1705281 (Refugee)

1705281 (Refugee) [2022] AATA 2020 (9 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705281
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Tania Flood
DATE:9 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 June 2022 at 12:32pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from domestic violence by husband – consistent and credible evidence – application for divorce made but progress unknown – passage of time and loss of contact – country information – adequate state protection available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(2), 36(2)(a), (aa), 65
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 4 August 2015. The visa was refused because the delegate was not satisfied there is a chance or real risk the applicant would suffer serious or significant harm on return to Thailand for reason of her claims of domestic violence from her husband.
Prior to the scheduled hearing the applicant advised the Tribunal that she had relocated to Victoria. The Tribunal exercised its discretion to hold the hearing by MS Teams video as it determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant agreed to appear before the Tribunal by video on 6 June 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to her during the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review.
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 there is a real chance the applicant will suffer serious harm if she returns to Thailand for reason of her race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Thailand there is a real risk she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in her application for a protection visa, the applicant is a [Age 1]-year-old citizen of Thailand. She was born in Chiang Rai in Thailand and is a Buddhist. Before coming to Australia, she resided in Chiang Rai City from [Birth] to 2011. She completed a Bachelor of [Subject] at [University] in 2003. Her two children reside in Thailand. The applicant was employed by the [Employer 1] in a [Work sector] position in Chiang Rai as [an Occupation 1] from January 2004 to January 2008, and as [a Occupation 2] for the [Employer 2] from January 2008 to January 2011.
The applicant arrived in Australia [in] May 2011 as the holder of a UC 456 visa. The applicant lodged an application for a protection visa on 4 August 2015.
The applicant made the following claims on the statement attached to her visa application form:
The applicant states that she met her ex-husband when she was studying at [University]. She fell pregnant with his child in September 2001, and they married in November 2001. The applicant’s parents died when she was young, and her husband’s parents didn’t approve of the marriage, so she relied on him heavily for material support. The applicant states that after their daughter was born the marriage began to deteriorate and she was aware her husband was having an affair. While they argued a lot he never abused her at that time. She graduated university in 2003 and obtained a job in [Work sector] after which their living conditions improved and they had another child in 2005. They had several years of quality family life until her husband became addicted to drugs.
The applicant states that in 2010 her husband was occupied at night, working during the day and generally withdrawn. She states he lost his job at this time and became more aggressive toward her. The applicant discovered burned foils and confronted him in relation to inferred drug use, which provoked a violent assault. He strangled her and she could not breath and he pushed her to the ground, kicked her and spat in her face. This abuse occurred in front of the children. The applicant reported her ex-husband’s abuse and drug use to the police at the end of 2010, and he was detained for 3 months and released at the beginning of 2011. She said the police advised her that she could call them if anything further happened to her. The applicant was worried that further harm would come to her, or her children, and she sent her children to live with her in-laws. She was sick with stress and was afraid to go out on the street. She was advised by a friend that he was angry and looking for her.
She says that she came to Australia in 2011 and has heard that he is addicted to drugs and dependent on his parents for money. He has threatened his parents to hurt their children if they don’t give him money. He still becomes angry whenever someone talks about her. She is unable to go back to Thailand out of fear that he may harm her again. The applicant has applied for protection as she has heard that the Australian Government helps women who have suffered domestic abuse in their home countries.
COUNTRY INFORMATION
According to the Department of Foreign Affairs and Trade’s latest country information report for Thailand[1], domestic, family, and/or gender-based violence is a significant problem in Thailand. While it affects all sections of Thai society, it is reportedly particularly prevalent among ethnic minority groups. The number of reported cases of domestic violence have increased in recent years, although advocates attribute this as being due to an increasing willingness of survivors to report than was previously the case. The government operates shelters in each province for those who have experienced domestic violence, while all state-run hospitals include crisis centres that care for abused women and children. The Ministry of Public Health operates one-stop crisis centres nationwide that provide information and services, while the Ministry of Social Development and Human Security runs a community-based system that focuses on training community representatives on women’s rights and abuse prevention. According to government representatives, if a person who has experienced domestic violence asks to relocate, officials will try to facilitate their move to another province. Successfully doing so is more difficult for women with children.
[1] DFAT Country Information Report Thailand, 10 July 2020
The Family Institute Protection Act (2019) came into force in August 2019. The new law standardises definitions of family violence (which previously differed across different ministries), aims to improve coordination between relevant agencies, and generally includes stronger measures to protect victims and to make perpetrators accountable for their actions than the earlier Victims of Domestic Violence Protection Act (2007). The new law allows third parties to report cases of domestic violence (rather than just the victim), makes family violence a criminal offence and mandates prosecution, and allows officials of the Ministry of Social Development and Human Security to impose a 48-hour restraining order, even without a court order, against those who have allegedly committed domestic abuse against a spouse. In addition to making financial support and other assistance available for victims of violence, the new law gives victims a voice in whether to pursue a criminal justice or restorative justice path. It also covers the conduct of the perpetrator, including through providing services and provisions to help prevent recurrence. Where relevant, perpetrators may be required to undergo behavioural adjustment, such as substance abuse treatment.
Notwithstanding that legal protections exist, NGOs report that victims underreport rapes and domestic assaults, in part due to a lack of understanding by authorities that impedes effective implementation of the law regarding violence against women. NGOs also report the government underfunds agencies tasked with addressing domestic violence, with victims often perceiving police incapable of bringing perpetrators to justice.[2]
[2] 2020 Country Reports of Human Rights Practices: Thailand, US Department of State, 30 March 2021
Tribunal hearing
The following is a summary of the applicant’s oral evidence provided to the Tribunal on 6 June 2022.
She was born in Chiang Rai Province, Thailand where she resided until her departure to Australia. The house she lived in was jointly purchased with her husband. He no longer lives in the property and it is closed up and abandoned.
She has applied for a divorce from her husband but due to her having lost contact with her lawyer in Thailand she is unsure of the status of her application.
She has two children from her marriage, aged [Age 2] and [Age 3]. They are residing with her aunt in Chiang Rai. Her parents are deceased and she has a younger brother whom she lost contact with eleven years ago.
She obtained a Bachelor of [Subject] in Thailand and previously worked for a [Work sector employer] from 2003 to 2011.
She came to Australia in 2011 to escape her husband who was physically abusing her. She did not seek protection on arrival because she was unaware she could do so. She was working on a farm in the country and did not have access to internet. Eventually she met a friend who informed her she could seek protection.
Regarding her marriage she said that at first everything was fine but that after the birth of her first child her husband’s behaviour changed dramatically. She said he became addicted to online gaming and began talking to women in chat rooms. She said she found out he had another woman and they argued. She said that initially he didn’t physically abuse her but when their second child was born his behaviour again changed for the worse. He complained about the baby keeping him awake at night and she moved into a separate bedroom with the baby. One time she discovered equipment for drug use in his room and when she asked him to stop that he became angry and then began physically abusing me.
She said she was first assaulted in 2010 when he tried to choke her and threw her to the ground and spat in her face. She said she sought medical attention and also reported her husband to the police who came to the house and arrested him. They examined his blood and urine and discovered drugs in his system and he was put in prison for 3 months.
She said that when her husband was released from prison he came home to collect his belongings and he was still very angry with her. He assaulted her again and threatened to kill her. She said he was also violent toward the children. She said she phoned the police but by the time they came to the house he had left already.
After the second assault there was no further physical violence but he repeatedly called her on her phone and at work and threatened her. She said she endured his harassment for several months and was very stressed and could not sleep. She said she reported his threats to the police but they told her they could not protect her at all times.
She stated that she last spoke to her husband in 2011. Since being in Australia she has had no direct contact with him. She said she contacted his brother to advise him that she was seeking a divorce. He has not shown any interest in their children and they don’t want to meet him either because of his past behaviour. She is unaware where he is currently living or with whom.
As to why she thinks her husband would harm her after so many years she said that she heard from one of his friends in 2015 that he is very angry with her and wants revenge and if she goes back he will come and get her from the airport and attack her. She said she has no confidence in him and remains fearful of him. She said she believes he could find her wherever she goes in Thailand.
She stated that she will find it difficult to find work in Thailand due to her age and any money she might earn in Thailand will not be enough to allow her to support her children. For this reason she requested that she be allowed to remain in Australia for another two to three years in order that her children can complete their education.
FINDINGS AND REASONS
Country of reference
The applicant has produced a passport issued by the Thailand government which verifies her claimed identity and nationality. Based on this, and in the absence of any information to the contrary, the Tribunal finds the applicant is a national of Thailand.
Past domestic violence
The applicant’s written and oral evidence was consistent and convincing and the Tribunal found her claims in respect of the past treatment she endured from her husband to be credible. Despite that she did not immediately or soon after arrival in Australia seek protection against the harm she fears in Thailand, the Tribunal accepts she was physically assaulted by her husband in 2010 and that he was subsequently arrested and imprisoned for three months in 2010. The Tribunal accepts that on his release from prison he again assaulted her and the children and that while the police responded and attended the scene there was no further arrest as her husband fled before they arrived. The Tribunal accepts her husband continued to verbally harass and threaten her over the phone for a few months and at work on one occasion, before she departed Thailand and that she departed the country for fear of him.
Future domestic violence
According to the applicant she last had contact with her husband in 2011 and she has not claimed to have been threatened by him in any way since she departed Thailand. Also according to the applicant her husband has not remained in contact with either of her children since then and nor have they initiated contact with their father. She claims she heard from friends in 2015 that he is still angry and vengeful toward her but the Tribunal is not persuaded, in the absence of any evidence to support that he has continually been searching for her to harm or harass her, that he will be motivated to do so some eleven years after their separation. When this was discussed with the applicant during the hearing she indicated that she could see the Tribunal’s point of view and it was at that point she requested she be able to remain in Australia for just two to three more years to allow her to better support her children’s education. In the Tribunal’s view her responses were not supportive of her claimed fear of future harm from her husband in Thailand.
In any event, section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Even if the Tribunal’s assessment of the husband’s likely future behaviour is wrong, the above country information indicates that despite some shortcomings there nevertheless are adequate legislative and social protections in place in Thailand for victims of domestic and gender-based violence. These protections were reportedly further strengthened when the Family Institute Protection Act (2019) came into force in August 2019. Relevantly, the new law standardises definitions of family violence (which previously differed across different ministries), aims to improve coordination between relevant agencies, and generally includes stronger measures to protect victims and to make perpetrators accountable for their actions than the earlier Victims of Domestic Violence Protection Act (2007). Furthermore, the Tribunal notes and finds it significant that the applicant was willing and able to seek help from the police in the past and that they responded adequately when she fell victim to her husband’s physical abuse. When these observations were discussed with the applicant during the hearing she appeared to agree by responding “right”.

Based on the abovementioned country information the Tribunal is satisfied that the applicant could avail herself of effective state protection in the unlikely event that her husband tried to harm her in future. Accordingly, the Tribunal is not satisfied that there is a real chance the applicant will suffer further serious harm from her husband if she returns to Thailand now or in the reasonably foreseeable future.
The Tribunal has considered the applicant’s claim that it will be difficult for her to find well paid employment in Thailand and sympathises with her desire to see her children complete their education comfortably. However, the Tribunal is not satisfied that the applicant will be unable to secure employment on return to Thailand. While it is accepted that her earning capacity in Thailand might not be the same as she could enjoy in Australia the Tribunal considers she is well placed, as a tertiary educated person with prior professional work experience, to find employment in Thailand. The applicant has provided no evidence which would persuade the Tribunal that at age [Age 1] she will be unable to find meaningful employment in Thailand. Accordingly, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if she returns to Thailand for reason of being unable to find employment.
CONCLUDING PARAGRAPHS
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). As noted above the Tribunal is not satisfied that the applicant’s husband will seek to harm her if she returns to Thailand. In any event, the Tribunal notes that there is taken not to be a real risk of significant harm if a 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. Based on the abovementioned country information and findings the Tribunal is satisfied that the applicant could avail herself of protection from an authority of the country, such that there would not be a real risk she would suffer significant harm, in the unlikely event that her husband tried to harm her in future. Furthermore, the Tribunal considers the applicant is well placed to find employment on return to Thailand and is not persuaded she would suffer significant harm for reason of being unemployed and without the means to subsist.
The Tribunal is also 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.
Tania Flood
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 2020

9 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice