2110185 (Refugee)

2110185 (Refugee) [2023] AATA 4165 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Philip Ala West (MARN: 1680879)
CASE NUMBER:  2110185
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Brendan Darcy
DATE:6 September 2023
PLACE OF DECISION:  Melbourne

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Statement made on 06 September 2023 at 2:21pm
CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – ethnicity – Karen – Myanmar’s government persecution of Karen minority – credibility – not experienced any serious or significant harm – applicants did not have any urgent or deeply held fears of being person of interest – visited Thailand and returned with no issues – does not discount their ethnicity as being relevant to claims as forced returnees – particular social group – failed asylum seekers returning from Australia to Myanmar – imputed political opinion – anti-regime political opinion – Myanmar State not willing and able to offer protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 August 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of the Union of Myanmar (Myanmar which was formerly known as the Union of Burma), applied for the visas on 25 July 2019.
The delegate refused to grant the visas on the basis that the available information and the country information did not support the applicants holding a real chance of serious harm or a real risk of significant harm based on the applicant’s ethnicity, being a failed asylum seeker or any other claimed basis arising from Myanmar’s general security situation and provision of social services.
For the purposes of this decision, the first named applicant [will] be referred to as the first applicant while the second named applicant [will] be referred to as the second applicant.
The applicants were represented in relation to the review.
For the reasons set out below, the Tribunal has decided that it is not necessary to invite the applicants to appear before it to give evidence and present arguments relating to the issues arising in their case. This is because the Tribunal considers that it can decide the review in the applicants’ favour based on the material before it.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country of Myanmar, there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The first applicant was born on [date] [in] Myanmar’s Karyin State (or Kayah State, formerly known as Karenni State).
The second applicant was born on [date] in [Village 1] in Kayrn State.
The second applicant arrived in Australia [in] December 2018 an while holding a Class FA Subclass 600 visitor visa. That visitor visa ceased [in] March 2019 – the same date the second applicant departed from Australia.
The second applicant returned to Australia [in] May 2019, while travelling with the first applicant. Both were holding Subclass 600 visitor visas
Both applicants claim to be citizens of Myanmar. Certified copies of their valid Myanmese passports are on the Departmental file ([deleted]).
The applicants applied for Class XA Subclass 866 protection visas on 25 July 2010 and were granted associated bridging visas on 6 August 2019.
The applicants’ claims provided two sets of claims at the time of application.
The first set of claims where embedded in the first applications completed 866C Form and concerned fears about illegal drug members who were pressuring the applicants to undertake illegal tasks while the general security situation in Myanmar was deteriorating due to ‘civil war’. They claimed that should they return to Myanmar they will be physically and mentally harmed, tortured or even killed by either or both illegal drug group members and military offices. They had no protection available from the state and they could not relocate to another part of Myanmar as the security situation was poor across the country.
The second set of claims were outlined in a statement of claim received on 30 July 2019 in which the first applicant claimed that he and his wife suffered tremendously because they were part of the Karen nationalist movement as part of an ongoing war against ethnic Karen by the military in Myanmar. The applicants claimed they had to leave the home village of the first applicant to relocate to [Village 1]. During this time, the applicants were stopped at military checkpoints that surrounded the village. The applicants claimed to have been targeted and, on one occasion, a military officer badly beat the first applicant. The first applicant claimed the attack was racially and ethnically motivated because the military hate the Karen people.
The applicants relatedly claimed the Myanmar government to be engaged in ethnic cleansing of the Karen people with over 3000 Karen villages destroyed in the past twelve years. Karen peoples have been forced to relocate to villages under government control as older villages are burnt down and land mines are laid to prevent villagers returning. There is also forced labour, food shortages, abductions and the threat of being shot should Karen persons try to leave villages. The applicants consider themselves lucky to be alive.
The first applicant also claimed to be working in a store that had been damaged many times by military officers throwing rocks at it. Before the applicants left Myanmar, a group of men came to the shop and demanded that his wife deliver drugs on behalf of the criminals. As he instantly refused, the men began physically abusing the first applicant. They punched and kicked him until the first applicant agreed to their demand. The men told him that if his wife did not do it, they would kill their child. When he told the second applicant, she cried and became scared as she feared for her family’s safety. They knew they had to leave Myanmar as they did not want to be involved with illegal drugs. They also heard that many other people had been asked to do this and some people were found dead due to drug overdoses. Fearing for their lives, they decided to flee Myanmar.
The applicant claimed their son is living with the first applicant’s parents as he could not come to Australia. His son is safe only for now as they made sure the drug lords and mafia would not be able to find him.
The applicants’ 886 forms indicate they both speak, read and write Burmese and English; that they are ethically Karen; and that they are Christian by faith. They also indicated that the applicants began their relationship with each in February 2014 and that they married in January [2018]. The first applicant indicated that he was [an occupation] between 2015 and 2019 while the second applicant indicated that she had been a homemaker. They also indicated the first applicant visited [Country 1] in March 2019 while the second applicant visited the same country on two occasions between August 2018 and March 2019.
The applicants participated in a telephone interview in respect of their application for protection visas on 22 July 2021.
The applicants submitted a post interview submission on 29 August 2021. Submissions included numerous news reports about the situation in Myanmar, satellite maps of Myanmar, and a digital copy of the applicants’ marriage certificate (with a certified translation) indicating they were formally married [in] January 2018 in a Christian ceremony at a Baptist church.
A delegate acting on behalf of the Minister refused to grant the applicants protection visas on 5 August 2021.
On 9 August 2019, the applicants applied to have the delegate’s refusal decision reviewed by the Tribunal. Attached to the application for review was a copy of the delegate’s decision record.
No further information was submitted.
Country information
According to the most recent DFAT report issued on 11 November 2022, provides the following outline about Myanmar’s recent history.
RECENT HISTORY
2.1 Myanmar (known until 1989 as Burma) achieved independence from Britain in 1948, initially as a parliamentary republic. A military coup overthrew the government in 1962. Myanmar has since been ruled mostly by military regimes and has experienced internal conflict and lengthy periods of international isolation.
2.2 General Ne Win ruled from 1962-1988 under a totalitarian socialist regime that isolated Myanmar from the world. Many ethnic groups sought greater independence during this time, including through armed struggle, which continues today. In 1988, widespread pro-democracy demonstrations led to Ne Win’s resignation. The military (known as the Tatmadaw) responded by announcing a military-backed State Law and Order Restoration Council (SLORC) and carrying out a violent crackdown in which some 3,000 people were killed.
2.3 Opposition groups won the 1990 election in a landslide, but the SLORC did not recognise the results and imprisoned senior opposition figures, including Aung San Suu Kyi, leader of the opposition National League for Democracy (NLD). Following an election in 2010, a military-backed parliament appointed General Thein Sein as President. His government initiated political and economic reforms that rapidly transformed Myanmar. Hundreds of political prisoners were released, including Aung San Suu Kyi, who was elected to parliament in 2012.
2.4 In November 2015, Myanmar held credible national elections for the first time in 55 years. The NLD won almost 80 per cent of the available seats, assuming power in 2016. While Aung San Suu Kyi could not become president due to a constitutional clause drafted to exclude her (see Political System), she was appointed State Counsellor and Foreign Minister. The NLD government was popular, but it was slow to make reforms and progress the national peace process, and its international reputation was tarnished by its failure to prevent mass atrocities against the Rohingya in Rakhine State, which caused an estimated 700,000 people to flee the country in 2016-2018 (see Rohingya).
2.5 In government, the NLD hoped to reduce the influence of the military and pave the way for Aung San Suu Kyi to become President. But after the NLD won the November 2020 election in a landslide, the military rejected the result and seized power under the leadership of Senior General Min Aung Hlaing on 1 February 2021. Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.
The same report further states the following about Myanmar’s demography and its economic situation.
DEMOGRAPHY
2.6 The World Bank estimated Myanmar’s population in 2020 at 55 million, with an annual growth rate of approximately 0.7 per cent. The last national census was conducted in 2014. Urbanisation has been slow compared to neighbouring countries, and about 70 per cent of the population lives in rural areas. The population is relatively young, with about a quarter aged under 15 years and about half under 30, although in recent decades the national birth rate has slowed to 2.14 births per woman, below the global average of 2.4. The largest cities are Yangon (4.5 million), Mandalay (1.2 million) and the capital, Nay Pyi Taw (925,000).
2.7 More than 100 languages are spoken in Myanmar, many of them mutually unintelligible. The national language is Burmese, spoken as a first language by an estimated 32 million people. English was the medium of instruction during the colonial period, but it was gradually replaced by Burmese after independence. Today English is spoken by only about 5 per cent of the population. For ethnic demography, see Race/Nationality. For religious demography, see Religion.
ECONOMIC OVERVIEW
2.8 Myanmar is one of the poorest countries in Asia, with a GDP per capita of USD 1,400. The economy contracted by about 18 per cent in 2020-21, first as a result of COVID-19 and then the February 2021 military coup. This has had far-reaching effects on all aspects of life for most Myanmar people. In February 2022, the International Labour Organization (ILO) described the economic situation in Myanmar as a ‘multidimensional humanitarian crisis’. Agriculture, forestry and fishery account for almost half of GDP and employ two-thirds of the workforce. Other major industries include textiles, tobacco production and food processing. There is a significant shadow economy in illicit drugs, gemstones, human and wildlife trafficking, and illegal logging.
2.9 The economic crisis has led to widespread job losses. While poverty almost halved in the decade following the country’s economic opening in 2005, the World Bank expects it to double again in 2022. An estimated 1.2 million salaried workers lost their jobs in the second quarter of 2021, dozens of factories shut, and the informal sector (which employs 83 per cent of workers) was also heavily affected. Poverty rates have increased significantly since the coup, with UNDP estimating a rise from 24.8 per cent of the population in 2017 to up to 48.2 per cent by mid-2022. UNDP ranked Myanmar 147 out of 189 countries in its 2019 Human Development Index, putting it in the medium human development category. The World Bank ranked Myanmar 165 out of 190 countries for ease of doing business, but this was prior to the coup.
2.10 Spending on social welfare programs increased eleven-fold between 2011 and 2018, but still accounts for only 0.5 per cent of the national budget, very low by regional standards. Myanmar has had two main social welfare programs: the Maternal and Child Cash Transfer (MCCT), which provided 15,000 kyats (AUD 11) per month to mothers from pregnancy until their child is 24 months; and the National Social Pension (SP), which provided 10,000 kyats (AUD 8) per month to people over the age of 85. DFAT understands payments under these programs ceased following the coup.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
On the basis of the copy of their Myanmese (or Burmese) passports submitted to the Department, the Tribunal accepts that the applicants are citizens of the Union of Myanmar and that his identities are as claimed. The Tribunal accepts that Myanmar is their ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Third country protection
The Tribunal finds that the claimants do not have the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act and therefore finds that this section does not apply in their cases.
Findings
In this decision, the Tribunal does not intend to make exhaustive findings about the applicant’s critical claims. Generally, the Tribunal found the applicants’ submitted evidence as having overall credibility, although it did detect some embellishments arising from the oral evidence provided by the applicants during their interview with the Department and as outlined in the decision record. The Tribunal has also reasons to believe the applicants did not have any urgent or deeply held fears of being person of interest as they had travelled to [Country 1] and returned to Myanmar in the months before leaving for Australia and because they were not apprehended on any of their departures or as returnees.
Based on the Tribunal’s overall finding about claims as not lacking in credibility, the following is accepted:
·     The first applicant was born in [year], and the second applicant was born in [year]. Both were born in Kayin State and that they both belong to ethnically Karen families.
·     The Tribunal accepts that the first applicant is from [Village 2] in Myanmar’s Kayin State, and that the second applicant is from XXXX
·     The applicants are ethnically Karen and that they speak, read and write Burmese.
·     The applicants began a de facto spousal relationship in 2014; that they were formally married in 2018, as claimed
·     They are the biological parents to one child, a son who is residing with his paternal grandparents in Myanmar; and
·     The applicants have limited education with the first applicant completing secondary school and the first applicant completing primary school

According to the decision record, the applicants have provided mutually unsupportive accounts about relocation to Mawlamyine in neighbouring Mon State in their written evidence and during their interview with the Department. The Tribunal concurs the Department’s settled position that the applicants had lived in Mawlamyine between 208 and 2015, before resettling in [Village 1] to operate a business.
The Tribunal also accepts the applicants departed their home state, Kayin State, in early 2019. However, had the applicants genuinely feared the authorities in Kayin State or the general deterioration of the security situation for Karens in their home area, it would be expected that the applicants would not return to that part of Myanmar. Furthermore, it undermined the credibility of the claim that the applicants departed Myanmar due to the ongoing adverse treatment the first applicant received from Myanmar’s armed forces and due to the adverse treatment was shown to many villagers living in Kayin State.
In this context, the Tribunal does not accept either of them had experienced any serious or significant harm based on any actual or imputed political affiliations with any Karen or other ethnically separatist movements who are challenging the unity or integrity of Myanmar, either in Kayin or Mon States. While the Tribunal accepts that the applicants held genuine fears about the concerned about the security situation arising from ongoing armed conflict in Kayin State and holds genuine fears about the general security situation and poor healthcare system throughout Myanmar, including in Yangon and Mawlamyine, it does not accept the applicants genuinely held those fears to any physical maltreatment or any forms of severe discrimination by the authorities based on their political opinion, imputed or otherwise, or were persons of interest to them either at the time of departure or at the time of application.
The Tribunal nonetheless does not accept the claims that one or both of the applicants had been subjected to harassment and threats by criminals or criminal outfits operating within Myanmar as claimed. This is because the country information indicates that the authorities struggle to have direct control over large parts of the county and organised crime is a major problem, with Myanmar being the second largest producer of opium and the largest producer of methamphetamines. Accordingly, the Tribunal has provided the applicants the benefit of its doubt that their plausible claims about past threats and beatings to be genuine. However, in this decision, it places little weight on these incidents in determining a favourable outcome under the Act’s refugee criteria.
Ethnicity claims
As mentioned above, the Tribunal accepts that the applicants are ethnically Karen.
The most recent 2022 DFAT report states the term Karen encompasses an ethnically and linguistically diverse group of Tibeto-Burman-speaking ethnicities that make up an estimated 7 per cent of Myanmar’s population (around 5 million people). Sub-groups include Sgaw, Pwo, Bre, Padaung, Yinbaw, and Zayein. Karen primarily reside in the southeastern border region of the country, particularly Kayin State, Tenasserim Division, eastern Bago Division, Mon State and the Irrawaddy Division.
Notwithstanding the applicants facing any chances or risks of harm as forced returnees, the Tribunal has considered whether the applicants have a well-founded fear of persecution arising from their Karen ethnicity, and whether there are substantial reasons they will suffer a real risk of significant harm for the same reason.
The applicants’ home area is Kayin State.
The Tribunal notes the delegate relied on the earlier April 2019 DFAT country information report about the security situation in Kayin State indicating a relatively peaceable period between Karen armed groups and the Myanmese authorities. The report noted that ‘[p]arts of northern and southern Karen State are primarily controlled by EAOs (the KNU and NMSP [New Mon State Party] respectively)’. The Karen living in Kayin state are reported to be generally able to access services, although this was restricted during periods of active conflict. Basic services, including health and justice, were ‘provided through parallel structures of government and non-state actors, however there has been greater cooperation in some sectors’. The DFAT report also indicates that the use of both the KNU and Myanmar government land governance systems in Kayin state causes complexity that increases local community vulnerability to land confiscations. Also, major infrastructure development projects supported by both the government and the KNU, including road construction and hydropower dams, had ‘the potential to increase land tenure insecurity and community displacement in Kayin State’. DFAT assessed that Karen in Myanmar faced ‘a low risk of official and societal discrimination on the basis of their ethnicity’. Karen living in Kayin State faced ‘a low risk of forced displacement or violence due to both outbreaks of conflict and development projects’.
The most recent DFAT report indicates a deteriorating situation towards ethnic minorities for the Karens from Kayin State since the early 2022 military coup:
3.19 Parts of northern and southern Kayin State are primarily controlled by ethnic armed organisations, in particular the KNU/KNLA (see Armed Groups). Conflict between the military, KNU/KNLA and other ethnic armed organisations since 1984 has led to approximately 90,000 Karen seeking protection in Thailand (see Conditions for Returnees), and there have been further mass movements in response to violence since the 2021 coup (see Security Situation). Military air raids in Kayin State in March and April 2021 destroyed KNU/KNLA military infrastructure, but also homes, schools and public buildings, and displaced an estimated 40,000 people. There are numerous reports of soldiers committing human rights violations in Kayin State, including killing livestock and extorting villagers for money and food, as well as carrying out arbitrary arrests and torture. Sources told DFAT around 400 Karen had been subjected to arbitrary arrest since the coup.
3.20 Prior to the coup (and COVID-19), Karen living in Kayin State could generally access services, including health, education and justice, provided through parallel structures of government by the KNU, as well as by NGOs. Many of these services have since been disrupted by conflict, including schools and clinics. Sources told DFAT that Karen living outside areas under ethnic armed organisation control were usually able to access government services provided they had the necessary identity documents, which they were generally able to access ‘if they speak good Burmese’. The same sources told DFAT that ‘many’ Karen were employed by the government, including as school teachers and health workers, although they faced similar barriers to promotion as other non-Bamar ethnicities. For instance, a Karen policeman was reportedly forced to pay a bribe to change the ethnicity and religion listed on his identity card from Karen Christian to Burmese Buddhist in order to secure a promotion.
3.21 DFAT assesses that Karen living in Kayin State face a moderate risk of state violence and displacement on the basis of perceived or actual association with armed resistance groups. Outside the ethnic armed organisation-administered areas of Karen State, Karen face similar risks of societal and official discrimination to other non-Bamar ethnicities.
The DFAT’s current assessment for Karens living in Kayin State is of grave concern to the Tribunal. The Tribunal accepts that that the applicants face a real chance of serious harm for the essential and significant reason based on their ethnicity, should they return to their home area of Kayin State now or into the foreseeable future.
As the ‘real risk’ test is the same standard as the ‘real risk’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention/s 36(2)(a) definition provisions: MIAC v SZQRB,[1] it follows the applicants have a real risk of significant harm arising from her ethnicity should they return to their home area.
[1] MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Immigration, PAM3 ‘Complementary Protection Guidelines’, section 32, as re-issued 21 May 2015. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department of Immigration and Citizenship which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s.36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (Riethmuller FM, 31 January 2013) (upheld on appeal in MZYXS v MIAC [2013] FCA 614 (Marshall J, 21 June 2013)) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
However, the country information about relocation for Karen and other ethnic minorities indicted that such resettlements while challenging or complicated, including to large cities such as the national capital of Yangon or Mawlamyine in Mon State where the applicants had resided for a period of time without any significant incident involving the authorities. The country information in the most DFAT report states:
5.17 Article 355 of the Constitution protects the right of citizens ‘to settle and reside in any place within the Union of Myanmar according to law’. Nevertheless, people in Myanmar face a variety of restrictions to their freedom of movement. In the past, these primarily applied to areas with active conflicts, for instance Rakhine State, but now much of the country is impacted by movement restrictions of various kinds. Authorities imposed repeated lockdowns across the country following the outbreak of the COVID-19 pandemic in 2020. Following the 2021 coup, authorities increased the number of security checkpoints in cities and on major roads. In February 2021, the military regime amended the Ward or Village Tract Administration Law (2012) to require people to report all overnight guests to their homes, a requirement that was previously removed in 2016. Failure to comply can attract a fine or imprisonment.
5.18 People attempting to relocate within Myanmar face a range of barriers depending on their personal circumstances. Some members of minority ethnic groups do not speak Burmese, which can make relocation to Burmese-speaking areas difficult. Relocation is also challenging for people without significant financial resources or existing networks of family and friends in the location they are moving to. Single women often find it particularly difficult to relocate, in part due to a lack of employment opportunities, especially since the economic crisis brought on by the coup and COVID-19. Since the coup, large numbers of people have fled to areas controlled by ethnic armed organisations to escape arrest for anti-regime activities including protests and participation in the Civil Disobedience Movement. This has led to increased conflict between ethnic armed organisations and the Myanmar military in these areas (see Security Situation).
The Tribunal does not intend in the decision to make exhaustive findings in relation to the applicants facing a real or appreciable chance of persecution relates to all areas of a receiving country in accordance with s 5J(1)(c); or whether it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm, as required by s 36(2B)(a); as it arises based on the applicants’ accepted ethnicity as Karen.
That is because it has considered the applicants to satisfy the refugee criteria under another nexus reason mentioned under s 5J(1)(a).
Suffice to say, in regard to their claims about their ethnicity, the applicants do not have a real chance of persecution relating to all areas of Myanmar and it would be reasonable for them to relocate to another area of their country outside of their home area.
Accordingly the applicants do not meet the criteria under either ss 36(2)(a) or 36(2)(aa) arising from being Karen. As mentioned below, it does not discount their accepted ethnicity as being relevant to their claims as being forced returnees.
A well-founded fear as a failed asylum seeker or forced returnee
It is salient that should the applicants not be granted a protection visa, there is a real chance she will be required to return to Myanmar in an involuntary manner.
Accordingly, the Tribunal has considered whether the applicants face well-founded fears of serious harm for the essential and significant reason that each of the applicants have a membership of a particular social group, namely as failed asylum seekers or forced returnees.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. This provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal finds that being a failed asylum seeker returning from Australia to Myanmar is a particular social group as defined by s 5L as the characteristic of being a someone who has applied unsuccessfully for a protection visa in Australia is shared by each member of the group and the applicant share this characteristic. Further, the characteristic is an innate or immutable characteristic, and the characteristic distinguishes the group from society. The Tribunal is satisfied that the characteristic is not a fear of persecution.
The Tribunal accepts that the asylum seekers who have not been successful and are forced to returned to Myanmar hold as membership of a particular social group, and it accepts that the applicants hold such a membership. In considering nexus reason outlined under s 5JJ(1)(a) of the Act, the Tribunal finds there is a related or overlapping nexus reason arising from the applicants’ political opinion, imputed or otherwise.
In the current circumstances it is reasonably likely that, as failed asylum seekers, the Myanmar authorities would assume the applicants have criticised the current regime in Myanmar as part of their protection claims even though the authorities would not be aware of the specific details of their claims, and they would be imputed with anti-regime political opinions. In particular, the applicants’ imputed political opinion is heightened for two reasons.
The first is the considerable time spent in a Western country, namely Australia. The country information – set out below – strongly indicates that links to a Western country who have imposed international and other sanctions on the current military leadership of Myanmar attract adverse attention for returnees.
The Tribunal accepts, however, that the applicants’ accepted ethnicity as Karen from Kayin State is the second notable or significant heightening or relevant factor leading the applicants to holding well-founded fears of persecution as a failed asylum seeker, should they be forcibly returned to Myanmar.
In the delegate’s decision record, the country information from DFAT it relied upon pre-dated the February 2021 coup in Myanmar. The April 2019 DFAT report for Myanmar discussed DFAT’s awareness of aware of a small number of voluntary returnees entering Myanmar via international airports during 2017 and 2018, but has not received reports of questioning of or adverse treatment towards returnees by government officials following their return to Myanmar.[2] According to the 2017 UK Home Office[3], Myanmar nationals do not require a passport to enter/return to Myanmar, and instead may do so using a Certificate of Identity obtainable from Myanmar embassies. There are circumstances in which Myanmar nationals could be imprisoned, but that is in the case when not only do they not hold a valid passport but are also unable to obtain any other relevant documentation.
[2] DFAT Country Information Report Myanmar', Department of Foreign Affairs and Trade, 18 April 2019, 20190418091206
[3] Country Policy and Information Note – Burma: Critics of the Government’, UK Home Office, March 2017, OG6E7028817, para 3.1.6, pp. 8 and 31
The current DFAT Report contains the country information which points to a substantial deterioration for political dissent and forced returnees in Myanmar. In relation to political opinion (actual or implied), the current DFAT report states the following:
3.44 As a result of the February 2021 coup, Myanmar is a military dictatorship, controlled by the State Administration Council (SAC) headed by Commander in Chief Senior General Min Aung Hlaing. The SAC has promised to hold elections in 2023 (see Political System). The 2008 Constitution, technically still in effect as of October 2022, describes the political system of Myanmar as a ‘genuine, disciplined multi-party democratic system’, but since the coup all state power is concentrated in the hands of the SAC. Under Sections 404-406 of the Constitution, political parties theoretically have the right to form, organise freely and participate and compete in elections. Likewise, freedom of expression, association and peaceful assembly are theoretically guaranteed under Section 354 ‘if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality’. In practice, these rights and freedoms were not always respected before the military takeover and have been routinely violated since. …
3.47 Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in anti-regime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest). Sources in Yangon told DFAT they had experienced random police searches of their homes and vehicles, some on multiple occasions. Police also make random checks for anti-regime content on individuals’ mobile phones, leading some people to carry a second ‘politically clean’ phone as a precaution. Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition. …
3.51 DFAT assesses anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.

On conditions for returnees, the same DFAT states:
5.25 DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries (see Political Opinion), a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.
The Tribunal also has had regard to other sources, namely, the Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on Situation of Human Rights in Myanmar since 1 February 2022 (issued on 2 March 2023). The OHCHR report, which describes the situation as ‘catastrophic’, states:
69. The overall human rights situation in Myanmar during the second year since the military coup has worsened, with multiple serious violations occurring daily across the country. People throughout the country are exposed to continuing violations of their rights and to crime, including killings, enforced disappearances, displacement, torture, arbitrary arrests and sexual violence. There are reasonable grounds to believe that the military and its affiliated militias are responsible for most of such violations, some of which may constitute crimes against humanity and war crimes.
70. Forces opposing the military have also committed human rights abuses, in particular in the targeting of non-combatant officials, their family members and others whom they believe to be assisting the military in some way. Violence directed at civilians violates basic principles of human rights and, where applicable, international humanitarian law. While reports of abuses have increased, they are not grounds upon which to justify the unlawful actions of the military perpetrated in the name of “anti-terrorism”, nor are they comparable in scale and breadth to violations committed by the military.
DFAT’s assessments that the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition is supported by other recent sources. The report strong invites the Tribunal to consider that the risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar, to be high. The Tribunal accepts the relevant country information’s assessment as compelling and applicable to the applicants’ current circumstances whereby if the applicants returned to Myanmar in the foreseeable future, they would encounter a real chance of serious harm for this reason.
The Tribunal is satisfied that the applicants’ subjective fears being persecuted on arrival as a forced returnee if she returns to Myanmar are genuinely, deeply and urgently held. Objectively speaking, the Tribunal assesses that the chances of persecution are neither remote nor far-fetched. They are real and substantial, should the applicants return to Myanmar in the reasonably foreseeable future.
The Tribunal is satisfied that the persecution will be directed at the applicants for the essential and significant reasons of his membership of the particular social group comprising failed asylum seekers returning from Australia to Myanmar and an imputed anti-regime political opinion, it involves serious harm to the applicants and involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicants and a threat to his life or liberty.
Given it is the Myanmar State that is the agent of persecution in this case, the Tribunal is satisfied that protection against persecution will not be foreseeably provided to the applicants by the Myanmar State and that the Myanmar State is not willing and able to offer such protection. On this basis, the Tribunal finds that effective protection measures are not available to the applicants in Myanmar.
As the real chance of persecution will occur on arrival as forced returnees, it is not relevant whether there is a real chance of persecution as it relates to all areas of Myanmar through relocation.
The Tribunal finds that the applicants are outside the country of their nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. Accordingly, the Tribunal finds that the applicants meet the definition of refugee in s 5(H)1 of the Act.
As the applicants meets the definition in s 5H(1), the Tribunal is satisfied they are persons in respect of whom Australia has protection obligations under s 36(2)(a).
In light of the Tribunal’s findings above, it is not necessary for the Tribunal to consider the detail of the applicants’ any other substantive or residual claims in their protection visa application.
As mentioned above, the applicants do not have the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.
Conclusion
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations.
Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Brendan Darcy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4165

6 September 2023

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