1729636 (Refugee)

1729636 (Refugee) [2023] AATA 4115 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729636
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Haag
DATE:6 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 September 2023 at 2:26pm

CATCHWORDS
REFUGEE – Protection visa – Thailand –race – ethnic Thai – loan shark – failed to attend tribunal hearing – applicant had disengaged from the review process – applicant had disengaged from the review process – applicant did not provide any reasonable explanation for the delay in applying for protection– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 30 October 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 18 May 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant did not appear at the hearing of her application on 5 September 2023 when she was called on by the Tribunal to do so.
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.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s background
In her application for a protection visa, the applicant claims to be a citizen of Thailand, born on [date] in Chang Rai, Thailand. She claims to be an ethnic Thai of Christian religion who can speak, read, and write in English and Thai.
In her visa application, the applicant provided details of her mother and father, who are both citizens of Thailand residing in Thailand.
At the time of her visa application, the applicant was living in [Victoria], Australia since March 2013. Previously, the applicant resided in Chang Rai, Thailand, between June 1987 and March 2015.
In her visa application, the applicant claimed to have completed her high school certificate in Chang Rai, Thailand, between January 2000 and December 2003. She did not provide details of any other education or qualifications.
At the time of her visa application, the applicant claimed to have been unemployed since March 2015. She did not provide details of any other previous employment.
Applicant’s identity
The applicant provided the Department with a copy of her Thai passport.
The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Thailand, and as such her protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.
Migration history
On [date] March 2015 the applicant arrived in Australia holding a TU-573 (Higher education sector) visa.
Between 12 April 2016 and 8 June 2017, the applicant was residing in Australia as an unlawful non-citizen.
On 18 May 2017 the applicant applied for a protection visa.
On 30 October 2017 the Delegate for the minister refused the protection visa application.
On 26 November 2017 the applicant lodged an application with the Tribunal for review of the visa refusal decision.
Claims for protection and supporting documentation
The applicant submitted her claims for protection when she lodged her protection visa application with the Department on 18 May 2017. The applicant’s claims are as follows:[1]
[1] Department file [deleted], Doc ID 9942974, folios 20-18.
88 I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside In. This includes countries you are a citizen or national of or you have a current visa for).
Thailand
89 Why did you leave that country(s)? Provide specific details
I LEAVE MY COUNTRY (THAILAND) BECAUSE BECAUSE I HAVE SO MANY LOAN WITH LOAN SHARK. BECAUSE OF LIFE EXPENSES, I COMES FROM POOR FAMILY. TO INCREASE MY LIFESTYLE, I BORROW MONEY FROM LOAN SHARK. IT WAS BIG AMOUNT. I OPEN BUSINESS WITH THAT MONEY. BUT BECAUSE OF I KEEP PAY THE IONTEREST MY BUSINESS RUINED. THEN, I NEED TO PAY BIG SUM OF MONEY TO THEM. THEY KEEP COMING AND THREAT ME. I BECOME SO STRESS. WITH THE LITTLE MONEY I HAVE, I RUN AWAY TO SEEK PROTECTION AND SAFELY LIFE MATTERS. THANKS TO AUSTRALIAN GOVERNMENT.
90 What do you think will happen to you if you return to that country(s)?
IF I RETURN, MY LIFE WILL BE IN DANGEROUS
91 Did you experience harm in that country(s)?
No
93 Did you move, or try to move, to another part of that country(s) to seek safety?
No
THEY KEEP FOLLOW ME WHEREVER I GO.
94 Do you think you will be harmed or mistreated if you return to that country(s)?
Yes
THEY WANT THEIR MONEY. THEY WILL DO ANYTHING TO ME. I’M SO AFRAID BECAUSE THEY EVEN CAN KILL PEOPLE.
95 Do you think the authorities of that country(s) can and will protect you if you go back?
No
THERE’S TOO MANY CORRUPLY IN MY COUNTRY
96 Do you think you would be able to relocate within that country(s)?
No
EVEN I MOVE OR FIND OTHERS PLACE, THEY WILL FIND ME
The applicant did not provide any further documents to the Department in support of her visa application.
On 27 November 2017 the applicant provided the Tribunal with a copy of the visa refusal decision record.
After the applicant lodged her review application with the Tribunal on 26 November 2017 and a copy of the record of the decision to refuse to grant her a protection visa, she did not make any new claims, or provide additional information or evidence is support of her visa application.
On 25 November 2021 the applicant sent an email to the Tribunal to which she attached a ‘Change of Contacts Details’ form containing her new residential address, mobile telephone number and email address. The form was accompanied by a copy of the applicant’s passport and a ‘Proof of Age’ card.
The form setting out the applicant’s contact details states it was signed by the applicant on 25 November 2021.
In the email of 25 November 2021, the applicant requested written confirmation that her review application was current for the purpose of enabling her to qualify for a ‘Medicare Card.’ A Tribunal official responded to the applicant’s request on 26 November 2021 and provided her with a document that confirmed her visa application had not been finally determined. This correspondence was sent to the last email address the applicant notified to the Tribunal. The Tribunal is satisfied this correspondence was sent to the same email address to which the hearing invitation was sent.
On 16 August 2023 the Tribunal invited the applicant to attend a hearing of her application to review the refusal decision made by the delegate of the Minister. The Tribunal is satisfied the hearing invitation was sent to the last address used by the applicant and Tribunal for correspondence, being the email address the applicant provided to the Tribunal on 25 November 2021.
On 29 August 2023 and the 4 September 2023 an officer of the Tribunal sent a hearing reminder message to the mobile telephone number the applicant provided to the Tribunal on 25 November 2023.
Having considered the forgoing information, the extent of applicant’s engagement with the Tribunal including, that she did not respond to the hearing invitation, provided no submissions, statements, country information or other evidence to the Tribunal in support of her visa application, the Tribunal determined it reasonable to conclude the applicant had disengaged from the review process. Accordingly, the Tribunal decided to proceed to decision based on the applicant’s present claims and evidence, without further recourse to the applicant.
The claims and evidence
The applicant claims she left her home country (Thailand) because she borrowed money on many occasions from a loan shark to enable her to pay for her lifestyle. She also claims to have borrowed money to open a business. Her interest payments were high, and the loan repayments ruined her business. The loan shark(s) repeatedly threatened her because she was unable to repay the monies she borrowed. Consequently, she fled from Thailand to Australia fearing for her personal safety, and claims if she were to return, she would be in danger of being \seriously harm by the loan shark(s).
In this context, the applicant arrived in Australia on [date] March 2015 as the holder of a student, subclass TU-573 (Higher education sector) visa. This visa expired and according to the record of the delegate’s decision,[2] a copy of which the applicant provided to the Tribunal, the applicant remained in Australia unlawfully, between 12 April 2016 and 8 June 2017. On 18 May 2017 the applicant applied for a protection visa.
[2] Tribunal file, Doc Id 3810447, record of the decision of the Minister’s delegate.
Considering the applicant asserts she fled from her home country to seek protection in Australia, and for that reason she arrived in Australia on [date] March 2015 but delayed in applying for a protection visa until 18 May 2017, the Tribunal was concerned the period of delay is inordinate, and that it may weigh against the credibility of her protection claims.
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that an applicant does not have a well-founded fear of harm.[3] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to take into account, when assessing the genuineness or depth of an applicant’s claimed fear of persecution.[4]
[3] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[4] Subramaniam v MIMA (1998) VG310 of 1997.
In this case the applicant arrived in Australia lawfully on [date] March 2015 and became an unlawful non-citizen on 12 April 2016. She retained that status until 8 June 2017.[5]
[5] Tribunal file, Doc Id 381044, record of the decision of the Minister’s delegate, p1.
The applicant lodged the extant application for a protection visa on 18 May 2017, approximately two years after she arrived in Australia to seek protection from persecution in her home country. In the material before the Tribunal the applicant did not provide any reasonable explanation for the delay in applying for protection.
Relevantly, the circumstances upon which the applicant relies to substantiate her claim for protection for being harmed in her home country, existed at the time she departed for Australia, and according to her, constitute her reasons for leaving her home country, a country where she claims no effective protection measures were available to her.
Considering the applicant arrived in Australia for the purpose of obtaining protection, it is reasonable to expect she would apply for protection without delay. In considering the period of delay the Tribunal has given regard to the period the applicant was lawfully onshore as the holder of a student visa as a possible unarticulated explanation, in part, for the delay. Nevertheless, the applicant was in Australia unlawfully for approximately 13 months before she applied for protection on 18 May 2017.[6]
[6] Ibid p1.
Based on the applicant’s delay in applying for protection, the Tribunal, has significant reservations about the genuineness and depth of her claimed fear of harm, and that she would be subjected to a real chance or a real risk of being harmed by a loan shark(s) if she is removed to Thailand, now or in the reasonably foreseeable future.
The applicant’s claims in her visa application that she committed to many loan agreements with a loan shark(s) for the purpose of funding her lifestyle and financing her business, and that she was threatened when she failed to meet various loan repayments. Considering these claims are general in nature, and without explanation, lack specific details about the loan agreements and related threats; details it is reasonable to apprehend would be known to the applicant and articulated in visa application, if the events she claims caused her to leave Thailand in fact occurred.
For example, the applicant did not identify the name of the loan shark(s), their contact details, the sums of money borrowed, when she borrowed the moneys, the sum of money she repaid when she was operating her business, interest rates, details about the nature of her business, detailed information about the nature and circumstances of the alleged threats she claims compelled her seek protection in Australia.[7]
[7] Department file, visa application, answer to question 89.
The applicant’s claims and supporting evidence are general in nature, lacking in cogent specifics, and unsupported by concrete evidence capable of substantiating to a reasonable degree the existence of the claimed loan agreements; that the applicant established and operated her own business in Thailand; and the applicant was threatened by a loan shark(s) or anyone in respect of unpaid loan moneys.
Findings
Having considered the total period of delay in applying for protection after the applicant arrived in Australia; that the applicant held a student visa for part of that period; and the period of delay when the applicant was an unlawful non-citizen; the vague nature of her protection claims and supporting evidence relating to an unspecified number of loan agreements with a loan shark(s), and being threatened; the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant:
·    borrowed money from a loan shark(s) in Thailand;
·    established and operated her own business in Thailand, and it was ruined because she was unable to repay monies that she borrowed from a loan shark(s);
·    was threatened by a loan shark(s) or anyone else in Thailand;
·    entered Australia as the holder of a student visa in fear of persecution in her home country.
Having considered the DFAT Country Information Report Thailand - July 2020 (DFAT report), relating to victims of loan sharks[8] and the report generally, given the Tribunal’s concerns, opinions and findings in these reasons ([41] – [46]), the Tribunal has determined the DFAT report is immaterial to the determination of the applicant’s protection claims.
[8] [3.115] – [3.117]
Having considered the applicant’s claims individually and cumulatively, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if she is removed to Thailand now, or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection

The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a) they will be arbitrarily deprived of their life; or
(b) the death penalty will be carried out on them; or
(c) they will be subjected to torture; or
(d) they will be subjected to cruel or inhuman treatment or punishment; or
(e) they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Thailand now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
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.
…

[2023] AATA 4115

6 September 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal