1708370 (Refugee)

1708370 (Refugee) [2021] AATA 4404 (20 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1708370

COUNTRY OF REFERENCE: Thailand
MEMBER:James Silva
DATE:20 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2021 at 8:41am
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – Thai Rak Thai Party supporter – Red Shirts supporter – opposition to the government – protests – fear of arrest – return visit to Thailand – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
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

The applicant is [an age] year old man from Thailand. He claims to be a citizen of Thailand.
The applicant first arrived in Australia [in] November 2004 as the holder of a student visa. His most recent return was [in] November 2011. On 16 September 2016, he applied for a protection (class XA) visa. On 31 March 2017, the delegate of the Minister for Immigration and Border Protection refused to grant the applicant a protection 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 he is entitled to complementary protection. A summary of the relevant laws is in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Claims
The applicant claims to support the oppositional Red Shirts, who follow the former Prime Minister Thaksin Shinawatra. He claims that his father, a former [official A], also supported the Red Shirts prior to his death some five years ago. He had personal connections that made it possible for him to do so, and to protect the applicant. The applicant has not engaged in political activities since coming to Australia in 2004, worried about the consequences if he were to return to Thailand. He claims that an aunt is a staunch Red Shirt supporter, but she has to live ‘quietly’. The applicant fears that, if he returns to Thailand, he will be unable to express his political opinion or engage in politics, to avoid the risk of persecution or significant harm. The Thai authorities may also pursue him because of his family association (his father’s name), and an imputed anti-government political opinion.
Background
The applicant is [an age] year old man from Bangkok, and a speaker of Thai and English.
The applicant’s protection visa application indicates that he received no assistance completing the form. However, he told the Tribunal that someone filled it out for him. It contains numerous instances of incomplete and/or inaccurate information.
The applicant lived in one address in Bangkok until coming to Australia in 2004. He attended primary and secondary school in Bangkok, and went on to do a [specified degree between specified years]. From [year] to 2004, he worked in a [company] (he described this as ‘customer service’ on the application form, but said at hearing that it was in the [specified] department).
The form stated that the applicant has never been married or in a de facto relationship; his only family were his parents. He told the Tribunal that his father was a former [official A] who died in about 2016.
At hearing, he said that he has [an age] year old son from an earlier relationship, when he was in his [age range]. He did not marry the mother, but his name appears on his son’s birth certificate, and he supported his son up to the time of his graduation. The applicant said that his father had formally adopted his son. Since coming to Australia, the applicant has married and later divorced a Thai woman.
The applicant said that he has a sister in Australia; she married an Australian and is now an Australian citizen. He also has [another relative] in Thailand. He has other relatives in Thailand, but does not keep in touch with them.
The applicant said that he currently holds a Thai passport issued [in] 2020, valid for five years. Attached to his protection visa application was a partial photocopy (biodata page) of a Thai passport issued [in] 2009, valid for five years. Although the protection visa application indicated (Form 866C question 58) that he had never had or used another passport, this was clearly incorrect as he first visited Australia in 2004.
The delegate’s decision record, a copy of which the applicant provided to the Tribunal, sets out the applicant’s migration history. The applicant confirmed the main details of this at the hearing. In brief:
§ He first arrived in Australia in October 2004, on a student visa. He held successive student visas until 15 March 2013. He applied for a further student visa in March 2013. The Department decided to refuse to grant the visa, and the Tribunal (differently constituted) affirmed the decision in December 2013.
- At hearing, the applicant recalled that he visited Thailand three times during this period. As noted in the delegate’s decision record, these visits were in September/October 2005, August/September 2009 and October/November 2011.
§ The applicant’s bridging visa ceased in January 2014, and he remained in the community unlawfully from that time.
§ As noted above, he lodged a protection visa application on 16 September 2016.
Evidence
The material before the Tribunal includes the following:
§The applicant’s protection visa application form and attachments, which he lodged on 16 September 2016. His protection claims are set out in brief responses on Form 866C.
§Photocopy and of the applicant’s Thai passport, issued in Bangkok [in] 2009, valid for five years.
§There was no Department interview in this matter.
§Protection visa assessment (‘delegate’s decision record) of 31 March 2017.
§The applicant’s review application form received on 18 April 2017, attached to which was a copy of the delegate’s decision record.
The applicant attended a Tribunal hearing on 27 August 2021 to give evidence and present arguments. The hearing was conducted via teleconference, with the assistance of an interpreter in the Thai and English languages. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant is unrepresented in this matter. He did not submit any documentation or ask the Tribunal to take evidence from witnesses.
Receiving country
The applicant claims to be a national of Thailand. He currently holds a Thai passport, and his other documentary and oral evidence to support this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of Thailand, and assesses his claims against Thailand as the receiving country.
Assessment of claims and evidence
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence.
The applicant’s protection visa application form contained minimal information about his protection claims. At hearing, he gave vague, uncertain evidence that appeared to relate more to his father and aunt, than his own circumstances. The Tribunal had difficulty eliciting further details. It was left with the impression that the applicant had not really thought much about these issues. Even allowing for the passage of time, the applicant appeared not to be drawing on personal lived experiences and fears.
The applicant first arrived in Australia in October 2004 but, as discussed at hearing, did not apply for protection until September 2016, almost 12 years later. During this period, he returned to Thailand three times, and spent several years here unlawfully. At the hearing, the applicant linked his fears with his father’s death in 2016, claiming that his father had been in a position to protect him in Thailand. He implied that his father’s death heightened the applicant’s concerns about returning to Thailand, and explained his failure to seek protection earlier. The Tribunal found his account muddled and unpersuasive. In its view, the significant delay in lodging a protection visa application raises strong doubts about the genuineness of the applicant’s claims, and his need for protection.
Political opinion
The application form states briefly that the applicant is a normal person who, under the current military government has no ‘freedom to express’, and who had to flee Thailand for his safety.
At hearing, the applicant stated that he identifies as a Red Shirt, who favours the politics of former Prime Minister Thaksin Shinawatra.
General country information
The Tribunal drew on general country information[1] about political developments in Thailand since around 2004, when the applicant first came to Australia.
[1] The Tribunal referred among other things to Freedom House, Freedom in the World 2010, (which includes a survey of the period most relevant to the applicant’s claims), the BBC News Country Profile, and similar sources.
In 2001, the populist Thaksin Shinawatra became prime minister for the first time. His TRT (or ‘Thais Love Thais’) party had gained support in the 2001 elections from the rural north and northeast constituencies by criticising the incumbent government for favouring the urban middle class and conservative elite. He pursued a range of initiatives, such as subsidised health care and microfinance loans, seen as helping the poor. Criticism of the Thaksin family grew in the wake of financial scandals, and following a snap election called for April 2006, but rescheduled, he was ousted during a military coup in October 2006. The TRT was banned in May 2007. A pro-democracy group the United Front for Democracy Against Dictatorship (UDD), known as the ‘Red Shirts’ has emerged as the main opposition group, mainly consisting of Thaksin supporters. In 2011, Thaksin’s sister Yingluck became prime minister following a landslide electoral victory for the pro-Thaksin Pheu Thai party. In 2014, the Constitutional Court ordered the prime minister out of office, and the army again seized power.
The applicant’s political views and profile
At hearing, the applicant initially focused on the political views and profile of his father, and of an aunt, both of whom he said were associated with the Red Shirts and opposed to the military government. It was difficult to gain a sense of whether he was talking about his father and aunt as people who typified his own political views; or whether he was suggesting that he might be imputed with anti-government views as a result of his association with them.
§ The applicant said that his father had served in [a Thai institution], and died in about 2016. He had been a supporter of the Red Shirts. The Tribunal understood these references to be to Thaksin Shinawatra, and associated groups.
§ The applicant said that an aunt also supports the Red Shirts, and she has to lead her life quietly (implicitly, to avoid being targeted and harmed by the government). He said that she lives near Bangkok, but did not have more information about her, as they are not in regular contact.
In relation to his own political views and profile in Thailand, before he first came to Australia in 2004 (at the age of [age]), the applicant said that his father had instilled in him the political beliefs of the Red Shirts. However, he (the applicant) was not politically active in any way. He felt that he ‘could not do anything’. By this, he meant that he (and other ordinary people) cannot act against the authorities, who are corrupt and dangerous.
In response to questions, the applicant said that he left Thailand in October 2004 with a view to studying English in Australia. He acknowledged that Thaksin was in power at the time, but said that he did not think there would be ‘any issue’ (by which the Tribunal understands him to have meant political turmoil, such as Thaksin’s ouster by the military in 2006).
The applicant claimed that, during one of his return visits to Thailand he attended a political rally, to listen to a speech. He did not provide any further details. Asked if he had any photographs or other evidence relating to this event, he referred vaguely to having a photograph of his aunt (implicitly, while she was at a political event).
In relation to his activities in Australia since November 2011, when he last returned, the applicant said that he monitors the Thai news, but does not discuss politics with anyone, express his political views, or maintain any kind of political contacts with people in Thailand. He reiterated that he is apprehensive about voicing his opinion, as he is uncertain about what consequences it might have if he returns to Thailand.
The Tribunal found the applicant’s claims about his political opinion and interests to be vague, changeable and unsubstantiated. It does not accept that the applicant, who left Thailand at about the age of [age] and has spent more than 15 years in Australia, avoids commenting on political matters because he is apprehensive about the potential consequences if he were to return to Thailand. Rather, the Tribunal concludes that his interests and priorities lie elsewhere. The Tribunal accepts that the applicant’s father may have been a former [official A] who engaged in some political discussions, and who had personal connections. However, the Tribunal does not accept the suggestion that his father had any oppositional profile; or that, following his father’s death, the applicant himself may be imputed with such an opinion (including because of the family name) and therefore be at risk.
The Tribunal accepts, given the breadth of support for the Red Shirts in Thailand, that the applicant may have an aunt who favours the opposition. However, it does notsimilarly does not accept that the applicant has an aunt who has strong political convictions, but is unable to participate in political activities, and whose situation is relevant to the applicant’s own political stance or his prospects if he returns to Thailand.
The Tribunal nonetheless accepts that the applicant monitors the Thai news, and is generally concerned about the country’s political developments. In this context, it accepts as plausible that he may lean towards Thaksin’s populist policies; that he may be sympathetic towards the Red Shirts; and that family members (including his deceased father) may hold (or have held) similar views. It does not accept that his political preference extends beyond this, or that he has any political opinion that motivates him to engage in political activism of any kind.
Departure from Thailand and return visits
The applicant first came to Australia in 2004, and made three return visits to Thailand. At hearing, he said that he came here to study, and became familiar with Australia. He said that, despite Thaksin’s ouster in 2006, he was able to make return visits to Thailand while his sister Yingluck was in office. The Tribunal considers the applicant’s return visits to Thailand, when taken together with his lengthy delay in seeking protection, as evidence that he is not politically engaged, or genuinely concerned about the risk of persecution or significant harm for this or similar reasons.
Fears relating to Thailand
The application form states that the applicant fears arrest and imprisonment if he returns to Thailand; his disappearance; and/or being killed.
At hearing, the applicant said that he fears the Thai government will find out if he returns to Thailand, and military officials will imprison and harm him. Later, the applicant said that he would not be able to voice his political opinion if he returns to Thailand. The authorities would target him because of his anti-government views, and additionally because he shares his father’s name and would be imputed with his political views. The applicant mentioned several times that, faced with such risks, he would not have the courage to speak out.
The applicant claimed that while his father was still alive (i.e. prior to 2016), he had been able to provide him with some protection. In response to further questions, the applicant said that, as a former [official A], his father had personal connections and could call on people to assist him. By way of contrast, the applicant had been outside Thailand for a long period, and did not have any connections to assist him.
For the reasons stated above, the Tribunal does not accept that the applicant genuinely fears persecution or significant harm, for reasons of any political opinion, actual or imputed, or through his association with his father or an aunt.
ASSESSMENT: REFUGEE CRITERION
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 his future conduct in Thailand and relevant country information. At hearing, the applicant said that he had not really thought about returning to Thailand, reiterating that he did not wish to do so while the military was still in power.
The Tribunal accepts that the applicant favours the Red Shirts, and has some concerns about political developments in Thailand. However, for the reasons stated above, it finds he has not been politically active in Thailand or Australia (even if he was once present at a rally during a return visit to Thailand). The Tribunal does not accept that he has any political opinion or interests that have in the past, or will in the future, motivate him to engage in politics. The Tribunal finds that the Thai authorities have no adverse interest in him directly, or through his association with his father or other family members, including any imputed political opinion.
The Tribunal finds there is no real chance of the Thai authorities targeting the applicant for reasons of his political opinion, actual or imputed (including through his association with his father), and arresting, imprisoning or otherwise seriously harming him. In light of its assessment about his lack of political interests, the situation does not arise where the applicant would have to alter or conceal his political beliefs, or otherwise modify his conduct so as to avoid a real chance of persecution: s.5J(3), s.5J(3)(c)(iii).
Having considered the applicant’s claims and evidence as a whole, the Tribunal finds he does not face a real chance of serious harm amounting to persecution arising from any political opinion, actual or imputed; or any association with his father or other family members (on political grounds); or any other s.5J(1) reason.
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 are substantial grounds for believing there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand.
The Tribunal’s findings of fact above lead it to conclude that no one has an adverse interest in the applicant, or any intention of inflicting significant harm on him, including arising from his or any relatives’ preference for the Red Shirts. The Tribunal accepts that the applicant has some broad concerns about Thai politics, and perhaps other aspects of life there. However, these are general conditions that affect all Thai residents, and do not involve significant harm as defined in s.36(2A) and s.5(1).
In sum, the applicant’s circumstances if he returns to Thailand do not give rise to grounds for believing that there a real risk that he 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 him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. The Tribunal is also not satisfied that there is a real risk that he 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 he will suffer significant harm: s.36(2)(aa).
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 immediately 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 4404

20 September 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal