1620244 (Refugee)

[2017] AATA 1677

1620244 (Refugee) [2017] AATA 1677 (27 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620244

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Frances Simmons

DATE:27 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2017 at 5:56pm

CATCHWORDS

Refugee – Protection visa – Thailand – Political opinion – United Front for Democracy against Dictatorship supporter – Red and Yellow shirts – Political activism – Credibility issues

LEGISLATION

Migration Act 1958, ss 5H-LA, 36. 65, 499

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The applicant, who is a citizen of Thailand, arrived in Australia [in] April 2015. He applied for a protection visa [in] July 2015. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owed protection obligations.

3. The issues that arise for determination on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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. 

8. 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

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Application for protection visa

10. The applicant declares that he is a citizen of Thailand born and raised [in] the province of Trat in Thailand. His wife and [children] are resident in Thailand. The applicant declares that between 2000 and April 2015 he lived at a stated address in Sakon Nakhon province in Thailand.[1]

    [1] Departmental file, folio 23.

11. In his protection visa application, the applicant declares that:

    ·He travelled to [Country 1] between  [January] 2015 and  [February] 2015;

    ·He travelled to [Country 2] three times between [date] May 2014 and [date] May 2014, [date] July 2013 and [date] July 2013, and [date] April 2013 to [date] April 2013.

    ·He travelled to [Country 3] in 2012 between [date] December 2012 and [date] December 2012.

    ·He travelled to [Country 4] in 2012 (between [March] 2012 and [June] 2012), 2013 (between [dates] July 2013), 2014 (between [December] 2013 and [March] 2014), and 2015 (between [dates] January 2015).[2]

    [2] Departmental file, folio 24; see also 59-68 (copies of the applicant’s passport pages).

12. The applicant arrived in Australia [in] April 2015 travelling on a passport issued in his own name and holding a [temporary] visa. He applied for a protection visa [in] July 2015

13. The applicant declares he was employed as [an occupation] between 2007 and 2015. The address of this company is located in Bangkok. He also declares that he was the owner of a [shop] in a market in Sakon Nakhon province from 2002 until March 2015.

14. The applicant provided a written statement of claims[3] that can be summarised as follows:

    [3] Departmental file, folio 38-39.

    ·If the applicant returns to Thailand he will be persecuted by the People’s Alliance for Democracy (known as Yellow Shirts supporters) and the Army.

    ·The applicant supported the United Front for Democracy against Dictatorship (UDD) from the beginning. In about 2006 the military coup overthrew their Prime Minister Thaksin Shinawatra. Since then, they have started a movement to place political pressure on their rival party and the army.

    ·The applicant supports the UDD because he believes that people deserve a political and judicial system that protects their human rights. Social and economic policies should be formulated by an elected government, not dictators.

    ·From 2006 until 2014 the applicant took part in many protests and rallies organised by the Red Shirts movement. In March 2010 they demanded an early election. This was one of the biggest and longest protests ever held in Bangkok city.  A state of emergency was declared in Bangkok.

    ·[In] April 2010 the military tried to arrest their supporters and there have been clashes between their supporters and military. During the clashes the army fired on Red Shirts supporters and during this firing a bullet hit [him]. He was taken away by his friends to a doctor who was also a Red Shirts supporter and then he was taken back to his home.

    ·The protest ended in May 2010 and the Army started arresting and mistreating their supporters. The applicant was told by friends and party workers to remain cautious. Following 2010 protests they continued their movement and organised many rallies against the government.

    ·In early January 2012 he was arrested by the army. He was taken away from his home in the middle of the night. His family members were intimidated and told not to say anything about his arrest or he would be killed. He was in custody for about two months and released [in] March 2012. He was released on the strict condition that he would not take part in any activities organised by Red Shirts.

    ·Following his release from army custody the applicant continued his work for the UDD (Red Shirts) and took part in many rallies organised by Red Shirts. He did this because he wanted democracy to be restored and the army and Yellow Shirts supporters are mistreating UDD activists.

    ·The army have arrested many Red Shirts supporters and no charges have been laid against them. Many Red Shirts supporters are held as political prisoners and their whereabouts are unknown. They organised rallies to demand amnesty for Thailand’s political prisoners and for the restoration of democracy.

    ·In early March 2015 the Army arrested a few Red Shirts supporters. The applicant was advised by party workers to be very cautious. [In] March 2015 he was away for work in Udonthani province when the army raided his house to arrest him. When they didn’t find him they intimidated his family to tell them about his whereabouts. His family told them that he was in Udonthani.

    ·Soon after his family told him about the army raid on his house he lodged an application for a [temporary] visa to Australia. This visa was granted [in] March 2015 and he arrived in [Australia] [in] April 2015.

    ·If he returns to Thailand he believes that he will be persecuted by the army because of his political opinion. He cannot seek help from the authorities as the authorities are currently looking for him along with his friends to be arrested. His life is at risk in Thailand.

    ·The applicant cannot safely relocate to other parts of Thailand. No matter where he goes he will be arrested and mistreated by the army. He is wanted by Yellow Shirts supporters and the Army. He will be of interest to them, given he escaped from the army against their direct orders in March 2015.

15. The applicant was not invited to an interview by the delegate. The delegate noted that the applicant has travelled to [Country 2] and [Country 4] during the period in which he claimed to be politically active. The delegate’s decision record refers to country reports, which the Tribunal has considered, which indicate that following a military coup in May 2014 the military led National Council for Peace and Order (NCPO) has maintained control over the security forces and all government institutions, and that the NCPO suppresses political dissidents.  The delegate accepted that political activists may be persecuted by the Thai authorities but, on the limited evidence before him, was not satisfied that the applicant had a political profile of any kind or that his claims were genuine.

    Application for review

16. The applicant appeared before the Tribunal via video conference. The Tribunal explained the refugee and complementary protection criteria to the applicant. He elected to give evidence with the assistance of an interpreter in the [Language 1] language. He confirmed he spoke both the [Language 1] and Thai languages and that he understood the interpreter. The Tribunal is satisfied that the applicant was able to understand and respond to the Tribunal’s questions and that he had a meaningful opportunity to participate in the hearing. What follows is a summary, not a transcript, of matters that were discussed at the hearing. Where relevant his evidence is discussed further below in the assessment of claims and evidence.

17. At the outset of the hearing the applicant said he burned some of the evidence in his case in Thailand. Asked whether there was any new information he wanted to bring to the Tribunal’s attention, he referred to the fact that the former Prime Minister fled Thailand and travelled to Cambodia. Asked when she was last in power, he said in 2010. He said he was not educated so he could not remember dates exactly; the last time she was prime minister was in 2008 or 2009 and then she was ousted in a military coup. Asked when the military coup occurred, he said after the strike – he couldn’t remember if that was 2010. He identified the former prime minister as Yingluck Shinawatra, the sister of Thaksin Shinawatra. He told the Tribunal that Thaksin Shinawatra had obtained protection abroad and spent most of his time in Dubai, Singapore and Cambodia.

18. The Tribunal observed that the former Prime Minister Yingluck Shinawatra had fled Thailand a few days before the Supreme Court was set to rule on a criminal negligence case against her. Asked whether he was in Thailand when the military coup to oust Yingluck Shinawatra occurred, he said yes. He told the Tribunal the coup occurred four or five years ago. The Tribunal asked what year the coup occurred. The applicant said they had a protest in March and in April in the military attacked them and fired on them; he was wounded, some 800 people were injured and some were killed. The Tribunal directed the applicant to answer the question: what year did the military coup occur? The applicant said he was under a lot of pressure and could not remember the date.

19. The Tribunal asked the applicant how he prepared his protection visa application. The applicant said he wrote whatever he remembered about what happened to him in Thailand. Asked if he had help preparing the application, he said yes, because he was not educated, he could not write: he told his story and an immigration agent wrote it. He said it was his story but he needed assistance from a migration agent. The Tribunal observed his written claims were typed in English and asked whether he was confident the information provided in his application was true and correct. He said his claims were read back to him in [Language 1] as at that time he didn’t know English. Now he has been in Australia for two years and he understands a little English. He was confident the information he provided in his application was true and correct. Asked if he had any corrections or additional information he wanted to bring to the Tribunal’s attention, he said he had stated he was doing business in Thailand but he was active in the Shinawatra party from 2006 to 2014.

20. The applicant confirmed that he was claiming protection because of his political opinion. There were no other reasons that he was afraid of returning to Thailand.

21. The applicant told the Tribunal his home address was in Sakon Nakhon province.  When asked whether he lived in Sakon Nakhon province continuously from 2000 to 2015, he gave evidence he lived in Sakon Nakhon province for more than ten years before he travelled to Australia. His [children] still live at the family home but, since he travelled to Australia, he and his wife have separated. His children are being looked after by their maternal grandfather.

22. The applicant told the Tribunal that his last job in Thailand was as [an occupation] of a [business]. He told the Tribunal he was managing the business and he had his own business as well. He gave evidence the [business] was located in Bangkok. The Tribunal observed Bangkok was some 600 kilometres away from Sakon Nakhon province and asked how he was working in Bangkok if he was living in Sakon Nakhon province.  The applicant said the family business was a [different] business and he was doing the other job part time.

23. The Tribunal asked how long he was working as [an occupation] of the [business]. He said two or three years. The Tribunal observed that in his protection visa application he stated he worked at this [business] from 2007 to 2015 at an address in Bangkok. The Tribunal put to the applicant that it did not understand how he was [an occupation] of this business if he was living in Sakon Nakhon province. The applicant said he had friends there and through those connections he got this job and started working at this job. Later he became [an occupation]. He named his boss and stated how much he was paid.

24. The Tribunal asked the applicant to clarify whether he worked at the [business] for two or three years or from 2007 until 2015 (as stated in his protection visa application). The information in his protection visa application appeared to be inconsistent with what he told the Tribunal. The applicant said he started in 2007 but he was fully in charge of the business for two or three years. The Tribunal asked where he did his work when he worked at the business, because he had told the Tribunal he was resident in Sakon Nakhon province but the business address was in Bangkok. The applicant said the residence was a [number] hour drive or flight and on the weekends he used to go home, drive or fly.

25. The applicant confirmed that in the years before he left Thailand and travelled to Australia he travelled to [Country 4] on multiple occasions as well as [Country 2] and [Country 1] and on each occasion he returned to Thailand. The Tribunal asked why he left Thailand and travelled to Australia.  The applicant said that he left Thailand because Australia is a secure place that respects human rights. Also, he has a lot of children and he was thinking about their education and future. His house was attacked but he didn’t know whether the attacks were carried out by the military or those wearing yellow shirts. In 2010 he was wounded in a protest.

26. The applicant is currently sending money home to support his family in Thailand. His daughter is studying and doing very well; he is paying her school fees.

27. The applicant left Thailand travelling on a passport issued in his own name. He told the Tribunal he did not have difficulty leaving Thailand using this passport.

28. The Tribunal asked what he believed would happen if he returned to Thailand. The applicant said false allegations had been placed against the (former) prime minister and people had been jailed. In 2012 he was put in jail for [number of] months and they took a written statement from him that he would not be part of the party anymore. The Tribunal asked when he was jailed for [number of] months and the applicant claimed that he was arrested on [date] or [date] January 2012 and released [in] February 2012. He said he was not the only one; there were other members of his party. The Tribunal asked whether he was ever charged with any offence under any law; the applicant said they only made him promise not to pursue the issue.

29. The applicant told the Tribunal he was arrested in the early hours of the morning at home in Sakon Nakhon province. The Tribunal asked who was the prime minister when he was arrested to which he replied Abhisit.  The Tribunal asked if he was given any reason that he was arrested and he said they protested. A public building was burned (but it was not actually burned by the Red Shirts but by the Yellow Shirts).

30. The applicant testified that he first became involved in the Red Shirts in 2006. He said he became involved with the Red Shirts to support Shinawatra because he was working for the people and democracy. In 2008 he won the election with eighty per cent of the vote. The Tribunal asked whether, other than his claims that he was detained for [number of] months in 2012, he had been detained on any other occasion in Thailand. He said he had not.

31. The Tribunal asked what countries the applicant travelled to in 2012. The applicant said he couldn’t remember; probably to [Country 3] and [Country 4]. The Tribunal asked whether he travelled to [Country 3] before or after he was detained. He said he could not remember the date. The Tribunal asked if he could remember whether he travelled to [Country 3] before or after he was jailed for [number of] months. He said he thought it was after he was arrested. He didn’t remember the year. He said when they travelled to [Country 3] they didn’t need passports; they need identity cards. He told the Tribunal he travelled to [Country 4] after he was detained.

1. The Tribunal put to the applicant that, on one view, the fact that he travelled in and out of Thailand before and after he was detained by the Thai authorities might suggest (1) he was not of interest to the Thai authorities at those times and (2) he was not afraid of returning to Thailand at those times. The applicant said he went there because they had taken a promise from him that he would not be active again. However, he was afraid he would be arrested again and he was worried about what would happen to his children so he left the country. Now the head of the military was in charge of the country without election, he took over without elections. Itwould be safe for him again if there was an elected government in power.

2. The Tribunal put to the applicant that after the military coup in 2014 he travelled to [Country 1] and [Country 4] and, on both occasions, he returned to Thailand. He said that they had taken a written statement but now the military was in power. Three friends had been taken. The Tribunal put to the applicant that the military coup occurred in May 2014 and he remained in Thailand until April 2015 and during that period of time he travelled to [Country 1] and [Country 4]. The applicant claimed there were no issues in 2014 but later there were searches of their houses. The Tribunal asked the applicant why he decided to leave Thailand and seek protection in Australia in 2015. He said that in 2015 the military decided to hold an election and the Red Shirts decided to protest again and the election was cancelled.

3. The Tribunal asked why he personally believed he was at risk of harm in 2015. The applicant said about two times he was told that people in an unmarked vehicle came looking for him. Once they came to his office in Bangkok looking for him. Asked whether he had ever been subject to an arrest warrant or summons in Thailand, he said no. The first time they were arrested they were not sent to jail; they were in the custody of the military.  It was put to him that in his written claims he said that [in] March 2015 he was away from his home and the army raided his home to arrest him. The applicant said yes. The Tribunal put to the applicant that his evidence had been that he was never subject to an arrest warrant.  He responded that he didn’t know whether the people who came were members of the army or people from the Yellow Shirts. The Tribunal put to the applicant that in his written claims he said that they were the army. The applicant said in 2012 he was arrested by the military so he thought it was the military.

4. The Tribunal put to the applicant that in 2012 the prime minister was Yingluck Shinawatra. The applicant said the prime minister was Shinawatra but the military arrested them at a protest when public property was burned. The Tribunal put to the applicant that earlier in the hearing he gave evidence that, at the time of his detention in 2012, the prime minister was Abhisit. It was put to him that, in 2011, Yingluck Shinawatra was elected prime minister[4] and she remained as prime minister until 2014, when she was ousted in a bloodless military coup. It was put to the applicant that the Red Shirts generally supported the former Prime Minister, Thaksin Shinawatra,[5] and came to support his sister, Yingluck. It was put to the applicant that, in 2013, the Yingluck government proposed a Political Amnesty Bill to nullify the prosecution of people arrested during the crackdown. The bill covered all charges dated between 19 September 2006 and 10 May 2011. It was put to the applicant that in his written claims and his oral evidence he had claimed that he was arrested for [number of] months in 2012 because of his ongoing support for the UDD (known as the Red Shirts) and it was difficult to understand why he would be arrested in 2012 given the prime minister at the time was Yingluck Shinawatra. The applicant said during the protest that they were involved in public property was burned. The Tribunal put to the applicant that, while there were many reports of Red Shirts being detained in 2010, he was claiming to have been detained when Shinawatra was in power. The applicant said that she was in power but there were corruption allegations against her and the military was really in charge.

   [4] Nguyen, P, Poling, G B and Rustici, K B 2014, Thailand in Crisis: Scenarios and Policy Responses, Center for Strategic and International Studies, July 2014 International Crisis Group 2010, Bridging Thailand’s Deep Divide, Asia Report N°192, 5 July, p. 13  

The applicant was questioned about how he came to be involved in politics. He claimed he came to be involved through a person, who he named, who was a candidate for the Thai Rak Thai Party, which was established in 1998. The applicant subsequently told the Tribunal he did not join the Thai Rak Thai party in 1998 and then in 2006 the party was banned and changed its name. When asked whether he had any involvement in politics before 2006, he said he was interested in politics and this party and he was following it from 2003-2004. The Tribunal asked when Thaksin Shinawatra ceased to be in power to which the applicant replied he completed his four year term. The Tribunal asked how his prime ministership ended. He said there was an election in 2003 or 2004. The Tribunal put to the applicant that he had claimed to be a supporter of the UDD, which was founded in 2006, to oppose the military coup that ousted the then prime minister Thaksin Shinawatra. It was put to the applicant that it was difficult to accept that he was ever involved with UDD/ the Red Shirts if he didn’t know that Thaksin was ousted in a military coup in 2006. In response, the applicant told the Tribunal he did not join the political party in 1998 but became involved through his association with a member of parliament and, after the government was ousted in 2006, joined to raise his voice against dictatorship.

After a short adjournment, the Tribunal discussed with the applicant its concerns about his credibility. Where relevant his evidence is discussed further below in the assessment of claims and evidence. The Tribunal also put to the applicant that, given he had been able to travel in and out of Thailand on multiple occasions on his own passport, and he was able to leave Thailand travelling on his own passport in 2015, the Tribunal might find it difficult to accept that he was of any adverse interest to the authorities in Thailand because of his political profile. The Tribunal referred to his written claims that the army went to his house in March 2015 to arrest him and the authorities were currently looking for him and his friends to arrest them. It was put to him that the Tribunal may find it difficult to accept that the authorities wanted to arrest him given he was able to leave Thailand on his own passport in April 2015.

The applicant said he left the country because the military came to his house in Bangkok and he had this fear. If the military was not in power, then there was another government and it would be safe for him. It was difficult for him to be away from his family because he misses his children. The Tribunal noted that in his written claims he didn’t mention that the military went looking for him at his office in Bangkok. The applicant agreed he did not mention this in his statement but he mentioned that they came to his house. He said they also came to his office but, at the time, he was out for lunch. When he returned he was told they were looking for him.  A few days later he applied for the visa.

The applicant claimed he had burned a Red Shirts membership card and some pictures he had taken with Thaksin Shinawatra and other members of the party in Thailand. Asked why he would burn these documents, he said it was dangerous and he was very scared; other members burned their documents. He suggested that he could have gotten some evidence if members of the party had not left the country. The applicant told the Tribunal that there might be copies of membership cards or pictures which he could try to get from other party members, but it seemed very difficult now as some party members had to leave the country.

The Tribunal asked the applicant to clarify whether he was seeking to provide additional evidence to the Tribunal as it was not clear what additional evidence he could provide. The Tribunal also put to the applicant that he had had a long time to provide evidence in support of his case: applied for a protection visa in July 2015, lodged his application for review of the delegate’s decision in November 2016 and he was invited to the hearing over a month ago. The applicant said that he had not managed to contact party members.

The Tribunal put to the applicant that it was not clear what additional evidence he could provide to the Tribunal and that it did not appear that he needed any additional time to provide documents or submissions in support of his case. The applicant said right now he didn’t have more evidence. He said he didn’t have further evidence at this time but he would try to get more. The Tribunal noted that as he hadn’t identified what further evidence he wanted to provide it was not providing additional time for further evidence to be submitted; however, it would consider any additional evidence it received before it made a decision.

Country Information

The rise of the Yellow Shirt and Red Shirt movements is closely linked with the ousting of former Prime Minister Thaksin Shinawatra in late 2006. Thaksin Shinawatra became Prime Minister of Thailand in 2001 and won a landslide victory in the next general election in 2005. However, in 2006, the army ousted Thaksin in a military coup in September 2006 after ‘yellow shirt’ protestors took to the streets and accused him of abuse of power, corruption and disrespecting the king.  Since the 2006 coup, the country experienced waves of street protests, violence and occupation of key sites[6] by both the Red Shirts, who are said to support Thaksin and his populist policies, and the royalist Yellow Shirts whose weeks of protests assisted in ousting him.[7]

[6] “Factbox: Key Political Risks to Watch in Thailand” 2011, Reuters, 7 February,

[7] International Crisis Group 2010, Bridging Thailand’s Deep Divide, Asia Report N°192, 5 July, p. 12 -14

The Red Shirts, also known as the United Front for Democracy Against Dictatorship (UDD) or the Democratic Alliance Against Dictatorship (DAAD),[8] claim to be “fighting against intervention in politics and the judicial system by an unelected conservative elite whom they accuse of operating with impunity and conspiring to topple democratically elected governments” and believe that the coup against Thaksin, and the dissolution of both the Thai Rak Thai Party and the People’s Power Party, “were all masterminded by his influential opponents, among them royal advisers, military generals and aristocrats”.[9] The Red Shirts’ membership base is largely thought to comprise the rural poor and urban working class from the Northern and North-eastern regions of Thailand. [10]

[8] “Thailand’s “Red Shirt” Movement” 2010, Reuters AlertNet, 10 May

[9] “Thailand’s “Red Shirt” Movement”, Reuters AlertNet, 10 May 2010

[10] “Thailand’s “Red Shirt” Movement”, Reuters AlertNet, 10 May 2010

Following the 2006 coup, Thaksin’s party, the Thai Rak Thai party, was banned in 2007 and Thaksin has lived abroad since 2008 to avoid prison time for a corruption conviction that he claims was politically motivated.  However, even though Thaksin was overseas in exile when elections were held 18 months after the military coup, voters from Thailand's north and north-east returned his allies to power, only to see the government fall after a series of opposition protests and court rulings.[11] The Red Shirts’ first major protest began in March 2009 with a series of sit-ins outside government offices, but quickly escalated.[12] In 2009, Red Shirts gathered at Government House, marking the first protest against the administration of Abhisit Vejjajiva, the then Prime minister. The Red Shirts claimed Abhisit had not come to power democratically and demanded that parliament be dissolved and fresh elections held. The protesters were confronted by the authorities, leading to numerous injuries by gunfire. Despite no official report of deaths, two UDD protesters -- Chaiyaporn Kanthang and Nattapong Poongdee -- disappeared and were later found dead.

[11] ‘Profile: Thailand’s reds and yellows’, BBC News, 12 July 2012, < >

[12] ‘Profile: Thailand’s reds and yellows’, BBC News, 12 July 2012.

Mass rallies took place in Bangkok from March-May 2010 which ended with a military crackdown.  Reuters reported that the Red Shirts proved to be a formidable force occupying roughly 3 sq km (1.2 sq mile) of a luxury hotel and shopping district from April 3 in the latest protest, which got off the ground on March 14 when 150,000 protesters flooded into Bangkok, most from far-flung provinces. 

Prime Minister Yingluck Shinawatra

The Red Shirts began as supporters of deposed former Prime Minister Thaksin Shinawatra, who was ousted by a military coup in September 2006.[13]  The Red Shirts later came to support Thailand's Pheu Thai party led by Thaksin’s sister, Yingluck Shinawatra.[14] In 2011, Yingluck Shinawatra, the sister of Thaksin Shinawatra, who had been named by Thaksin himself as the leader of his party, which was rebadged the Pheu Thai party, was elected prime minister under the Pheu Thai Party.[15] 

[13] International Crisis Group 2010, Bridging Thailand’s Deep Divide, Asia Report N°192, 5 July, p. 13

[14]  ‘Profile: Thailand’s reds and yellows’, BBC News, 12 July 2012.

[15] Nguyen, P, Poling, G B and Rustici, K B 2014, Thailand in Crisis: Scenarios and Policy Responses, Center for Strategic and International Studies, July 2014 >

In 2013, the Yingluck government proposed a Political Amnesty Bill to nullify the prosecution of 1,857 people arrested during the crackdown.[16] The bill covered all charges dated between 19 September 2006 and 10 May 2011, including those against the exiled PM Thaksin Shinawatra.  The bill outraged the public as it was seen as an attempt to whitewash Thaksin and the Red Shirts, regarded by Bangkok people as “Bangkok arsonists”. Even some Red Shirts denounced the bill as an obstacle to investigations into the people responsible for the crackdown.  The opposition to the bill led to the formation of the People’s Democratic Reform Committee (PDRC), which is sometimes seen as the successor to the People’s Alliance for Democracy (‘Yellow Shirts’ movement).[17] The PDRC was a key factor leading to the 2014 coup, opening the way for the military to rule the country until the present.  ​Protests by the PDRC escalated again from November 2013, in an attempt to force Prime Minister Yingluck Shinawatra from office. 

The May 2014 Military Coup

[16] CXC9040665833: "10 Facts about the 10 April Crackdown - 7 years of unhealed wounds ", Prachatai, 12 April 2017.

[17]  Case B, ‘A paradox of liberal democracy: Thailand’s competing social movements’, Think International and Human Security, 13 January 2014 ‘One Killed as Protesters Reject Thai Government Dialogue Offer’, Voice of America, 30 November 2013 European Parliament Directorate-General for External Policies, Kingdom of Thailand: A distressing standoff,  March 2014, p. 8 <>

On 22 May 2014, Thailand’s army chief General Prayuth Chan-ocha carried out the country’s 12 successful coup d’etat, two days after declaring martial law. This was a culmination of popular protests, counter protests and legal maneuverings against the government of Prime Minister Yingluck Shinawatra that began in November 2013.[18]  Following the events of May 2014 there has been limited conflict between the Red Shirts and Yellow Shirts, including in Udonthani in Thailand’s north-eastern ‘Isaan’ region.[19] In late 2015 Reuters reported that the Red Shirts opposition movement is still around but ‘laying low for now’ waiting for the next election,[20] though its rural heartland in northeast Thailand is struggling as a result of the military government’s economic policies, with rice farmers left with mounting debts, retailers struggling and rising crime levels, all stirring discontent and the threat of protests.[21]

[18] “In for the Long Haul”,31 May 2014, the Economist, See, for example: Nguyen, P, Poling, G B and Rustici, K B 2014, Thailand in Crisis: Scenarios and Policy Responses, Center for Strategic and International Studies, July < <CISLib29032>; ‘A new beautiful Thailand?’ 2014, Deutsche Welle, 20 August < land/a-17868279?maca=en-rss-en-asia-5133-rdf> <CX324841>

[20] CXBD6A0DE13890: "Thaksin tells Thailand's red shirt opposition - 'play dead' for now", Reuters, 19 September 2015.

[21] CXBD6A0DE14210: "Rising anger in Thailand's boom-to-bust northeast", Reuters, 30 September 2015.

Since the military coup, the military regime has suppressed political dissent,[22] shutting down Red Shirt radio stations, and monitoring Red Shirt leaders, journalists, student activists and other critics of the military regime, some of whom have been incarcerated for speaking out.[23]  Political gatherings of more than five people have been banned, Thaksin’s name has been deleted from school history textbooks and it appears the election, which the junta initially promised would be held in mid 2016, will not be held until at least 2018.[24]

ASSESSMENT OF CLAIMS AND EVIDENCE

[22] CXC90406610333: "157 public events disrupted by junta since 2014 coup d’état", Prachatai, 14 July 2017; CXC90406612050: "2 month suspended jail term confirmed for red-shirt activist", Prachatai, 09 August 2017

[23] "Portraits of protest: 10 Thais gagged by lèse-majesté law, used by junta against critics of its rule", South China Morning Post, 26 May 2017, CXC9040668513

[24] CXBD6A0DE13883: "Thailand's reluctant leader prolongs his grip on power", Reuters, 15 September 2015.

Nationality

On the evidence before it and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Thailand. The Tribunal finds that the applicant is a citizen of Thailand, and that Thailand is the applicant's receiving country for the purposes of the refugee and complementary protection assessment.

Credibility Assessment

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[25] and it has had regard to the Tribunal guidelines on the assessment of credibility in protection visa cases.  If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[26]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[27] In this particular matter, the Tribunal has had regard to the applicant’s evidence that he is not an educated person and that, when he arrived in Australia, he did not speak English and that he relied upon another person to write the written statement of claims that accompanied his protection visa application. The Tribunal has considered these matters in assessing the credibility of his claims.  However, the Tribunal notes that the applicant told the Tribunal that his written claims were read back to him in [Language 1] and he told the Tribunal he believed the information provided in his protection visa application was true and correct.

[25] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).

[26] MIMA v Rajalingam (1999) 93 FCR 220

[27] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

1. The Tribunal has serious concerns about the credibility of the applicant’s claims. The Tribunal finds that the applicant’s conduct in travelling in and out of Thailand on multiple occasions in between 2012 and 2015 undermines his claims that he is of adverse interest to the authorities or other persons or groups in Thailand because of his political opinion and indicates that he is not afraid of being persecuted in Thailand. In particular, the Tribunal considers that the fact the applicant travelled in and out of Thailand to [Country 4] (three times, most recently in January 2015), [Country 3] (once in 2012), [Country 2] (three times in 2013 and once in 2014) and [Country 1] (once from  [January] 2015 to  [February] 2015) after he claims he was jailed for [number of] months in 2012 indicates that: firstly, he was not, at these times, of any adverse interest to the Thai authorities and, secondly, that he did not, at those times, fear being persecuted because of his political opinion.

2. The applicant claimed he was able to travel in and out of Thailand between 2012 and 2015 because he had taken a promise that he would not be politically active again; however, now he was afraid because the military was in control of the country again. The Tribunal acknowledges that in May 2014 the Thai military overthrew the interim government led by the Pheu Thai Political Party, which had governed since 2011, in a bloodless coup. The military junta has suppressed freedom of expression and political dissent in Thailand. However, as the Tribunal put to the applicant, after the military seized control in a coup in May 2014, the applicant travelled to [Country 1] and [Country 4] and voluntarily returned to Thailand. In response the applicant claimed that there were no issues in 2014 but later the houses of Red Shirts activists were searched.

3. However, the Tribunal was also concerned that the applicant’s evidence about the problems he claims he encountered in 2015 was vague and differed from his written claims. Questioned about why he believed he was personally at risk of harm in 2015, the applicant claimed on two occasions he was informed that people in an unmarked vehicle came looking for him and that once they visited his office in Bangkok looking for him. The Tribunal asked the applicant whether he had ever been subject to an arrest warrant or summons in Thailand and he responded no. However, after the Tribunal reminded the applicant that in his written claims he claimed that, [in] March 2015, he said the army raided his home to arrest him, the applicant said yes. When asked to explain why he had previously told the Tribunal that he had never been the subject of an arrest warrant, the applicant then said he didn’t know whether the people who came to his house were members of the army or Yellow Shirts. However, as the Tribunal put to the applicant, in his written claims he did not claim to be unsure about who raided his house; he claimed that the raid was by the military. In response the applicant claimed that he thought it was the military because he had been arrested by the military in 2012. The Tribunal remains concerned that the applicant had to be reminded about his written claims that the army raided his house to arrest him [in] March 2015 and it is also troubled that, while his written claims state the army conducted the raid, before the Tribunal he claimed he did not know whether the people were members of the army or Yellow Shirts.

4. Furthermore, the Tribunal does not accept that the applicant has credibly explained how, if the military wanted to arrest him in March 2015 and visited his house in Sakon Nakhon province and his business in Bangkok looking for him, he was able to leave Thailand travelling on a passport issued in his own name in April 2015 without any difficulty. In response to the Tribunal’s concerns, the applicant reiterated that he left Thailand because he was afraid of the military. The Tribunal noted that in his written claims he didn’t mention that the military went looking for him at his office in Bangkok. The applicant agreed he did not mention this in his statement but he mentioned that they came to his house. He said they also came to his office but, at the time, he was out for lunch. When he returned he was told they were looking for him.  A few days later he applied for the visa. The Tribunal considers the applicant’s evidence about the efforts of the army/ Yellow Shirts supporters to locate him in 2015 was vague and has shifted over the course of his protection visa application process. The Tribunal finds his evidence about these matters unconvincing and considers the fact that he was able to leave Thailand travelling on a passport issued in his own name in April 2015 without any difficulty casts doubt upon his claims that the military were looking for him and wanted to arrest him.

5. The Tribunal was also concerned that the applicant’s evidence about his political activity and political events in Thailand was vague and lacked the same detail as his written claims.  Before the Tribunal the applicant claimed that his house was attacked but he didn’t know whether it was attacked by the military or those wearing yellow shirts whereas in his written claims he claims that the army visited his house [in] March 2015. His evidence about significant political events in Thailand was very vague and, in important respects, inconsistent with independent country information. The hearing occurred shortly after Yingluck Shinawatra, the former prime minister of Thailand, fled the country.  As has been widely reported, Ms Shinawatra fled Thailand a few days before the Supreme Court was set to rule whether she was guilty of criminal negligence over a rice subsidy scheme that lavished cash on the Shinawatras’ political base.[28] At the outset of the hearing, the applicant referred, in general terms to Ms Shinawatra’s decision to flee Thailand.  However, when questioned about when Yingluck Shinawatra lost power, the applicant appeared confused. He told the Tribunal she was last in power in 2010, before stating the last time she was prime minister was in 2008 or 2009 and then she was ousted in a military coup. Asked when the military coup occurred, he said after the strike – he couldn’t remember if that was in 2010, although he also said this coup occurred four or five years ago. The Tribunal finds it difficult to accept that if the applicant was, as he claims, a Red Shirts activist, who attended many protests in Thailand, he would be so confused about when Ms Shinawatra, who was elected Prime Minister in the 2011 election and lost power in 2014, was in power.

   [28] CXC90406612884: "Thailand’s Shinawatra era is over, but questions remain about junta’s role in aiding Yingluck’s flight from the law", Agence France Presse (AFP) - France, 26 August 2017.

6. Also of concern was the applicant’s shifting evidence about who was in power at the time he was detained for [number of] months in 2012: after initially telling the Tribunal that Abhisit was the prime minister at the time he was detained, when it put to him that Yingluck Shinawatra, the sister of Thakshin Shinawatra, was elected as the prime minister of Thailand in 2011 and remained in this position until May 2014 , he shifted his evidence and conceded that Yingluck Shinawatra was prime minister in 2012 but claimed the military was really in power. The Tribunal does not accept the applicant has credibly explained why he was arrested and detained for [number of] months by the army in January 2012 at a time when Yingluck Shinawatra, who was elected with the support of the Red Shirts, was in power. The Tribunal has considered the applicant’s evidence that he was arrested because he was involved in a protest where public property was burned and the Red Shirts were (falsely) accused of destroying this property. However, these details do not appear in the applicant’s written claims, in which the applicant claims he was released from detention in March 2012 on the condition that he would not take part in activities organised by the Red Shirts. Furthermore, while the Tribunal has located reports that a relatively small number of Red Shirts activists who had been arrested in 2010 were still detained in 2012[29], as well as reports of politically motivated violence in Thailand in the lead up to the 2014 coup, the Tribunal has been unable to find reports of Red Shirts activists being detained in January 2012.[30] Overall, the Tribunal considers the applicant’s account of his claimed detention in 2012 was improbable, and unpersuasive.

   [29] US Department of State, "Thailand - Country Reports on Human Rights Practices 2012", 01 April 2013, OG0DB5438176.

   [30] Sources consulted: CISNET, European Country of Origin Information Network (ecoi.net), UNRefworld, Google.

7. The applicant’s oral evidence about how Thakshin Shinawatra, who was the Prime Minister of Thailand between 2001 and 2006, lost power was also confused. Asked when Shinawatra lost power, the applicant said in around 2003 or 2004 and he did not mention that Thakshin Shinawatra was deposed in a military coup in late 2006. Elsewhere in the hearing the applicant referred to Shinawatra winning an election in 2008 with eighty per cent of the vote.  Given that it was this coup that mobilised the Red Shirts movement of which applicant claims to be an active member and that his written claims specifically refer to the military coup that overthrew Prime minister Thakshin Shinawatra, the Tribunal finds it concerning that, when he appeared before the Tribunal, he appeared to be unable to remember how Thakshin Shinawatra lost his prime ministership. While the applicant did display some knowledge of Thai politics (he knew, for example, that the Thai Ra Party was formed in 1998 and that Thakshin Shinawatra now lives in exile in Dubai), the Tribunal was concerned that his evidence to the Tribunal was vague and hesitant and he appeared to be unable to recall significant political events – such as when and how Thakshin Shinawatra lost power even though the fact that Thakshin Shinawatra was ousted in a military coup in 2006 is referred to his written claims. While the Tribunal has considered the applicant’s claims that he is not an educated person, the Tribunal remains concerned that his oral evidence about political events in Thailand lacked the same detail as his written claims. Overall, the Tribunal finds the applicant’s confused and hesitant evidence about when Thakshin Shinawatra and his sister Yingluck Shinawatra were in power casts further doubt on the applicant’s evidence that he was an active member and supporter of the UDD/Red Shirts.  

8. The Tribunal’s concerns that the applicant was not a witness of truth were deepened by his improbable evidence about where he lived and worked in Thailand. Before the Tribunal the applicant claimed that in the decade before he left Thailand he lived with his family in Sakon Nakhon province. However, he also told the Tribunal that he was [an occupation] of a [business] located in Bangkok. He told the Tribunal he had been working part-time in the [store] and also operating a [shop] in Sakon Nakhon (the Tribunal notes his protection visa application states he worked in the [business] form December 2000 to March 2015 and in the [store] from January 2005 to March 2015). When the Tribunal asked how long he had worked as [an occupation] of the [store] he said for two or three years and, when the Tribunal put to him that his protection visa application stated he had worked at this shop since 2007, he gave evidence he started working there part-time and only held the position of [an occupation] for two or three years. The Tribunal found improbable and unpersuasive the applicant’s evidence that he travelled five hours from Sakon Nakhon province to work in a  [store] in Bangkok in the week and then returned to Sakon Nakhon province where he also operated a  [shop] in a market and finds the applicant’s evidence about his claimed employment in Bangkok difficult to reconcile with his evidence that in the decade before he travelled to Australia he lived in Sakhon Nakhon province, which, as the applicant acknowledged, is over 600 kilometres from Bangkok.[31] While the applicant’s evidence about his employment is not determinative, it reinforced the Tribunal’s concerns about the reliability of his testimony about his circumstances in Thailand.

   [31] >

   The applicant’s claims are not otherwise credible by reason of corroborating documentation. At the hearing the applicant claimed that he had burned the evidence of his involvement with the Red Shirts (he identified this evidence as a Red Shirts membership card and photographs of the applicant with political figures) and that he had not been able to contact party members to obtain copies of this evidence. The Tribunal did not find the applicant’s claims that he burnt the evidence in his case to be persuasive and, for all the reasons set out above, it is drawn to the conclusion that the applicant’s claims are not credible.

9. For all the reasons that are set out above, the Tribunal has formed the view that the applicant is not a witness of truth. The Tribunal does not accept that the applicant was ever politically active in Thailand in support of the UDD (the Red Shirts movement), Thai Rak Thai Party or its differently named successors, or Thaksin Shinawatra or his sister Yingluck Shinawatra. The Tribunal does not accept that the applicant was ever actively involved in the Red Shirts movement and rejects his claims that he attended rallies and protests organised by the Red Shirts (including the protest in 2010) or was otherwise politically active in Thailand. Having rejected the applicant’s claims that he was politically active in Thailand, the Tribunal does not accept that the applicant was ever injured in a Red Shirts protest in 2010 or that he required medical treatment for this reason or that any scar he may have on his [body] is a result of being shot whilst protesting. The Tribunal does not accept that the applicant ever worked for the UDD/the Red Shirts or that he was a member or supporter of the UDD/the Red Shirts. The Tribunal does not accept that the applicant was arrested by the army in January 2012 and jailed without charge and it follows that it rejects his claims that he was released because he promised he would not take part in political activity.

10. The Tribunal does not accept that the applicant left Thailand because he was in need of Australia’s protection. The Tribunal does not accept that in 2015 army officials or Yellow Shirts raided his house because they wanted to arrest him but were unable to do because he was elsewhere. Nor does the Tribunal accept that army officials or any Yellow Shirts or any other persons or group visited the applicant’s office in Bangkok looking for him or that the applicant escaped from the army against their direct orders. The Tribunal does not accept that the applicant’s family were threatened and/or intimidated as claimed or that his friends/political associates were detained or have disappeared. The Tribunal does not accept that the army attempted to arrest the applicant and that he evaded arrest and fled to Australia. The applicant has not claimed to have been politically active in any way in Australia and, on the evidence before it, the Tribunal is not satisfied that he is now or ever was any kind of political activist. The Tribunal does not accept that the applicant was of any adverse interest to the authorities or the Yellow Shirts or any other person or group at the time that he left Thailand and travelled to Australia and nor does the Tribunal accept that the applicant is currently of any adverse interest to the authorities or the Yellow Shirts or any other person or group for any reason.

11. On the evidence before it, the Tribunal does not accept that the applicant was ever politically active in support of the Red Shirts/UDD in Thailand and it rejects, in their entirety, his claims to have experienced harm in the past for this reason. Because the Tribunal does not accept that the applicant was ever politically active in Thailand in the past or that he was ever a political activist of any type, the Tribunal does not accept that he would be politically active in support of the UDD/Red Shirts or Thaksin or Yingluck Shinawatra if he were return to Thailand now, or in the reasonably foreseeable future. For the avoidance of doubt, the Tribunal finds that he would not involve himself in such activity, not because he is afraid of the consequences of doing so, but because he is has no genuine commitment to doing so.

    Conclusions

12. For the reasons given above, the Tribunal does not accept that the applicant is now or was in the past a political activist of any type and it rejects, in their entirety, his claims that he is of adverse interest to the Thai army/ authorities/ Yellow Shirts as lacking in credibility. Accordingly, in view of the Tribunal’s findings of fact, the Tribunal finds that he does not face a real chance of persecution now or in the reasonably foreseeable future on account of his political opinion or for any other reason. Accordingly, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his political opinion or for any other reason set out in s.5J(1)(a) of the Act if he returns to Thailand now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. The Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

13. Having found the applicant is not a refugee, the Tribunal has considered whether Australia has protection obligations to the applicant under the complementary protection criterion. The Tribunal has found that the applicant’s claims are not credible. Having regard to its findings of fact and all the evidence before it, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand there is a real risk that he will suffer significant harm, as that term is defined in s.36(2A) and s 5(1) of the Act, for reasons relating to his political opinion or any other reason. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    CONCLUSION

14. 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).

15. 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).

16. 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

17. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Frances Simmons
    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.

    …