1704976 (Refugee)

1704976 (Refugee) [2021] AATA 4466 (14 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1704976

COUNTRY OF REFERENCE: Thailand
MEMBER:James Silva
DATE:14 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 September 2021 at 5:25pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – support for Thai Rak Thai Party – party representative – protests – fear of arrest – return visit to Thailand – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is [an age]-year-old woman from Thailand. She first entered Australia [in] September 2007, as the holder of a visitor visa. Her most recent entry was on 11 September 2016.
The applicant applied for a protection (class XA) visa on 20 September 2016. On 20 February 2017, a delegate of the Minister for Immigration and Border Protection decided to refuse to grant the visa under s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Protection claims
The applicant claims to support the Thai Rak Thai (TRT) Party of former Prime Minister Thaksin Shinawatra, and the opposition Red Shirts. She claims that, although she did not formally join the party, she attended party meetings; acted as a spokesperson for the party by visiting factories; helped collate data for politicians and, on several occasions, participated in protests. She claims that the government will arrest, imprison and torture her, due to her active involvement in these opposition parties.
She also claims that the TRT arranged for her travel to Australia, to rally the Thai diaspora for support. She took up the offer, but by then had grown disenchanted with the party and severed her links with it. She also claims to fear that the party (or its former supporters) will also target her.
Background
The applicant is [an age]-year-old woman born in [Town 1], southern Thailand. She is a speaker of Thai and English, and gives her religion as Catholicism.
The applicant’s protection visa application appears to have been filled out hastily, and new details of her circumstances emerged at hearing. The applicant grew up in Nonthaburi, a city to the north of Bangkok. She attended primary and secondary school there, and then undertook tertiary studies in Bangkok, a [Qualification 1 between specified years], and a [Qualification 2 between specified years]. At hearing, the applicant said that she also undertook another [course] in [Country 1], some [number] years ago.
The applicant worked in various positions in Nonthaburi and Bangkok, in [specified industries and occupations]. At hearing, she said that immediately before coming to Australia, she worked full-time as the [Occupation 1] of [a] company in Nonthaburi (although she resigned this position to accept a promotion to another company, and continued as a consultant). She also worked on a contract basis as [an Occupation 2] for small and medium size enterprises (SMEs), and as [an Occupation 3] for two other companies. She stressed that, at the time of her travel to Australia, she had a successful career.
The applicant’s protection visa application described her immediate family as her husband, son and mother. She provided some further details at hearing:
§ She said that she had been previously married and divorced. Her son, who is about to turn [age], is from this relationship.
§ The applicant started another relationship in 2000, and married in 2007, before moving to Australia. Her husband retired early, due to a [medical] diagnosis. He previously worked in a senior position in [a named business].
§ The applicant’s parents separated many years ago. Her mother lives in the family home (in Nonthaburi), with the applicant’s half-brother. She mentioned at hearing that the family had operated a [business].
The protection visa application stated that the applicant had held only one Thai passport, issued [in] 2013 and valid until 2018; that she had never held a previous passport; and that she had never travelled to other countries She provided a partial photocopy (biodata page only) of that passport. Clearly this information was incomplete, given her earlier travel to Australia.
At hearing, the applicant said that she currently holds a passport issued [in] 2018, valid for five years. She also said that she had also lived in [Country 1] for about two years, undertaking a [course]. She was not sure of the dates, but showed the Tribunal an earlier (previously undeclared) [Country 1] passport issued [in] 2003, and a [Country 1] visa. This suggests that she may have gone to [Country 1] around 2004-2006.
The applicant first entered Australia [in] September 2008, on a [visitor] visa. Her detailed migration history is set out in the delegate’s decision, which the applicant submitted to the Tribunal with her review application. Key elements of relevance to this matter are:
§ She first visited [in] September 2008, on a visitor visa.
§ She returned [in] October 2009, on a student visa. She held successive student visas [until] November 2014.
§ She held a tourist visa from 19 February 2015 until 11 March 2015, and a business (short stay) visa from 23 March 2015 until 23 March 2016.
§ The applicant applied for a temporary business entry nomination (business sponsorship) on 10 March 2016, which was finally determined on 31 May 2016. At hearing, the applicant appeared to state that the migration agent who assisted her with that application ‘abandoned’ her and did not follow through with the application.
As noted above, the applicant lodged her protection visa application on 20 December 2016. She told the Tribunal that, after the rejection of her ‘work visa’ (i.e. the business sponsorship), she consulted a new migration agent who recommended she lodge a protection visa application. She said that she did not come to Australia to seek protection, but had hoped to secure permanent residency on the basis of her skills, and to have her husband and son later join her here. She commented that, before the start of the COVID-19 pandemic, she had asked her son to quit his job and do an IELTS examination, with a view to coming to Australia. However, the Department refused his visa application.
Evidence
The material before the Tribunal includes the following:
§ The protection visa application form lodged on 20 December 2016. The applicant’s protection claims are contained in brief handwritten statements on Form 866C.
§ The applicant attended a Department interview on 13 February 2017. A partial recording of the interview is on the Department file. The delegate’s decision includes detailed notes of what was stated at the interview. Having checked those notes against the (partial) audio recording, the Tribunal is satisfied that they are an accurate reflection of the applicant’s evidence.
§ The protection visa assessment record (‘delegate’s decision) of 16 February 2017.
§ The review application, lodged on 16 March 2017, had attached to it a copy of the delegate’s decision.
§ The Department file includes a partial photocopy of the applicant’s Thai passport, issued [in] 2013 and valid [until] 2018. At hearing, the applicant showed the Tribunal two other Thai passports, one issued [in] 2003, and another issued [in] 2018 and valid [until] 2023.
The applicant appeared before the Tribunal on 25 August 2021. The hearing was conducted via video link, with the assistance of an interpreter in the Thai and English languages. The applicant did not present any additional documents or witnesses.
Receiving country
The applicant claims to be a national of Thailand. She has presented a copy of her Thai passport, and her other documentary and oral evidence supports this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that she is a national of Thailand, and assesses her claims against Thailand as the receiving country.
Assessment of claims
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility (Credibility Guidelines) both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
The applicant’s protection visa application contains incomplete and sometimes inconsistent information. For instance, it states that the applicant left Thailand to avoid imminent arrest, whereas the applicant gave oral evidence that this was not the case. At hearing, the applicant claimed that an ‘agent’ helped her complete the form, even though the form declares that the applicant received no assistance. The Tribunal accepts that protection visa applicants may rely on third parties, and not be able to confirm the accuracy of all the details entered on a form. In the present case, however, the applicant speaks English, is tertiary educated (including in [Country 1]) and has business experience. In the Tribunal’s view, the hastily completed form does not sit well with the seriousness of the applicant seeking protection.
At hearing, the applicant sometimes gave indirect or vague responses, and tended to divert discussion to her migration history and intentions. The Tribunal accepts that she was often not speaking on the basis of personal experience and fears, but rather improvising as she went along. It reinforces the Tribunal’s concerns that this application is not based on genuine fears of persecution or significant harm in Thailand.
The applicant’s significant delay in seeking protection, nine years after first arriving in Australia, and only after other migration paths had been exhausted, is also of concern. Her initial stay in Australia in 2008, of just under two weeks, and her 14 return trips to Thailand between October 2009 and September 2016[1] - totalling more than two years back in Thailand – add to doubts about the reasons she left Thailand in the first place, and whether she has any ongoing fears.
[1] As noted in the delegate’s decision record and discussed at hearing.
The applicant addressed some of these concerns at hearing. As noted above, she stated that had planned to stay in Australia as the holder of a business visa, and did not originally intend to seek protection. During the hearing, she also said that she had thought of returning to Thailand during the prime ministership of Yingluck Shinawatra[2]. General country information indicates that Ms Shinawatra held office from June 2013 to May 2014, when she was impeached by the Constitutional Court. A military coup occurred a few weeks later. The applicant struggled to relate her migration history and narrative to any political timeline in Thailand.
[2] The applicant referred to the former Prime Minister by her nickname ‘Pou’.
Political opinion and activism
The applicant wrote in her application that she supported the Thai Rak Thai Party of former Prime Minister Thaksin Shinawatra, and left Thailand to avoid imminent arrest. As noted above, the protection visa application appears to have been completed without attention to detail. She provided a more nuanced and slightly different account of account of her political activities and fears emerged during the Department interview and Tribunal hearing.
Political views and profile
Party affiliation
The applicant told the Tribunal that she became interested in politics in late 2005 or early 2006. She was drawn to the TRT, led by then Prime Minister Thaksin Shinawatra. She explained that the government had been sponsoring SME (small and medium-sized enterprise) projects, and she was engaged to work on some of these as a business/management coach. She appeared to state that, in light of this experience, she came to appreciate and support PM Thaksin Shinawatra and the TRT.
General country information indicates that during his period of office as prime minister, from 2001 to 2006, Thaksin Shinawatra was largely seen as a leader who aimed to assist the downtrodden in Thai society[3], and pursued populist economic policies sometimes referred to as Thaksinomics. Initiatives under this included subsidised health care, microfinance loans[4], and the One Tambon One Project (OTOP) program to stimulate the development of rural small and medium-sized enterprises. This is generally consistent with the applicant’s account of her involvement with the party.
[3] “Factbox: Key Political Risks to Watch in Thailand” 2011, Reuters, 7 February, International Crisis Group 2010, Bridging Thailand’s Deep Divide, Asia Report N°192, 5 July, p. 13

As the applicant also noted at hearing, Thaksin Shinawatra was ousted by a military coup in September 2006. Country information indicates that in May 2007, the TRT party was found guilty of election fraud during the April 2006 elections, and dissolved. Former members of the TRT subsequently regrouped under the banner of the People’s Power Party (PPP), which won the December 2007 parliamentary elections, but was later disbanded by the Constitutional Court in December 2008. Subsequent pro-democracy groups have formed under the general name the Red Shirts, who mainly support Thaksin Shinawatra.[5]

[5] Ibid.

Political activities: At the primary and review stages, the applicant described a range of political activities for the TRT from late 2005.

§ At the Department interview, she stated that she was a spokesperson for the party, charged with visiting factories in order to garner support for the party among working class people. At hearing, she said that she visited SMEs (factories) to coach workers, in business and management. She implied that this had at least some political dimension, insofar as it was part of a government initiative to empower workers.

§ The applicant told the Tribunal that in other work for the TRT, she ‘instructed’ and worked directly with a leader from Nonthaburi. She could recall only his first name, ‘[name]’. This appears to be a reference to [Mr A], a Thai politician from Nonthaburi closely linked with Thaksin Shinawatra during the relevant period. In later comments, she said that she also met the prime minister once.

§ The applicant said that in about 2007, she also participated in a protest (by implication, following the military’s ouster of the prime minister).

§ However, she then went on to say that she attended some three or four protests; and that she played some organisational or support role, by gathering information for the speakers. She used to assist the leaders at the protests (including [Mr A]) by collating and analysing data showing the (former) government’s investments in particular projects, in different areas, over a period of time. These figures showcased the government’s performance. Asked how she accessed these data, she replied that this was part of her paid work on the SME projects. She intimated that this gave her some political profile and led the TRT to value her.

§ The Tribunal explored with the applicant how she juggled her work – she had stated that she had four jobs during this period, one full-time and several casual or project-based consultancies – with her participation in protests and party support work. She responded that she managed to gather material as part of her full-time job; she completed some tasks by telephone; and she participated in protests usually on the weekend.

The applicant said that she had no documents or similar evidence to corroborate these claims. She had dared not bring proof of such activities to Australia. In any event, she did not think that she might need them in the context of seeking protection, Furthermore, some documents had been destroyed during flooding in Nonthaburi.

Asked whether she maintained any political contacts or interests over the years, the applicant said that she had severed all links with the TRT and her former political contacts, as she no longer wanted to be involved with the party.

The Tribunal accepts as plausible that the applicant’s work as a consultant included coaching workers in factories, as part of a government initiative; and that she views these policies favourably. It has significant concerns that she has any political interest or past involvement beyond this. It is striking, for instance, that she did not have any political interests before about 2005/2006, when she was in her [age range]. Her account of assisting [Mr A], and gaining some kind of profile through this work, was also unconvincing. First, she could not recall his name. Second, her evidence about collating data for him to use in speeches appeared to be improvised, rather than speaking from direct personal experience. The Tribunal found her evidence about participating in one or more street protests uncertain and changeable. The Tribunal also notes that the applicant had no photographs, correspondence or other material relating to this period of claimed political activity. She explained that she did not keep any such material. After leaving Thailand, she distanced herself from politics and tried to forget her past.

Finally, the applicant claims that since leaving Thailand – an apparent reference to her return to Australia in October 2009, on a student visa – she has ceased any involvement or interest in politics. Instead, she has focused on her efforts to establish a future in Australia. This suggests that any political association that the applicant did have was short-lived – from 2005 to 2009 at most. Taken together with the above concerns, it leads the Tribunal to conclude that, while the applicant may have had a positive experience coaching factory employees and may have formed a favourable view of the TRT and Shinawatra during this period, she has no political opinion or past engagement beyond that. It does not accept that she participated in protests; helped [Mr A] or other politicians (in data collection, speechwriting or in any other capacity); or had any other form of political engagement. It also does not accept that the former TRT viewed her as a valued contributor to their political work, or that the government had any adverse interest in her.

Departure from Thailand

The applicant made various statements about her departure from Thailand, and the purpose for her travel to Australia. She did not distinguish clearly between her visit of less than two weeks in September 2008, and her return on a student visa in October 2009 (which marked the start of her prolonged stay in Australia).

§ In her protection visa application, she wrote that she left Thailand to avoid ‘imminent arrest’. Although she stated at hearing that she had been scared during the protests, she did not give any sense of having feared imminent arrest.

§ At the Department interview, the applicant claimed that the TRT sent her to Australia to rally political support among Thai nationals abroad. However, she had decided to sever her links with the party, and instead planned to start a new life in Australia. The applicant confirmed this claim at hearing. She explained that the company that ran the project helped her come to Australia, ostensibly for English language training. However, she already had good English. Rather, the party had used this as a pretext to transfer her to Australia for political work. She did not produce any evidence to support these claims, i.e. such as funding from or correspondence with either her employer or the party.

Having found that the applicant had no involvement in protest activity, with the TRT or any other political group, the Tribunal does not accept that the applicant left Thailand to avoid imminent arrest; or that she was afraid during any political activities; or that the TRT sent her to Australia to campaign among the Thai diaspora.
Return visits to Thailand and ongoing fears
The applicant claimed that she returned to Thailand – on various occasions between 2009 and 2016, as noted in the delegate’s decision record - for pressing family reasons. While in Australia, she had been worried about her family’s welfare, particularly since she declined to do political work for the TRT. She said that, on her return visits to Thailand, she took the precaution of having someone collect her from the airport. While there, the party used to harass her, pressing her to do political work for them, as she had originally agreed.
In light of the above findings and its broader concerns about the applicant’s credibility, the Tribunal does not accept that she returned to Thailand, fearing for her safety (from the TRT or others); or that she was collected from the airport as a precautionary measure to avoid harm. It accepts that family considerations played an important part in the applicant’s travel arrangements, but finds that these are unrelated to her protection claims.
Asked about any current fears about returning to Thailand, the applicant alluded to the arrest and imprisonment of her former political leader in Nonthaburi. She said that he was arrested along with many others, perhaps in 2008. To her knowledge, he was eventually released. She did not know of his current circumstances, as they had lost contact. In relation to her prospective fears, she said vaguely that ‘anything’ can happen, and pivoted the discussion towards the difficulty she would face leaving Australia to restart her life in Thailand. The Tribunal found the applicant’s responses vague, and inconsistent with that of a person who genuinely fears harm either as a result of any association with the TRT (and its associated political groups), or from the TRT itself. It does not accept that she has any genuine fears of serious harm or significant harm if she returns to Thailand, for political or any other reasons.
ASSESSMENT – REFUGEE CRITERIA
The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1). The Tribunal takes into account the findings above, its assessment of her future conduct in Thailand and relevant country information.
At hearing, the applicant reiterated that she has no political interests in Thailand. She could only imagine becoming involved if Thaksin Shinawatra were to return to power. The applicant emphasised the impact on her (and her family) if she were required to depart Australia, leaving her business here and having to start over afresh in Thailand.
For the reasons stated above, the Tribunal does not accept that the applicant has any past political interests; that she participated in protests or any support work for the TRT and/or local leaders; that the TRT sent her to Australia to garner support among Thai residents here; that the applicant antagonised the TRT by refusing to do this work; that she feared for her safety in Thailand (for instance, during protests, or while supporting local leaders); or that the TRT has since threatened or intimidated her (for instance, on her return visits to Thailand).
The Tribunal accepts that the applicant undertook some coaching work as a part of a program set up under the Shinawatra government, and generally favours the Red Shirts. It does not accept that the current Thai authorities, or any critics of the Thaksin government or Red Shirts, would impute to her an adverse political opinion due to such work.
The Tribunal also does not accept that she has any political opinion that has in the past, or will in the future, motivate her to become politically active. As such, the situation does not arise where she may need to modify her behaviour so as to avoid a real chance of persecution, such as by altering or concealing any political beliefs.
In sum, the Tribunal finds that the applicant does not face a real chance of serious harm amounting to persecution, at the hands of the Thai authorities, the TRT (or Red Shirts, or associated groups) or anyone, for reason of any political opinion, actual or imputed.
At hearing, the applicant said that it would be hard for her to start over again in Thailand, at her age. She linked this with her commitments in Australia – an established [business], and associated debts – and that she has ‘nothing’ in Thailand. The Tribunal has no insight into the current state of the applicant’s business in [Town 2], or her current or prospective financial situation, including if she returns to Thailand. It is not satisfied on the available evidence that the applicant’s age, gender or any other factors give rise to a real chance of serious harm amounting to persecution (for instance, the denial of capacity to earn a livelihood of any kind, as referred to in s.5J(5)(f)).
Having considered the applicant’s claims and evidence, individually and cumulatively, the Tribunal concludes that she does not face a real chance of serious harm amounting to persecution for reason of any political opinion, actual or imputed, or for any reason set out in s.5J(1), now or in the reasonably foreseeable future.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand. It takes into account all of the claims and evidence before it, including the applicant’s future conduct and relevant country information.
For the reasons set out above, the Tribunal does not accept that the applicant is a person of adverse interest to the Thai authorities; the TRT or any other political parties; or anyone else. There is nothing to suggest that anyone will inflict significant harm on her if she returns to Thailand.
Taken at its broadest, the applicant appears to have sought education and employment opportunities in [Country 1] and Australia; to have established herself in Australia; and to be worried about her prospects if she goes back to Thailand. These concerns relate to her personal and family circumstances, and general socio-economic and political conditions in Thailand, compared to Australia. These do not involve significant harm as defined exhaustively in s.36(2A).
For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that she will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her, such as to meet the definition of torture; or that would meet the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of his life or the death penalty.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm: s.36(2)(aa).
Other matters
As noted above, the applicant spoke in some detail about her tertiary education and career success in Thailand, and her migration history in Australia. She said that she had complied with Australian migration law, and felt she was on a pathway to permanent residency, but the migration agent she had engaged to assist with that process had let her down. She has invested her life savings into a business in Australia, the [business in Town 2]; she has debts related to the business; and she would have poor prospects of starting over again in Thailand, particularly given her age.
The Tribunal explained that these matters lie outside the scope of this review, but undertook to record this background information in the decision.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member
ATTACHMENT – 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.
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 below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.

[2021] AATA 4466

14 September 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Procedural Fairness

Judicial Review