2206611 (Refugee)

2206611 (Refugee) [2023] AATA 4316 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Philip Alan West (MARN: 1680879)
CASE NUMBER:  2206611
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Brendan Darcy
DATE:12 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 12 September 2023 at 9:13am
CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – past harm incidents – credibility concerns – delay in applying for protection – sur place activities in Australia – participation in anti-military regime protests – lack of corroborating evidence – February 2021 military coup – particular social group – failed asylum seekers – imputed anti-regime political opinion – considerable time spent in a Western country – risk of official harassment, arbitrary detention and violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 dependant.

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 29 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Union of Myanmar (Myanmar) which was formerly the Union of Burma, applied for the visa on 25 January 2018. The delegate refused to grant the visa on the basis that the available information and the country information did not support the applicant holding a real chance of serious harm or a real risk of significant harm based on the applicant’s political opinion or being a failed asylum seeker or any other claimed basis.
For the reasons set out below, the Tribunal has decided that it is not necessary to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case. This is because the Tribunal considers that it can decide the review in the applicant’s favour based on the material before it.
The applicant was represented in relation to the review.
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 applicant has 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 applicant being removed from Australia to his receiving country of Myanmar, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant was born on [date] in Yangon, the capital city of Myanmar.
On the Departmental file ([number]) is a digital copy of the applicant’s Myanmese passport set to expire [in] 2024.
The applicant arrived [in] April 2019 while holding a Class TU Subclass 500 student visa.
On 14 April 2021, the applicant applied for a Class XA Subclass 866 protection visa by lodging an online protection visa form.
Below is a summary of those claims contained in the application form:
·     In year 2017, the applicant had been doing online business as a part time job to earn extra income. The business was growing smoothly withing the Myanmese market
·     The business allowed him to reach out to Rohingya. The Rohingya he met were from ’different classes in society (Islamic)’ and he learned from their stories how unfairly the Myanmese government treated them.
·     The applicant felt he should do something, so he started to post some pictures he took from Rohingya customers along with comments;
·     Unfortunately, the police found out;
·     From early 2019, all internet accounts in different websites were blocked which prevented the applicant from posting more pictures or comments. The authorities even came to the applicant to warn him that if he continues posting similar provocative material on his website, he will be jailed;
·     But the applicant found official media did not report the unfair and racist treatment of Rohingya, so he decided to post material on the internet;
·     After two weeks, the police attended the applicant’s home to arrest the applicant. The applicant was placed into jail for around ten days;
·     Because of this unfair treatment towards the applicant, he decided to move overseas to prevent the government arresting him again;
·     The applicant applied for an Australian student visa to obtain the Australian government’s help; and
·     The applicant was not able to relocate to any safer areas within Myanmar.
The applicant claimed in his protection form that his religion is Buddhist; his ethnicity is Burmese (Bamar) and that he can speak, read and write in the Burmese and English languages. The applicant also claimed never to have been married.
No documents were submitted to substantiate the applicant’s written claims.
The applicant attended a protection visa interview with a Departmental official on 19 August 2021. At the interview, the applicant explained that his delay in applying for a protection visa was prompted by the military coup in February 2021.
A delegate acting on behalf of the government refused to grant the protection visa on 29 April 2022.
The Tribunal noted the delegate described the applicant as a witness who ‘struggled at the interview to provide an explanation for the inconsistencies between his written statement and the evidence he provided at the interview about his activities and experiences in Myanmar’. In particular the delegate highlighted the following (extract):
‘During the interview my focus was on the current situation (in Myanmar) so I forgot about mentioning the past.’ I am not convinced by this explanation as the applicant made claims at the interview about ‘criticising’ the military in 2018 (while he was in Myanmar) for their actions involving places of worship and monks (as discussed further below). He was also asked several times throughout the interview about his experiences in Myanmar and was given amble opportunity to discuss all of these experiences, as well as his activities in Australia.
There has been a ‘misunderstanding’ about whether he was detained in Myanmar. He stated that he meant to say in his written statement that the authorities tried to detain him for his online activities but he managed to flee and was in hiding for 10 days. I am not persuaded by this explanation as the applicant’s written statement clearly indicates that the police arrested him and he was ‘put…into the jail around 10 days.’10 I note his claims about having to hide from the authorities while he was in Myanmar further contradicts his claims about having not personally experienced any issues with the authorities prior to his departure.
He experienced a language (or ‘English fluency’) issue at the time he prepared his application. Consequently, he sought assistance from ‘other people’ and this resulted in ‘mistakes’ in his application. While I acknowledge that some inconsistencies can be explained by language barriers, given the significant difference in the applicant’s written and oral claims, I am not convinced that these can be explained solely by ‘language issues.’ It appears that the applicant’s written claims were prepared on his behalf and are not an accurate representation of his experiences in Myanmar.
The delegate also noted no corroborating material was submitted, including for claimed sur place activities in Australia, namely the applicant’s participation in anti-military regime protests, that had been advanced during the interview.
The applicant applied to have the delegate’s refusal decision reviewed by the Tribunal on 6 May 2022 with a copy of the notification of the decision and the decision record attached.
The applicant made a duplicate application on 13 May 2022. This matter was numbered AAT 2207000. The applicant was informed that this application was not valid. On 26 June 2022, the application for review numbered 220700 was withdrawn.
No further information was received.
As mentioned above, the Tribunal did not require a scheduled hearing to proceed with its decision-making duties on this occasion. The available country information arising from the most recent DFAT country information report on Myanmar has been critical in reaching this decision.
Country information
According to the most recent DFAT country 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 his Burmese or Myanmese passport submitted to the Department, the Tribunal accepts that the applicant is a citizen of the Union of Myanmar and that his identity is as claimed. The Tribunal accepts that Myanmar is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Third country protection
The Tribunal finds that the applicant does 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 his case.
Findings
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees, ‘Handbook on Procedures and Criteria for Determining Refugee Status’, Geneva, 1992, at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal accepts the applicant was born in [year] in Yangon as claimed, and that he is ethnically Burmese and that his faith tradition is Buddhist.
However, the Tribunal is not required to make exhaustive findings about the applicant’s genuine circumstances or adverse credibility findings.
The Tribunal nonetheless concurs with the delegate’s findings that that the applicant’s political opinion claims, and past harm incidents lacked overall credibility. It also concurs that there were insufficient reasons to accept the applicant’s family members were dissenting protesters since the February 2021 coup. Based on the substantial delay in applying for a protection visa of two years, and the general lack of corroborating evidence for sur place activities, the Tribunal finds that the applicant did not have a genuine or deep or urgent fears of persecution at the time of his arrival.
Regardless of these adverse credibility findings, the Tribunal accepts the protection visa’s lodgement occurred in April 2021 occurred soon after the February 2021 military coup and that the deterioration in Myanmar’s human right and security environment prompted him in seeking Australia’s protection obligations. In this regard, the applicant did hold a genuine and urgent subjectively held fear of persecution, should he be required to return to his country of nationality, at the time of application.
A well-founded fear as a failed asylum seeker or forced returnee
Despite the applicant lacking overall credibility, it remains salient that should the applicant not be granted a protection visa, there is a real chance he will be to return to Myanmar on an involuntary basis.
Accordingly, the Tribunal has considered whether the applicant faces a well-founded fear of serious harm for the essential and significant reason that the applicant has a membership of a particular social group, namely as failed asylum seekers or as 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 shares 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 applicant holds such a membership. In considering this, the Tribunal finds there is a related or overlapping nexus reason arising from the applicant’s political opinion, imputed or otherwise.
In the current circumstances it is reasonably likely that, as a failed asylum seeker, the Myanmar authorities would assume the applicant has criticised the current regime in Myanmar as part of his protection claims even though the authorities would not be aware of the specific details of his claims, and he would be imputed with anti-regime political opinions.
In particular, the applicant’s imputed political opinion is heightened for one significant reason: the considerable time spent in a Western country, namely Australia.
Objectively speaking, 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.
In the delegate’s decision record, no explicit findings were made about the applicant facing harm on the basis of holding membership with failed asylum seekers.
At the time of the delegate’s decision, country information from DFAT 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.[1] According to the 2017 UK Home Office[2], 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.
[1] DFAT Country Information Report Myanmar', Department of Foreign Affairs and Trade, 18 April 2019, 20190418091206
[2] 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 indicates 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 applicant’s current circumstances whereby if the applicant returned to Myanmar in the foreseeable future, he would face a real chance of serious harm for this reason.
The Tribunal is satisfied that the applicant’s subjective fears being persecuted on arrival as forced returnee if he 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 applicant return to Myanmar in the reasonably foreseeable future.
The Tribunal is satisfied that the persecution will be directed at the applicant 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 applicant and involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant 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 would not be provided to the applicant 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 applicant in Myanmar.
As the applicant has a real chance of serious harm on arrival, the Tribunal is not required to considered whether that the real chance of persecution relates to all areas of Myanmar.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of that country. Accordingly, the Tribunal finds that the applicant meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person 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 applicant’s any other substantive or residual claims in his protection visa application.
As mentioned above, the applicant does 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 the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 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 4316

12 September 2023

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Statutory Construction

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