2013497 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning a protection visa application made by a citizen of Burma (Myanmar). The applicant, who had arrived in Australia in June 2018, sought protection based on fears of persecution upon return to his home country.

The primary legal issues before the Tribunal were whether the applicant possessed a well-founded fear of persecution for one of the five prescribed reasons under s 5J(1) of the Migration Act 1958, and if not, whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of his removal to Burma, he faced a real risk of suffering significant harm.

The Tribunal considered recent country information from the Department of Foreign Affairs and Trade (DFAT) and the Office of the United Nations High Commissioner for Human Rights (OHCHR), noting a dramatic deterioration in the human rights situation in Myanmar following the February 2021 coup. The Tribunal found that the applicant, as a member of the minority Christian religious group, faced a moderate risk of discrimination and violence. Crucially, the Tribunal determined that a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention, and violence, regardless of their original reasons for leaving. This status, combined with the applicant's likely perceived links to a Western country due to his extended stay in Australia, led the Tribunal to conclude that he would be imputed with anti-regime political opinions. The Tribunal identified "failed asylum seekers returning from Australia to Myanmar" as a particular social group under s 5L of the Act, finding that the applicant's membership in this group, his imputed political opinions, and his Christian religion constituted essential and significant reasons for persecution involving serious harm. Consequently, the Tribunal found that the applicant had a well-founded fear of persecution and met the definition of a refugee under s 5H(1) of the Act.

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