1731258 (Refugee)

1731258 (Refugee) [2024] AATA 948 (19 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Svetlana Russo (MARN: 1568392)
CASE NUMBER:  1731258
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Katherine Harvey
DATE:19 January 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 January 2024 at 12:24pm

CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – membership and activities in opposition party – liability for military service – no past harm – no response to hearing invitation or appearance at hearing – country information – no support for claims that government captured party records or of changes to military service laws – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 411, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Kingdom of Thailand (Thailand) and is [age] years old. He first arrived in Australia [in] March 2016 on a visitor visa. He left Australia [in] June 2016. He most recently arrived in Australia [in] February 2017 travelling on a Thai passport as the holder of a visitor visa.
On 23 August 2017, the applicant applied for a protection visa.
On 15 November 2017, a delegate of the Minister refused to grant the visa.
On 11 December 2017, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 11 December 2017, the applicant completed an ‘Appointment of Representative, Appointment of Authorised Recipient – MR Division’ form in which he agreed to receive all AAT correspondence by email and he elected his migration agent to be his representative and authorised recipient.
On 30 November 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 January 2024 and to provide all documents he intended to rely on to support his case by 9 January 2024. The invitation stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.
On 7 January 2024, the applicant’s registered migration agent contacted the Tribunal and advised that despite a number of attempts, she was unable to elicit a response from the applicant by post or telephone. The migration agent had sent the applicant correspondence to the same address as the one recorded on the Tribunal’s file.
The Tribunal reviewed its contact details for the applicant. The applicant had not provided a personal email address on his application and no personal email address is recorded on the Tribunal file.
On 8 January 2024, the Tribunal checked with the Department and the mobile telephone number provided by the applicant is the same as the one recorded on his Departmental file. The Department file contained a personal email address for the applicant and the Tribunal sent an email to this address requesting the applicant to contact the Tribunal by telephone or email. The Tribunal did not receive a response by the time this Decision was finalised.
On 9 January 2024, the Tribunal attempted to telephone the applicant using the mobile telephone number provided in the applicant’s application. A recorded voice advised:
Call could not be connected. Please check the number again. The number you have called cannot be connected because of a fault.
Two SMS reminders about the hearing were sent five business days and one business day before the hearing to the mobile telephone number provided by the applicant. Delivery of these reminders failed.
The applicant did not respond to the hearing invitation. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) and that the applicant’s representative advised the applicant of the invitation by post to his last known address (which is also the address on the Tribunal file). The Tribunal also attempted to email the applicant directly and to telephone the applicant using the mobile number he provided to the Tribunal. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant was represented in relation to the review.
Material before the Tribunal
With his application for protection, the applicant provided:
·a certified copy of the applicant’s Thai passport with a date of expiry [in] 2020
·copy of his Thai driving licence with an expiry date [in] 2022
·a copy of his Thai National ID Card with a date of expiry of [in] 2021
·a copy of an untranslated card with the applicant’s photograph on one side. ‘National United Front of Democracy Against Dictatorship (NUDD) Red in the Land’ is written in English and the numerals [number]. In his application, the applicant claimed that this was a NUDD membership card, and
·a photograph of NUDD scarf.
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 (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 has a well-founded fear of persecution for a refugee nexus reason, or he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details are set out in his application for protection. He is [age] years old and was born in Udon Thani, Thailand. The applicant claimed that he was ethnically Thai and his religion was Buddhism. He claimed that he speaks, reads and writes Thai and English. At the time he made his application, he stated that he was divorced and had [number of children].
He claimed that his parents were still alive and he provided details of his mother, father, [and siblings]. He claimed he had a nephew living in Australia.
The applicant claimed to have a degree in [Subject 1] and to have worked as a store manager from March 2006 until October 2012. The applicant claimed he was unemployed from October 2012 until February 2017 and that he supported himself by maintaining and repairing and selling second hand [items].
Country of reference
The applicant claims he was born in Udon Thani, Thailand and is a citizen of Thailand. He provided a certified copy of his Thai passport.
Taking into account the available evidence, the Tribunal is satisfied that the applicant is a citizen of Thailand and that Thailand is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
The applicant’s claims are set out in the application for a protection visa.
He claimed he became a member of the NUDD in 2009 and that he was always an active member who took part in NUDD’s actions and educated and coordinated people.
He claimed that many people talked to him daily about the latest news and upcoming actions of NUDD and they respected him as a ‘head leader’ of the organisation.
He claimed that he had recently discovered all the files of NUDD were captured by the government authorities.
He claimed he had pulled out a black card (relating to military service) but because of recent changes in the military law he could be called up for military service.
He claimed because he belongs to the NUDD his life could be in danger.
He claimed members of the NUDD are being abducted, jailed and killed.
He claimed he had not experienced harm in Thailand.
Country information
The Department of Foreign Affairs and Trade Country Information Report for Thailand has the following information about the United Front for Democracy against Dictatorship and people associated with the Red Shirt Movement:
3.36 Initially formed as the United Front for Democracy against Dictatorship (UDD), the Red Shirt movement rose to prominence in 2009. It opposed the military-backed governments of Surayud Chulanont and Abhisit Vejjajiva and sought the return from exile of ousted Prime Minister Thaksin Shinawatra. It also took up issues of economic and political inequality. At its height, the Red Shirt movement had millions of supporters. The majority were from Thailand’s rural north and northeast, although it also included some progressive urbanites, academics, and left-wing activists. Most Red Shirts were non-violent, but a small number engaged in or supported violence against political opponents, civilians, and authorities.
3.37 In early 2010, mass demonstrations by Red Shirt protesters against the Abhisit government shut down central Bangkok for several weeks. Authorities dispersed the protests in a violent crackdown that killed dozens and wounded hundreds more. Security forces were widely criticised for their excessive and indiscriminate use of force against the protesters. No members of the security forces were ever held accountable for the violence. Following the crackdown, authorities questioned, arrested, and detained Red Shirt leaders and members who took part in the protests, as well as accused sympathisers.
3.38 After the 2014 coup, many Red Shirts were detained and subjected to “attitude adjustment” sessions, where security forces pressured them to end their political activities (see Arbitrary Arrest and Detention). Amnesty International recorded many human rights abuses during this period, including arbitrary detention, enforced disappearance and torture. Red Shirt leaders were jailed on charges including defamation, incitement, and lèse-majesté. Grassroots supporters were harassed, intimidated and in some cases detained. Afterwards, some Red Shirt leaders withdrew from politics, while others switched allegiance to military-backed parties.
3.39 While significant numbers of Thais still identify as Red Shirts, the movement is now much less prominent than in the past. Red Shirts played a limited role in the 2019 election, 2020-21 protests, and the 2023 election. Most in-country sources said that authorities no longer harassed or monitored Red Shirt supporters, especially if they were no longer politically active. Although DFAT is aware of isolated reports of active Red Shirt supporters being harassed or monitored by local authorities, DFAT is not aware of specific cases, and has no evidence to suggest such treatment is centrally directed or widespread.
3.40 DFAT assesses that people associated with the Red Shirt movement who are no longer politically active are not at risk of official discrimination or violence. DFAT assesses that prominent Red Shirts who remain politically active are at low risk of official discrimination, in the form of possible monitoring or harassment by local authorities.[1]
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Thailand’ (18 December 2023) 18.
An online search located one image of an NUUD membership card available through Getty Images. Yvan Cohen photographed a Buddhist monk in 2010 displaying his membership card.[2] While there are differences to the copy provided by the applicant – including the style of photograph and the format of the member number – the cards appear to be similar.
[2] A Buddhist monk displays his membership card for the United Front for... News Photo - Getty Images.
The Department of Foreign Affairs and Trade Country Information Report for Thailand has the following information about military service:
Under the Military Service Act (1954), men over the age of 21 are eligible for compulsory military service. Conscripts are selected through a lottery system. There is no provision for conscientious objection. Approximately 100,000 personnel are recruited each year through the system. The period of service varies. Those with university degrees normally serve for six months if they volunteer for service, or one year if drafted via lottery. Those who have completed secondary education will serve one year if they volunteer, or two years if drafted. People sometimes bribe officials to avoid the draft or leave the military early, although doing so carries a potential punishment of up to three years’ imprisonment. Despite some resistance, growing social and political pressure means the armed forces are likely to gradually transition to a mostly volunteer force over the next decade.[3]
[3] Department of Foreign Affairs and Trade (n 1) 34.
Further information about the lottery explains that each April, around 100,000 men are recruited through a lottery system; those who choose black cards are exempted through a lottery system, while those who select red cards are enlisted.[4]
[4] Caleb Quinley, ‘Red or black? Experiencing Thailand’s military draft’ Aljazeera (23 April 2019).
Assessment of claims and evidence
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim.[5] Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant.[6]
[5] Section 5AAA of the Act.
[6] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal has before it a brief and highly generalised claim in which the applicant claims he is at risk of harm in Thailand because he is a member of NUDD, the government authorities have captured all the NUDD files and his life could be in danger. The applicant also claimed that members of the NUDD are being abducted, jailed and killed. The applicant provided a copy of an NUDD membership card and a photograph of an NUDD scarf. The applicant did not provide any evidence about actions in which he had participated, or how he educated and coordinated people.
The applicant claimed, and the Tribunal accepts, that he did not experience harm in Thailand, including during the violent crackdown on NUDD/Red Shirt movement supporters in 2010 or in 2014 when many supporters were detained and subjected to ‘attitude adjustment sessions’.
The Tribunal notes that, as recorded in the decision record, a copy of which the applicant provided to the Tribunal, the applicant left Thailand legally on his own passport in February 2017, indicating he was of no interest to the authorities at that time.
Based on the information before it, the Tribunal accepts that the applicant was a member of NUDD from 2009 and the Tribunal does not accept that the applicant had any leadership role in the NUDD or that he is perceived to be a ‘head leader’ of the NUDD or that he was of any interest to the Thai authorities.
The applicant did not provide any evidence to support his claim that the government authorities have captured all the NUDD files. As discussed in the decision record, a copy of which the applicant provided to the Tribunal, there are no reports on the Department’s country information to back up this claim and a Google search fails to pick up any information to substantiate the claim. A similar search by the Tribunal of country information failed to locate any reports that support the claim. Based on the information before it, the Tribunal does not accept that government authorities have captured all the NUDD files.

The applicant claimed that NUDD members were being abducted, jailed and killed. The Tribunal gives greater weight to the country information and notes the current information is that DFAT is aware of isolated reports of active Red Shirt supporters being harassed or monitored by local authorities, not that NUDD members are being abducted, jailed or killed.
The applicant has not provided any evidence that he has an ongoing connection to the NUDD or Red Shirt movement or that he is politically active. Based on the evidence before it, the Tribunal finds that the applicant is no longer politically active.
The Tribunal considered the country information and DFAT’s assessment that people associated with the Red Shirt movement who are no longer politically active are not at risk of official discrimination or violence. As he is no longer politically active, the Tribunal does not accept that there is a real risk or a real chance that the applicant would experience serious harm or significant harm because of his political views if he returned to Thailand now or in the reasonably foreseeable future.
The applicant also claimed that he could be called up for military service because of recent changes in the military law. He did not provide any evidence to support his claims of the recent changes in military law to which he referred. The applicant claimed, and the Tribunal accepts, that the applicant had previously participated in the military service lottery and he selected a black card, which exempted him from military service. There is no evidence before the Tribunal that the men over 21 are required to participate in the military service lottery a second time. The Tribunal gives greater weight to the country information. The Tribunal does not accept that there is a real chance or a real risk that the applicant would be called up for military service if he returned to Thailand now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant will face a real chance of serious harm or a real risk of significant harm from the Thai authorities, the Thai government or the Thai military if he returns to Thailand now or in the reasonably foreseeable future.
The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal. The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason listed in s 5J(1) of the Act.
Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, that there is a real risk that the applicant will suffer significant harm.
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.
Katherine Harvey
Senior 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.
…

[2024] AATA 948

19 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice