2013400 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning a protection visa application made by a citizen of Burma (Myanmar). The applicant claimed to have been arrested and detained for posting online material in support of the Rohingya Muslim minority group, and feared persecution if returned to Burma due to this past action and his subsequent departure from the country.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for one or more of the five prescribed reasons under section 5J(1) of the Migration Act 1958, or, alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Burma, he would suffer significant harm. This involved assessing whether the applicant belonged to a "particular social group" and whether he held imputed political opinions that would place him at risk.

The Tribunal found that while the applicant had not provided direct evidence of his arrest and detention, current country information regarding the treatment of returnees to Burma was sufficient to establish a real risk of harm. It determined that a failed asylum seeker returning from Australia constituted a "particular social group" under section 5L of the Act, as this characteristic was fundamental to the applicant's identity and distinguished him from society. Furthermore, the Tribunal considered it likely that the applicant would be imputed with anti-regime political opinions by the Burmese authorities, given his prolonged absence in Australia and his status as a failed asylum seeker. Consequently, the Tribunal concluded that the applicant had a well-founded fear of persecution for reasons of his membership in this particular social group and his imputed political opinions, and that effective protection was not available in Burma.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion under section 36(2)(a) of the Migration Act, meaning he is a refugee in respect of whom Australia has protection obligations.