2103226 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the protection visa claims of two applicants, who are stateless Muslims of mixed Rohingya and Karen ethnicity formerly resident in Myanmar. The dispute centred on whether the applicants had a well-founded fear of persecution in Myanmar, which would entitle them to a protection visa.

The AAT was required to determine if the applicants met the criteria for a protection visa, either under the refugee criterion or on complementary protection grounds. This involved assessing the applicants' claims of statelessness, their mixed ethnic background, their religious identity as Muslims, and whether these factors, combined with their status as failed asylum seekers, would expose them to persecution or significant harm upon return to Myanmar. The Tribunal also had to consider the correct country of assessment for stateless individuals with multiple countries of former habitual residence.

The Tribunal accepted that the applicants were stateless Muslims of mixed Rohingya and Karen ethnicity, formerly resident in Myanmar. Applying established Australian jurisprudence, the AAT determined that for stateless individuals with more than one country of former habitual residence, their claims should be assessed against the country from which they departed due to a well-founded fear of persecution. In this instance, the applicants' claims were assessed against Myanmar. The Tribunal found that the second applicant had a well-founded fear of persecution in Myanmar for the purposes of section 5J of the Migration Act 1958 (Cth).

Consequently, the Tribunal concluded that the decision under review should be remitted for reconsideration.