1621731 (Refugee)

1621731 (Refugee) [2020] AATA 1741 (24 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621731
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Jane Marquard
DATE:24 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 February 2020 at 10:11am

CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – opposition to military government – support for democracy – Thai Rak Thai party supporter – fear of criminal gangs – fear of arrest – delay in applying for protection – renewal of passport in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration & Ethnic Affairs [1997] FCA 1198
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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

The applicant is a [age]-year-old citizen from Thailand. He has a current passport issued in Thailand in 2015 and expiring [in] 2020.
He arrived in Australia [in] August 2008 as the holder of a [Student Visa]. He attended a college to study English in 2008 and 2009 and then his visa was cancelled due to non-attendance. This decision was later reversed, but [in] October 2010, his student visa ceased and the applicant became unlawful, until 2016.
He lodged an application for a protection visa under s.65 of the Migration Act 1958 (the Act) on 4 August 2016.
A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the visa on 2 December 2016.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. A summary of the relevant law is set out in Attachment A. An extract of the legislation is set out in Attachment B.
[In] October 2019, the applicant was remanded into custody and charged with [common assault and stalk/intimidate intend fear physical etc harm]. Those charges have not yet been before the court. As a result of the criminal charges, the applicant’s bridging visa was cancelled [in] January 2020.
CLAIMS AND EVIDENCE
The evidence taken into account
In coming to a decision, the Tribunal has taken into account the evidence produced to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Thailand.
Summary of evidence before the Department
A summary of the applicant’s evidence before the Department, in his application forms and at an interview, is set out below.
The applicant was born in Phuket. He lived in Phayao, northern Thailand, before travelling to Australia.
His parents reside in Thailand. They are separated and he lived with his grandparents who have now passed away. His parents have both remarried.
He has one [further family member] who lives with [extended] family.
He has no contact with family members in Thailand.
He provided a copy of his Thai national identification card and a Certificate of Divorce. He said that he was married in Australia, and divorced in 2009.
He completed primary and middle school in Phayao.
After finishing school, he worked in a [business] in Phuket for [number] years. He [performed specified tasks]. He also owned a motorbike which he used as a taxi.
His aunt helped him travel to Australia. She now lives in [another country] and he has no contact with her.
In Australia he has worked on a farm and at a [specified workplace].
He claimed that he left Thailand in 2008 because he was scared for his life as the military have taken over the country. He fears being arrested and gaoled. He does not support the military dictatorship as he believes that a government should be selected by the people, and there is no freedom of speech.
He said that when his visa ran out he was thinking of returning to Thailand but he had no money. He does not know who he would live with as his grandparents’ house is very old and rundown. He said that is why he would not like to go back. He said that he likes to live in Australia because there are no classes and the rich and poor catch trains.
He claimed that many people were killed for not supporting military rule. He said there is no justice in prison and prisoners are bashed, deprived of food and treated like animals.
He claimed that he will not be safe anywhere in the country as the military rule the whole country.
Asked if he had ever expressed a view about the political situation he said he went to listen ‘where they gathered together’ a ‘long long time ago’. He said that he has expressed his political opinion and was warned that if he did, he might not be safe. He then went quiet and disappeared for a while. He said that he could not express his opinion or he would have been killed. He said that he is from the northern part of Thailand and that belongs to Thaksin.
He said that everyone loves the King, but the politicians ‘broke them off’ and made people kill each other. The price of rice is very low.
The delegate put to him that the handwriting and responses in his application were very similar to dozens of other applicants from Thailand. He said that he wrote the application with the help of a friend.
Decision of the Department
The Department found that the applicant did not have a genuine and active interest in politics such that he would engage in expressing his political opinion. The Department was not satisfied therefore that there was a real chance of serious harm or a real risk of significant harm.
Evidence before the Tribunal
In submissions to the Tribunal prior to hearing, the applicant said that he was living in Phuket and was a quiet, shy young man and work was difficult to obtain. He said that his mother was in her senior years and he wanted to support her. He said he was constantly harassed and abused physically by boys and men involved in gang-related criminal activities. He said that threats were made to him and to his family to the point that he feared for his life. He said that when he arrived in Sydney on a student visa, he worked 15 hours a week as [an Occupation 1] and studied English and [subject]. He wanted to follow the footsteps of his father to be [an Occupation 1]. He said that in recent years he met a young woman and had plans to marry and have children.
The applicant gave evidence to the Tribunal by video from [a named] Correctional Centre. He said that he understood the interpreter and could hear clearly. The Tribunal acknowledged that being in custody may create additional stress and anxiety for the applicant, and asked him if he felt well enough to give evidence at the hearing. He confirmed that he did. The Tribunal encouraged him to seek assistance of counsellors or medical staff following the hearing. A summary of his evidence is set out below.
The applicant confirmed that he was born in Phuket. His parents came from Phayao province and they were working in Phuket. His father was [an Occupation 1] and his mother was a housekeeper. His parents separated when he was [very young] and they sent him to live with his grandparents in Phayao province, where he grew up. His grandparents passed away [number] years ago. His parents are still alive and he thinks that they have their own family now but he has not contacted them for a long time. They were not close. He does not have brothers and sisters.
He lived in [Town 1] and Phuket for a while for work. He was living with his grandmother in Phayao prior to coming to Australia. He had an uncle in Thailand who has now passed away. His father had a younger sibling but he does not know where that person is. He did have relatives but they did not see each other.
His paternal grandparents were ‘pretty involved’ with a political group. They supported Thaksin. He did not know if they were activists but they took him to gatherings. He was asked if he was involved in any political party or groups prior to leaving. He said that he went to the group with his grandparents, because he grew up with it as a child. He was asked what the group was, and he said it was ‘Thaksin’s group’, Thai Rak Thai. He went to gatherings where there were some talks about their ways of managing the country. He was asked if he could remember what they talked about. He said that they talked about the ways they were managing the country, as they were running the country and it was doing so well in terms of development. They also supported the poor and improving the standard of living, as well as cheap hospital care. He said that under the current regime it is difficult for poor people in Thailand.
The applicant completed primary and secondary school in Phayao. Then he worked as [an Occupation 1] in [Town 1], and then a hotel in Phuket contacted him and he worked there until he travelled to Australia. His grandmother sent him to Australia before she died.
The applicant said that his grandmother wanted him to come to Australia. He was not sure why but thinks perhaps it was because people in the south do not like the Red Shirts. He supported the Red Shirts. He wore a shirt to go to a protest in Saphan Hin in Phuket with a bunch of friends the year before he left to come to Sydney. He was asked to describe what happened at the protest. He said that Thaksin was in the government at the time, and the government got someone to give a speech and he just went to listen.
He said a friend of his got shot in Phuket before they went to the speech. He does not know who shot him, but his friend was pretty ‘out there and aggressive with his opinions’. The applicant was working at the time. Asked if criminals could have been responsible for the killing, he said that his friend had nothing to do with drugs or criminal activity. The police said that people from the opposite side of politics were responsible. Asked if they charged anybody with the shooting, he said that they could not because ‘if you have money you can get away with anything’.
He said when he went to Phayao province he also went to listen to political talks. People in the northern part of Thailand were all Red Shirts and supported Thaksin. They did not have to sneak around like in Phuket were there were less Red Shirt supporters.
He came to Australia to study English and because his grandmother said democracy is better than in Thailand as you could protest freely.
They used the services of an agent to travel to Australia. He stayed in [suburb] with people he did not know who were arranged by the agent. He studied then worked. He said he met a woman in Australia when she shared his accommodation. They were married in Australia, maybe two years after his arrival. But very soon after, they got divorced because her parents told her to go back to Thailand.
The applicant arrived in Australia [in] August 2008 as the holder of a [Student Visa]. He lodged an application for a protection visa on 4 August 2016 although his student visa ceased on November 2009. He said that he did not return home as his grandmother told him not to return as the government had changed. He cannot remember if Thaksin was still in power then. The Tribunal asked him why, if he had an agent, he did not seek protection or another means of staying lawfully in Australia when his student visa expired as would be expected if he had had a genuine fear of harm. He said that he did not know many people and was afraid that he would be sent back.
He was asked what he fears about returning to Thailand. He said that his grandparents have passed away so he does not know where he would live. He was asked if he could not try and locate his parents and extended family. He said that he is not close and they have their own families now.
The Tribunal asked him if he feared serious harm in the country. He said that he fears he may be detained as he does not like how the military got into power as it is very clear that they cheated. He saw in the news that the military shot 16 to 20 people dead the week of the Tribunal hearing. The Tribunal put to him that media sources indicate that it was a lone shooter not acting under military orders.[1] He said that he cannot fully understand the news as it is in English.
[1] BBC News, 9 February 2020, >
He was asked why he fears serious harm as he had not been harmed in the past for his attendance at rallies, has not been a political activist and it does not appear that Thai authorities are interested in him. He said that he just had the fear as he was part of the group against the military even though he was not an activist. The Tribunal also put to the applicant that while there is political suppression, it was reported in January this year that 10,000 people went on a run for democracy without repercussions being reported.[2] Another rally was held by Thanathorn Juangroongruangkit, a billionaire who has emerged as a critic of the prime minister.[3] The Tribunal put to him that people can live there and express views against the government without being seriously harmed. He said that we cannot tell if those people involved in the rallies are still alive.
[2] BBC News, 12 January 2020, BBC News, 12 January 2020, >
He was asked if he keeps in touch with what is going on in Thailand. He said occasionally, but not recently, because nothing seems to get better. The military live by cheating in the political cycle. There is no freedom. Asked if he knows how many prime ministers there have been since Thaksin (there have been six), he said that there were several then Yingluck was in power. Asked when the most recent coup took place (2014), he said that it was several years ago and Yingluck was overthrown.
Asked if he would get involved in politics, he said that he would continue to support Thaksin as there is no development in Phayao under the current regime. He said it is very difficult to be poor under the current regime in Thailand. Asked if he could get a job as [an Occupation 1], he said that he does not know.
The applicant said that it is good living in Australia as a person can find a place to live. He left Thailand so long ago and sees Australia as his home now. He said that in Australia, people are equal whether rich or poor and no-one looks down on other people.
It was put to the applicant that as discussed with him by the delegate, the Department believed that handwriting and responses in his application were very similar to dozens of other applicants from Thailand, which may suggest that the claims were part of a scheme to get protection in Australia rather than being based in truth. He said that he thought about what he wanted to submit and got a friend to write his application for him. He said he is aware that many Thai people have applied for a protection visa. He heard rumours that people would pay a lot of money to get people to apply for visas for them.
The Tribunal put to the applicant that while there may be economic and political reasons why it is more desirable to live in Australia, it did not appear that there was a real chance of serious harm or a real risk of significant harm to the applicant if he returned. It was put to him that he told the Department that he did not return because he had no money and his grandparents’ house was very rundown. This indicates that he did not want to return for financial rather than political reasons. He said that he does not know if he would be harmed if he returns, no-one knows the future. However everything is possible in Thailand and the law is in the hands of the rulers.
The applicant confirmed that he has a current passport issued in Thailand in 2015 and expiring [in] 2020. He said that there was no problem in obtaining a passport from the Thai authorities.
The Tribunal referred the applicant to his written submission in which he claimed that he had been constantly harassed and abused physically by boys and men involved in gang-related criminal activities. He said this was in Phuket in 2008, where he witnessed drug dealing in the front of the hotel. He happened to finish work at the time. They waited for him and threatened him that if he told the police, they would shoot him. He did not tell the police.
He was asked if he was still concerned about these criminals as this happened in 2008 so it is unlikely they would still be concerned about him. He said that the mafia gang is big in Phuket. The Tribunal asked him if he could avoid harm by moving somewhere else, and he said that he does not know where he would go as some of his friends are in Phuket. He was asked why he did not include this claim when making his application. He said that he focused more on the political aspects. He was also asked if there was any reason he did not refer in his application forms to his grandmother being a supporter of the Red Shirts, to him attending a political gathering wearing a red shirt, or his friend getting shot. He said that he had limited time and he got his friend to write his application for him.
He said that he has not been involved in political groups in Australia – although he has talked with his friends about politics. He said that they cannot talk about politics too much as some people oppose their comments.
The applicant was asked if there was any reason he did not refer in his application forms to his grandmother being a supporter of the Red Shirts, to attending a political gathering wearing a red shirt, or to his friend getting shot. He said that he had limited time and he got his friend to write his application for him.
The Tribunal asked him if there was any further evidence he would like to provide. He said that he fears that it would not be safe to return to Thailand if he joined a political group. He said he could not go back and ‘do nothing, as it was not democracy’. He said perhaps if Thailand was democratic then it would be a good place and he could return there.
The applicant indicated that he would be appearing before court in relation to his criminal charges in March 2020. The Tribunal confirmed to him that the criminal charges were not relevant to the review before the Tribunal but that the criminal charges would be considered by the Department in relation to consideration of a grant of a visa.
FINDINGS AND REASONS
The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

The Tribunal is not bound by legal forms and technicalities or rules of evidence in reaching a decision, although it is guided by them. The Tribunal may take into account any matter relevant to the issues to be determined, and considers all of the evidence before it in order to make the correct or preferable decision. The Tribunal must determine the weight to be given to evidence before it.
The findings of the Tribunal, based on the evidence provided, are set out below.
Nationality/receiving country
The applicant provided a copy of his Thai passport and gave evidence that he was a citizen of and born in Thailand. The Tribunal is satisfied on the basis of the passport that the applicant is a citizen of Thailand, and that Thailand is the receiving country for the purposes of the legislation.
Section 438 Certificate
A preliminary issue for consideration concerned a certificate restricting disclosure of certain information in the Departmental file.
The delegate of the Department had placed a non-disclosure certificate on the Department’s file, restricting disclosure of information in that file, pursuant to s.438(1) of the Act. The reason given for the restriction of certain folios is because they ‘contain information relating to an internal working document and business affairs’. The certificate purports to restrict folios 28 and 37. The material in these pages consists of a Departmental case note dated 18 August 2008 in relation to the student visa and a blank disclosure decision checklist.
In considering the validity of this certificate, the Tribunal has taken into account recent case law on the issue. In MZAFZ v MIBP [2016] FCA 1081, the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.
As discussed with the applicant at the Tribunal hearing, the Tribunal considers that the certificate is not a valid certificate as its description of the reasons for restriction, that is, that the relevant folios ‘contain information relating to an internal working document and business affairs’, does not properly identify a basis for public interest immunity. There is no suggestion that the disclosure of the documents would harm the nation or public service.
In any event, the Tribunal outlined the nature of the relevant material and put it to the applicant that there is no material in any of these documents which is relevant to the review and no information which is adverse to the applicant or that supports the application. The Tribunal considers that the material does not result in a loss of opportunity to advance the applicant’s case. The material in the documents does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision by the Tribunal.
Findings of fact
The reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[4] The benefit of the doubt should only be given, however, where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[5]
[4] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
[5] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204
This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Importantly, the Tribunal must consider the evidence in its entirety and not in isolated parts: Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997).
The Tribunal is guided by these decisions and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[6] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In this case, the applicant is in custody awaiting a criminal trial which no doubt would be causing the applicant some stress and anxiety. The Tribunal has taken this into account in the assessment of his evidence.
Findings of fact in relation to the claims
[6] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal is satisfied that the applicant and his late grandparents supported the Thai Rak Thai party of Thaksin Shinawatra, who was deposed by military forces on 19 September 2006 in a “bloodless” coup d'état.[7] The applicant did not have detailed knowledge of political affairs, for example, he did not offer detailed descriptions of political affairs and did not know when Thaksin was deposed. However he referred to attendance at political gatherings, and the overthrow of Thaksin’s sister, Yingluck. He was able to say why he supported Thai Rak Thai, saying that the country was doing well under Thaksin’s rule, and that Thai Rak Thai supported the poor with policies such as cheap hospital care. He was also able to express his opposition to the military ‘dictatorship’ on the basis that he believes that a government should be selected by the people, and there is no freedom of speech. The Tribunal is satisfied therefore that although he was not a political activist, he did support Thaksin and Thai Rak Thai, as his grandparents did.
[7] Human Rights Watch, World Report Thailand Chapter, 2006
In making this finding, the Tribunal has taken a reasonable approach to fact-finding as discussed above, as it has not accepted all of the evidence adduced by the applicant. The Tribunal accepts that there may be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[8]
[8] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
Although the Tribunal is satisfied that the applicant supported Thaksin and his party, the Tribunal is not satisfied that the applicant attended a protest wearing a red shirt a year before coming to Australia or that he attended any protests after the overthrow of Thaksin. In his application he did not refer to a protest wearing a red shirt and said that ‘he went to listen where they gathered together a long long time ago.’ His evidence at the Tribunal was that he attended pro-government rallies prior to the overthrow of Thaksin. He later said that he supported the Red Shirts and wore a shirt to go to a protest in [a location] in Phuket with a bunch of friends the year before he left to travel to Australia, as well as protests in Phayao. However when asked to describe what happened at the rally in Phuket, he said that Thaksin was in the government at the time, and the government got someone to give a speech and he just went to listen. He also later said he could not recall if Thaksin was still in power when he left in 2008. As the Thaksin government was overthrown in 2006, when the Red Shirts were formed, the Tribunal is not satisfied that he attended protest rallies after the overthrow of Thaksin as he said that Thaksin was in power at the time of the rally. If he had attended political rallies opposing the military government, it is likely that he would have recalled when Thaksin was overthrown and details of the rallies as this was a time when the political situation in Thailand was volatile and insecure. According to a Canadian Immigration and Refugee Board report:
Following the coup, military leaders instituted martial law ... They also suspended the constitution and legislative bodies .. and replaced the Constitutional Court "with an appointed military tribunal" ..On its website, the Asian Human Rights Commission (AHRC) states that "army officials have enormous powers to stop demonstrations, close roads, censor news, search people and places ... , arrest and detain people, and give orders to the bureaucracy and judiciary, as if the country was at war"
On 30 May 2007, the Constitutional Tribunal dissolved the Thai Rak Thai party and banned 111 of its party members, including Thaksin, from political activity for five .. Parliamentary elections took place on 23 December 2007 .. and the "pro‑Thaksin" People Power Party (PPP) won the most votes In January 2008, the PPP announced a six-party coalition government ... PPP leader Samak Sundaravej was sworn in as prime minister in February 2008.
According to a 27 August 2008 article published by the United Nations (UN) Integrated Regional Information Networks (IRIN), the People's Alliance for Democracy (PAD) and approximately 10,000 supporters engaged in months of protest to force the PPP-led government from office. The PAD is reportedly a movement involving those who align themselves with conservative factions of the monarchy and oppose Thaksin and Thaksin supporters in government...According to The Guardian, the PAD was also involved in the 2006 protests that precipitated Thaksin's deposition (3 Sept. 2008). On 1 September 2008, after a week of "pro- and anti-government" mass protests, Prime Minister Samak Sundarajev declared a state of emergency in Bangkok .. The Prime Minister's declaration came hours after violent protests left one person dead and numerous people injured.[9]
[9] Canada: Immigration and Refugee Board of Canada, Thailand: Overview of the political situation (2006-2008), 12 January 2009, THA102989.E, available at: >
There is no suggestion that the applicant has been involved in any of these activities and he did not provide any description of them. Considering the evidence in its entirety, the Tribunal is not satisfied that the applicant attended rallies after the overthrow of Thaksin, or that he wore red shirts at rallies. The Tribunal is satisfied that this information was provided to the Tribunal to bolster his refugee claim.
The Tribunal is also not satisfied that the applicant would become involved in political activity if he returned to Thailand in the reasonably foreseeable future, as he did not do so in Thailand after the overthrow of Thaksin, or in Australia, and had limited knowledge about political affairs.
The Tribunal is satisfied that the applicant witnessed a drug deal outside a hotel in Phuket. Although the applicant did not mention this in his protection visa application, the Tribunal notes that he may not have realised that it was important to his claims as he said he only mentioned the political claims. However the Tribunal is not satisfied that the applicant was ‘constantly harassed and abused physically by boys and men involved in gang‑related criminal activities’ or that threats were made to him or his family to the point he feared for his life, as claimed in written submissions to the Tribunal. When asked about these claims at the Tribunal at hearing, he referred to witnessing a drug deal outside his hotel. He said that dealers waited for him and threatened him that if he told the police, they would shoot him. The Tribunal is not satisfied that this one-off threat by a dealer amounts to ‘constant harassment and physical abuse’ or that this ‘comprised threats made to his family such that he feared for his life’. Furthermore he did not tell the police such that there would have been no repercussions for him.
The Tribunal is also not satisfied that the applicant has a genuine fear of serious harm about returning to Thailand. The applicant arrived in Australia [in] August 2008 as the holder of a [Student Visa]. He attended a college to study English in 2008 and 2009 and then his visa was cancelled due to non-attendance. This decision was later reversed, but [in] October 2010 his student visa ceased and the applicant became unlawful, and he remained unlawful until 2016. He applied for this protection visa on 4 August 2016. The Tribunal is satisfied that the application for protection was based on a last resort attempt to remain in Australia, rather than being based on genuine fear, as if he had that genuine fear he would have applied at an earlier opportunity. The applicant told the Tribunal that his grandmother said that he should not return to Thailand because of a change of government, but he did not apply for protection because he did not know many people and was afraid of being sent back. It is understandable that new arrivals in the country may not have much of a network and may be afraid that processes would not work in their favour. However the applicant had been studying such that he would have known a few people to ask, and he used an agent to travel to Australia and to find accommodation. It is reasonable to assume he could have made enquiries to students or the college, his agent, or the Department, or by searching the internet about lawful ways of remaining in Australia, if he was genuinely fearful of serious harm.
Furthermore, in his application forms, while he claimed that he left Thailand in 2008 because he was scared for his life as the military had taken over the country, he also said that when his visa ran out he was thinking of returning to Thailand, but he had no money. He stated that he does not know who he would live with as his grandparents’ house is very old and rundown. He said that is why he would not like to go back. He said that he likes to live in Australia because there are no classes and the rich and poor catch trains. The Tribunal also asked him what he fears about returning to Thailand. He responded that his grandparents have passed away so he does not know where he would live. The Tribunal has sympathy for the applicant in this regard as he has been living in Australia since 2008 such that it may be difficult for him to return to Thailand as he may not have a strong support network there. However, the Tribunal is not satisfied that he has a genuine fear of serious harm for reasons of political opinion when considering the responses set out above, along with his delay in applying for protection and his lack of political activism. The Tribunal accepts that he may have concerns about returning to Thailand for economic and social reasons, considering that he has not lived there for some time and his grandparents have passed away.
Does the applicant have a well-founded fear of persecution for reasons of his political opinion?
Under s.5H(1) of the Act, a person is a refugee if he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the judicial interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention. As set out above, the Tribunal is not satisfied that the applicant has a genuine subjective fear.
For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted …’ Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J that Parliament intended that this same threshold be used to assess claims under s.5J.
While the Tribunal accepts that the applicant does not support the current government in Thailand, the Tribunal is not satisfied that there is a real chance of serious harm were the applicant to return to Thailand in the reasonably foreseeable future. The reasons for this are as follows.

Firstly, the applicant did not suffer any harm in the past for expressing his political views or being a supporter of Thaksin, even though he was living there for two years after Thaksin was overthrown. He has also not claimed that his grandparents, who attended rallies, suffered any harm. This is not determinative as to whether he would suffer any harm in the reasonably foreseeable future, but it does indicate that he was not of such adverse interest to the authorities that he suffered any harm at that time. Further, when considered cumulatively with the other factors below, it does indicate that he would not be of adverse interest to the authorities were he to return in the reasonably foreseeable future.
Secondly, the applicant left Thailand on a current passport and was able to apply for and be issued with a new passport in Australia in 2015. He was also able to leave the country freely, again indicating that he was not of particular adverse interest to the authorities.
Thirdly, the Tribunal is not satisfied that the applicant has the kind of political profile or passion which would attract adverse attention from the authorities. There is no doubt that the Thai military government has suppressed opposition in recent years, and that some political activists may face harm. In the years following the military coup in 2014, Thailand was ruled by a military government, the National Council for Peace and Order (NCPO), headed by General Prayuth Chan-ocha. Promising to return the country to a state of ‘happiness’, critics assert that the junta instead instituted an authoritarian regime, banning political activity and criminalising political dissent[10], aspects of which have continued despite elections being held.
[10] Force of Renewal South East Asia, special report, Fraud, irregularities and dirty tricks: A report on Thailand's 2019 elections, 9 May 2019, p.36
In its World Report 2019, Human Rights Watch stated the following about Thailand:
The National Council for Peace and Order (NCPO) military junta delayed lifting severe restrictions on free expression, association, and assembly, despite announcing a national election in February 2019. There are serious concerns that political parties, media, and voters will not be given the opportunity to participate in a genuinely democratic process. Prime Minister Gen. Prayuth Chan-ocha still wields power unhindered by administrative, legislative, or judicial oversight or accountability, including for serious human rights violations.[11]
[11] Human Rights Watch, World Report 2019 Thailand Chapter, >
On 24 March 2019, Thailand held elections for the first time since the military coup. For many, the 2019 elections were considered an opportunity to return Thailand to civilian rule. Others feared the junta would engineer an outcome that would perpetuate military rule, through the agency of proxy party Palang Pracharat. More broadly, the elections were considered a referendum on whether Thailand was better governed by elected politicians or by the military and the stability that they promised.[12]
[12] Force of Renewal South East Asia, special report, Fraud, irregularities and dirty tricks: A report on Thailand's 2019 elections, 9 May 2019, p.36
The results of elections took nearly 10 weeks to be finalised, with the delay leading to speculation of vote rigging and manipulation.[13] In a highly contentious move, the Election Commission decided to post facto change the formula for calculating party list seats, ripping at least seven seats from anti-military parties and reallocating them to minor parties who promptly chose to join a pro-military coalition.[14] The results were considered by many analysts to be highly controversial, enabling Palang Pracharat to obtain a slim majority in parliament despite Pheu Thai winning the highest number of seats. Palang Pracharat elected NCPO leader Prayuth Chan-ocha as prime minister, ‘completing the military’s transformation from coup-maker to democratically elected government’. Authorities have continued to target critics of the government in the period following the elections. In May and June 2019, for example, three high profile government critics were attacked by groups of men on motorcycles, leaving them with serious injuries. Human rights groups have noted that police have to date largely failed to take these cases seriously and raised concerns about possible government involvement.[15]
[13] The New York Times, Thailand Junta Leader Named Prime Minister After Contentious Vote, June 2019, The Straits Times; Thai opposition says 'not too late' for parties to change minds as pro-junta talks stall after election, 29 May 2019
[14] Channel News Asia, Small parties back Thai military government chief after rule change gave them seats, 13 May 2019, Voice of America, Small Parties Put Thai Coup Leader on Track to Remain in PM Post, 14 May 2019; The Diplomat 'Thailand’s Stolen Election', 1 June 2019
[15] Human Rights Watch, Thailand: 3 Junta Critics Assaulted in Past Month, 4 June 2019; Bangkok Post, Activists face chilling threat, 5 June 2019; Information for Reporters, Thai Alliance for Human Rights, The June 2 Assault on Ja New, (or Sirawat Serithiwat), 4 June 2019; South China Morning Post, Portraits of protest: 10 Thais gagged by lèse-majesté law, used by junta against critics of its rule, 26 May 2017, Amnesty International, Annual Report 2017-18, Amnesty International, 22 February 2018; Human Rights Watch, Thailand - No Arrests for Assaults on Junta Critics, Human Rights Watch, 29 May 2019
Other examples of the suppression of dissent are as follows. In May 2019, Vietnamese authorities reportedly handed over three Thai nationals accused of committing lèse-majesté offences following their extradition from Hanoi to Bangkok. Thai authorities have since failed to acknowledge their arrest or detention, raising concerns they have become victims of enforced disappearance. According to Human Rights Watch, the Thai authorities ‘have been aggressively pursu[ing the three men] and other anti‑monarchy activists who operated from neighbouring countries’.[16] In June 2019, Thai security forces and other officials pressured a foreign satirist, a well‑known comedian and high school students to retract or apologise for videos or photos on social media deemed to make fun of military dictatorship.[17] Section 44 of the Constitution has continued to enable Prayuth to gag dissidents, much to the alarm of human rights groups and political critics. ‘Gen. Prayuth maintains a host of repressive powers that allow him to prosecute dissidents, gag free speech, and put critics in secret military detention. They don't tolerate even the slightest hint of mockery’ according to Human Rights Watch.[18]
[16] Human Rights Watch, Thailand: Critics Feared Disappeared, 10 May 2019
[17] Human Rights Watch, Thailand: Authorities Punish Mockery of Junta, 14 June 2019
[18] Nikkei Asian Review, Thailand's Prayuth delays naming cabinet to wield ultimate weapon, 14 June 2019,
The Tribunal accepts that independent information indicates that Thailand does not fully respect freedom of speech and assembly, notwithstanding the election. However the information indicates that it is those with a political profile or passion – activists and opposition supporters active on social media who are targeted by authorities or their associates. As set out earlier, there have been a number of rallies and other democracy protests which have been allowed to take place[19], and ordinary supporters do not appear to be generally targeted.[20] As the Tribunal is not satisfied that the applicant has the type of political profile which would attract adverse attention, or would become politically active in the future, the Tribunal is also not satisfied that the applicant faces a real chance of serious harm on account of his personal views against the current military government, even though he comes from the north where there are more Thaksin supporters. The Tribunal is not satisfied therefore that the applicant faces a real chance of being arrested or detained because of his political opinions.
[19] BBC News, 12 January 2020, BBC News, 12 January 2020, >
Fourthly, the Tribunal is also not satisfied that there is a real chance of serious harm from gangs or criminals related to a drug deal the applicant witnessed in 2008. As set out earlier, while the Tribunal is satisfied that the applicant witnessed a drug deal outside a hotel in Phuket, the Tribunal is not satisfied that he was ‘constantly harassed and abused physically by boys and men involved in gang-related criminal activities’ or that threats were made to him or his family to the point he feared for his life, as claimed in written submissions to the Tribunal. It was put to him that the dealers would be unlikely to be interested in him so long after the event and he responded that the mafia gang is big in Thailand. The Tribunal accepts that the mafia may be strong in parts of Thailand, but it is not satisfied that there is a real chance in the sense of a substantial as opposed to a remote chance[21] from dealers involved in a single deal, which took place 12 years ago, when the applicant has been out of the area all this time and when he did not in fact report them to police.
[21] Chan v MIEA (1989) 169 CLR 379
Fifthly, while the Tribunal accepts that financially it may be difficult for the applicant to return to Thailand where he has not lived since 2008, the Tribunal notes that he does have skills as [an Occupation 1], and previous work experience in Thailand and Australia. While not close to his parents, they do still live in Thailand and may be able to assist him. The Tribunal is not satisfied that harm the applicant may suffer through financial hardship would amount to serious harm, or that such harm would be for one of the reasons set out in the legislation.
The Tribunal is not satisfied therefore considering all these matters in their totality, that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation were he to return to Thailand in the reasonably foreseeable future.
Does the applicant meet the complementary protection criteria?
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal is not satisfied for reasons set out earlier in this decision that there is a real chance of serious harm if the applicant were to return to Thailand in the reasonably foreseeable future. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation. The Tribunal is not satisfied that there is a real risk of harm from the authorities or from drug dealers. The Tribunal is not satisfied that financial hardship he may suffer would amount to significant harm as it is defined in the legislation.
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

100. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A – RELEVANT LAW
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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B – EXTRACT FROM MIGRATION ACT1958
5(1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…

5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1741

24 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice