2013202 (Refugee)

This matter concerned an application for a protection visa by a citizen of Myanmar. The applicant claimed to be a refugee due to a well-founded fear of persecution based on membership of a particular social group and imputed political opinion. The delegate's decision was made prior to the February 2021 coup in Myanmar and the subsequent release of updated country information from the Department of Foreign Affairs and Trade (DFAT) and the United Nations High Commissioner for Refugees (UNCHR). The Tribunal was asked to determine whether Australia had protection obligations towards the applicant.

The legal issues before the Tribunal included whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), specifically the definition of a refugee with a well-founded fear of persecution. This involved considering whether the applicant's fear was for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether there was a real chance of persecution in Myanmar. The Tribunal also had to consider the availability of effective protection measures in Myanmar and whether the applicant could take reasonable steps to avoid persecution.

The Tribunal found that the applicant was a citizen of Myanmar and that Myanmar was her receiving country. It noted that the delegate's decision was made before significant political changes in Myanmar, including the 2021 coup and the subsequent violent repression of protests. The Tribunal considered the updated country information, which indicated a volatile political situation and a breakdown in effective protection measures. The Tribunal concluded that the applicant's claims, particularly concerning her fear of sexual harassment, detention, and violence, and the inability to conceal an innate characteristic, required further consideration in light of the changed country circumstances.

The Tribunal determined that the matter should be remitted for reconsideration. It directed that the applicant satisfies section 36(2)(a) of the Migration Act, indicating that Australia has protection obligations towards her.