1704911 (Refugee)

1704911 (Refugee) [2022] AATA 3219 (16 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nathan Willis (MARN: 1467692)
CASE NUMBER:  1704911
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alison Murphy
DATE:16 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 September 2022 at 9:38am
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from general political, socio-economic and financial circumstances – new claims raised at hearing – fear of harm from former husband and loan shark – violence during breakdown of marriage and threatening text messages – court action by bank for unrepaid loan and possibility of bankruptcy – credibility – unfavourable inference if no reasonable explanation for new claims – not wanting to tell friends who assisted with application about former husband accepted as reasonable explanation – no interview with department – no contact with former husband since divorce, including during two returns – bank’s action under generally applicable laws – minimal evidence about loan from loan shark provided – relationship with Australian citizen and ineligibility to apply for partner visa – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65, 417, 423A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 17 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa on 21 December 2016. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person to whom Australia owes protection.
The applicant appeared before the Tribunal on 29 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Thai passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Thailand and she has been assessed on that basis by the Department. The Tribunal finds she is a Thai citizen and has assessed her claims against Thailand as her country of nationality and the receiving country.
The applicant’s personal background
The applicant is a [Age]-year old woman from Thailand. At hearing she gave evidence that she was born in Bangkok, but later moved to Lamlukka in Pathumthani before travelling to Australia. She holds a degree in [Subject] from [University] and worked as a [job position] at [Employer] from [Year 1] – 2016.
The applicant married her former husband at age 18 or 19 and their son was born in [Year 2]. A divorce certificate submitted to the Tribunal by the applicant indicates the applicant and her husband divorced for the first time in [Year 3].
At hearing the applicant gave evidence that they remarried shortly afterwards he told her that he needed to be married to access funding from his employer for their son’s education. The marriage and divorce certificates were provided to the Tribunal after the hearing and record that the second marriage between the parties took place [later in Year 3] and they divorced again [in Year 5].
The applicant travelled to Australia as the holder of a visitor visa, arriving [in] March 2016.
I accept the above matters to be true.
The applicant’s claims for protection
In her protection visa application, the applicant stated that she left Thailand because of distrust in the judiciary and law enforcement, a poor system of government and bureaucracy and the destruction of the global economy and its impact on Thailand. She stated that poverty and unemployment were big problems and she had to borrow money from her relatives and could not pay the debt. She stated that many people in Thailand who had borrowed money had been injured and killed and she feared that would happen if she returned to Thailand. She also claimed to have experienced discrimination in the workplace because of her gender. She stated she had not tried to seek help or move to another part of the country because her issues were socio-economic.
However before the Tribunal the applicant gave different reasons for leaving Thailand and seeking protection in Australia, claiming to fear harm from her former husband and a loan shark from whom she had borrowed money. She also claimed that [a] bank is currently pursuing court action against her in Thailand in relation to an unpaid loan. It is submitted that the applicant has a well-founded fear of persecution due to her membership of the particular social groups ‘women at risk of suffering domestic violence in Thailand’ and ‘a person who owes a significant debt to a loan shark’.
At hearing I raised with the applicant the issue of her credibility, noting that s 423A of the Act required the Tribunal to draw an inference unfavourable to the credibility of her new claims unless it was satisfied she had a reasonable explanation for not raising those claims before the departmental delegate.
The applicant stated that she was unrepresented at the time she applied for a protection visa and she was assisted by two friends who worked with her on a [workplace] in [City]. She did not want to tell them about her issues with her former husband and she was not interviewed by the department.
The Tribunal’s particular findings are set out below.
Fear of harm from former husband
In a statutory declaration made on 29 June 2021, the applicant states that her former husband, [Mr B], commenced a relationship while they were still married which caused their relationship to break down and her husband to become violent towards her. She states that in [Year 6] she locked him out of the house and he became frustrated, firing his [gun] twice into the house. The bullets hit the wall and her former husband left following this incident. She saw a doctor who gave her pain killers in relation to her facial bruising and she went to stay a friend’s house for a week before relocating within Pathumthani province, never returning to live in the house she had shared with her former husband. After that she only saw her former husband again in the presence of a third party, such as a family member, in order to allow him to see their son. She continued to have fears for her safety and receive threatening text messages from her former husband to which she did not respond. Her former husband initiated their second divorce which was finalised some time in [Year 7].
At hearing, the applicant elaborated on her claims in the statutory declaration, telling the Tribunal that she married her former husband [Number] years ago and stopped living with him in about [Year 6] after a very severe argument. When the Tribunal pointed out that the divorce certificate she had provided indicated they divorced in [Year 3], she said that was their first divorce and they later remarried so that they could obtain funding for their son’s studies from her former husband’s employer. She gave evidence that they separated in [Year 6] after the severe argument described above and divorced sometime in [Year 7]. As noted above, the second marriage and divorce certificates were provided to the Tribunal after the hearing and I accept the parties remarried and divorced for a second time as indicated in those certificates.
However it is clear from those documents that the timeline provided by the applicant in her statutory declaration and her evidence at hearing is not correct, in that the second divorce was finalised on [Date, Year 5] and not in [Year 7] as stated by the applicant. As such it follows that their final separation occurred in late [Year 4] or early [Year 5] and not [Year 6] as stated at hearing. At hearing the applicant stated a number of times that she was uncertain about dates because it was all such a long time ago and I draw no adverse inference as to the applicant’s credibility because of this inconsistency.
In considering the operation of s 423A of the Act, I accept the applicant did not wish to discuss her husband’s violence towards her with the friends who worked with her on the [workplace] in [City] and this partially explains her failure to mention her fear of harm from her former husband in her protection visa application. It is apparent that she was not interviewed by the Department and I consider that if she had been these claims would have been made at interview. In these circumstances I accept she has a reasonable excuse for not raising these claims before the primary decision maker and I draw no adverse inference about the credibility of her claims of violence perpetuated by her former husband.
In view of the applicant’s evidence, the Tribunal is satisfied that the applicant’s husband was violent towards her during their marriage after he started a relationship with another woman. I accept that they divorced for the first time in [Year 3], only remarrying so that they could obtain funding for their son’s studies from her former husband’s employer. I accept that they separated for the last time about a year prior to their divorce in [Year 5] following a severe argument in which her former husband fired his [weapon] into the house after the applicant locked him out. I accept the applicant’s evidence that following this incident she left their home and never returned to live there. I accept that the applicant reported this incident to the local police station, but that they declined to take action and asked her to think of her former husband’s career. I accept her former husband rang her on discovering she had tried to make a complaint, asking why she had done so when it might impact on her career and promotion prospects.
I accept there may have been an incident when the applicant’s former husband threatened the applicant inside their house and then followed her out to her car after she came home late from an office party. However I do not accept this incident occurred in [Year 7] as suggested by the applicant at hearing, because of her earlier evidence that she had not seen her former husband in person since they saw each other in court on the day of their divorce. As well she gave evidence that during the period following their final separation and leading up to the second divorce, she only saw her former husband on very limited occasions in the presence of a friend or family member for the purposes of arranging for him to see their son. Rather I find that incident occurred during the period of their marriage at some time prior to the applicant leaving the family home for the last time in [Year 4] or early [Year 5]. On the evidence before me I am not satisfied that the applicant’s former husband attempted to harm her at any time following their final separation and divorce in [Year 5].
Similarly I accept that their second divorce was initiated by the applicant’s former husband and finalised about a year after their separation, however the divorce certificate submitted by the applicant indicates the second divorce was finalised in [Year 5] and not [Year 7] as stated at hearing. For these reasons I find the applicant’s final separation from her former husband (and the argument that immediately preceded it) took place sometime in the year prior to the divorce in [Date, Year 5]. The applicant moved to another house near her husband in Pathumthani province so that he could see their son. I accept that the applicant’s former husband sent her threatening texts and spoke badly of her to their friends and family following their separation.
As set out in the delegate’s decision (a copy of which was provided to the Tribunal by the applicant) the applicant departed Australia twice after her initial arrival [in] March 2016. At hearing the applicant stated that on each occasion she returned to Pathumthani to see her son. She did not suggest her former husband attempted to contact her or harm her on either of those occasions. The applicant’s son is now an adult and living separately from both parents.
While I accept the applicant’s former husband has been violent towards her in the past, I do not accept there to be a real chance the applicant will be seriously harmed by him if she returns to Thailand, now or in the foreseeable future due to the following matters:
·The applicant and her former husband lived separately nearby each other in Pathumthani province following their final separation sometime in late [Year 4] or early [Year 5] until the applicant travelled to Australia for the first time [in] March 2016;
·The applicant saw her former husband only a very limited number of times prior to their divorce in [Year 5] for the purposes of arranging for him to see their son and the Tribunal has not accepted he attempted to harm her at any time after their separation;
·The applicant has not seen her former husband in person since the finalisation of their divorce in [Year 5];
·The applicant returned to Thailand twice after her first arrival in Australia in 2016, on each occasion returning to Pathumthani to see her son. She did not experience harm from her former husband on either occasion.
Given the effluxion of time (now more than nine years since her final separation from her husband) and the factors above, the Tribunal does not accept there to be a real chance the applicant will face serious harm from her former husband if she returns to Thailand, now or in the reasonably foreseeable future. For the same reasons the Tribunal is not satisfied there is a real risk she will face significant harm from her former husband as a necessary consequence of being removed from Australia to Thailand.
Debts to bank
In her protection visa application, the applicant made reference to socio-economic issues.
Before the Tribunal, the applicant claimed to have taken out a loan from the [bank] to open a [business] for her mother approximately 2 -3 years before travelling to Australia in 2016. She claims to have borrowed approximately 300,000 baht (around $13,000) and repaid 10% of that loan before stopping repayments after the restaurant business failed. She claims there is currently court action underway in Thailand in relation to this loan, the current balance being about 1 million baht due to accrued interest.
At hearing the applicant gave evidence that bank had tried to recover the debt by sending notices to the house. She said when she first came to Australia she was sending money back to pay the loan but she was no longer doing so. In her statutory declaration she states that the loan balance is approximately 1 million baht including accrued interest, however at hearing she stated that she had not enquired of her family what the current debt was.
I accept that the applicant may have an outstanding loan from [the] bank in Thailand on which she has ceased to make payments and that the bank is taking recovery action in relation to that debt. The applicant does not suggest that the bank would seek to harm her if she returns to Thailand for any reason relating to that loan, however I accept that recovery action has the potential to result in her bankruptcy.
As discussed with the applicant at hearing, sanctions or punishment imposed pursuant to generally applicable laws such as bankruptcy laws will not generally constitute persecution. It is not suggested that any recovery action or bankruptcy proceedings that may be commenced by the bank will be applied to the applicant for reason of her race, religion, nationality, membership of a particular social group or political opinion, nor that they would be directed at her in a discriminatory manner. The Tribunal finds that any sanction that might be applied to the applicant under Thailand’s banking or bankruptcy laws would arise under a law of general application; would not have a discriminatory intent or impact and does not give rise to persecution.

For the purposes of complementary protection, it is not suggested that the applicant will be arbitrarily deprived of her life, subjected to the death penalty or tortured by the [bank] if she defaults on her loan or is made bankrupt and the Tribunal finds there is no real risk this would happen. In considering whether bankruptcy proceedings could constitute ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’, I note that the definitions of those terms exclude acts or omissions arising from lawful sanctions that are not inconsistent with International Covenant on Civil and Political Rights (ICCPR). There is no evidence before the Tribunal that would suggest that Thailand’s bankruptcy laws are not lawful or that they are otherwise inconsistent with the ICCPR. For these reasons the Tribunal finds that any acts or omissions applied to the applicant as a result of any recovery or bankruptcy proceedings by the [bank] will not constitute significant harm.
Fear of harm from loan shark
In her protection visa application, the applicant stated that poverty and unemployment were big problems in Thailand and she had to borrow money from her relatives and could not pay the debt. She stated that many people in Thailand who had borrowed money had been injured and killed and she feared that would happen if she returned to Thailand.
Before the Tribunal, the applicant claimed to have borrowed 500,000 baht from a woman called [Ms C] who lived in the same housing area. She claimed that [Ms C] was a member of the Thai mafia and that [Ms C] had taken her car in 2020 and been around to speak to her mother, telling her she wanted her money back. She claimed that as [Ms C] is with the mafia, she could hurt the applicant if she returned.
I do not accept the applicant’s claims in this regard. I note in her protection visa application she claimed to have borrowed money from relatives, not a member of the mafia. When I raised this with the applicant at hearing she confirmed that [Ms C] is not her relative, but said she had also borrowed money from relatives for her travel to Australia. The applicant did not suggest she had borrowed money from loan sharks or mafia in her protection visa application and she has given minimal detail about the claimed loan in her evidence to the Tribunal. She was unable to say how much she owes to [Ms C], despite her evidence that [Ms C] has been around to her mother’s house seeking repayment of the loan.
On the evidence before me, I am not satisfied the applicant owes money to a member of the mafia called [Ms C] in Thailand. It follows that I do not accept there to be a real chance the applicant will face serious harm from [Ms C], the mafia or loan sharks if she returns to Thailand, now or in the reasonably foreseeable future. For the same reasons the Tribunal is not satisfied there is a real risk she will face significant harm from her former husband as a necessary consequence of being removed from Australia to Thailand.
Other claims in the protection visa application
The applicant also claimed in her protection visa application to have experienced discrimination in the workplace because of her gender. In her statutory declaration dated 21 June 2021, the applicant states that although her protection visa application mentioned this, she did not in fact experience any workplace discrimination and she does not know why this information was provided. Given the applicant’s evidence, the Tribunal does not accept she has any fear of harm on this basis.
In the visa application the applicant stated that she had to borrow money from her relatives which she could not repay and that she feared being injured and killed as a result. At hearing the applicant stated that she had borrowed money from family members to fund her travel costs to Australia but the harm she feared was from a member of the Thai mafia and not her family. While I accept the applicant may have borrowed money from family members to fund the cost of her travel to Australia, I do not accept there to be a real chance the applicant will face serious harm from members of her family for this reason. For the same reasons the Tribunal is not satisfied there is a real risk she will face significant harm from her family members as a necessary consequence of being removed from Australia to Thailand.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
REFERRAL TO MINISTER
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant wishes to apply for a partner visa, so that she can remain in Australia with her Australian citizen partner [Mr A], with whom she has been in a relationship since January 2020.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’. It is submitted that there are strong compassionate circumstances in this case that if not recognised, would result in serious, ongoing and irreversible harm and hardship to [Mr A]. Evidence of the relationship has been provided to the Tribunal and that relationship appears on its face to be genuine.
The Minister’s Guidelines indicate that it is inappropriate to consider ministerial intervention requests from persons who may be eligible to apply for a partner visa. The Tribunal is advised by the applicant’s representative that the applicant is currently ineligible to apply for a partner visa because she does not hold a substantive visa and cannot satisfy clause 3004 of schedule 3 of the Migration Regulations 1994. In these circumstances the Tribunal will refer the matter to the Department for consideration.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Murphy
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.
…

[2022] AATA 3219

16 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice