1619253 (Refugee)

1619253 (Refugee) [2017] AATA 2200 (7 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619253
COUNTRY OF REFERENCE:                  Thailand
MEMBER:Melissa McAdam
DATE:7 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 November 2017 at 10:43am

CATCHWORDS
Refugee – Protection visa – Thailand – Social group – Former member of Thai military – Fear arrest as a military deserter
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Immigration [in] November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa [in] August 2016.
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 (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 themself 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.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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
a.The applicant was born [in date] in [Thailand]. He submitted a copy of his Thai passport.
b.His parents and a brother are living in Thailand.
c.He left Thailand because he does not support the military coup d’etat. The Thai government is a dictatorship. He fears for his life and safety. No one can express ideas. There is no freedom of speech. It is very dangerous for him.
d.If he returns he will be put in prison because he is against the military rules. He may even be killed.
e.Everywhere in Thailand the government has taken over.
f.They treat prisoners very badly in Thailand. A lot of prisoners die. Some people who opposed the government disappeared.
g.The authorities are corrupt and will not protect him.
h.He cannot relocate in Thailand as everywhere the military rules the country. He arrived in Australia [in] July 2013 on a Student visa.
Departmental Interview
According to the Department Delegate’s decision record the Delegate did not interview the applicant. She decided to assess the application on the basis of the written claims.
Delegate’s Decision
The Delegate was not satisfied on the information before her that there was a real chance the applicant would be harmed in Thailand.
Information to the Tribunal
Pre-Hearing Submissions
The applicant submitted the following documents to the Tribunal:
a.   Translation of an official note ‘Special Order of the [group number] Infantry Regiment’ from ‘Performer, Special Ranger [number]’ that “On [January] 2013, [Volunteer] Ranger [applicant name], position ([name]), requested to resign from government to return to care for family and the affairs pertaining to them from [January] 2013 onwards.”
b.   Translation of an official note from ‘Army Command’, dated [in] April 2012, that Volunteer Ranger [applicant name] is to receive compensation and [from] April 2012 onwards his salary is to increase with the cost of living.
c.   Translation of Volunteer Ranger [applicant name]’s letter of resignation from the government, dated [January] 2013.
d.   Translation of the applicant’s Volunteer Ranger ID Card, [issued] April 2012, which states his date of birth as ’[date]’.
e.   Translation of the applicant’s Volunteer Ranger ID Card, issued [in] April 2012, which states his date of birth as ’[date]’.
f.    Translation of ‘Internal Security Operations Command’, ‘Award to Troops in Service of Duty’, dated ’ [August] 2012’.
g.   Translation of a ‘List of Active Military Duty’ on ’[August] 2012’, which includes the name “Volunteer Ranger Forces, [applicant’s name]’, ‘[name] Troops, ThorPhor, [group number], since April 2012’.
h.   Translation of the Ministry of Defence’s ‘Punishment applying to military service’ regulations.
Tribunal Hearing
The applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.The reasons set out in the applicant’s Protection visa application are no longer the reason he is applying for protection.
b.A friend wrote the applicant’s Protection visa application. The friend’s name is ‘[name]’. The applicant does not know the full name of his friend. His friend does not have Thai background but he speaks and understand the Thai language. The applicant met him at a party and he told the applicant he could help the applicant fill in the Protection visa application form. The friend got the information to put in the form from the applicant.
c.The applicant does not want to return to Thailand because he may be arrested by the military authorities and he may be tortured and imprisoned. But he is not sure if this will happen.
d.The applicant had been excused from the military service ballot when he was [age] years old because he had done military training is his later high school years.
e.The applicant voluntarily enlisted in the Thai military [in] April 2555 [2012[1]]. He joined because he was jobless at the time and saw a recruitment advertisement.
[1] The Thai Calendar year is 543 years ahead of the Gregorian calendar.
f.He received some military training and was then sent down to the three southern provinces to serve where there was fighting against religious groups. He was a civilian Volunteer Ranger in the [group number] Service, stationed [in] Yala province.
g.His duties involved helping army units monitor the area and protect the local citizens.
h.He served for about one year and then made a formal request to leave the military [in] January 2556 [2013]. His request was officially approved and forwarded to the higher authorities. He returned home and then later travelled to Australia.
i.Last year he discovered that his name was only then removed from the military roll. This was very strange as it should have been removed from the roll in 2013. He suspects that a higher ranked official kept the applicant’s name on the military roll so the official could collect the applicant’s military salary. The applicant believes this has happened to him because a year ago a small amount of money appeared in his bank account which was only used for his military salary.
j.He thinks he will be arrested because he is supposed to still be in the military but he has been in Australia.
k.He thinks he will not be able to explain that he was given official permission to leave the military because he won’t be listened to. Only high ranked people would be listened to.
l.Every year people leave the military and their names are kept on the military register so higher ranked soldiers can collect their wages.
m.He has a friend in the military who told him last year that his name had only been removed from the military register last year [in] January 2559 [2016]. His friend obtained a letter for him about this which he has sent to the applicant in Australia. The applicant will submit the letter to the Tribunal.
n.Even though the applicant has officially retired from the military his name stayed on the register so he will be accused of going AWOL, even though he can show that he had official permission to leave the military.
o.This matter is about corruption. So he will be arrested in connection with corruption. He has not done anything wrong and can show that he was authorised to leave the military. He cannot say whether or not he will be arrested but anything can happen in Thailand.
p.The Tribunal asked the applicant why he thinks arrest is a possibility and he responded that he had no answer. The Tribunal put to the applicant that it had not located any reports of soldiers being arrested for desertion and the applicant responded yes.
q.There is nothing else the applicant fears in Thailand.
r.The applicant did not include information about his fear of arrest as a military deserter, in his initial Protection visa application because his friend advised him it was not necessary, even though it was his only fear in Thailand.
s.The Tribunal asked the applicant why in his Protection visa application form the answer ‘No’ had been ticked in relation to the question whether the applicant had performed any military service. The applicant responded that his friend had advised him to say he had not been in the military so his visa would not be refused.
t.The Tribunal asked the applicant why in his Protection visa application form the answer ‘No’ had been ticked in relation to whether or not the applicant had received any assistance to complete the Protection visa application form. The applicant responded that he had no excuse for this.
Post Hearing Submission
After the hearing the applicant submitted the following document to the Tribunal:
Translation of the ‘Third Army Area Command’ ‘Discharge of Militia Rangers’, [dated] January 2016, stating that “The militia Rangers to be discharged from public service are as follows:” “… 6. Militia Ranger [Applicant’s name] [sic], [deleted], RNGRCO [group number],[Group number] Ranger Force Regiment with a [number] level payment /Oct 2015 ([amount] Baht)”.
Country Information
According to the War Resisters International website, World Report on Thailand, 2009 :
Conscription is enshrined in article 73 of the Constitution of 2007, which reads: “Every person shall have a duty to serve in armed forces (...)”. It is further regulated in the Military Service Act B.E. 2497 (1954).
Every Thai male is required to enlist in the military reserve force at the age of 18 years. At the age of 21 years, they are screened for physical disabilities and recruited on a demand basis for two years of military service as private soldiers. All men aged 21 to 30 are liable for a two years' military service, with reservist duties applying afterwards. Buddhist monks, students in certain technical studies and naturalised students are exempted. The exemption of naturalised students is meant to exclude Chinese from joining the armed forces.
… Call-up takes place once a year. Each is given a quota of the number of recruits needed by the armed forces. As the number of liable conscripts is far higher than the number needed by the armed forces, recruitment is by ballot: those drawing a red ticket had to perform military service; those drawing a black ticket did not. In the 80s and 90s the recruitment system increasingly became subject to public debate. Obviously the system was likely to lead to favouritism on the hands of influential or rich people. As a result most of the conscripts in the armed forces had a poor and uneducated background.
Military service can be postponed for males who are studying in higher education institutions, but for no longer than five years.
Alternatively, young males can engage in an extracurricular course for students of upper secondary and higher education. The course is offered by the Territorial Defence Department, Ministry of Defence, requiring five years to complete. The minimum requirement for this course is the participation for three years as a reserve officer training corps (ROTC) student. Titles of provisional second sergeant, first sergeant and second lieutenant are granted to those who complete three, four and five years of ROTC respectively.
ROTC graduates are exempted from military service as private soldiers. They form part of the reserve forces without having served in the army. Some are later called to join the army when needed, but only a few are recruited each year. Males and females aged 15 to 22 years, with Grade 9 education are eligible to participate in the ROTC programme.
In 2005, 80,000 of total of 190,000 Royal Thai army personnel were conscripts, as were 27,000 of a total of 64,000 Royal Thai navy personnel.
There are several paramilitary forces who compose the defence force of a territory and may be considered as the reserve forces. Thailand, in fact, plans to increase the strength of its reserve forces as it regards it as a way to enhance defence capabilities at a lower cost.
The recruitment methods of these paramilitary forces are not known.
Professional soldiers
More than 60% of the Thai Armed Forces is comprised of professional soldiers. However, not much is known about recruitment practice and service conditions.
…
Draft evasion and desertion
Draft evasion has been a widespread problem. In 1999, it was reported that an estimated 30,000 persons, most of them sons of rich and influential people, evade conscription. Corruption is widespread to avoid military service, according to anecdotal evidence.
According to section 25 in conjunction with section 44 of the Military Service Act, failing to report oneself upon notice, can be punished with not more than 3 months imprisonment or a fine of 300 Thai Baht (£5.50) or both.
Not attending military service selection can be punished with imprisonment of not more than 3 years, under section 27 in conjunction with section 45 of the Military Service Act.
Details of punishment for avoiding military service are not known.
According to available reports ‘Volunteer Rangers’ are a government established paramilitary group in Thailand: “Commonly known as the Black Army, rangers are a paramilitary force comprised of soldiers and civilian recruits who patrol the border and engage in combat. In southern Thailand, they are among the prime targets of separatists.”[2]
[2] Channel News Asia, 2017, ‘Asia’s Toughest Jobs, the Thai border patrol’, 29 July
A 2015 Research Paper on the Volunteer Rangers refers to the Rangers being established by the government in about 2005 to serve with the Thai Army in the south, to deal with the unrest in the southern provinces. It states that “Some volunteer rangers do not really intend to work, have poor job performance, and in less than one year they resign. Within 6 months an average of 210 to 280 volunteer rangers from 9 ranger regiments quit their jobs.”[3]
[3] ASEAN, 2015 ‘Work Engagement of the Royal Thai Volunteer Rangers in the Fourth Army Area for the Security mission in the Southern Border Provinces’, Associate Professor Dr Chompunuch Sriphong, International Conference on Humanities and Social Science.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted his Thai passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Thailand. The Tribunal assesses the applicant’s claims against Thailand as his country of nationality and receiving country.
Initial Claims
The applicant claimed in his initial Protection visa application to fear harm in Thailand because he opposed the military coup. However at his recent Tribunal hearing he stated he did not fear harm in Thailand for this reason. In view of the applicant’s retraction of this claim, and given that he has not presented any evidence, information or reason to fear harm as an opponent of the coup, the Tribunal is not satisfied that the applicant is at risk of any harm in Thailand as a person who opposes or opposed the coup there.
Claims presented to the Tribunal
At hearing the applicant stated that the real reason he does not want to return to Thailand is because he fears being arrested as a military deserter.
The Tribunal found the applicant’s evidence regarding his service as a ‘Volunteer Ranger’ in Thailand reasonably detailed and coherent. The Tribunal notes that the documentation the applicant submits also well supports his claims to have served as a Volunteer Ranger in the south of Thailand, between [April] 2012 and [January] 2013.
The Tribunal notes that in his Protection visa application form the applicant contradicts his evidence by answering ‘No’ to the question of performing past military service. However the Tribunal accepts the applicant decided not to disclose the information of his military service at the time the application was completed.
In view of the satisfactory quality of the applicant’s evidence at hearing, and his supportive documents, the Tribunal accepts that the applicant did serve as a Volunteer Ranger in Thailand as claimed.

The Tribunal also accepts that the applicant resigned from the Voluntary Rangers [in] January 2013 and that his resignation was officially approved. The applicant’s evidence regarding this was reasonably clear and straightforward, and also well supported by the documents he submitted.
The applicant has submitted a translation of a military document stating that he was discharged from active duty in 2016, not 2013 as was the case. Without any way to verify such information the Tribunal accepts that the applicant’s resignation from the Volunteer Rangers, may not have been properly recorded in all relevant military records. The Tribunal accepts it may be as the applicant’s suspects, that this was intentional for corrupt purposes to allow another member of the military to receive the applicant’s salary.
As put to the applicant the Tribunal does not consider that the applicant’s circumstances give rise to any risk of arrest or adverse treatment on return to Thailand. He has not engaged in any unlawful behaviour. He also has official authorisation for his resignation from the Volunteer Rangers in January 2013. If a salary has continued to be paid against his name then this is the result of other people’s collusion and corruption, unrelated to the applicant’s own actions.
As put to the applicant even if his name remained on a register so that another person could receive his salary, it was highly apparent that the applicant has not been working as a Volunteer Ranger in Thailand since January 2013. His military superiors are also very aware of his January 2013 resignation from the Volunteer Rangers as the documents submitted by the applicant show that the relevant paperwork was processed and authorised by them. Further, he has not received any of the salary payments that may have been claimed in his name. It is also pertinent that no concerns have arisen in Thailand regarding a salary being paid to a Volunteer Ranger who has resigned from service, despite the transparency of the actual circumstances.
The available country information indicates that resignations from the Volunteer Rangers are relatively commonplace in Thailand.
In all the circumstances there is no indication that adverse consequences await the applicant in Thailand because of the possible corrupt actions of others.
On the basis of the available evidence and information the Tribunal is not satisfied that there is a real chance of serious or significant harm to the applicant arising out of the applicant’s service with the Volunteer Rangers, his resignation from the Volunteer Rangers, or the corrupt actions of others in receiving payments against the applicant’s name.
The applicant has not raised any other claim to fear harm in Thailand and none arise on the evidence and information before the Tribunal.
The Tribunal is therefore not satisfied, on the evidence and information before it, that the applicant has a well-founded fear of persecution in Thailand for a reason specified in s.5J(1)(a) of the Act.
The Tribunal is also therefore not satisfied, on the evidence and information before it, that there is a real risk the applicant will be subjected to significant harm on return to Thailand.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant 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, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam

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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 2200

7 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Appeal