2011704 (Refugee)

This matter concerned an application for a protection visa by a woman from Myanmar. The applicant, a divorced Muslim woman of Burmese ethnicity, claimed she faced persecution due to her religion and her son's alleged involvement with armed rebels. She alleged she was abused and threatened by police officers in Myanmar while searching for her son, and that her family home and a local mosque had been destroyed in past sectarian violence. The applicant arrived in Australia on a visitor visa and sought to remain with her Australian grandchild.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether she had substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Myanmar, there was a real risk that she would suffer significant harm. This involved considering the applicant's claims of persecution based on her religion, her status as a divorced woman, and the potential for harm as a returned failed asylum seeker, as well as the country information regarding the safety of Muslims in Myanmar.

The court found that the Tribunal had not adequately considered the cumulative effect of the risks faced by the applicant. It noted that while the applicant's son had fled Myanmar due to fear of persecution for participating in community defence against extremist Buddhist nationalist groups, and that the applicant herself had been subjected to abuse and threats by police, the Tribunal's decision had not sufficiently scrutinised the enhanced risk faced by a returned failed asylum seeker, particularly when combined with her religious identity and gender. The court concluded that the decision had been made without hearing all necessary evidence and therefore remitted the matter for reconsideration.