2012970 (Refugee)

[2023] AATA 4421

2012970 (Refugee) [2023] AATA 4421 (4 October 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Ms Cassandra Benjamin

CASE NUMBER:  2012970

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:  Jason Pennell

DATE:  4 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.

Statement made on 4 October 2023 at 11.40pm

CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – race – ethnic Kachin – religion – Baptist Christian – Kachin Baptist Convention in the Humanitarian Development Department (KBC-HDD) – Kachin Association of Australia (KAA) – political opinion – student activist – anti-drug campaign – Kachin Youth Organisation (KYO) – opposition to the military regime – internal relocation – failed asylum seeker – systematic and discriminatory conduct – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Ram v MIEA (1995) 57 FCR 565
VSAI v MIMIA [2004] FCA 1602  

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Burma (Myanmar) applied for the visa on 9 November 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Migration Act 1958 (the Act)).

3. The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 18 August 2020 and provided the Tribunal with a copy of the delegate’s primary decision record dated 11 August 2020.

4. The applicant appeared in-person before the Tribunal on 6 September 2023 to give evidence and present arguments. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. As such, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

5. 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 by his Legal Practitioner, Ms Cassandra Benjamin of Refugee Legal.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

1. 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

1. 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 (the Department), 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.

APPLICANT’S CLAIMS AND EVIDENCE

Applicant’s identity and Country of reference.

1. The applicant claims he was born on [date] in [Village 1], Myitkyina Township, in Kachin State, Myanmar. The applicant claims he is a citizen of Burma (Myanmar) and that he is not a national of any other country. The applicant provided the Department with a certified copy of his Myanmar passport.

2. The information provided by the applicant is consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of Burma (Myanmar) and as such his protection claims will be assessed against Burma (Myanmar) as the country of reference and ‘receiving country’ respectively.

Migration history

1. The applicant arrived in Australia [in] August 2017 on a Visitor (FA 600) visa which was valid [from] August 2017 [to] November 2017 and has not departed since arrival1.

2. On 9 November 2017 the applicant lodged his Protection (XA 866) visa which was subsequently refused resulting in this merits review application.

3. The applicant is currently onshore lawfully on a Bridging Visa A (WA 010) which was granted on 13 December 20172.

Applicant’s claims for protection

1. The applicant claims are detailed in his Statutory Declaration dated 6 November 20173 which were summarised by the delegate4 as follows:

   ·‘He is of Kachin ethnicity and Christian Baptist religion

1. Applicant’s Movement Records, AAT File Number 2012970. Doc ID 11358908

2. ibid
   3   Applicant’s Statutory Declaration dated 6 November 2017; Dept File No: [number] Doc ID:7624387

3. Primary decision record, AAT File Number 2012970, Doc ID 11370021

·He claims that Christians are a minority group in Burma and the government has ‘a hidden agenda” to get rid of Christians as they believe that “everyone in Burma should be Buddhist”

·He claims that in January 2010 he started studying [Discipline 1] at [University 1] where he claims, the drug use was facilitated by the Burmese authorities, and he wanted to “tackle this problem” by improving “students’ mindset”

·He claims that in 2010 he joined Kachin Youth Organisation (KYO) called Jinghpaw Dakkasu Ramma and he also began working as a volunteer assisting a student organisation at his University

·He claims that “sometimes in first semester between January and June” (the year is not provided) the local police chief and high-ranking officer attended the University talking about anti-drugs and when he questioned their inaction, they took offence from his questions

·He claims that in June 2010 in the second semester his group started an anti-drug campaign

·He claims that at that time he discussed with the university’s Associate Director, Professor [named] the drug problems at the university and that the applicant wanted to address the problem via a campaign

·He claims that the professor reported their conversation to the police telling them that the applicant was involved in unlawful activities and disturbing other students

·He claims that the following day, the police came to the university and spoke to him demanding his name and his address and warned him to stop his campaign if he wanted to continue his studies

·He claims that about a week later his father told him that three men, one in a police uniform and two in a civilian clothing, came to the house and warned his father to control the applicant

·He claims that the military intelligence and the police placed him under constant surveillance and including following him on motorcycles

·He claims that despite the surveillance and warnings he continued his campaign

·He claims that about 10 September (the year is not provided) he joined Economic Education Development for Youth (EEDY) and after his training he covertly recruited Kachin youth to attend the EEDY training at the border between Burma and China

·He claims that “about November 2010” a warrant was issued for his arrest because he was the leader of anti-drug campaign at his university and a leader of the Kachin Youth Organisation

·He claims that the arrest warrant stated that he organised Kachin Youth for unlawful activities and recruiting other students to perform illegal activities under section 17.1, treason

·The applicant claims that he was not given the warrant, but his friend told him about it and he fled to [Town 1], close to Chinese border where he stayed with his cousin

·He claims that the police did not look for him in [Town 1] because the area was controlled by the Kachin Independence Organisation (KIO) and the Kachin Independence Army (KIA) with whom the Burmese Army were engaged in a war

·He claims that in February 2014 he started working for the Kachin Baptist Convention in the Humanitarian Development Department (KBC – HDD) which was a non-government organisation assisting Kachin people who were displaced because of the conflict, and he worked with UNHCR and Oxfam

·He claims that for three years after his escape to [Town 1], the police and the Burmese military continued to look for him placing his parents under constant surveillance and regularly visited his parents

·He claims that in 2014 police found out about his whereabouts and his work the KBC- HDD and other NGO’s that had strong connections to the government, and he believed that “those NGOs would have passed on my details to the government authorities”

·He claims that the some of the NGO’s he worked with, took his pictures and placed them “on their websites, leaflets, magazines etc” and they also passed his details to the Burmese army

·He claims that the head of the KBC-HDD told him that the police threated to shut down the KBC-HDD if they continued to employ the applicant and if they did not turn him over to them29 and the NGO advised him to flee the country

·He claims that he hired a broker to obtain his passport and a visa for Australia and he departed Myanmar from Yangon airport

·The applicant claims to fear harm from the Myanmar authorities because of his involvement with the KYO and EEDY, his public criticism of the government, his Kachin ethnicity, his Christianity, and his involvement with the Christian NGO suspected by the government of providing aid to the KIA.’

Applicant’s evidence.

1. The applicant’s evidence was that he was born on [date] in [Village 1], Myitkyina Township, in Kachin State, Myanmar and that he is of Kachin ethnicity and Christianity faith.5

2. His mother and father were both born in Kachin State Myanmar and continue to live in Myanmar. The applicant’s father works as a [Occupation 1]. The applicant has [number] siblings. The applicant has [number] sisters, all of whom continue to live in Myanmar. The applicant’s brother is deceased having drowned as a child.

3. The applicant’s evidence was that his parents were both Baptist Christians in Myanmar6. As a result, he is a Christian. The applicant’s evidence was that Christianity is a minority religion in Myanmar and as such are subjected to discrimination and harassment by the Military regime.

4. The applicant was educated in Myanmar attending his primary education at his village school. After grade [number] the applicant then attended [school] in Myitkyina. He completed school in or about [year].7

5. The applicant claims that at school he attended Christian youth group and attended Church on Sundays. He claims that in or about 2007, he attended leadership training run at the Christian religious administration located next door to his church.8

6. In addition, the applicant claims he is ethnic Kachin. His evidence was that he is easily identified as a minority in Kachin because of pronunciation of the Burmese language. The applicant claims that he speaks a Kachin dialect of the Burmese language and as a result is easily identifiable as a Kachin minority in Myanmar.9 The applicant claims that as an ethic Kachin and as a Christian he will be seriously harmed if he is returned to Myanmar.

7. The applicant’s evidence was that in 2010 he attended [University 1] where he studied [Discipline 1]. The applicant’s evidence was that even though the University was in Kachin, it was run and controlled by the government. The applicant claims that as a member of the Kachin minority he was seen as a threat to the Burmese government.

1. Applicants statement dated 3 August 2023; AAT file No 2012970 Doc ID: 11488004 Applicant’s Statutory Declaration dated 6 November 2017; Dept File No: [number] Doc ID:7624387

2. Applicant’s Statutory Declaration dated 6 November 2017 [9]; Dept File No: [number] Doc ID:7624387

3. Applicants statement dated 3 August 2023; AAT file No 2012970 Doc ID: 11488004

4. Applicant’s Statutory Declaration dated 6 November 2017 [7- [8]; Dept File No: [number] Doc ID:7624387

5. Applicant’s Statutory Declaration dated 6 November 2017 [11]; Dept File No: [number] Doc ID:7624387

The government were opposed to any group that were not Buddhist having any influence in the country.10 As a result, the Burmese majority have begun to settle in Kachin for the purposes of integrating influence on the local population into becoming Buddhist and part of the Burmese majority.11

1. The applicant claims that when he commenced University most students were addicted to drugs.12 The applicant’s evidence was that the police and university administration facilitated the distribution of drugs on the campus because it suited the authorities to have the Kachin students drug affected and dysfunctional.13 As a result, the University campus became unsafe.

2. The applicant’s evidence was that he joined several advocacy groups campaigning against the use of drugs on the University campus and demanding the authorities take action to prevent the use of drugs on campus. The applicant’s evidence was that he was [office bearer] of the student body committee. The leader of the group was known to him as [Mr A]. The other committee leaders were [Mr B] and [Mr C]. The applicant’s evidence was that he helped arrange protests on campus and to lobby the university authorities. The applicant claims that the police initially cautioned him to stop his activities. When he refused to stop, the police issued a warrant for his arrest for abetting ‘the commission of an offence by the public generally’ pursuant to s.117 of the Myanmar Penal Code, punishable by a term of imprisonment for a period three years.14

3. The applicant claims that when the arrest warrant was issued, the applicant’s friend warned him not to attend the University. The applicant claims that he travelled to [Town 1] (close to the Chinese border) by motorbike where he stayed with his cousin. The applicant’s evidence was that [Town 1] is controlled by the Kachin Independence Organisation (KIO).15 As a result, he was not detected by the authorities. The applicant remained in [Town 1] with his cousin from 2011 to 2014.16 After the applicant fled to [Town 1] his parents were taken to the police station and interrogated about his whereabouts. As a result, he claims that he was no longer free to express his views out of fear of being arrested by the police. As a result, he left the country.

4. The applicant’s evidence was that on 10 September 2010 he joined the Economic Education Development for Youth (EEDY). The applicant completed a training course with the EEDY so that he could work as an underground recruitment agent for Kachin youth.17 In or about February 2014, the applicant commenced working for a Kachin NGO known as Kachin Baptist Convention in the Humanitarian Development Department (KBC-HDD) through the EEDY. The applicant’s evidence was that when the civil war erupted there was a lot of internally displaced people along the Chinese border. Through the KBC-HDD, he helped displaced people, including working with UHNCR and Oxfam, to provide food war, mosquito nets and toiletry products to those who could not be reached by other NGOs in the area. His evidence was that as a Kachin they had better access to Kachin people in the area.18

10Applicant’s Statutory Declaration dated 6 November 2017 [13]-[14]; Dept File No: [number] Doc ID:7624387

11 Ibid
12  Applicants statement dated 3 August 2023; AAT file No 2012970 Doc ID: 11488004 Applicant’s
13  ibid
14  Myanmar penal Code s.117; hrlibrary.umn.edu/research/myanmar/Annex%20K%20-

%20Myanmar%20Penal%20Code.pdf

15Applicant’s Statutory Declaration dated 6 November 2017 [36]; Dept File No: [number] Doc ID:7624387

16  ibid

17Applicant’s Statutory Declaration dated 6 November 2017 [32]; Dept File No: [number] Doc ID:7624387

18Applicant’s Statutory Declaration dated 6 November 2017 [37]; Dept File No: [number] Doc ID:7624387

1. The applicant’s evidence was that while he was in [Town 1], the police went to his family home in [Village 1] periodically to question his parents about his whereabouts. The applicant’s evidence was that the police would have become aware he was in [Town 1] because of their monitoring of the NGO’s he was working with through the KBC-HDD. The applicant claims that the authorities would have seen his photo posted on NGO websites and other publications. However, the police were not able to travel to [Town 1] because it was in an area controlled by the Kachin Independence Army (KIA).

1. The applicant claims he worked for the KBC-HDD until 2017. In or around June 2017, the headquarters of KBD-HHD in Myitkyina informed the branch in [Town 1] that the police and military had threatened to shut them down. The Burmese Military accused the KBC-HDD of giving aid to the KIA rather than to refugees as intended. In addition, the police threatened to ban the KBC-HDD if they continued to keep the applicant on. The applicant claims that the head of KBC-HDD (known to the applicant as Kali), told the applicant that he had to leave because they were being threatened by the authorities.

2. As a result, the applicant’s sister and friends helped the applicant leave the country. His evidence was that he returned to Myitkyina where he was in hiding for two weeks. The applicant then travelled to Yangon by truck where he hired a broker to obtain a passport and visa for Australia. The applicant was not aware how the broker obtained the documents. The applicant then departed the country via Yangon airport. He was not questioned on his departure. The applicant claims that he was allowed to leave because the Kachin officials had not communicated his arrest warrant to the Yangon officials. He claims that it’s likely the Myanmar authorities are now aware of his arrest warrant and that he will be arrested and seriously harmed if he is returned to Myanmar.

3. The applicant claims that since his arrival in Australia he has been closely associated with the Kachin Association of Australia (KAA). He is currently [office bearer] of the KAA.19 The applicant claims he frequently attends events and makes financial contributions to Kachin organisations in Myanmar that oppose the military regime. The applicant claims he participated a Karenii fundraiser in [Australian City 1] which attracted national media attention in which the applicant was photographed. The applicant claims he regularly makes social media posts concerning his opposition of the military regime. Finally, the applicant claims that his family are involved with the KIA and the Peoples Defence force (PDF). 20

4. The applicant claims that because of his activities in Myanmar and Australia plus as a failed asylum seeker, he will be seriously harmed if he is returned to Myanmar.

Applicant’s documentation.

1. The applicant provided the following material to the Tribunal in support of his protection claims:

   ·Copy of Department’s notification letter and decision record dated 11 August 2020

   ·Legal Submissions dated 4 September 2023

   ·Applicant’s Statement dated 3 August 2023

   ·Various photographs of social activities

COUNTRY INFORMATION

19  Applicants statement dated 3 August 2023; AAT file No 2012970 Doc ID: 11488004

20  ibid

1. In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report on Myanmar dated 11 November 2022 (the DFAT Report),21 in particular, those parts of the DFAT Report marked as Attachment A to this decision.

CONSIDERATION OF CLAIMS AND FINDINGS

1. The issue in this case is whether the applicant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Credibility

1. When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment, as well as the stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded,’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.22 Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.23

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.24 Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.25 However, such a benefit should only be given when all available evidence has been obtained and checked and when the decision maker is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

Accepted Facts

1. Based on the applicant’s evidence and the documents provided by the applicant, the Tribunal accepts and finds that the applicant:

21  DFAT Country Information Report on Myanmar dated 11 November 2022

22  Section 5AAA, the Act.
23  MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985)

6 FCR 155 at [169–70].

24Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p.482.

25The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

(a)was born on [date] in [Village 1], Myitkyina Township, in Kachin State, Myanmar.

(b)is an ethnic Kachin and a Christian.

(c)speaks reads and writes Burmese, Chinese and English.

(d)parents continue to live in Myanmar.

(e)he has one brother who is deceased.

(f)was educated in Myanmar completing school in Myitkyina in or about [year].26

(g)attended church and Christian youth group.

(h)attended [University 1] in 2010 to study [Discipline 1].

Applicant’s claims as a refugee

A past fear of persecution is not sufficient

1. A past fear may be a relevant consideration in determining if the applicant has a well- founded fear of persecution. Nevertheless, the approach applicable under in s 5J(1)(a) of the Act is whether the applicant is outside his country owing to a present, well- founded fear of persecution for a reason that falls within the scope of s 5J(1)(a) of the Act, and he is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.27

Relevant grounds

1. The applicant claims that he has a well-founded fear of persecution if he is returned to Myanmar, pursuant to s. 5J(1)(a) of the Act, by reason of his race, as an ethnic Kachin, his religion as a Christian and his actual and/or imputed political opinion because of his involvement (amongst other matters) as a student activist, his involvement with the KBC-HDD and his association with the KAA.

2. In Calado v MIMA28 the Court in considering the expression of ‘race’ in reference to Article 1A(2) of the Convention, stated that it was appropriate to consider the “popular” understanding of the term that accords with a person’s physical appearance, skin colour and ethnic origin.29 The court stated:

   ‘There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.’

3. In addition, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status also refers to the expression of ‘race’ in the broadest of terms stating:30

   ‘68.Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.

26  Applicants statement dated 3 August 2023; AAT file No 2012970 Doc ID: 11488004

27  Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]–[62], referring to Chan v MIEA

(1989) 169 CLR 379, s 5H of the Act

28  Calado v MIMA (1998) 81 FCR 450 at 455.
29  ibid

30Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [68]; https://www.unhcr.org/4d93528a9.pdf

1. In this case, the applicant claims that as an ethnic Kachin there is a real chance, he will be seriously harmed by the Myanmar authorities, in particular the Myanmar military if he is returned to Myanmar. As such, based on the applicant’s evidence, the Tribunal accepts that his claim does fall within in s 5J(1)(a) of the Act because of his race.

2. In addition, the applicant submits that his claim falls within s 5J(1)(a) of the Act because of his well-founded fear of persecution if he is returned to Myanmar because of his religion. The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in many ways including the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy31 and mixed marriage. It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.32

3. An overview of the scope of ‘religion’ as a refugee ground can be found in the UNHCR Handbook. It states:

   ‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground’.33

4. Often persecution for reasons of religion will involve prohibition against, restrictions on, or punishment for, a particular religious practice.34 Whether an applicant has a well- founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.35

5. In this case, the applicant claims that as a Baptist Christian there is a real chance, he will be seriously harmed by the Myanmar authorities if he is returned to Myanmar. In this case based on the applicant’s evidence, the Tribunal accepts that his claim falls within s 5J(1)(a) of the Act because of his religion.

6. Finally, the applicant claims that his claim fall within s 5J(1)(a) of the Act because of his political opinion. It is not necessary for the applicant to hold an actual opinion. It is sufficient for his political opinion to be imputed to him by the persecutor.36 The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status37 provides that

   
   

31To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 ALD 332 at [12] & W161/01A v MIMA [2002] FCA 285.

32  See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35].
33  UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]-[73].

34Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

35  Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
36  MIEA v Guo (1997) 191 CLR 559 at [571]; Chan v MIEA (1989) 169 CLR 379 at [416] per Gaudron J and at

[433] per McHugh J.

37  UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80–86]; Chan v MIEA

(1989) 169 CLR 379 at [392].

it is necessary for an applicant to show that they have a fear of persecution for holding a political opinion as ‘[H]olding political opinions different from those of the Government is not in itself a ground for claiming refugee status.’

1. The applicant claims that that he is opposed to the Military regime in Myanmar. He claims that he is opposed to the Military regime in Myanmar. He claims that his involvement with the KBC-HDD, the KYO and the KAA will mean there is a real chance he will be seriously harmed as a person opposed to the military regime. As such, the Tribunal accepts that the applicant’s claim does fall within s 5J(1)(a) of the Act because of his political opinion, as claimed.

Applicant’s well-founded fear

1. Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.

2. In Chan v MIEA38 the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.39

3. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if he returns to Myanmar.

4. However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J 40stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

5. In MIEA v Guo, the Court stated that: 41

   ‘Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation’.

6. Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below, the Tribunal accepts that the applicant has a well-founded fear of persecution on both a subjective and objective basis.

Systematic and discriminatory conduct

38 (1989) 169 CLR 379 at 396.

39(1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

40  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.
41  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

1. Pursuant to section 5J(4)(c) of the Act, persecution must involve systematic and discriminatory conduct. The issue of systematic conduct involved in the persecution claimed was considered in Chan v MIEA42 in reference to the Convention. McHugh J stated:

   ‘The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention’.

2. In VSAI v MIMIA43 Crennan J, stated that where conduct is shown to be serious harm when assessing if it is ‘systematic conduct’, it would be wrong to require the applicant to show anything more than the act is deliberate or pre-meditated. It would not be necessary to show that the conduct is widespread or frequently recurring. Nevertheless, the frequency of an act may be relevant in determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low-level harm.44

3. In addition, the discriminatory element of persecution involves an element of motivation on the part of the persecutor. In Ram v MIEA45 , Burchett J said:

   ‘Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors’.

4. However, it has been held that while persecution will necessarily involve an element of motivation on the part of the persecutor, and will often be motivated by enmity,46 it is wrong to require an attitude of ‘enmity’ or ‘malignity’ before persecution can be made out.47 Accordingly, for the reasons described below the Tribunal is satisfied that there is a real chance the applicant will be seriously harmed as a result of systematic and discriminatory conduct.

The Applicant’s Race

1. The applicant claims that there is a real chance he will be seriously harmed if he is returned to Myanmar because of his race as an ethnic Kachin. He claims that as a member of a minority race in Myanmar, he would face ongoing harassment and discrimination if he is returned to the country.

1. The country information48 reports that Kachin encompass a number of ethnic groups speaking almost a dozen distinct languages belonging to the Tibeto-Burman linguistic family who inhabit the region in the northern part of Burma on the border with China, mainly in Kachin State.49 The term Kachin generally refers to the largest of the groups (the Kachin or Jingpho/Jinghpaw) or to the whole grouping of Tibeto-Burman speaking minorities in the region, which include the Maru, Lisu, Lashu.50 Nevertheless, the Tribunal notes that identity in Myanmar is a complex matter involving elements of

   
   

42  Chan v MIEA (1989) 169 CLR 225 at 429–430.

43  VSAI v MIMIA [2004] FCA 1602 at [53].
44  ibid.
45  Ram v MIEA (1995) 57 FCR 565 at 568.
46  MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [72].
47  Chen Shi Hai v MIMA (2000) 201 CLR 293 at [33]–[35], [60]–[61].
48  Sadan, M. 2007, TRANSLATING GUMLAU:HISTORY, THE ‘KACHIN’ AND EDMUND LEACH. in Sadan, M

and Robinne, F. (eds) 2007. Social Dynamics in the Highlands of Southeast Asia, Reconsidering Political Systems of Highland Burma by E. R. Leach. Brill. Leiden, Boston

49  Minority Groups International, Myanmar Kachin https//:minorityrights.org/minorities/kachin/
50  ibid

ethnicity, religion, language, and location.51 Accordingly, a person’s ‘official race’’ may not be one with which they identify. It’s reported that it’s possible for different members of the same family to identify as belonging to different races.52 In this case, the applicant did not specify the group to which he belongs but stated that he can be identified as an ethnic Kachin because of the dialect of the Burmese language he speaks.53 Based on the available country information and the applicant’s evidence, the Tribunal accepts that he is an ethnic Kachin as claimed.

1. The ethic Kachin’s participated in and signed the Panglong Agreement of 1947. As such, the Kachin State was created and reflected in the first constitution of the new State of Burma.54 In 1961, Buddhism was declared the official religion of Burma, which was perceived as an affront by the majority Christian Kachin.55 This, along with other grievances, lead to the creation of the Kachin Independence Organization (KIO) and its military wing, the Kachin Independent Army (KIA) in 1962.56 Since this time there was an increased ‘Burmanization’ of the army and government institutions leading to ethnic Kachin’s experiencing discrimination particularly in employment and economic opportunities.57 After 1994, the Myanmar military increased its presence in Kachin from 26 battalions to 50 in 2007.58 The exploitation of natural resources by the authorities in Kachin caused increased tension between the Kachin population and the government.59 Abuses of human rights by the military including land confiscations (with little or no compensation), forced labour and sexual violence increased dramatically. In addition, the Myanmar authorities appointed ethnic Burmans to most administrative positions drastically reducing the use of the Kachin language in local affairs.60

2. It’s reported61 that the situation in Kachin has grown worse since 2011.62 Fighting has escalated to full-scale land and aerial assault on the ethnic KIA strongholds, killing civilians and forcing thousands from their homes. It’s reported that the government forces have inflicted extrajudicial killings, rape and sexual abuse, torture, and indiscriminate attacks on civilians.63 In addition, both the government forces and the ethnic armies have been accused of using civilians for forced labour and as human shields. It’s reported64 that more than 130,000 people have been displaced in Kachin due to the fighting, with many struggling to access essential services in the wake of a blockage of humanitarian assistance by the government and military. Many have remained stranded in the jungle or in fighting zones while aid agencies are blocked from proving food and vital supplies.65 In October 2022, airstrikes by the government military killed dozens of civilian people attending a concert.66 It was reported67 that the military continued to commit widespread atrocities displaying ‘ruthless disregard’ for civilian lives in escalating its campaign against the KIA and other ethic insurgents.

51  DFAT Report at p.18

52  ibid

53Applicant’s Statutory Declaration dated 6 November 2017 [11]; Dept File No: [number] Doc ID:7624387

54  Minority Groups International, Myanmar Kachin https//:minorityrights.org/minorities/kachin/
55  ibid
56  ibid
57  ibid
58  ibid
59  ibid
60  ibid
61  ibid
62  ibid
63  ibid

64The Guardian ‘‘Slow Genocide’: Myanmar’s invisible war on the Kachin Christian minority’ by Libby Logan 14 May 2018 https//: guardian.com/world/2/may/14/slow-genocide-Myanmars-invisible-war-on-the- kachin-christian-minority.

65  ibid
66  Amnesty International ‘Myanmar: Deadly air strikes in Kachin State appear to fit pattern of unlawful attacks’

24 October 2022 https//: ibid

1. Its reported68 that since the coup in 2021, violence in Kachin State has increased steeply with fighting between the military and KIA extending into the north of the state.69 It’s reported that there were 312 clashes between the KIA and the Myanmar military resulted in an estimated 12,000 people being displaced in Kachin State between March 2021 to June 2021.70 The military crackdown included shooting civilian protesters, destroying entire villages believed to support the opposition and massacring both civilians and opposition fighters.71 It’s reported that at least 1,500 civilians have been killed by the military with more than eight thousand people, including journalists’ and medical workers.72

2. Based on the available country information, the Tribunal accepts that the harm inflicted on the ethic Kachin people amounts to systematic and discriminatory conduct by the Myanmar State. As such, based on the available country information and the applicant’s evidence, the Tribunal accepts that there is a real chance the applicant will be seriously harmed as an ethic Kachin if he is returned to Myanmar.

Applicant as a Christian

1. The applicant claims that as a Christian there is a real chance, he will be seriously harmed if he is returned to Myanmar. The applicant’s evidence was that his parents were born as Baptist Christians and that he is also of the Christian faith. The country information73 reports that Christians make up approximately 8.2% of the population (5.5% Protestant, 1.3% Roman Catholic). Consistent with the applicant’s evidence, it’s reported that many of the Kachin population are Christian.74 Based on the applicant’s evidence, the Tribunal accepts that he is a Christian as claimed.

2. Christians have faced religious persecution and ethnic discrimination in Myanmar due to the government’s program of Buddhist nationalism.75 As with other minorities, Christians are underrepresented in the public sector and have been barred from holding senior positions in the security forces and the ministries.76 In addition, it’s reported that Christians have been subjected to campaigns of forcible conversion to Buddhism,77 restrictions on construction and use of church-buildings, forced labour conscription, and acts of violence including killings, torture, rape, and abduction by the Burmese military.

3. In December 2016, two ethnic Kachin Baptist leaders who were forcibly disappeared in Northern Shan State while guided journalists reporting on Burmese airstrikes that allegedly severely damaged a Catholic church.78 In addition, a youth leader with the Kachin Baptist Convention (KBC) in Mong Ko and his cousin (an assistant pastor),

68Council on Foreign Relations, ‘Myanmar Troubled History Coups Military Rule and Ethnic Conflict.’ 31 January 2022; DFAT Report at p.15
70  ibid

71Council on Foreign Relations, ‘Myanmar Troubled History Coups Military Rule and Ethnic Conflict.’ 31 January 2022; ibid
73  Harvard Divinity School-Religion and Public Life, ‘Christianity in Myanmar

https//:rpl.hds.harvard.edu/faq/christianitymyanmar#:~:text=Christians%20have%20reported%20campaigns%20of
,Christians%20by%20the%20Burmese%20military.

74  ibid

75Christianity today, ‘Myanmar’s Christians: As Our Churches Burn and People Flee, We Need the US’s Help’ by ZO TUM HMUNG, DAVID MOE, JOHN INDERGAARD15 September 2023;

https//: persecution.html

76  DFAT Report p.24
77  DFAT report at p.24

78Christianity today, ‘Myanmar’s Christians: As Our Churches Burn and People Flee, We Need the US’s Help’ by ZO TUM HMUNG, DAVID MOE, JOHN INDERGAARD15 September 2023;

https//: persecution.htm

disappeared after reportedly receiving a call from a member of the Burmese military requesting that they go to the military base in Northern Shan State’s Mong Ko town. Both have disappeared.79 Finally, in January 2015, the female teachers with the Kachin Baptist Convention (Maran Lu Ra aged 19 and Tangbau Khawn Nan Tsin aged 20) were discovered dead in their shared room in Kaungkha village, Northern Shan State. The Kachin Women’s Association Thailand and Legal Aid Network in January 2016 reported that the women’s bodies showed signs of torture and sexual violence, implicating the army’s Light Infantry Regiment No. 503 in the killings. 80

1. It’s reported81 that since the coup in 2021 the country’s military has increased the violence against its own citizens firing on unarmed protestors in the streets of Yangon. Security forces have specifically targeted Christians from ethnic minorities such as the Chin, Kachin, Karen, and Karenni subjecting them to arbitrary arrest, forced labour and rape.82 In addition, they have looted, vandalised, and destroyed Christian Churches and in some cases, commandeered churches to be used as military bases. 83

2. In this case, the Tribunal has accepted that he is a Christian as claimed. In circumstances where the applicant is an ethnic Kachin and has been in involved with groups such the KBC-HDD and the KAA, the Tribunal accepts that on a cumulative basis there is a real chance the applicant will be seriously harmed if he is returned to Myanmar because of him being a Christion as claimed.

Applicant’s political opinion.

1. Finally, the applicant claims that there is a real chance he will be seriously harmed if he is returned to Myanmar because of his political opinion. The applicant claims that as a failed asylum seeker and as a person with his political profile, he will be detained and seriously harmed if he is returned to Myanmar.

2. The applicant’s evidence was that he was involved with the student committee at university where he arranged student protests and lobbied the university to help reduce the exposure of drugs on the university campus. The applicant was able to provide the Tribunal with the names of his fellow committee members and claimed that he was [specified office bearer]. The applicant provided evidence in relation to conversations he had with officials from the university about the issue including Associate Professor [named] and the details of conversations he had with the police.84 Based on the applicant’s evidence, the Tribunal accepts that he was involved with the committee and protested drugs on the university campus as claimed. Consistent with the country information, the applicant’s evidence was that the university was controlled by ethnic Burmans and not ethnic Kachins. Based on the available country information, the fact that he directly challenged the competence and effectiveness of the authorities in dealing with the drug issue on campus would have bought him to the attention of the authorities. As such, the Tribunal accepts that the applicant was warned by the police as claimed.85 However, the Tribunal notes that the applicant continued to work with drug issues without harm.

79  ibid

80  ibid
81  DFAT Report at p.24

82Christianity today, ‘Myanmar’s Christians: As Our Churches Burn and People Flee, We Need the US’s Help’ by ZO TUM HMUNG, DAVID MOE, JOHN INDERGAARD15 September 2023;

https//: persecution.html

83  DFAT report at p.24

84Applicant’s Statutory Declaration dated 6 November 2017 [22]-[25]; Dept File No: [number] Doc ID:7624387

85  ibid

1. The applicant claims that a warrant was issued for his arrest because he was the leader of the anti-drug campaign at the University and leader of the Kachin Youth. However, the applicant’s evidence was that he was told about the warrant by a friend. The applicant did not provide the Tribunal with any independent evidence of the warrant having been issued as claimed. There was no evidence that the applicant had been presented with the warrant by the authorities or that they had attempted to serve the warrant on the applicant either at his home or at the university. While the applicant claims he snuck out of the university, there was no evidence of the authorities trying to execute the arrest warrant on the applicant. Therefore, while the Tribunal accepts that he may have come to the attention of the authorities because of his activities at university, the Tribunal does not accept that an arrest warrant was issued as claimed.

2. Nevertheless, the applicant’s evidence was that he worked for the KBC-HDD through the EEDY. The applicant’s evidence was consistent with the country information in which he claimed that the KBC-HDD worked with other organisations such as the UNCHR and Oxfam but that because of their ethnicity were able to reach more people by having access to ethnic Kachin people. Based on the applicant’s evidence and the available country information in relation to the access to displaced Kachin people along the Chinese border, the Tribunal accepts the applicant worked for the KBC-HDD and Kachin Youth as claimed.

3. Since arriving in Australia, the applicant has been involved with the KAA and has attended public protests in [Location 1] against the military regime in Myanmar. The applicant provided photos of him attended protest at [Location 1] and attending functions of the KAA. As such, the Tribunal accepts that he is actively involved in the KAA as claimed. The applicant also provided the Tribunal with copies of his social media posts expressing his views in support of the Kachin people and against the miliary regime in Myanmar. The Tribunal accepts that he is opposed to the regime as claimed.

4. The country information86 reports that opponents of the military regime, ranging from senior political leaders to casual participants in street protests, have been subjected to abuses including arbitrary detention, torture sexual violence and enforced disappearance. People of all ages who participated in anti-regime protests have been arrested or killed.87

5. The country information88 reports that since the coup, the government has increased its electronic surveillance of Myanmar residents. The cameras are equipped with facial recognition and license plate technology. The authorities record the information which is then used to identify and prosecute people involved in anti-regime protests.

6. Those accused of being sympathetic towards the political opposition are at risk of being detained by the authorities. To be accused of being sympathetic towards the opposition, it is enough to have a picture of Aung San Suu Kyi displayed at a person’s home or on their mobile phone, using foreign apps such as Facebook, possessing a virtual private Network or owning dinted pots and pans.89 The DFAT report90 states that sources in Yangon had experienced random police searches of their homes and vehicles on multiple occasions. In addition, police make random checks of individual’s mobile phones looking for anti-regime material.91 The authorities make no distinction between those actively opposing the military regime and those expressing dissatisfaction with the regime.92 As such, it’s reported that the threshold of falling

86  DFAT Report at p.26

87  DFAT Report at p.26
88  DFAT Report at p.27
89  DFAT Report at p.26 (banging pots and pans is a common form of protest)
90  ibid
91  ibid
92  ibid

under official suspicion is extremely low.93 As such, anyone opposing or perceived as opposing the military regime are at a high risk of being seriously harmed including torture, arbitrary detention, enforced disappearance beating or application of the death penalty.94

1. In this case, the applicant worked with KBC-HDD and Kachin Youth and is a member of the KAA in Australia, he has actively worked against the military regime in the interests of advancing the Kachin cause of autonomy. He has supported KAA and posted his involvement to the organisation together with his anti-military regime views on social media. In such, circumstances, based on the country information detailed above the Tribunal accepts that there is a real chance he will be seriously harmed if he is returned to Myanmar because of his political views.

2. The country information reports95 that people in Myanmar face a variety of restriction in relation to the freedom of movement due to much of the country being subjected to official restriction of movement. 96 Since the coup security checkpoints have been imposed in cities and on major roads. In addition, the Ward or Village Tract Administration Law (2012) has been amended to require people to report all overnight guests to their homes. In addition, the lack of financial resources, the increased conflict between ethnic groups and the Myanmar military and the different local dialects from one region to the next make it difficult for people to relocate to other areas.97 As such based on the available country information the tribunal accepts that it would not be possible for the applicant to relocate to another part of Myanmar.

3. In addition, the applicant fears he will be seriously harmed as a failed asylum seeker. It’s reported that upon arrival in Myanmar the authorities heavily scrutinise those entering and departing the country.98 In circumstances where the applicant has been in Australia for a period of time, the Tribunal accepts that he would be subjected to heavy scrutiny by the authorities upon his return. It’s reported that there are severe consequences for anyone suspected of opposing or criticising or having links to western countries. In this case, the applicant, as a member of KAA, has been active in his criticism of the regime, which has been well documented in his social media posts along with, his work with the KBC-HDD and Kachin Youth. Therefore, based on the available country information and his evidence in relation to his activities in Australia, the Tribunal accepts and finds that there is a real chance he will be seriously harmed as a failed asylum seeker upon his return to Myanmar.

4. Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that the applicant is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a).

CONCLUSION

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a) of the Act.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   
   

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…