1704321 (Refugee)

1704321 (Refugee) [2017] AATA 2011 (20 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1704321
COUNTRY OF REFERENCE:                  Thailand
MEMBER:Susan Trotter
DATE:20 October 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 October 2017 at 1:50pm

CATCHWORDS

Refugee – Protection Visa – Thailand – Social group – Men who evade military service – Arrest warrant – Fear of persecution – Fear of torture – Fear of imprisonment – Discriminatory application of law

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, 216 CLR 473; 203 ALR 112, 78 ALJR 180
Applicant A v MIEA (1997) 190 CLR 225
SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989
SZSPE v Minister for Immigration and Border Protection [2014] FCA 267
SZSPT v MIBP [2014] FCA 1245

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2017 to refuse to grant the visa applicant, [Mr A], a protection visa under s.65 of the Migration Act 1958 (the Act).
[Mr A], who claims to be a citizen of Thailand, applied for the visa [in] August 2016.
The delegate refused to grant the visa on the basis that they were not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations because he is a refugee, as defined in the legislation. Further, the delegate was not satisfied that [Mr A] is a person in respect of whom Australia has other protection obligations as provided for in the legislation.
[Mr A] lodged an application for review of the delegate’s decision with the Tribunal on 9 March 2017.
[Mr A] appeared before the Tribunal by video conference on 15 August 2017 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Thai and English languages.
[Mr A] was represented by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

RELEVANT LAW

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

ISSUES

10. The issues arising from the relevant provisions that are required to be determined by the Tribunal are as follows:

(a)Is [Mr A] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?;
(b)Is [Mr A] a person in respect of whom Australia has protection obligations on complementary protection grounds?; or
(c)Is [Mr A] a member of the same family unit as a person in respect of whom Australia has protection obligations, as a refugee or on complementary protection grounds, and that person holds a protection visa of the same class?

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

CREDIBILITY

12. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

13. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

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

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

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

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

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

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

MANDATORY CONSIDERATIONS

17. 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 - Refugee Law Guidelines and PAM3 Refugee and Humanitarian -– Complementary Protection Guidelines and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

EVIDENCE AND CONSIDERATION OF CLAIMS

Background

18. [Mr A]’s visa application states that he was born in Phrae, Thailand on [birth date]. He was therefore [age] at the time of the visa application [in] August 2016 and is now [age].

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

(a)He speaks, reads and writes Thai and speaks English.
(b)His religion is Buddhist.
(c)He is in contact with his father and his brother who reside in Thailand. They communicate by phone, Skype or Viber every two to three weeks or when time allows.
(d)He arrived in Australia [in] August 2015 on a student visa.

Claims

20. [Mr A] sets out his claims for protection in his protection visa application form which reads as follows:

Why did you leave that country(s)? Provide specific details.

“I left Thailand after I was granted a Student Visa to enter Australia”.

What do you think will happen to you if you return to that country?

“There is a Warrant of arrest issued against me by the authorities for failing to attend to my compulsory Military service. Once I am arrested upon my arrival I will be going to jail to serve a 20 years sentence. In Thai Jail, I will face torture, severe physical harm, degradation, deprivation of any human rights during my entire period of incarceration and may be even death. The Thai authorities are encouraged to always make an example of individuals who do not fulfil their military duties for whatever reason.”

Did you experience harm in that country(s)?

“No”

Did you move, or try to move, to another part of that country(s) to seek safety?

“No”

Do you think you will be harmed or mistreated if you return to that country(s)?

“Yes”

Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)

“Once I am sent to Jail for failing to attend to my compulsory army duties, I will be tortured, physically harmed severly, beatings deprived from every human right I have and degradation at the hands of the Jail authorities. I fear that I might even die from the sever torture I will face. It common that some prisoners die in Thai jail due to severe torture. This treatment will continue for the entire period of my incarceration.”

Do you think the authorities of that country(s) can and will protect you, if you go back?

“It is the authority who issues the Warrant for my arrest. The Thai Authorities encourage making an example of those who fail to serve the military duties. The Thai authorities do not observe any human rights to jail prisoners. Torture, deprivation of any human rights, severe beatings, degradation, death in jails is a common occurrence in Thai jails at the hands of the authorities.”

Evidence

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

(a)[Mr A]’s protection visa application forms;
(b)[Mr A]’s identity documents including a certified copy of his passport;
(c)The delegate’s decision record dated [in] February 2017;
(d)Copy of original and translated Warrant of Arrest issued by the [court] addressed to [Mr A], dated [2016];
(e)Country information from [Mr A]’s representative.
(f)A statutory declaration sworn by [Mr A] on 22 March 2017 as follows:
“In 2015 I applied for a student visa to travel and study in Australia and my visa was granted [in] July 2015. I arrived to Australia in August 2015.
After my arrival to Australia and within a week I learned that my dad had to undergo a [medical procedure] and my mum had to [undergo a medical procedure]. Fearing the worst for my parents, I unfortunately slipped into depression and was hoping that my parents will get better. I do confess regrettably that I did not contact my education institution in Australia, which I should have done. What was on my mind at the time is the loss of my mum and dad.
In approximately November 2015 I met my partner and with deep regret time just passed by without me taking positive steps to address my problems.
In July 2016, I received a notice that my students visa was cancelled due to incorrect information being provided. I solemnly and sincerely declare that all documents provided at the time of my student visa application were correct in every detail to the best of my knowledge. All documents obtained were from official sources and I relied on those sources to provide the correct detailed information and documentation.
In approximately beginning of August 2016, I contacted my brother [to] ask about my mum and dad. My brother informed me that the police came to our house with a warrant looking for me. My brother informed me that the warrant is a warrant of arrest for failing to present to myself to serve the nationality military service. The police gave a copy of the warrant to my brother and ordered him to notify me. In Thailand a warrant of arrest for whatever they consider an offence means jail. I was indeed very scared and did not know how deal with this catastrophic situation knowing what can happen if I return to Thailand. My brother advise me not to return for the time being.
When my brother told me that I may be facing maximum 20 years jail in Thailand upon my return, I become more and more scared and did not know which way to go and what decision I should make. I shared my predicament with a trusted friend of mine who suggested that I should engage a Migration Agent to advise me on how I should proceed further. My Migration Agent considered my circumstances regarding the Warrant of arrest and advised that I should apply for a Protection Visa.
I agreed with the Migration Agent’s advise and lodged my Protection Visa [in] August 2016.
I hold real fear that if I am forced to return to Thailand I will face imprisonment, torture, severe physical harm or violence, degradation, humiliation and may be death as a result of the torture. The torture, physical violence and harm, degradation and humiliation is a systematic occurrences in Thai jails since a long time and until this day. There are no human rights principles of standards observed or implemented in Thailand and more so in jails or military prisons.
Neither the Government or its agents will not afford me any protection, despite their knowledge of what will happen to me. In fact it is their best interest to set an example of a person like myself to intimidate others to blindly comply.
I do not wish to serve in the Thai military because the Thai military has been involved in killing civilians as well as peaceful protestors whenever they see fit. I do not wish to serve an oppressive army, which have demonstrated human rights violations or taken any part of such atrocities.
Thai jails or military prisons are intolerable, any duration of imprisonment can be fatal tones life as result of the systematic physical violence and torture. The authorities have good motives to allow this to happen, it is simply to implant fear in the hearts of anyone who refuses to comply. They have never provided any protection to any person whose fundamental human rights have been violated, nor will they do so.
I genuinely fear for my life, freedom and well being if I am forced to return to Thailand due to the outstanding warrant issued against me by the State, which will automatically result in my arrest and having to face imprisonment…”

22. Additionally, the Tribunal took into account [Mr A]’s oral evidence to the Tribunal, which may be summarised as follows:

(a)He was born in Phrae Thailand.
(b)Prior to coming to Australia he was studying. After he finished studying he asked his parents if he could come to Australia to do more study. His diploma was in [details of diploma].
(c)His family in Thailand includes his father, mother and one older brother. They all live at the family home in Phrae. His older brother and [family] live with his parents. His older brother is [married]. His older brother is [age].
(d)He did not do any work in Thailand other than [details of work]. He finished a diploma in [details of diploma] in Thailand. He wanted to learn English and wanted to get more experience. He decided that he wanted to come to Australia to study. He spoke to his parents about that and applied for a student visa to come to Australia.
(e)When he came to Australia he planned to continue studying because he was quite happy living here. He understood that he could live in Australia for three years and then he was going to go home. He knew that the student visa was only a temporary visa.

(f)He arrived in Australia in August 2015. Since arriving in Australia he has remained in contact with his family, usually about once a month or sometimes less often. He stays in contact with them by telephoning his brother. He is the person who calls because it costs them a lot to call from Thailand. However, his brother does have a phone number for him that he can call in an emergency.
(g)His student visa was cancelled. He thinks it was something to do with fake paperwork. He does not understood why it was fake because it was his understanding that it was a genuine document.
(h)He did not know what to do when his student visa was cancelled. He was sad and depressed and was worried that he was going to be sent back to Thailand. He had a partner at the time and she advised him to talk to a friend who advised him to see a lawyer. He did not contact his family at the time to tell them that his visa had been cancelled. He was worried because his father and mother were not well and he was worried that they would get worse if they knew that his visa had been cancelled and he went back to Thailand. His father had [details of illness] and his mother had [details of illness]. He was also concerned because when he called to follow up as to his parents’ health, his brother advised him that the police had come to their house and there was a warrant for his arrest. It was in early August 2016 that he spoke to his brother. His brother told him that the police had come to their house a few days after the warrant had been issued. He learnt about the warrant when he called home to check on his parents’ (health) condition.

The last time prior to August 2016 that he had been in contact with his family was in about April 2016.

(j)He was sad and depressed when he heard about the warrant. When queried he said that his brother did not contact him earlier in relation to the warrant because he knew that it involved a high degree of violence. He then consulted a lawyer.
(k)He gave all of his information to his lawyer who completed the protection visa application form for him. He then signed the form. He was satisfied that the information in the form that he signed was pretty much all correct.
(l)His brother has sent him a certified copy of the warrant. He consulted with his lawyer and then they arranged for it to be translated.
(m)His understanding is that the warrant was issued because it is Thai law that Thai men turning 21 have to complete compulsory military service. His brother had attended at the recruitment centre at the same age. His brother told him about the experience and what he had he had to do, including killing innocent people. This is not what is reported in the media but his brother knows what actually happens because he has done the military service himself.
(n)If he returns to Thailand he fears he will be put into jail and he will be hurt. He will not have any privacy. He will lose his human rights. He is afraid that he will get hurt or killed.
(o)He would not accept having to perform military service if he returned to Thailand because he does not want to kill innocent people, as his brother told him he had to do to.
(p)He was aware when he left Thailand that [personal details]. His fear is that if he returns to Thailand he will be punished for not presenting himself for military service recruitment as required in the year he turned 21. He fears that he will get forced to kill innocent people.
(q)When queried as to why he had not previously raised the concern now raised about being forced to kill innocent people, [Mr A] responded that he comes from his heart and the other interpreter (not the interpreter at the Tribunal hearing) when filling out his protection visa application form asked different question and not exactly the questions being asked at the Tribunal hearing.
(r)He is afraid to return to Thailand. He is afraid he will be in prison and he will lose his human rights. He is afraid that they will hurt him. He is afraid that they force him to kill innocent people. He is afraid of everything. He is afraid he will be killed.
(s)As noted in his statutory declaration, his brother told him that he would be put in prison for 20 years if he returned to Thailand. When queried as to what [his] brother based this on, he responded it is because it is the law – 20 years.
(t)He has his wife in Australia. She is not a citizen of Australia. She is from [country name]. He does not want to go home and be in a prison. He wants to be with her. He loves her very much.

23. The Tribunal was concerned about a number of matters that arose on the evidence and information before it and raised those matters with [Mr A] as follows:

(a)The law relating to compulsory military service in Thailand might be considered a law of general application that applies to all men in Thailand of conscription age that is appropriate and adapted to a legitimate national objective of protecting the security and safety of Thailand and its population. The Tribunal accepts that a law of general application is capable of being implemented or enforced in a discriminatory manner. However, without evidence of selectivity in enforcement of that law of general application, the Tribunal might conclude that the laws in relation to compulsory military service and the application of those laws amounts to no more than non-discriminatory application of a law of general application.
[Mr A]’s representative agreed with the law in this regard. He submitted that there is a motivation by the authorities to make an example of persons like [Mr A] and others who behave in that fashion, evading military service. [Mr A] would probably be exposed to harsh punishment, disproportionate periods of prison that only affect this special group of people. The authorities have good motivation to apply this to set an example for him. What actually happens in Thai jails is illustrated in photographs provided. There is no recognition of basic human rights in Thai jails. The torture that it is said [Mr A] will suffer if he goes to a Thai jail was empahised. He may also be regarded by the authorities as a special group of person who should have a learnt a lesson. Looking at that in its entirety, he would belong to a special group of people who would have to suffer disproportionate harm in jail for a lengthy period of time. The law of general application would be lost if it achieved this particular punishment that [Mr A] would have to face. The issuing of the warrant is a real warrant and the effect will take place. There are no mitigating circumstances in Thailand. [Mr A] will be arrested and he will be sent to jail.
In response to the Tribunal’s query as to how [Mr A] is any different to others who do not comply with this law of general application, it was submitted that any person who disobeys the army faces more severe consequences that those who just do not turn up for the recruitment process. The Tribunal queried if it was submitted that [Mr A] did more than not turn up for military service. It was submitted that [Mr A] was not aware that he had to submit himself for military service and he also would not want to join a military involved in killing.
It was submitted that in the case of S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, 216 CLR 473; 203 ALR 112, 78 ALJR 180, referred to in the written submissions, “that there is a real risk of assuming that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country”. That class of people will be treated differently and the submission is that [Mr A] would be, or may be by implication, a person belonging to that special group of people.
The Tribunal noted that there is a distinction between pursuing all people who breach the law and just a particular group of people who breach the law. The Tribunal queried whether there is any evidence that a particular group of people, or [Mr A] individually, are being pursued rather than general enforcement against all people who breach the law to turn up for military service. It was submitted that there was no evidence to articulate as to how people who breach the law are treated, but from his experience, and from what his brother has told him, [Mr A] will be punished for not complying with the law at the time. It was submitted that the focal point is the severity of the punishment that [Mr A] will be facing and the extent of that punishment and the general application law in this particular instance will lose its proper application in [Mr A]’s circumstances because of the severity and the selectivity of the punishment. The punishment faced might be four or five years. It was submitted that [Mr A] will be facing more jail sentence than another person who breached the law. It was submitted that [his] brother was told by the police that the jail sentence would be 20 years for [Mr A], whereas the country information says that the usual sentence would be three to five years. The Tribunal indicated that it might hold a concern that there is no country information to support that [Mr A] would be subject to 20 years to jail. It was submitted that there was no reason for [his] brother to disbelieve the authorities’ reference to 20 years. The Tribunal noted that there was no evidence as to why [Mr A] would be singled out. Reliance was again placed on what [his] brother had been told by the police.
(b)The Tribunal noted that there is independent country information that indicates that not attending for military selection in Thailand can be punished with imprisonment of up to three to four years, as agreed by [Mr A]’s representative. The Tribunal indicated that it therefore might hold a concern in relation to [Mr A]’s evidence that the punishment could be imprisonment of 20 years rather than three or four years, such that the Tribunal might question how much weight could be put on [Mr A]’s evidence in this regard. [Mr A] responded that he lived in the country for 20 years and he saw persons in this situation who did not even have ID. They have to be in hiding. They have no entitlement for treatment if they are not well. They cannot go to visit their parents. They have nothing at all. The Tribunal again raised that [Mr A]’s evidence of imprisonment of 20 years is not consistent with the country information that suggests that the term of imprisonment would be for up to three or four years. [Mr A] responded that the law can be changed. The authorities want to punish the people or persons to make an example for other people to see.
[Mr A]’s representative submitted that the consequences of any jail term, be it three, five or 20 years, are the same. The consequences of the outstanding warrant upon [Mr A] and his wife, if he was forced to return to Thailand, will mean that the flavour and intention of that law, will be totally lost as the result of what will happen to [Mr A].
(c)The Tribunal raised with [Mr A] that it might hold a concern, in assessing the weight of his evidence, that his brother did not contact him to advise him of something as serious as a warrant for his arrest being issued (on his evidence making him liable to a 20 year jail sentence) and might query why did his brother not contact him to advise him of something that serious. [Mr A] responded that his situation at that time was that his visa had been cancelled and his brother would have thought he was too sad or depressed to be told more than one sad thing at a time. The Tribunal noted that on [Mr A]’s evidence, his brother did not even know at that time that his visa had been cancelled because he did not contact him and tell him until August 2016. [Mr A] said that at first he did not tell them but later on he did tell them after he had spoken to the lawyer.

24. Written submissions made on behalf of [Mr A] to the Department and the Tribunal, to the extent that they are potentially relevant, may be summarised as follows:

Written submissions dated [in] August 2016 to the Department

(a)There is now a warrant for [Mr A]’s arrest and he will be detained by the authorities and jailed upon his return. Once he is jailed, he will face torture, beatings, serious and significant physical harm, humiliation and degradation and maybe death as a result of such torture and beatings at the hands of the authorities. The jail conditions and treatment of jail prisoners in Thailand is commonly known as notorious. and A] will be subjected to beatings, serious and significant harm, humiliation, abuse and even death at the hands of the authorities or their agents while he is in jail in Thailand.
(c)In Chan v Minister for Immigration and Ethnic Affairs it was stated that “There is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution … Some would confine persecution to a threat of life, whereas others would extend it to other measures in disregard of human dignity…”
(d)[Mr A]’s circumstances satisfy the criteria in that he will face serious and significant physical harm, torture, beatings and perhaps death at the hands of the Thai authorities or their agents.

Written submissions dated [in] April 2017 to the Tribunal

(e)When [Mr A] left Thailand, he was unaware of the consequences he would face by leaving his country without discharging his compulsory military service. He is not an experienced person and was not familiar with the severity of punishment he would face.
(f)Once [Mr A] is arrested upon return to Thailand, he will be detained by the authorities and will be incarcerated. He will face torture, beatings, serious and significant physical harm, humiliation, degradation and maybe death, at the hands of the authorities or their agents.
(g)The jail conditions in Thailand are commonly known as notorious. and is not material whether [Mr A] is incarcerated for three, four or 20 years in a Thai jail. The result of incarceration in Thai jails is not in dispute, namely, the systematic involvement of torture, mistreatment, beatings and inhuman treatment.

In Chan v Minister for Immigration and Ethnic Affairs, Dawson J explained “There is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution…Some would confine persecution to a threat of life, whereas others would extend it to other measures in disregard of human dignity...”.

(j)It is important to take into account the personal experiences of others in similar situations, since these may well show that there is a reasonable likelihood that the harm feared by [Mr A] will materialise sooner or later.
(k)The first question to be asked is what would be the predicament (consequences) for [Mr A] if returned.
(l)The second question is does that predicament or consequences meet the threshold of persecution and the standard of proof to determine the risk is reasonable likelihood.
(m)Based on Chan, persecution will be established if the individual is at risk of a threat to life or freedom, serious human rights violations, or other serious harm. By way of example, disproportionate or arbitrary punishment. VCAD v Minister for Immigration and Multicultural & Indigenous Affairs. In this instance for refusing to undertake military service such as excessive prison terms or corporal punishment would be a form of persecution. Other human rights violations include non discrimination for example torture or inhuman treatment, forced labor and enslavement/servitude.
(n)It is important to take into account not only the direct consequence of one’s refusal or evasion to perform military service (e.g. prosecution and punishment), but also any negative consequences resulting from other forms of punitive retribution. These types of harm may amount to persecution if they are sufficiently serious in and of themselves, or if they would cumulatively result in serious restrictions on the review applicant’s enjoyment of fundamental human rights, making his life intolerable.

Written submissions dated 4 August 2017 to the Tribunal

(o)The effect of the arrest warrant issued by the Thai authorities against [Mr A] is that if [Mr A] returns to Thailand, he will be imprisoned in a Thai jail for a significant period of time.
(p)If [Mr A] is forced to return to Thailand, he will immediately be arrested and sent to jail. In jail he will suffer systematic torture, physical harm, beatings, degradation, humiliation, denial of basic human rights and possibly death at the hands of his torturers due to the acts of brutality and physical harm, particularly given that [Mr A] is [personal details].
(q)Physical torture, beatings, physical harm and degradation are not uncommon in Thai jails. Humiliation, ill treatment and the denial or absence of basic human rights are a reality in jails in Thailand. The authorities in Thailand may have the motivation to inflict harm upon [Mr A] in order to set an example to others like him.
(r)[Mr A] has a genuine well-founded fear of serious harm of persecution if he is forced to return to Thailand. He has never respected or wanted to join the army service in his country as army personnel have been involved in the killing of innocent civilians in the past and the media have concealed such events.
(s)The issue is not whether the Thai law on conscription is one of general application or not. The issue is also not whether [Mr A] will be singled out for persecution in the application of that general law or not. The issue is whether in the application of the general law, a class of people to which [Mr A] belongs is subject to what amounts to Convention persecution.
(t)Country information is that there are prison terms to be served by those who try to evade army service. There is a systematic endemic culture of abuse, brutality and torture in Thai jails.
(u)Photographic evidence is relied upon showing a culture of hazing and other acts of brutality in Thai jails at the hands of the jail authorities.

Alternatively, [Mr A] will not be treated ordinarily as a person who contravened a criminal law of general application, but rather as a “particular social group” who evaded military conscription.

(w)Reference is made to Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA, where Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls with the definition of ‘particular social group’:
“First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.

The group, of which [Mr A] is part and which distinguishes him from society at large, is identifiable by the common characteristic that they are “Thai men of conscription age (21 years of age) who have evaded service of summonses of military service” and the group is not defined by a shared fear of persecution.

(y)The disproportionate severe imprisonment sentence is applied to this group for “reasons of their membership of the group of Thai men who have evaded military service.”

(z)The law of general application is lost if the different treatment of different individuals and groups is not appropriate and adapted to achieving some legitimate government objective concerning compulsory military service.
(aa)Reliance is placed on the following principles enunciated by the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 16 CLR 473; 203 ALR 112; 78 ALJR 180 (9 December 2003): (emphasis in original)
Applicable principles
1.    It is well established that the Convention definition of “refugee” has subjective and objective elements. Does the applicant fear persecution for a Convention reason (the subjective element)? Is that fear well founded (the objective element)? The fear will be well founded if there is a real chance that the applicant would face persecution for a Convention reason if the applicant returned to the country of nationality [33].
2.    The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
3.    Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
Further, there is serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant’s claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, where there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country.
(bb)It is submitted that if [Mr A] is forced to return to Thailand, there is a real chance that he will face persecution involving ‘serious harm’ in that the persecution he faces as a result of the evasion of conscription procedure which led to the issuing of the arrest warrant has the effect on [Mr A] of loss of liberty, ill treatment, beatings and torture by serving a severe prison sentence.
(cc)Alternatively it is submitted that [Mr A]’s membership of the particular social group of ‘Thai men’ who have evaded service of summonses to participate in military service is the essential and significant reason for such persecution, and the persecution involves systematic and discriminatory conduct in that it is deliberate or intentional and involves his selective harassment for a Convention reason, namely his membership of the particular social group in question. As the Thai government is responsible for the persecution which [Mr A] fears, there is no part of Thailand to which [Mr A] would be safe from the persecution which he fears.

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

25. Pursuant to s.36(2)(a) of the Act, a person meets the criteria for a protection visa if they are recognised as a refugee pursuant to s.5H(1)(a) of the Act. That section provides that 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 the protection of that country: 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).

26. The Tribunal finds that [Mr A] is a citizen of Thailand based upon his passport and will assess his claims on that basis. The Tribunal also finds that [Mr A] is outside his country of nationality, Thailand. Thailand is therefore the receiving country for the purpose of assessing [Mr A]’s claims for protection.

27. There is no evidence before the Tribunal to suggest that [Mr A] has a right to enter and reside in any country other than his country of nationality, Thailand. The Tribunal therefore finds that [Mr A] is not excluded from Australia’s protection obligations pursuant to section 36(3) of the Act.

28. The Tribunal accepts [Mr A]’s evidence that he fears being arrested and harmed (including by way of hazing and acts of brutality) in jail if he returns to Thailand as a warrant has been issued for his arrest for evading military service. The Tribunal is satisfied that [Mr A] genuinely has a subjective fear of being persecuted if he returns to Thailand, and finds accordingly.

29. A DFAT report of 5 September 2017 provides the following information in relation to military service in Thailand:

“Conscientious objectors to military service are at risk of imprisonment and/or the payment of fines; however, it is unclear to what extent those provisions are enforced. Thailand has compulsory military service. Under the Military Service Act 1954, male citizens are required to enlist in the military service force at the age of 18. At the age of 21, they are screened for physical disabilities and recruited on a demand basis through a lottery system for two years of military service as private soldiers. All men aged 21 to 30 years are liable for two years’ military service, with reservist duties applying afterwards. However, at the age of 21, Thai men can choose to avoid participating in the draft lottery by volunteering for six months of service instead. There is no substitute civilian service available. Thailand does not recognise the right to conscientious objection for conscripts or soldiers. Conscientious objection is not a well-known concept in Thailand.
Exceptions from compulsory military service are available. Those with physical and mental conditions that prevent them from serving are exempt. Similarly, Buddhist monks, students in certain technical studies, naturalised students and those who undertake reserve officer training in high school are exempt. Males studying in higher education institutions can postpone their military service for up to five years. Transgender women can obtain exemption (from conscription) certificates, but must still attend draft days.
Persons who evade the draft are at risk of imprisonment. Draft evasion is a widespread problem. Previously, failing to register for military service was punishable by up to three years’ imprisonment; however, in February 2016 it was reported that the newly-passed Reserved Forces Act had increased the punishment to four years’ imprisonment. No information was found regarding whether this legislation is currently implemented. One dated report states that failing to report oneself upon notice is punishable by up to three months’ imprisonment, a fine of 300 Thai baht (AUD 11), or both. No publicly-available information was located regarding the extent to which the Thai authorities implement legal penalties for failing to undertake compulsory military service. The military service selection lottery is subject to corruption including the payment of bribes to avoid service. As a result, many military conscripts are from the poverty-stricken north east of Thailand.”

30. Based upon the above country information, the Tribunal accepts and finds that Thai men of 21 years are age are liable for two years military service (decided in a draft lottery) and that draft evasion is punishable by up to three years’ imprisonment, recently increased to four years’ imprisonment. The Tribunal also finds that [Mr A] has evaded military service and a warrant has consequently been issued for his arrest. The country information notes that there is no current information available as to whether the legislation in relation to punishment for evasion is currently enforced. However, the Tribunal is prepared to accept, based on the existence of the legislation and the issue of the warrant against [Mr A], that there is a real chance that that [Mr A] will be persecuted, by imprisonment for up to three or four years, if he returns to Thailand on account of evading military service.

31. However, it is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of such a law does not ordinarily constitute discrimination. (Applicant A v MIEA (1997) 190 CLR 225 (Applicant A v MIEA) per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467 and Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20]. As Brennan CJ stated in Applicant A v MIEA:

“… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[1]”
[1] Applicant A v MIEA (1997) 190 CLR 225, at 233.

32. Consistently with Australian law, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) states:

“56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.[2]
[2] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued 2011) (Handbook) at [56].

33. The Tribunal finds the law relating to military service in Thailand is a law of general application and is appropriate and adapted to a legitimate national objective of protecting the security and safety of Thailand and its population.

34. The Tribunal recognises that a law of general application is capable of being implemented or enforced in a discriminatory manner. [Mr A]’s evidence was that the law is enforced in a discriminatory manner against persons who have evaded military service. However, without corroboratory evidence to support that assertion, the Tribunal finds that the laws governing military service in Thailand will generally amount to no more than a non-discriminatory law of general application.

35. The Tribunal considered whether the persecution feared by [Mr A] will be imposed in a discriminatory manner for reason or reasons of race, religion, nationality, membership of a particular group or political opinion.

36. There is no evidence before the Tribunal related to reasons of race, religion, nationality or political opinion.

37. The Tribunal considered whether the evidence supports discriminatory application of a law of general application against [Mr A] for reason of membership of a particular social group.

38. [Mr A]’s evidence was that he does not want to kill people and that, although not publicised, he believes based upon what his brother has told him, that he may be required to kill people if he undertakes military service. The Tribunal considered whether on this basis [Mr A] belongs to the particular social group of conscientious objectors. Based on the independent country information, Thailand does not recognise the right to conscientious objection. Nonetheless the Tribunal considered whether [Mr A] is a conscientious objector. Whilst [Mr A]’s evidence was that he did not want to kill people, he did not claim that he has ever publicly voiced such an opinion nor public identified himself as a conscientious objector. The Tribunal is not satisfied that [Mr A] is a conscientious objector nor that he would be subjected to serious harm for that reason if he returned to Thailand.

39. However, the Tribunal accepts, as submitted on behalf of [Mr A], that [Mr A] is a member of the particular social group, being Thai men who have evaded military service[3], and fears harm on the basis of being punished for evading military service. The Tribunal is satisfied that the persecution claimed to be feared by [Mr A] is for reason of membership of that particular social group claimed, that this is the essential and significant reason for the persecution and that persecution involves serious harm in that it involves loss of [Mr A]’s liberty and exposure to possible harm on account of the prison conditions existing in Thailand.

[3] Or however so similarly described, such as “Thai men of conscription age (21 years of age) who have evaded service of summonses of military service”

40. Pursuant to s.5J(4)(c) of the Act, the persecution must also involve systematic and discriminatory conduct.

41. [Mr A] told the Tribunal that he fears being imprisoned for 20 years because that is what the police told his brother. Country information does not support such a penalty. Rather, the country information is that the law in Thailand is that military service evasion is punishable by up to three years, and more recently four years, imprisonment. When that information was discussed with [Mr A] at hearing, he responded that the law can always change. That may well be the case but there is no evidence before the Tribunal that the penalty to which [Mr A] may be subjected will be more than three or four years. The Tribunal does not accept that draft evasion in Thailand is punishable by 20 years imprisonment against [Mr A] or anyone else. On the contrary, country information is that the maximum punishment is three to four years. The Tribunal is not satisfied that [Mr A] has or will be been singled out or made an example of, or treated differently, from anyone else in the same situation.

42. The Tribunal is satisfied that the punishment to which [Mr A] will be liable upon return to Thailand is punishment of a non-discriminatory kind for contravention of a law of general application and finds accordingly.

43. Having had regard to all of these matters, the Tribunal is not satisfied that the claimed persecution involves systematic and discriminatory conduct, and finds accordingly. Subparagraph 5J(4)(c) is therefore not satisfied. It follows that [Mr A] is not a refugee pursuant to s.5H(1) and that the requirements of s.36(2)(a) of the Act are not met.

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

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

45. ‘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.

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

47. However, torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

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

49. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

50. ‘Degrading treatment or punishment’ is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

51. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of 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.

52. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

53. It is submitted that in jail in Thailand, [Mr A] will suffer systematic torture, physical harm, beatings, degradation, humiliation, denial of basic human rights and possibly death at the hands of his torturers due to the acts of brutality and physical harm, particularly given that [Mr A] is a person of [personal details]. It is further submitted that the authorities in Thailand may have the motivation to inflict harm upon [Mr A] in order to set an example to others like him.

54. The Tribunal has regard to the country information provided by [Mr A] in relation to prison conditions in Thailand and accepts that the conditions are poor.

55. However, the Tribunal is not satisfied on the evidence that [Mr A] will be subjected to arbitrary deprivation of life or that the death penalty will be carried out upon him.

56. The Tribunal also considered whether being detained in a prison in conditions indicated by the country information provided by [Mr A], could constitute ‘torture’ or ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’, as defined in the Act.

57. The Tribunal notes that the definition of each of these types of harm, amongst other things, on a clear reading of the Act, requires an element of intent. It is clear that mere negligence or indifference is not sufficient. (SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989, upheld on appeal, SZSPE v Minister for Immigration and Border Protection [2014] FCA 267).

58. The Tribunal accepts that prison conditions in Thailand are as submitted, however there is no evidence, and the Tribunal is not satisfied that, any harm that will be occasioned to [Mr A] from being imprisoned in a Thai prison is as the result of any intent on the part of the authorities. As already canvassed, the Tribunal is not satisfied that [Mr A] is a conscientious objector. The Tribunal is not satisfied that he would be subjected to harm directed at him with intent on that basis or any other.

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

60. The Tribunal notes that in any event, under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. Notably, the Federal Court has previously found that it was open for the Tribunal to conclude that every person who broke a law of general application and who was subject to the penalties of that law, was taken not to face a real risk of significant harm as that was a risk faced by the population of the country generally per s.36(2B)(c): SZSPT v MIBP [2014] FCA 1245.

61. The Tribunal has found that it is not satisfied that the harm claimed amounts to significant harm as defined. Further, the Tribunal is satisfied that [Mr A] has breached a law of general application and is consequently subject to the penalties for that breach, such that he is not taken to face a real risk of significant harm in any event as per s.36(2B)(c).

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

Issue 3 – Is [Mr A] a member of the same family unit as a person in respect of whom Australia has protection obligations, as a refugee or on complementary protection grounds, and that person holds a protection visa of the same class?

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

Conclusion

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

DECISION

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

Susan Trotter
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation
…
“cruel or inhuman treatment or punishment” means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
“degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
“torture” means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
“receiving country”, in relation to a non-citizen, means:

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

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

5J Meaning of well-founded fear of persecution

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

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.
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
…

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.
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ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation
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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.

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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.

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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.

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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.

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5J Meaning of well-founded fear of persecution

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

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.
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.

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

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction

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Citations

1704321 (Refugee) [2017] AATA 2011

Most Recent Citation

Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965

Cases Citing This Decision

1

Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965

Cases Cited

14

Statutory Material Cited

0

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

[2017] AATA 2011

20 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction