1704946 (Refugee)

The Administrative Appeals Tribunal (AAT) considered an application for protection visas by a woman and her two children, who were born in Thailand. The applicant had married an Australian citizen and arrived in Australia on a partner visa. After her partner visa was refused and a subsequent review application was lodged out of time, she applied for a protection visa. The applicant claimed she could not return to Thailand due to her ethnic group, although she had not experienced harm there. She also cited her desire to remain close to her parents, her family support system, and the potential disadvantage to her children of relocating, as well as her inability to find employment. The children stated they were not making their own claims for protection.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa, specifically under section 36(2)(a) of the Migration Act 1958, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also considered the complementary protection criterion under section 36(2)(aa), which applies if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, the applicant will suffer significant harm. This involved assessing the meaning of "significant harm" and the circumstances under which a person would not be considered to face a real risk of such harm, including the availability of effective protection measures and the reasonableness of relocation.

The Tribunal reasoned that the applicant had not established a well-founded fear of persecution. While acknowledging her stated reasons for not wishing to return to Thailand, including her ethnic group and family ties, the Tribunal found no evidence that she had experienced harm or faced a real chance of persecution upon return. The Tribunal also considered the applicant's claims regarding her children, but they were not making independent claims. The Tribunal applied the principles outlined in Ministerial Direction No. 56, considering relevant policy guidelines and country information. It concluded that the applicant had not demonstrated that she would suffer significant harm if returned to Thailand, nor that relocation to another part of Thailand would be unreasonable.

Ultimately, the Tribunal affirmed the decision not to grant the protection visas. The Tribunal noted that it remained open to the applicant and her agent to seek ministerial intervention directly from the Minister if they believed the case met the relevant guidelines or presented strong compassionate or compelling circumstances.