1509999 (Refugee)

[2017] AATA 2139

1509999 (Refugee) [2017] AATA 2139 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509999

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Susan Trotter

DATE:17 October 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 October 2017 at 4:43pm

CATCHWORDS

Refugee – Protection Visa – Thailand– Particular social group –Unaccompanied and Separated Children – Vulnerable person – Minor applicant – Domestic violence – Parents deceased – Alternative care – Referral to minister

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 417, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
BZADA v MIC and RRT [2013] FCA 1062
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chan Yee Kin v MIEA (1989) 169 CLR 379
Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Applicant S v MIMA (2004) 217 CLR 387
Appellant S395/2002 v MIMA (2003) 216 CLR 473
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant, [Master A] (date of birth [date of birth]), a protection visa under s.65 of the Migration Act 1958 (the Act).

2. [Master A] was [age] years of age as at the date of the visa application and was [age] years of age as at the date of the Tribunal hearing and will be referred to by his [nickname]throughout the remainder of these Reasons.

3. [Master A], who claims to be a citizen of Thailand, applied for the visa [in] February 2014.

4. The delegate refused to grant the visa on the basis that they were not satisfied that [Master A] is a person in respect of whom Australia has protection obligations pursuant to the Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). Further, the delegate was not satisfied that [Master A] is a person in respect of whom Australia has other protection obligations as provided for in the legislation.

5. [Master A] lodged an application for review of the delegate’s decision in relation to the Subclass 866 visa with the Tribunal on 24 July 2015.

6. [Master A] appeared before the Tribunal on 22 August 2017 to give evidence and present arguments. The Tribunal also heard evidence from [Master A]’s current de facto guardian, [Mr B] (referred to throughout these Reasons as [Mr B]), [Master A]’s half-sister, [Ms C] (referred to throughout these Reasons as [Mrs C] but also known as [alternative name]) and [Master A]’s half-brother, [Mr D] (referred to throughout these Reasons as [Mr D]). The Tribunal was assisted by an interpreter in the Thai and English languages.

7. The Tribunal acknowledges that [Master A] is a vulnerable person as defined in the Tribunal’s Guidelines on Vulnerable Persons and took into account the matters outlined in those Guidelines, as relevant, in conducting the hearing.

8. [Master A] was represented in relation to the review by his registered migration agent.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

RELEVANT LAW

10. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

11.  Relevant legislative provisions are extracted in the attachment to this Statement of Decision and Reasons.

12. As at the date of [Master A]’s visa application, section 36(2)(a) of the Act relevantly provided 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

13.  Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

14. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

15. Section 36(2)(aa) provides that an applicant meets the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).

16.  Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

ISSUES

17.  The issues arising from the Refugees Convention and the relevant provisions of the legislation that are required to be determined by the Tribunal are as follows:

(a)Is [Master A] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?; or

(b)Is [Master A] a person in respect of whom Australia has protection obligations on complementary protection grounds?; or

(c)Is [Master A] a member of the same family unit as a person in respect of whom Australia has protection obligations and that person holds a protection visa of the same class?

18.  The Tribunal also notes that the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

19.  Where an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Credibility

20.  The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, 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. Numerous decisions have endorsed the principle that 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 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.

21.  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.

22.  The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 39:

First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

23.  However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it 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, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.” Nevertheless, as Burchett J counselled, in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], it is necessary to:

… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

24.  The Full Court of the Federal Court in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.” On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed)). In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:

… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

Mandatory considerations

25. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

EVIDENCE AND CONSIDERATION OF CLAIMS

Background

26.  [Master A]’s visa application states that he was born in [location], Surat Thani, Thailand. The visa application was lodged [in] February 2014 stating that [Master A] was seeking protection in Australia so that he did not have to return to Thailand.

27.  Further information provided in [Master A]’s visa application is as follows:

(a)He was born in [birth date]. He speaks, reads and writes Thai and at that time spoke limited English. His religion is Buddhist and his ethnicity is Thai.

(b)He entered Australia on a visitor visa [in] November 2013 on a passport issued in Thailand [in] 2011.

(c)[Master A]’s protection visa application was signed by [Ms E], his then guardian, whom the Tribunal notes has since passed away ([in] 2017).

CLAIMS

28.  [Master A] set out his for protection in his protection visa application form as follows:

Why did you leave that country?

“[Master A] left Thailand so he could come and be with his sister [Ms C] and brother [Mr D] and [Ms E] who is [Ms C] and [Mr D]’s mother. [Master A] had not been going to school and he was very scared of his father [Mr F]. There was a lot of domestic violence between [Mr F] and [Master A’s] mother, both verbal and physical. One night, [Ms C] had to drive the children, [Master A] and his sister [Ms G] with their mother away from the house to the other side of the island for fear of [Mr F].”

Have you experienced harm in that country?

“Yes”

Give details

“[Master A] has experienced harm in that he has seen his mother continually bashed and beaten by his father [Mr F]. His father screamed and yelled at him a lot and he was scared to do the wrong thing because he did not want his father to get angry. [Master A] has experienced a lot of emotional harm and witnessed his father physically abuse his mother on many occasion. He found that very distressing. [Master A’s] mother cannot see properly out of one eye because of where his father had hit her. [Master A’s] sister [Ms G] was also very nasty to him. She hit him and screamed at him all the time.“

What do you fear may happen to you if you go back to that country?

“[Master A’s] father cannot look after him. He takes drugs and alcohol and gambles a lot. His mother also cannot look after him and barely has enough money to look after herself. It would also mean that she would have to be in contact with [Master A’s] father, [Mr F]. When [Master A’s] sister, [Ms C], was trying to get the papers signed for [Master A] to come to Australia she saw [Mr F] [assaulting] [Master A’s] [mother]. [Master A’s] mother told [Ms C] that she needed the papers signed quickly because if she stayed any longer she would die. If [Master A] went back to Thailand he would not get the proper care he needs and deserves. [Ms C] has been the major care giver for [Master A] over the last four years and has protected him as much as she could.”

Who do you think may harm/mistreat you if you go back?
“[Master A] says that he would be subjected to abuse from his father and sister. His father is unpredictable and capable of any manner of violence, abuse and unreasonable punishment. Before [Ms C] came to Thailand [Master A] would often not have food or not be able to go to school.”

Why do you think this will happen to you if you go back?

“[Master A] is frightened of going back. He has told [Ms C] that he does not like living in Thailand and wants to stay here with [Ms C], [Mr D] and [Ms E] where he feels safe, happy and loved. [Master A] is now going to school and is learning, making friends and happy. [Master A] is frightened of going back because he will have no-one to help him and he knows that his mother is unable to help him.”

Do you think the authorities of that country can and will protect you if you go back?
“No, they will not. There is a lot of domestic violence and nothing is done. There is a lot of corruption as well.”

(sic)

29.  As already noted by the Tribunal, whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

30.  Since the date of lodgement of [Master A]’s protection visa application, circumstances have changed significantly such that the claims [Master A] now makes are quite different to those made at the time of his protection visa application. Notably, submissions made on [Master A]’s behalf on 15 August 2017 at hearing include the following information:

(a)[Master A]’s biological father, passed away in Thailand in 2016.

(b)[Ms E], [Master A]’s father’s former wife, who was granted sole parental responsibility for [Master A] by orders of the [Court] in 2015, passed away [in] 2017, only weeks prior to the hearing.

(c)Amended parental responsibility orders are currently being sought by [Ms E’s] partner, [Mr B].

Evidence

31.  The Tribunal had before it a range of documentary evidence, including, relevantly:

(a)[Master A]’s protection visa application forms;

(b)[Master A]’s identity documents including a certified copy of her passport;

(c)The delegate’s decision record dated [in] July 2015;

(d)[Court] Order dated [in] 2015 granted [Ms E] sole parental responsibility for [Master A];

(e)Letter from [name], Clinical Psychologist dated [in] April 2015 providing a psychological and social/emotional assessment of [Master A];

(f)Letter from [name], Principal, [name of school] including, amongst other matters, [Master A]’s attendance at that school as a [pupil];

(g)Letter from [name], Solicitor and personal friend of [Mr B] and [Ms E] dated [in] August 2017;

(h)Letter from Dr [name], Veterinarian with the [name of clinic] dated [in] August 2017;

1. Statutory declaration of [Ms C] dated [August] 2017;

(j)Statutory declaration of [Mr B] dated [August] 2017;

(k)Letter from Dr [name] dated [August] 2017; and

(l)Psychological report of [name], Clinical Psychologist dated [August] 2017.

32.  Additionally, the Tribunal took into account the oral evidence at hearing, which may be summarised as follows:

[Master A]’s evidence

(a)He currently lives with [Mr B], whom he considers to be his step-father, on a small [property] just outside [Town 1] in [State 1, Australia]. He is in [School]

(b)His biological father, who lived in Thailand, passed away last year some time ago. He thinks it was early in the year (2016).

(c)He previously lived in Thailand on the island of [Island 1], off the Thailand mainland, with his biological father and his sister, [Ms G] (who is now aged [age]). His biological mother also lived with them sometimes but not all the time. He attended school when he was living in Thailand.

(a)When he was living in Thailand, one of his aunties lived nearby, his biological father’s sister. He thinks she was married. They have a big family. He thinks his biological father has [family composition]. There are lots of aunties and uncles and cousins.

(b)Both of his biological grandfathers and his biological paternal grandmother have passed away. He has heard from [Ms G] that his biological maternal grandmother was in hospital last year as she was sick. She lived up north in Thailand. He is not sure if she is still alive.

(c)[Ms E] (referred to throughout these Reasons as [Ms E]), who recently passed away, was his biological father’s former wife. From late 2013 when he most recently arrived in Australia, he lived with [Ms E] and her partner, [Mr B], until [Ms E] passed away in July 2017. He considered [Ms E] to be his mum and [Mr B] to be his dad. Since [Ms E] passed away, he continued to live with [Mr B].

(d)Prior to coming to Australia in late 2013, he had also visited Australia one previous time. [Ms C] had brought him to Australia to visit and she had then lived back in Thailand for a few years with the family before coming back to Australia in late 2013, when he also came with her. He has remained in Australia since late 2013.

(e)He, [Ms C], [Mr D] and [Ms G] all have the same biological father.

(f)He and [Ms G] have the same biological mother.

(g)[Mr D]’s biological mother is [Ms E].

(h)He is not sure who [Ms C]’s biological mother is but it is not [Ms E].

1. When his biological father passed away in 2016, his sister [Ms G] and his aunt were at the hospital with him. [Ms C] and [Mr D] also went to visit him before he passed away.

(j)He is not sure where [Ms G] is living now but she goes to school in Thailand. He has had some contact with [Ms G], by telephone, since he arrived in Australia. [Ms G] and [Mr D] are also in contact with [Ms G]. He has not had any contact with his aunties or cousins or any other relatives since arriving in Australia.

(k)[Ms G] is almost exactly [number] years older than him. They got along fine when they lived together, other than just fighting like brothers and sisters do sometimes.

(l)As far as he is aware his biological father’s brother, his uncle, is still alive and living in Thailand but he does not know anything else about him. He has not had any contact with his uncle since coming to Australia. He just remembers seeing him when he was a kid living in Thailand but he did not see him much because his biological father and his uncle did not get along. He does not know if his uncle has any children.

(m)He does not know anything about money or money arrangements that may have been made for him in the family. He just knows that [Mr B] looks after things now.

(n)He has not spoken to anyone nor does he have a view as to what might happen to him in the future. He does not want to return to Thailand. He considers Australia his home and he likes going to school here. He has been going to school in Australia since he arrived in late 2013.

(o)If he had to return to Thailand, he is scared of getting bullied at school because he would not know how to read or write in Thai anymore. If he did have to go back to Thailand he thinks the most likely think would be that he would live with [Ms G] but he just does not know. He does not think there are any aunties or cousins he could live with. He is not really sure.

[Mr B]’s evidence

(p)His understanding is that [Ms C] is the daughter of [Master A]’s biological father from a previous relationship to his marriage to [Ms E].

(q)When [Ms C] was living in Thailand in 2011, she came back to Australia to visit and brought [Master A] for a holiday. In late 2013, [Ms C] then moved back to live in Australia and brought [Master A] with her. [Ms C] had previously returned to live in Thailand so that she could care for [Master A]. [Master A]’s biological father had suffered some illness and [Ms E] had some concerns about the level of the care that was being given to [Master A] and [Ms G], where they were living and how where they were living. [Ms C] went back to Thailand and stayed for quite some time to look after them.

(r)His understanding is that living with [Master A]’s biological father was not always easy and [Ms C] was missing Australia and wanted to move on with her life so she returned to Australia in late 2013. [Ms C] had discussions with [Ms E] about brining [Master A] back with her. He does not know what the intention was at the time as to how long it was intended [Master A] would stay in Australia. He thinks [Ms G’s] circumstances at the time were that she was helping to look after her father and that is why she did not come to Australia.

(s)[Ms G] visited Australia for a number of weeks about 18 months ago. To the best of his knowledge, [Ms E], [Ms C] and [Mr D] had been providing funds for [Ms G] to attend a boarding school in Thailand on the mainland following the passing away of [Ms G’s] father. From what he can gather it has been a bit of a rocky road with [Ms G]. He thinks the current position is that the school does not want her back and that she is arranging to go to live with someone else in Bangkok.

(t)To his knowledge [Ms C] and [Mr D] in particular have been the ones that have remained in contact with [Ms G] because they were concerned about where she was living.

(u)Other than [Ms G], he is aware that [Master A]’s biological father has some sisters who live on [Island 1] but he does not have details about them.

1. He has no knowledge of [Master A]’s mothers or her whereabouts. He and [Master A] have had some conversations about his biological mother and talked about situations in [Master A]’s life. [Master A] has disclosed to him that he thinks his biological mother is an [addict] and he does not believe his biological mother is in a position to look after him. She was absent from the family most of the time when he lived in Thailand.

(w)[Ms E] made an application for guardianship of [Master A] through the [Court] and that was granted. That order now needs to be updated and he is seeking guardianship.

1. [Master A] has been living with him at his home since he arrived in Australia in November 2013.

(y)When [Ms C] returned to Australia in 2013, she was seeking employment and then moved to [City 1]. [Ms E] and he felt it was in [Master A]’s best interests that he stay with them in [Town 1], and they all held concerns about the level of care that would be provided to him, and the circumstances in the family home including because of domestic violence issues, if [Master A] returned to Thailand. Subsequently, [Master A] has lived with him (and with [Ms E] prior to her recent passing) in [Town 1] since 2013. They have a very good relationship.

(z)They have had to think about what would happen if [Master A] returned to Thailand. [Ms E] was quite ill over the last couple of years prior to her passing away in [2017]. He made a commitment to her to do whatever he could to look after [Master A]. His former wife left him at short notice overnight and he therefore does not have his own children with him. That was in the early 2000s and he through anxiety and depression related to that, and has also endured the recent loss of [Ms E], which has been a very traumatic event in everyone’s lives, including for [Ms C], [Mr D] and [Master A]. He considers [Master A] like a son and is committed to caring for him as a son.

(aa)In the worst case scenario, if [Master A] did have to return to Thailand, he does not know of anyone [Master A] could live with. [Ms G] is a very immature girl, as he was able to observe when she visited last year. He was a [occupation] for many years and even though [Ms G] is soon to turn [age], his observation is that she is very immature and he does not consider she could adequately care for [Master A].

(bb)He has no contact with anyone of [Master A]’s relatives in Thailand and that is not an option that has been investigated.

(cc)If [Master A] did have to return to Thailand, they would have to consider the possibility of someone in the family here going there with him but at this stage he has not had that conversation with [Ms C] or [Mr D]. [Ms C] and [Mr D] are both settled in their employment and in relationships in [City 1]. It would be a huge ask for them to return to Thailand. [Ms C] had previously done that and lived in Thailand for a number of years to look after [Master A] and on that occasion it was at a fair cost to her own growth and development.

(dd)His financial circumstances are that he has a [description of property]. [Master A] provides help on the [property] as he himself has had a bad back for years so he relies upon [Master A] to help him with heavy objects. He is still working as [occupation]. The [property] is his home.

(ee)To his knowledge, since [Master A] arrived in Australia in November 2013, his biological father did not provide any financial assistance. [Ms E] took on all of that responsibility.

(ff)With the passing of [Ms E], he feels he has a moral obligation and responsibility to care for [Master A]. He treats [Master A] as a son. He means a lot to him. He has lost a lot in life and has been though some very difficult times, as has [Master A]. [Master A] and he provide emotional support to each other.

[Mr D]’s evidence

(gg)[Mr D] was born in [State 1, Australia]. His mother is [Ms E]. He has the same biological father as [Ms C], [Ms G] and [Master A]. He lived in Thailand from the age of about [age] until he was about [a number of years later]. [Ms C] has a different mother but [Ms E] always acted as [Ms C’s] mum. He and [Ms C] are [number] apart in age.

(hh)He is now [age] years of age and has had many visits to Thailand since he was [younger]. He initially would stay in the house [Ms C] was renting. When [Ms C] first returned to Thailand, she rented a house on [Island 1] so that the family could live there together. He thinks previous to that [Master A] and [Ms G] had been living in quite primitive circumstances with their father.

1. They do have family in Thailand in the local area of [Island 1] but it is quite confusing as to who are actually family and who are friends. Friends are sometimes also referred to as uncles or cousins.

(jj)When [Ms C] returned to Australia in late 2013, he thinks his father got his own place and lived there with [Ms G]. [Master A] may have had some contact with their father and [Ms G] after he came to Australia but it was not a lot.

(kk)His father passed away in [2016]. [Ms C] and he made it back to Thailand to visit him two days prior to him passing away.

1. He does not think it would be at all practical if [Master A] had to return to Thailand. It has not even been discussed because they do not think this would be the best for [Master A].

(mm)If [Master A] did return to Thailand, he would only be able to stay with their sister, [Ms G]. He and [Ms C] are currently sending her money and looking after her at boarding school. There is way she would be capable of looking after [Master A] as well. She boards full-time and prior that had been staying at [Island 1] with friends.

[Ms C]’s evidence

(nn)She was born in Thailand and first came to Australia when she was aged [age]. Her father later returned to Thailand and his relationship with [Ms E] came to an end. From about the age of [age], she and [Mr D] started visiting their father in Thailand.

(oo)She is an Australian citizen. In 2010/2011 she went back and lived in Thailand for about three and a half years. She went back to help her father look after [Ms G] and [Master A]. Their living arrangements before she went over were that they were living in a shack [description of location]. When she and her partner went to Thailand, they rented a house for all the family to live in. She had to come back to Australia to get work and her father could not care for [Master A] so she brought him to Australia with her when she returned in late 2013. [Ms G] remained in Thailand with their father and they rented another smaller place. She sent them money from Australia and her father may have also had some money from some land he sold but she also needed to send them money. Throughout the years she lived in Thailand they may have seen [Master A]’s biological mother on one occasion for a few hours.

(pp)In [2016], she and [Mr D] learned that their father was not well. They got a message on Facebook from someone and they made it back to Thailand to see him before he passed away.

(qq)There are relatives on the island of [Island 1], aunties, uncles and cousins, but they do not have much contact with them. Most of them are quite a bit older than her.

(rr)She has contact with [Ms G] by Messenger. She does also have some contact with her father’s [sister’s] daughter. She is married and is [personal details]. She and her family live with her mother, [Ms C]’s aunty.

(ss)They have not really discussed what will have if [Master A] is not able to stay in Australia. All her aunties are quite old. She does not think he will be able to be looked after in the same manner as they look after [Ms G]. She doubts that [Master A] would be able to fit back in to the school system in Thailand. He was already struggling at school in Thailand before he came to Australia. [Master A] did go to an international school when he was in Thailand but that only lasted for less than six months.

(tt)She did see [Master A]’s biological mother at her father’s funeral. She does not consider that [Master A]’s biological mother has any capacity to look after [Master A]. [Master A] has not had any contact with her for many years.

(uu)Immediately following her father’s death, [Ms G] stayed with their aunty and they then arranged for [Ms G] to commence at boarding school on the mainland. [Ms G] may have been back to the island once or twice since but she is not sure where she stayed. [Ms G] has a little apartment on the mainland near the boarding school that [Ms C] and [Mr D] pay for. They have been paying for [Ms G] to attend boarding school but she has not really been attending school and she is pretty sure [Ms G] is about to be kicked out. It is undecided what [Ms G] would then do.

1. She does not think [Master A] would be able to stay with her aunt, her father’s oldest sister, the only relative she is in contact with, because they only have a one bedroom place for the aunt, her daughter and her partner and their soon to be born baby. [Ms G] had previously stayed with this aunt for short periods but with her cousin and her partner and soon to be born baby now also living there, there is no room for anyone else now.

(ww)She does not think [Master A] would be able to attend boarding school in Thailand because he no longer knows the language. Whilst he has now assimilated to life and school in Australia, it would be very difficult for him to go back to Thailand at his now age, and have to do that again.

SUBMISSIONS

33.  Submissions made include as follows:

(a)[Master A]’s biological mother is unable to be located and/or lacks the capacity to care for him, which places [Master A] in the category of Unaccompanied and Separated Children. Country information suggests that Unaccompanied and Separated Children (UASC) in Thailand may be at risk of harm.

(b)The UN Committee on the Rights of the Child (the Committee) defines unaccompanied children (also called unaccompanied minors) as “children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so”.

(c)[Master A] has been outside his country of habitual residence for the past five years and consequently the existing family and community connections that may have once provided ancillary care or support would be highly likely to be unavailable to him.

(d)Given this context it is highly like that [Master A] will need to be placed in Alternative care. UNICEF define alternative are as: “care for orphans and other vulnerable children who are not under the custody of their biological parents. Save the Children states:

“Residential care or institutionalisation of children refers to the placement of a child in a Residential Care Institution (RCI) in order to access any kind of service. Residential care institutions are often referred to as orphanages, shelters or children’s homes/ village/ centres. Child protection stakeholders prefer the term ‘residential re institutions’, as ‘orphanage’ incorrectly implies that resident children are orphan and have lost one or more parents.”

(e)Accordingly, it is highly likely that [Master A] would be placed in an alternative are arrangements, and given the evidence lack of extant carers in his immediately family in Thailand, would likely be placed in an RCI, which places [Master A] at risk of harm associated with these facilities. (Details of the harm alleged to be associated with RCIs are extracted in the submissions with reference to country information).

ISSUES

Issue 1 – Is [Master A] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?

34.  The High Court has considered the Convention definition of refugee in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.

35. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.

36.  There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition, that is, for reason race, religion, nationality, membership of a particular social group or political opinion. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear.

37.  Subsection 91R(1)(b) of the Act provides that the persecution feared must involve serious harm. The Tribunal finds that [Master A] is a citizen of Thailand based upon his passport and will assess his claims on that basis. The Tribunal also finds that [Master A] is outside his country of nationality, Thailand.

38.  [Master A]’s evidence was that he does not know what will occur if he returns to Thailand other than he thinks he will be bullied and teased at school because he does not speak Thai. [Ms C]’s evidence was that she does not think [Master A] will be able to fit back in to the school system in Thailand. It was submitted on [Master A]’s behalf that if he returns to Thailand he will be UASC. The Tribunal notes and accepts, as submitted, that the UN Committee on the Rights of the Child defines Unaccompanied and Separated Children as “children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so”.

39. The Tribunal recognises that [Master A]’s circumstances are not uncomplicated. His biological father passed away in [2016]. The Tribunal accepts that his biological mother is likely unable to care for him and may not be able to be located. She has had little if any contact with [Master A] for many year. [Ms E], who was granted sole parental responsibility for [Master A] by [a Court] in 2015, passed away in [2017]. [Mr B], [Ms E]’s partner, is currently seeking new orders in his name. [Mr B], [Ms C] and [Mr D] are the only caregivers now living who have provided care to [Master A] for many, many years. [Mr B], [Ms C] and [Mr D] all live and work in Australia. [Master A]’s sister, [Ms G], who lives in Thailand has only just turned [age] years of age and it is doubtful whether she would be capable of caring for [Master A]. Whilst [Master A] has extended family, aunts, uncles and cousins in Thailand, the Tribunal accepts that he has had little if any contact with any extended family for many years. Further, the Tribunal accepts that an aunty who had previously provided some care for [Ms G] is likely unable to provide any care for [Master A] given the changing circumstances in her family.

40.  The Tribunal accepts that [Mr B], [Ms C] and [Mr D], the adult caregivers in [Master A]’s life, have not discussed what might eventuate if [Master A] is required to return to Thailand. However, the Tribunal, having had the benefit of hearing evidence at hearing from each of them, does not consider that if [Master A] returned to Thailand he would be an Unaccompanied and Separated Child. Rather, the Tribunal is satisfied that [Mr B], [Ms C] and [Mr D] would make arrangements as necessary for the continuing care of [Master A], whether at boarding school (as has been arranged for [Ms G]) or by one of them going to Thailand to care for him. The Tribunal accepts that these options are not what the family desires nor necessarily are in the best interests of [Master A]. However, the Tribunal is not satisfied that [Master A] would be an Unaccompanied and Separated Child, and finds accordingly. Further the Tribunal is not satisfied that [Master A] would be subject to institutionalisation at a Thai institution for Unaccompanied and Separated Children, or otherwise. Rather, the Tribunal is satisfied that other arrangements, whether at boarding school or care by a non-parent family member, would be arranged for [Master A]. The Tribunal also finds that [Master A] would not be an unaccompanied child subject to institutionalism.

41.  Having considered [Master A]’s claims, both individually and cumulatively, the Tribunal is not satisfied that [Master A] has a well-founded fear of persecution for reasons of any particular social groups, particularly Unaccompanied and Separated Children or Unaccompanied Child not in the Care of Parents Subject to Institutionalisation or any other particular social group.

42.  It is not claimed that [Master A] fears harm for any other Convention reason, including race, religion, nationality or political opinion, nor is there any evidence before the Tribunal to suggest such a claim. In this regard,

43.  As regards [Master A]’s initial claim of fearing family violence at the hands of his father, it is not in dispute that [Master A]’s father passed away in [2016] and it was acknowledged at hearing by [Master A]’s representative that this claim is no longer being pursued.

44.  As regards [Master A]’s claims of being bullied, teased, not being able to assimilate back in Thailand and of suffering psychological harm if returned to Thailand, the Tribunal is not satisfied that any of those claims are for reason of race, religion, nationality, membership of a particular social group or political opinion, and finds accordingly.

45.  The Tribunal therefore finds that [Master A] does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Thailand now or in the reasonably foreseeable future.

46. It follows that [Master A] is not a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore [Master A] does not satisfy the criterion set out in s.36(2)(a).

Issue 2 – Is [Master A] a person in respect of whom Australia has protection obligations on complementary protection grounds?

47. Having concluded that [Master A] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). In so doing, the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Master A] being removed from Australia to Thailand, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).

48. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

49. An applicant will suffer significant harm if they will be subjected to torture: s.36(2A)(c). Torture is exhaustively defined in s.5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).

50.  However, torture 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 ICCPR.

51. ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted.

52.  However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

53. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

54.  However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

55.  Having found that [Master A] would not be an Unaccompanied and Separated Child, or an Unaccompanied and Separated Children or Unaccompanied Child not in the Care of Parents Subject to Institutionalisation, if he returned to Thailand, the Tribunal considered whether the other harm feared by [Master A] upon return to Thailand is significant harm.

56.  Firstly, as already noted as regards [Master A]’s initial claim of fearing family violence at the hands of his father, the Tribunal is satisfied that there are no grounds for believing that, as a necessary and foreseeable consequence of [Master A] being removed from Australia to Thailand, that there is a real risk that he will suffer significant harm on this basis. It is not in dispute that [Master A]’s father passed away in [2016] and that no claim in this regard any longer exists. The Tribunal finds accordingly.

57.  It is also submitted that [Master A] will suffer harm because he will find it difficult to assimilate back into the Thai community and/or a Thai school and might also be bullied or teased because he does not speak Thai.

1. The Tribunal accepts that [Master A] may experience teasing or some level of bullying if he returned to Thailand, either in the community or at school, and might find it difficult to assimilate and relearn the Thai language. The Tribunal accepts that this would be an uncomfortable and undesirable experience.

2. The Tribunal has also considered [Master A]’s claim, that a [age] year old, having lived in Australia for nearly four years, he is used to life in Australia and it will be difficult for him to assimilate back in to Thailand. The Tribunal accepts that [Master A] is settled into his life in Australia and that living in Thailand would cause disruption for him. However, as already discussed, the Tribunal is satisfied that he would have the support of [Mr B], [Ms C] and [Mr D], in relation to any return to Thailand. The first [number] years of his life were in Thailand, and his sister [Ms G] is also in Thailand. Whilst it might at first be difficult to reassimilate, or relearn the Thai language, the Tribunal considers that he will be in a position to change, if necessary, albeit not desirably.

3. Having regard to the definition of significant harm in ss.5 and 36(2A) of the Act, the Tribunal does not accept that any of the above matters give rise to significant harm as defined in s.36(2A). These matters do not involve the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act. Further,. These matters do not constitute severe pain or suffering, whether physical or mental, or pain or suffering, whether physical or mental, that in all the circumstances could reasonably be regarded as cruel or inhuman in nature. Nor do they involve extreme humiliation which is unreasonable.

61.  Further, the Tribunal considered the psychologists’ reports submitted, including the most recent psychological assessment, that of [August] 2017, which concludes as follows:

“If ([Master A])( were to lose the supportive family structure that he has been given in Australia, it could cause irreversible harm to his psychological development and undo the significant psychological healing and growth that he has achieved in the safe and loving environment that he has had in Australia. Furthermore, his academic development in the Australian education system has been steady and positive. Removal from this system is also likely to do significant and possible irreparable harm to his potential academic achievements and result in lifelong hardship and disadvantage.”

62.  As already canvassed, the Tribunal is not satisfied that [Master A]’s removal from Australia to Thailand would result in the loss of the supportive family structure that he has in Australia. Rather, the Tribunal has concluded that [Mr B], [Ms C] and [Mr D] would continue to provide support such that the Tribunal is satisfied that they would continue to provide [Master A] with a safe and loving environment, albeit not in Australia. The Tribunal therefore places no weight on the psychologist’s assessment based on this family structure being removed.

63. The Tribunal accepts that being removed from Australia to Thailand, and attending boarding school or otherwise, may detrimentally impact [Master A]’s academic achievements but does not accept that that amounts to significant harm. It does not involve the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act. It would not constitute severe pain or suffering, whether physical or mental, or pain or suffering, whether physical or mental, that in all the circumstances could reasonably be regarded as cruel or inhuman in nature. Nor would it involve extreme humiliation which is unreasonable.

64. Having had regard to all of these matters, the Tribunal is not satisfied that the harm claimed by [Master A] amounts to significant harm as defined by s.36(2A), and finds accordingly.

65. It follows that the Tribunal is therefore not satisfied that [Master A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

Issue 3 – Is [Master A] a member of the same family unit as a person in respect of whom Australia has protection obligations and that person holds a protection visa of the same class?

66. There is no suggestion that [Master A] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, [Master A] does not satisfy the criterion in s.36(2)(b) or (c).

Conclusion

67. Having concluded that [Master A] does not meet the criterion in s.36(2)(a), (aa), (b) or (c), [Master A] does not satisfy the criterion in s.36(2) of the Act. As [Master A] does not satisfy any of the criteria for a protection visa, he cannot be granted the visa.

REQUEST FOR REFERRAL TO MINISTER

68. [Master A]’s representative has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

69. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s.417 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more of the following unique or exceptional circumstances:

(a)Circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration. Under CROC, the best interests of a child will be considered as a primary consideration. This includes the applicant, if aged under 18, or a child with whom you have a close relationship;

(b)Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should the applicant leave the country;

(c)Exceptional economic, scientific, cultural or other benefit to Australia;

(d)Compassionate circumstances regarding the applicant’s age and/or health and/or psychological state such that failure to recognise them would result in irreparable harm and continuing hardship to the applicant;

(e)Length of time the applicant has been present in Australia and the applicant’s level of integration into the Australian community;

(f)Circumstances that the legislation does not anticipate or clearly unintended consequences of legislation or the application of relevant legislation leads to unfair or unreasonable results;

(g)The applicant is unable, through circumstances outside their control, to return to their country/countries of citizenship or usual residence.

70.  [Master A]’s representative provided numerous documents in support of this request, including medical evidence in relation to [Master A]’s current carer, [Mr B], and a psychologist assessment in relation to [Master A] dated [in] August 2017 of [Master A] by a Clinical Psychologist, which concludes that if [Master A] was to lose the supportive family structure that he has been given in Australia, “it could cause irreversible harm to his psychological development and undo the significant psychological healing and growth that he has achieved in the safe and loving environment he has had in Australia”. Further, it is noted that “his academic development in the Australian education system has been steady and positive. Removal from this system is also likely to do significant and possible irreparable harm to his potential academic achievements and result in lifelong hardship and disadvantage”.

71.  In the Tribunal’s view this matter raises unique and exceptional circumstances and there are strong compassionate circumstances such that a failure to recognise them would result in serious, ongoing and irreversible harm and continuing hardship to Australian citizens.

72.  The Tribunal considers that should [Master A] be compelled to depart Australia, this would have a significant adverse impact upon a number of Australian citizens, including [Mr B], [Ms C] and [Mr D], in circumstances where they are also dealing with the bereavement following the recent death of [Ms E].

73.  This case may also bring Australia’s obligations as a party to the Convention on the Rights of the Child into consideration as regards [Master A], who has just turned [age] years of age. Clearly, it is in his best interests to remain with the only family (including his recently deceased step-mother’s partner and his two siblings) in Australia, and to continue his schooling in Australia. This is particularly in circumstances where the only real support that he would receive in Thailand would be from his family in Australia, all Australian citizens who would be put to considerable financial and emotional disadvantage to care for him from afar.

74.  Notably, [Master A] has now lived in the Australian community for nearly four years, throughout his most formative years, for most of which time he has been awaiting a final decision in relation to his protection visa application. The evidence before the Tribunal is that he is fully integrated into the community and is a commendable student and member of the community.

75. The Tribunal has formed the view that it has no option but to affirm the decision under review. The Tribunal has considered [Master A]’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s Guidelines on Ministerial Powers (s345, s351, s391, s417, s454 and s501J)’.

76. For the reasons outlined above, the Tribunal refers this case to the Department for the Minister’s attention with a respectful recommendation that they exercise the powers under s.417 of the Act.

DECISION

77.  The Tribunal affirms the decision not to grant the applicant a Protection visa.

Susan Trotter
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.

…
"significant harm" means harm of a kind mentioned in subsection 36(2A).
…

5AAA Non-citizen's responsibility in relation to protection claims

(1)  This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

(2)  For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

(3)  The purposes of this Act include:

(a)the purposes of a regulation or other instrument under this Act; and

(b)the purposes of any administrative process that occurs in relation to:

(i)        this Act; or

(ii)       a regulation or instrument under this Act.

(4)  To remove doubt, the Minister does not have any responsibility or obligation to:

(a)       specify, or assist in specifying, any particulars of the non-citizen's claim; or

(b)       establish, or assist in establishing, the claim.

36 Protection visas – criteria provided for by this Act

…

1. 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 under the Refugees Convention as amended by the Refugees Protocol; 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; 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.

(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.

…

91R Persecution

(1)  For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)the persecution involves serious harm to the person; and

(c)the persecution involves systematic and discriminatory conduct.

(2)  Without limiting what is serious harm for the purposes of paragraph (1)(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.

(3)  For the purposes of the application of this Act and the regulations to a particular person:

(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)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 within the meaning of the Refugees Convention as amended by the Refugees Protocol.

91S Membership of a particular social group

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 being persecuted 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 Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; 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.