2012515 (Refugee)

This matter concerned an application for a Protection visa by a national of Myanmar. The applicant claimed to be a member of the Karen ethnic minority and alleged past persecution by Myanmar authorities, including arrest, torture, and job loss, stemming from his participation in pro-democracy demonstrations in 1988 and subsequent activism. He also claimed ongoing mistreatment and discrimination due to his political views and support for Karen rights. The delegate of the Minister for Home Affairs refused to grant the visa, and the applicant sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires the applicant to be a refugee with a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal was also required to consider the complementary protection criterion under section 36(2)(aa) if the applicant did not meet the refugee criterion. This involved assessing whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Myanmar, the applicant faced a real risk of suffering significant harm.

The Tribunal accepted the applicant's evidence that he was a long-standing opponent of military rule in Myanmar, had participated in protests, and had been arrested, detained, and mistreated. It also accepted that his activities in Australia, including attending demonstrations and expressing his views on social media, represented a genuine expression of his political views and were not undertaken solely to strengthen his visa claim. Crucially, the Tribunal noted the significant political changes in Myanmar since the applicant's arrival, including the 2021 military coup and subsequent nationwide protests and repression, which had led to the formation of a National Unity Government and an ongoing armed revolutionary struggle.

For these reasons, the Tribunal was satisfied that Australia had protection obligations towards the applicant and that he met the criterion set out in section 36(2)(a) of the *Migration Act*. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied this criterion.