1702514 (Refugee)

1702514 (Refugee) [2019] AATA 6586 (9 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702514
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Luke Hardy
DATE:9 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 December 2019 at 3:37pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – military junta – attendance of political protest – loan sharks – credibility concerns – inconsistent and contradictory evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant], a former [Occupation 1] from [City 1], is a citizen of Thailand. He arrived in Australia on a student visa [in] May 2009. The visa would have allowed him to work up to twenty hours a week. Evidently he did not commence study. His student visa was cancelled in 2011.
[The applicant], residing in [Victoria], lodged a protection visa application on 3 June 2016. In that protection visa application he claimed never to have worked in Australia at all. His main substantive claim was that he feared for his safety because he did not support “the current” government in Thailand which he described as a military one.
The Minister’s delegate refused to grant the visa on 3 February 2017 on the basis that [the applicant] had never shown any interest or involvement in politics and would not be a target of persecution or significant harm by the Thai authorities for any reason.
[The applicant] subsequently sought review of that decision by this Tribunal. He appeared unrepresented at a Tribunal hearing in Sydney on 28 November 2019 to give oral evidence and present arguments. The hearing was facilitated by an interpreter in the Thai-English medium.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
[The applicant]’s claims relate to the s.5J(1)(a) factor of actual or imputed “political opinion”.
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department of Home Affairs
In his protection visa application form, [the applicant] claimed that when he left Thailand he did so in fear for his safety because he did not support the military government installed, as he put it, by a coup d’état. He said that people must have a right to vote. He said that because he did not support the military government he would be arrested, imprisoned and perhaps even made to disappear. He said “many” people had already been killed or had disappeared. he said that nowhere in Thailand was safe for him.
For the purposes of this review, [the applicant] submitted a copy of the primary decision in this matter. The decision record contains a summary of his claims and of the issues the delegate considered critical to the decision. At interview, [the applicant] told the delegate he was working in [Victoria]. He did not provide his address.
Independent country information
BBC News[1] provides a useful chronology of potentially relevant events over recent years in Thailand:
[1] “Thailand profile – timeline,” BBC News, 7 March 2019,
2001 January - New Thai Love Thai party wins elections. Thaksin Shinawatra forms coalition government.
2004 January-March - Martial law is imposed in largely-Muslim south after more than 100 killed in a wave of attacks blamed on ethnic-Malay separatists…
2006 September-October - Military leaders stage a bloodless coup while Prime Minister Thaksin Shinawatra is at the UN General Assembly. Retired General Surayud Chulanont is appointed interim prime minister.
2007 August - Voters approve a new, military-drafted constitution in a referendum.
2008 February - Return to civilian rule after December elections. Samak Sundaravej of the Thaksin-linked People Power Party (PPP) is sworn in as prime minister. Ousted premier Thaksin Shinawatra returns from exile.
2008 August - Thaksin flees to Britain with his family after failing to appear in court to face corruption charges.
2010 March-May - Tens of thousands of Thaksin supporters - in trademark red shirts - paralyse parts of central Bangkok with months-long protests calling for early elections. Troops eventually storm the protesters' barricades, leaving 91 dead.
2011 July - The pro-Thaksin Pheu Thai party wins a landslide victory in elections. Yingluck Shinawatra - the sister of Mr Thaksin Shinawatra - becomes prime minister.
2013 February - Government and separatists in south sign first-ever peace talks deal.
2014 May - Constitutional court orders Prime Minister Yingluck Shinawatra and several ministers out of office over alleged irregularities in appointment of security adviser. Army seizes power in coup.
2016 August - Voters approve a new constitution giving the military continuing influence over the country's political life…
2016 October - King Bhumibol Adulyadej, the world's longest reigning monarch, dies at the age of 88 after 70 years on the throne.
2016 - December - Crown Prince Vajiralongkorn is proclaimed king.
2017 April - King Vajiralongkorn signs the new, military-drafted constitution that paves the way for a return to democracy.
2019 March - General election sees former general Prayut Chan-o-cha returned to power as prime minister…
[boldface as in the original]
At the time [the applicant] left Thailand for Australia, Thailand, contrary to his claims, was government by a civilian administration, not a military one. The junta established by the 2006 coup had ceded power back to voters as a result of elections held in December 2007. The Prime Minister in 2009, Khun Abhisit Vejjajiva[2], was a civilian who led the Democrat Party, which held government until August 2011, when general elections were won by Yingluck’s Pheu Thai Party. The military did not take control again until the coup May 2014. It handed government back to an albeit military-friendly democratic process in 2019.
[2] "Abhisit Vejjajiva endorsed as Thailand's new prime minister by King," Xinhua News Agency, 17 December 2008
Evidence to the Tribunal
[The applicant] told me he fled to Australia after attending a political protest.
I asked [the applicant] to discuss whether he was aware of his student visa having been cancelled. He said he recalled it having been cancelled in or around 2010, which is close enough to 2011 when it was actually cancelled. He said he looked for work after the cancellation but could not find any.
[The applicant] said he only tried to study for a month after arriving in Australia, which means he evidently put his student visa in danger of cancellation quite soon after arrival here. He said he stopped studying because he did not have enough money to live here as a student. Since he did not comply with his student visa from quite early on, and thus faced visa cancellation and removal from Australia from about June or July 2009 onwards, I asked [the applicant] why he took so long to apply for protection from being refouled or removed to Thailand, where he claimed to fear being persecuted. I was concerned that he looked for work after his visa was cancelled but did not look for protection from persecution. I specifically asked him why he did not lodge a protection visa application until five years after the 2011 cancellation of his student visa, and he said he had not known what to do until someone told him. He had nevertheless evidently taken to the trouble at that time to try and find out about getting work.
I asked [the applicant] when he attended the political protest and his responses to this question were inconsistent and confused, notwithstanding that I allowed him to give all dates according to the Buddhist Era calendar that is in use in Thailand. On the one hand he said he attended the protest on 2002 (2545 B.E.). On the other hand he said that the reason for the protest was the ousting of PM Thaksin (which was in 2006 or 2549 B.E.), and then corrected himself to say that the occasion was the ousting of PM Yingluck (which was actually in 2014 or 2557 B.E.). Then he said the protest took place a year before he came to Australia, which would have been around the middle of 2008 (or 2551 B.E.). After that, he said that to the best of his memory, he attended the protest in 2552 B.E., which was 2009 and the year in which he came here; however, in that year, as discussed, Thailand was, with Khun Abhisit, up to about its fifth or sixth PM since Thaksin, depending on whether one counts acting PMs along the way, and the country was not under an unelected military junta as suggested in [the applicant]’s protection visa application claims.
Efforts to try and arrive, through discussion and enquiry during the hearing, at a plausible date and reason for the one political rally that [the applicant] claims to have attended in his whole lifetime, were entirely unsuccessful. Eventually, [the applicant] said the rally he attended was held in 2008 or 2009 in protest against the removal of former PM Thaksin. When I drew attention to how long this rally took place after Thaksin’s ousting, [the applicant] said there had been many intervening protests. He did not provide a cogent reason for waiting two or three years to join such protests but did say it he attended no more because his parents told him not to.
I asked [the applicant] for some detail about this protest and he proceeded to describe it as a stand-off between pro-Thaksin “red shirts” and anti-Thaksin “yellow shirts”, such clashes having been common in the years since Thaksin had become PM and even more common since his ousting. [The applicant] said he went home before the police started the disperse the clash, during which, he said, someone threw something.
I took [the applicant] through a history of what happened to Thaksin’s Thai Rak Thai Party after it was forced by court order to disband. It was reformed as the People’s Power party and that later became the Pheu Thai Party led by Yingluck. Split from that party, the Thai Raksa Chart Party was formed in 2009 and contested the 2019 general elections but was banned soon after having tried to put the King’s Sister HRH Princess Ubolratana as a 2019 candidate. The Pheu Thai Party nevertheless contested the 2019 elections and won a large number of opposition seats. [The applicant], meanwhile, provided no evidence to suggest that people who support parties loyal to the Shinawatr family face a real chance of being persecuted in Thailand even if they campaign publicly.
[The applicant] made another quite separate claim at the Tribunal hearing. He said he also fled Thailand in 2009 to avoid being harmed over an unpaid debt the amount of which he lost while gambling. He said the loan shark will kill him on his return to Thailand. He said he borrowed the money in 2547 B.E., which would have been in 2004. I noted he remained in Thailand for about three years after accruing the debt without evident harm and he said he was sometimes threatened when he failed to pay his interest instalments. He also said he his, but this claim appeared to be undermined by evidence in his protection visa application form about having lived and worked in the same place for decades until the time of his departure for Australia. Addressing this concern he said he had in fact run away. I put to him that earlier in the hearing he said he had a second job in a [business] in [City 1] for five or six years before coming to Australia and he then said that claim had been a mistake. I found [the applicant]’s evidence prey to revision and improvisation at this point in the hearing such that I was having some difficulty finding him a reliable witness.
I asked [the applicant] to tell me if he had ever mentioned this claim to the Department and he said he had not. I asked him why he had omitted this claim if, as he was now saying, it involved a matter of life and death. In reply, he said a friend had helped him write his protection visa application and that he had not been able to read what had been written there in English. I put to him that he had signed a declaration in that protection visa application form to the effect that he had heard all his claims read back to him in his language and attested to their being true, complete and correct. He then said his friend did red his clams back to him but might not have included everything.
[The applicant] then gave me plainly contradictory evidence as to whether he had, after arrival in Australia, repaid any of the money he claimed to have owed. This did not help me to be confident in the veracity of his clams about the debt. Having said he did not send any money to the lender from Australia, he said he remitted funds to a sister who is [an occupation] in a [workplace] in [City 1] who then disburses some of the money to his family and some of the money to the lender. He said he would be unable to provide any evidence of any of those remittances at any stage of the process.
[The applicant] then went on to describe a substantial period prior to his arrival in Australia where he lived, rented and worked in Bangkok without attracting any harm from anyone. When I drew his attention to this, he said he never stayed in the same place in Bangkok, but in saying this he contradicted evidence he had just given me. He suggested that someone once came to the door in Bangkok asking after him, and after a flatmate told him about the call, he hid.
Findings in relation to s.36(2)(a) of the Act
[The applicant]’s claims about his standing with the Thai government have a nexus to s.5J(1)(a) of the Act; his claims about the loan frittered in gambling do not.
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[3] 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.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[5] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[6]
[5] 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
[6] Sun v MIBP [2016] FCAFC 52 at [69].

With regard to [the applicant]’s evidence in this case, giving weight to many cumulative instances of inconsistency, vagueness, implausibility, confusion, embellishment, improvisation and contradiction by independent sources, I find I am not satisfied as to the truthfulness of any of his substantive claims.
Having considered all of the evidence in this matter separately and cumulatively, I am not satisfied that [the applicant] faces a real chance of being persecuted in Thailand in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) 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.
Relevantly, s.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 (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of Thailand, I find that Thailand is the “receiving country” in this case. Meanwhile, I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. Since his claims have failed as refugee status claims, they can no more succeed as complementary protection claims. This includes his claims about facing serious or significant harm at the hands lenders, or loan sharks or their henchmen.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that [the applicant] will suffer significant harm. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6586

9 December 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction