3] 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.[4]
[3] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary.
[4] DFAT Country Information Report: Myanmar, 11 November 2022, at 2.5, 2.19 and 2.22; and Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023 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.[5] It is also stated 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[6].
[5] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary.
[6] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023, Executive summary.
DFAT reports that following the coup, violence increased dramatically and spread to almost all parts of the country, stating that the:
…Types of violence include fighting between armed groups and security forces; attacks on and by regime-affiliated militia groups; the targeting of civilian infrastructure; artillery, mortar and surface-to-surface missile strikes; improvised explosive devices (IEDs) and unmarked landmines; abductions, torture, sexual violence and extrajudicial killings; burning of homes and buildings (including religious buildings); and air strikes from helicopters and fixed wing aircraft. According to the UNHCR, as of July 2022, more than 750,000 people had been internally displaced and another 40,000 had fled to neighbouring countries due to conflict, bringing the total number of internally displaced people in Myanmar to over 1 million[7].
[7] DFAT Country Information Report: Myanmar, 11 November 2022 at 2.36.
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[8].
[8] 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 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 (IDP) encampments; and mass arson. Indiscriminate attacks and the targeting of civilian populations have been a hallmark of the SAC’s post-coup strategy.[9]
[9] 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 situation of human rights of Rohingya Muslims and other minorities in Myanmar by the UN’s 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.[10] 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[11].
[10] 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.
[11] 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.[12]
[12] 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.
DFAT notes that PDF have received arms and training from some ethnic armed organisations, and in some cases have fought alongside these groups against the military (particularly in Chin, Kayah and Kachin States).[13]
[13] DFAT Country Information Report: Myanmar, 11 November 2022, at 2.34.
In its report DFAT chronicles 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 states that the military remains the principal armed actor and is ‘overwhelmingly the main violator of human rights and international humanitarian law’.[14]
[14] 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 states:
…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.[15]
[15] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.47.
DFAT assesses 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.[16] The SAC have declared NLD and others as terrorists.[17]
[16] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.51.
[17] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.50.
Furthermore, participants in the widespread CDM (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.[18] Further, DFAT reports that torture is common in detention.[19]
[18] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.54.
[19] DFAT Country Information Report: Myanmar, 11 November 2022 at 4.6.
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.[20]
[20] DFAT Country Information Report: Myanmar, 11 November 2022 at 5.25.
The applicant’s home area − Chin state − which is located in western Myanmar, is largely made up of the Chin community, an ethnic minority in Myanmar, 90 percent of whom identity as Christians.[21] Reports indicate that there has been conflict in Chin state in recent years due to clashes between the military and various armed ethnic factions. There are at least 14 armed groups in Chin state, including the Chinland Defence Force (CDF) and Chin National Defence Force (CNDF), both allied with the long-established Chin National Army (CNA).[22]
[21] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023.
[22] Myanmar Security Situation, Country of Origin, Brief Report, Danish Immigration Service, September 2023.
DFAT reports that the population of Chin state came out strongly against the 2021 coup, including through mass protests and one of the highest rates of CDM participation in Myanmar. Numerous Chin armed groups sprang up in response to the military’s violent crackdown and DFAT reports that the conflict between these two has been ongoing since March 2021.[23] It states:
Chin State had experienced relatively little conflict since 2010, but widespread protests following the coup led to a brutal crackdown that in turn spurred an active armed insurgency. At least 14 armed groups now operate in Chin State, including the Chinland Defense Force (CDF) and the Chin National Defense Force (CNDF), both of which are allied to the long-established Chin National Army (CNA). An estimated 50,000 people have been displaced by the conflict in Chin State. Mindat in Chin State was among the most conflict affected townships in Myanmar in 2021, with 29 clashes recorded between the military and resistance forces in the first six months of 2021. Tactics used by security forces in Chin State have become increasingly brutal, and in November 2021, Human Rights Watch released a statement on behalf of 512 regional and international civil society organizations calling for urgent UN intervention to address ‘the escalating attacks in Chin State [and] the rapidly deteriorating humanitarian, human rights and political crisis in Myanmar’. The statement noted incidents including the indiscriminate shelling and burning of 200 homes and two churches in Thantlang in October 2021, the use of airstrikes and artillery against civilians, and the blocking of humanitarian aid intended for affected populations[24].
[23] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.14.
[24] DFAT Country Information Report: Myanmar, 11 November 2022 at 2.40.
In March 2023 Radio Free Asia reported that the military intensified air attacks in Chin state because of the effective resistance from anti-military groups.[25]
[25] Radio Free Asia, ‘Townships in Myanmar’s Chin state hit by one airstrike per day over last two months’, 3 September 2023.
With respect to the human rights situation in Chin state DFAT states:
There have been longstanding reports of human rights violations by Myanmar security forces against the Chin, including forced labour, arbitrary detention, and torture, as well as repression of their Christian religion.
…
Since the coup, there have been widespread reports of severe human rights violations in Chin State, including indiscriminate arson and shelling attacks, enforced disappearances, extrajudicial killings and torture. For instance, in January 2022, the bodies of nine people, including a 13-year-old boy and a well-known human-rights defender, were found in Matupi Township in Chin State. Their hands were bound and their throats slit. The group had previously been reported as having been abducted by security forces following a battle with local PDFs. The Chin Human Rights Organisation, an NGO, estimates that in Chin State since the coup, 1,500 houses have been destroyed (out of an estimated 7,000 destroyed nationwide), 900 people have been arrested for political crimes (out of an estimated 13,000 nationwide), and 50 churches and religious buildings have been destroyed.
Chin living both within and outside of Chin State reportedly experience discrimination in accessing government services, including when procuring identity documents, discrimination in government employment and promotion, and harassment by security forces at checkpoints, similar to that experienced by other non-Bamar, non-Buddhist ethnic minorities in Myanmar. Sources told DFAT that Chin who spoke Burmese well were less likely to experience discrimination than those who did not.
DFAT assesses that Chin face a moderate risk of state violence in Chin State, Sagaing Region, Magway Region and Rakhine State on the basis of perceived or actual association with armed resistance groups. Elsewhere in Myanmar, Chin face similar risks of societal and official discrimination to other non Bamar ethnicities. Chin who are Christians face similar risks to other Christians in Myanmar, noting these risks are particularly acute in active conflict zones[26].
[26] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.14–3.17.
With respect to the treatment of Christians (who make up approximately six per cent of the population) post 2021 coup in Myanmar, including in Chin state, DFAT states:
There are reports of security forces deliberately shelling, looting, vandalising and burning down Christian churches during military operations since the coup, as well as commandeering them to use as military bases. Christian representatives told DFAT soldiers used churches in Chin and Kayah States as shields because they knew local Christians would not attack them. In May 2021, four people were killed and at least eight wounded when a Catholic church in Loikaw, Kayah State, was shelled by soldiers who reportedly knew civilians were sheltering inside. In April 2022, soldiers occupied the Sacred Heart Cathedral in Mandalay, taking an archbishop and dozens of worshippers hostage while demanding to know where ‘gold and money and weapons’ were hidden. Human rights groups have recorded similar incidents throughout the country according to an October 2021 Al Jazeera report.
Since the 2021 coup, security forces have targeted Christian church leaders for arbitrary detention, inhumane treatment, kidnappings and extrajudicial killings. At least five Chin pastors have been killed since the 2021 coup. In March 2021, four ministers and seven worshippers were arrested at the Kachin Baptist Convention in Lashio, and allegedly beaten while in custody. In September 2021, Cung Biak Hum, a 31-year old Baptist pastor, was shot while attempting to put out a fire in Thantlang, Chin State. After killing him, soldiers reportedly cut off the pastor’s finger and stole his wedding ring. Church leaders have reportedly been forced to conceal their identities when questioned by security forces, because ‘if they knew I was a pastor they would arrest me’.
DFAT assesses that Christians in Myanmar face a moderate risk of official discrimination, a low risk of societal discrimination and a moderate risk of violence on the basis of their religion. Church leaders face a high risk of violence, especially in conflict zones.[27]
[27] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.36–3.38.
In August 2023 it was reported that a Baptist church and residential house were destroyed and seven people injured as a result of military attacks in Chin state.[28]
[28] RFA, ‘Residents say Christian churches attacked by junta in Myanmar’s Chin state’, 15 August 2023.
According to DFAT, the ability of Christians to freely practise their religion in Myanmar is impacted by state policies, community attitudes and ongoing conflict in states with large Christian populations, including Chin, Kayah and Kachin states.[29]
[29] DFAT Country Information Report: Myanmar, 11 November 2022 at 3.34.
DFAT reports that since the coup, torture has been reported throughout the country, especially against political prisoners and suspected members of PDFs and ethnic armed groups. Torture is common in places of detention, in particular military interrogation centres, but also prisons, police stations and military bases. Bodies of people who have been forcibly disappeared often show signs of torture.[30]
[30] DFAT Country Information Report: Myanmar, 11 November 2022 at 4.6.
Given this country information the Tribunal accepts the applicant – who would be returning to Myanmar as a Christian leader of Chin ethnicity and as a failed asylum seeker who has supported armed groups in Chin state financially – faces a real chance of serious harm from the military authorities on return to Myanmar in the foreseeable future. He would do so due to his actual or imputed (perceived or actual association with armed resistance groups) political opinion, Christian leadership, and membership of a particular social group of failed asylum seekers.
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 he returns to Chin state in the form of being subjected to threats to his 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 his actual or imputed (perceived or actual association with armed resistance groups) political opinion, and membership of a particular social group of failed asylum seekers, and as a Christian leader 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 his selective harassment for reason of his (actual or imputed) political opinion, and/or membership of a particular social group of failed asylum seekers, and/or Christian religion.
In this case the applicant fears serious harm at the hands of the military dictatorship in Myanmar, controlled by the SAC. In Chin state there is an armed insurgency, with DFAT reporting at least 14 active armed groups and regular clashes with the military, as noted. 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’[31] in Myanmar as noted, the Tribunal is not satisfied that the effective protection measures as per s 5LA are available to the applicant in Chin state 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).
[31] 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 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 he fears based on his actual or imputed political opinion (perceived support to armed resistance groups), as a Christian leader, 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 he 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 his or her political beliefs or conceal his or her true political beliefs’, and/or ‘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’, and/or conceal an innate or immutable characteristic which is impermissible as per ss 5J(3)(a), 5J(3)(c)(i) and s 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 his imputed or actual political opinion, membership of a particular social group of failed asylum seekers and/or as a Christian leader if he 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 he comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he 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.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act1958 (Cth).
Nicole Burns
Member

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

[2023] AATA 4422

23 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction