2012970 (Refugee)

The applicant, a citizen of Burma (Myanmar) of ethnic Kachin and Baptist Christian faith, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to fear persecution due to his race, religion, and political opinion, alleging he was targeted for his involvement with the Kachin Baptist Convention in the Humanitarian Development Department (KBC-HDD) and the Kachin Association of Australia (KAA), as well as his past activities as a student activist and participant in an anti-drug campaign with the Kachin Youth Organisation (KYO). The applicant also argued that he would face persecution if he relocated internally within Burma. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth).

The primary legal issues before the Tribunal were whether the applicant had established a well-founded fear of persecution for reasons of his race, religion, or political opinion, and whether internal relocation would be a reasonable option for him. Specifically, the Tribunal had to consider whether the alleged systematic and discriminatory conduct by the Burmese authorities against ethnic Kachins, particularly those associated with religious or political organisations, would place the applicant at real risk of harm. The Tribunal also had to assess the general safety and viability of internal relocation for individuals with the applicant's profile.

In its reasoning, the Tribunal considered evidence regarding the treatment of ethnic Kachins in Burma, including reports of discrimination and persecution by the military regime. It examined the applicant's specific activities and affiliations, assessing whether these would attract adverse attention from the authorities. The Tribunal applied the principles established in refugee law concerning the assessment of well-founded fear and the concept of internal relocation, considering whether any proposed internal relocation would be safe and reasonable in all the circumstances. The Tribunal found that the applicant had not been afforded procedural fairness in the original decision-making process and that the decision under review was affected by an error of law.

Consequently, the Tribunal set aside the original decision and remitted the matter to the Minister for reconsideration in accordance with the law.