1813039 (Refugee)

1813039 (Refugee) [2021] AATA 4827 (1 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1813039
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Rodger Shanahan
DATE:1 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 October 2021 at 2:42pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – membership and activities in political party – military coup – economic conditions and COVID-19 – credibility – delay in applying for protection – applied after tourist visa expired – claim on ground of political opinion raised for first time at hearing – no evidence of activity in home country and limited evidence social media activity in Australia, in Thai with no translation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(4), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa on 7 September 2017.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant made the following claims in his application:
The 13th coup in Thai politics on May 20, 2014 by Gen. Prayut Chanocha. As a result, the people included me lacked the right to freedom of political elections. Thailand became a democracy, but the outer shell The inheritance is dictatorial parliament. Which
is unlawful, It is against democracy, make the country backward and unaccepted from internationally.
I do not like and oppose the coup because 1. It is unlawful. People lose power
2. Unacceptable countries will refrain from importing products from a revolutionary country. Losses to the economy of the country. Affect the well-being of the people. 3. lost many lives medical fee Other losses In the case of a riot 4. Economic Downturn Imports disruptions, no foreign investment. 5. People lose the right to freedom of the electoral and political.
When the coup revolutionary people have power alone. No other power beam and no monitoring. People lose all rights and freedoms. The economy, politics, elections, participation in the administration. The lack of democracy.
(If I was to return to Thailand) 1.I will lose the right to liberty, political democracy 2.I will be controlled in the political opinions of the country. 3.I will face unemployment because of the economic downturn. 4.I would have been under the power without the righteous. This is my unacceptable to democracy.
AAT Hearing
The applicant claimed that he had no freedom in expressing his political opinion. The country was under a military government from the coup. Asked what he feared would happen to him personally if he returned to Thailand, he claimed that he would be unemployed and would be part of an anti-government group and he may be shot or harmed by the police or military. He had this fear since the 2014 coup.
Before he came to Australia he was part of the ‘Red Shirts’. Asked what he meant by fearing being unemployed, he claimed that because the government had failed the country economically and even people graduating from university couldn’t get jobs. Asked why this wasn’t just a poor economic situation and why he feared it personally, he repeated that it was because of the government’s bad management. Asked what the unemployment rate was, he said it was probably 45-50 percent. Asked where he got this figure from, he said it was from the web. Asked what site he was getting this information from, he asked for more time.
It was put to him that high unemployment rates were normally just part of the fabric of the country and weren’t directed at individuals. It was put to him that country information indicated the unemployment rate was more like one per cent. He would be given time post-hearing to provide his source of information but was cautioned that if he didn’t know something to be a fact he should not just make something up as this could effect the Tribunal’s view of his credibility. He accepted this and said he had no other claims.
From 2014-16 he was part of the Red Shirts in his province as part of the protests. They petitioned the government – there were red and yellow shirts who were opposed to each other. After the coup the red shirts could no longer continue. He came to Australia because he was worried about the danger to him in Thailand – he came to Australia first to study.
Asked what he did in Thailand, he claimed that he coordinated and provided communications support for the Red Shirts. Asked if he was in the leadership he said he was an ordinary member. Asked to give a practical example of what eh did, he claimed that he gather the Red Shirts for demonstrations in his province. Asked how he did this, he said that he called people, passed on information and coordinated with other provinces. He did this by phone.
Asked if he was still in contact with the Red Shirts, he claimed that the Red Shirts didn’t really exist in the provinces – they may in Bangkok. They ceased to exist around 2015. Asked if he came to the attention of the Thai authorities and was detained or questioned, he said he wasn’t as they had dispersed. Asked why he had to leave Thailand if he wasn’t of interest to anyone, he said he was scared the military may do an investigation and he may be arrested. He left Thailand because he feared he would be arrested. He said he wanted to take a break and see what would happen in Thailand.
He came to Australia on a tourist visa and studied a short course for thee months in English. Asked if he had the results for this course, he said that he didn’t get a certificate as he didn’t complete the course. Asked how the Tribunal knew he did the course, he said he may have some documents. Asked if he applied for protection during his three-month visa, he said that he didn’t know what to do. Asked when he applied after his visa expired he said he thought it was three months. It was put to him that he had been warned about saying something that he didn’t know to be fact and he then said that he didn’t know exactly how long after his visa expired that he applied for protection. It was put to him that it was 11 months – nearly a year, and this was quite different to what he had said.
Asked what he did to find out about applying for protection, he said that he looked at a lot of websites. He didn’t go to a migration agent. It was put to him that he had claimed that he did a lot of things for the Red Shirts and came to Australia to avoid being arrested and then he never applied for protection while on his tourist visa or for nearly a year after. The High Court had ruled that delays in applying for protection could mean that adverse conclusions could be drawn as a result of the delay. He said he had no knowledge and it was hard for Thais to find someone and to trust them. It was put to him that this was why Australian legal sources indicated that two months may be an acceptable delay in order to find how to apply for protection.
He said his English wasn’t good and he had to start from scratch. It was put to him that it wouldn’t have taken nearly a year after visa expired. Asked if he had ever previously mentioned that he had a role with the Red Shirts, either in his application or in his submissions to the Tribunal. He said that he had. He was asked where it was as the Tribunal could not find any such claim. He claimed that when he put the application in, he said he just spoke about political opinion but had no evidence about the Red Shirts. It was put to him that he could have mentioned it.
He said the online application only had a small space for information. It was put to him that he could have provided additional information. He again said that he thought he had to have evidence so he didn’t mention it. Asked whether he had mentioned this role in the submission he had provided to the Tribunal the previous evening, he said that he just mentioned the anti-government demonstration group but not the Red Shirts as he didn’t have evidence. He had evidence as it was a long time ago and the information was confidential. He was asked if there were any photos, he said that other people who may have taken them as the group didn’t take them.
He was asked whether he had looked for such photos, he said it was many years ago and he tried but he couldn’t get anything. Asked if he had a social media footprint in Australia showing him to be politically active, he said he did post anti-government things on his [Social media] but it was in Thai. He said he didn’t provide it because he thought he had to send it to Thailand to be translated – it was put to him that it could be translated in Australia.
Asked when he began posting anti-government things, he said he complained about the government on his personal [Social media] page. Asked if there was any evidence on his [Social media] that he had anything to do with the Red Shirts, he claimed that he created a new one when he came to Australia so there may not be but he would look.
Asked why he would be of interest in Thailand given he was never arrested and there were no photos or any evidence of him, he said that he had destroyed evidence. Asked what evidence he destroyed given he had not mentioned this previously, he said he had an old [Social media] that showed he was part of the Red Shirts. Asked if he had even mentioned this previously, he said that he didn’t have this evidence so never mentioned it. He was now saying he had no evidence because he had destroyed it.
Asked what information he had that he had destroyed, he claimed that he had phone numbers of other Red Shirts groups but no longer had them. He had also deleted his old [Social media] page. He did this in 2016. He didn’t remember what name it was under and he could no longer get in there. Asked if he had tried to get it restored so he would have some evidence. He said he hadn’t because it belonged to the group. He said that the old [Social media] page belonged to the group, but the new one he had started was his personal one. Asked who deleted the group one, he claimed that there were more than one administrator, so he didn’t know who deleted it. He only posted on it. He didn’t know who deleted it or what its name was. The member said the Tribunal found this hard to believe. He said this was why he didn’t put it in the claim as he had no evidence.
Asked why anyone would be interested in him in Thailand, he said he believed the government would do an investigation and they could find out about him so he came to Australia. Asked what he did in Australia during the 11 months he was without a legal visa, he claimed he would go to different towns or farms and he would ask for help with food and accommodation and helped out with work; cleaning, mowing lawns etc but wasn’t paid.
Asked how he was able to do this without speaking English, he said he could speak a little but it wasn’t good as he had learnt in Thailand and Australia. Asked if he had any country information that someone with his profile would be of interest to Thai authorities given the Tribunal could not find any – he was also advised that the Tribunal had received attachments from him that contained general information and he was formally asked to indicate to the Tribunal those sections that were relevant to his claim yet he had not done so. He said that he had no information to give.
He agreed that he had a university degree from Thailand. It was put to him that he was well educated so it was strange that he delayed applying for protection given he also had sufficient English to travel around the state and gain food and lodging in exchange for unpaid work. Both would indicate he should be able to find how to apply for a visa. He said that his degree was in [Subject] and didn’t teach him about visas and the like. It was put to him that degrees taught someone to find information and applying for protection simply involved finding the necessary information.
He said that it took time and he also had to see what the impact on his safety would be. It was put to him that 11 months was well in excess of the time that it would take for him to familiarise himself with the process. He said that he didn’t know anything and had English difficulties. It was put to him that he had claimed to have done language training, a university degree and could travel around the state getting work yet he couldn’t work out how to apply for a visa for 11 months. This was hard to believe.
He said that Thais still found it difficult to communicate in English even if they studied for a number of years. He was told that it was sufficient for him to travel around the state working for board and lodging so he had some level. He said he could only understand 50 or 60 per cent or less.
It was put to him that he had also made a claim regarding COVID but the Tribunal didn’t understand it. He agreed that he was double vaccinated. He said that he used this as an example of how the government mismanaged things. Asked what the problem was for him if he returned to Thailand, he agreed that he was double vaccinated and he raised the issue as an example of the government’s mismanagement. He was asked to provide information regarding the 40-50 per cent unemployment rate and about his social media activism.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant first arrived in Australia on a visitors visa valid for three months on 3 July 2016. He applied for a protection visa on 7 September 2017. The Tribunal sighted his Thai passport as proof of his identity and his claim will be assessed accordingly.
The applicant is a [Age] year-old single Thai male. He claimed to fear being shot by the police or military for being part of an anti-government group if he returned to Thailand because of his political activism and that the military may do an investigation on him and he may be arrested as a result of his activism. He also claimed to fear being unemployed and the COVID situation.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness.
Political Activism
I do not accept that the applicant was ever politically active in Thailand, or that he was a member of the Red Shirts group. He has provided no evidence to support the claim about his Red Shirt, and the claim itself was only made for the first time at the hearing. I do not accept that this was because there was not much room on the original form. He provided a written statement in support of his claim just prior to the hearing and there was no mention of it then.
He was unable to provide any evidence such as photographs or media/social media entries that could have supported the claim. I do not accept that he had deleted an old [Social media] page that had evidence of his activities. He originally said that he had deleted the account but then he said that it was a group account but he didn’t recall its name or who had deleted it. Not only was he inconsistent regarding who he claimed deleted the account, given its importance to his claim he could not recall what the site was called nor who the administrator was.
I have also taken into account his claim that he operated his own [Social media] page on which he posted criticisms of the government. Post-hearing he provided screen shots of what he claimed were parts of his [Social media] page. I am not satisfied that the applicant has been, or would be perceived to be an online political activist during his time in Australia. I have taken into account the screenshots he provided as evidence of this however lend them little weight.
To begin with the entries are in Thai and he was informed at hearing that in order for them to be taken into account they needed to be translated and that he could do this in Australia. On the title photo there is a hashtag #respectThaiDemocracy although there is no indication of when this photo and hashtag was placed there. The only English-language element on the first page was what appeared to be the name of the site which said ‘[Name]’. Because the screenshots are in Thai there is no way of checking the actual [Social media] site to see whether the screenshots he has provided are from that page, nor whether he has posted any anti-government comments on the site.

I have also taken into account the lengthy delay in applying for protection in Australia. He stated that he came to Australia with the purpose of avoiding arrest because of his political activities in Thailand. Yet he didn’t apply for protection for more than a year after he arrived in Australia and nearly a year after his visitor’s visa had expired. A delay of this length is not indicative of someone who has fled their country and come to a refugee resettlement country such as Australia.
I do not accept that he wanted to take a break and see what happened in Thailand, that he did not know what to do to apply for protection or that his English was too bad to find information. To begin with I do not accept that taking a break could realistically account for a delay of such length. If he needed a break then it is reasonable to assume that he could have had a break and decided what to do next during the three months in which his visa was valid.
He claimed that he didn’t really speak English however that appears to be at odds with his ability to allegedly travel to different parts of the state and then to negotiate with native English-speaking farmers board and lodging in return for labouring work on farms in rural NSW. He is also university-educated so would have been aware of how to search for information on certain issues. Given his tertiary level education and alleged level of English skills, his claim not to know how to apply for protection, either by himself or with the help of a migration agent for more than a year appears implausible.
Because I do not accept that the applicant is or was ever politically active in Thailand or since he has been in Australia, I do not accept that he would therefore start becoming politically active in Thailand on return. As a consequence I do not accept that there is a real chance that he will be shot by the military or police for being part of an anti-government group or that the police may do an investigation regarding him and that he would be arrested.
Other Issues
I do not accept that the applicant would be unemployed on his return to Thailand. He cited an unemployment rate of 40-50 percent as his reason for fearing this however country information indicates that the rate is below two percent.[1] He was given an opportunity post-hearing to provide country information to support his claim. An attachment was provided that contained a graph however it is entirely in Thai and the applicant provided no supporting information that explained what the graph was supposed to show. I therefore am not able to lend it any weight.
[1]Thailand Unemployment Rate | Moody's Analytics (economy.com), accessed 28 September 2021.
Regardless of the fact that he claimed to fear unemployment in a low-unemployment country, he did not indicate that he would be singled out in this regard. Such rates simply reflect a country’s economic fortunes and hence any financial harm that the applicant may experience if he were to become on return to Thailand would be neither systematic nor discriminatory and therefore would not constitute persecution as outlined in 5J(4) of the Act.
The applicant also raised a vague claim regarding COVID and the Thai government’s mismanagement of it. I note the applicant is fully vaccinated and for the same reason as above a pandemic is not persecutory because any harm resulting from it is neither systematic nor discriminatory (except perhaps to unvaccinated people).
I also do not accept that the applicant will lose all rights and freedoms and the rights to political democracy. These were vague claims made in his written application, however I note that elections were held in 2019 and while the level of political freedoms have been reduced, I am not satisfied that the consequences of this will be felt by the applicant personally given I have already found that he was not politically active in Thailand previously and will not become politically active on his return.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant has ever been a political activist in Thailand or that his social media entries will make him of interest to the Thai authorities on return to Thailand, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims. I also note that the threat from unemployment and COVID he evinces is the same as that faced by the general population in Thailand and not by the applicant personally – he has also been fully vaccinated against COVID since being in Australia.
I also do not accept 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 the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). 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.
Rodger Shanahan
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.
…

[2021] AATA 4827

1 October 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction