1814534 (Refugee)

1814534 (Refugee) [2021] AATA 2015 (3 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1814534
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Brendan Darcy
DATE:3 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 May 2021 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – Thailand – witness of drug dealings – threats from drug dealers – credibility issues – delay in protection application – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 16 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 the Kingdom of Thailand (Thailand), applied for the visa on 22 December 2017. The delegate refused to grant the visa on the basis that the applicant was able to access sufficient protection measures for the purposes of the refugee criteria and that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in paragraph 36(2B)(b) of the Act.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed to be born in [date] in Nong Khai province in north eastern Thailand and to be citizen of the Kingdom of Thailand. A certified copy of the applicant’s Thai passport on the Departmental [file]
The applicant was granted a Class TU Subclass 573 student visa for higher education on 9 July 2014 and arrived in Australia while holding that visa [in] July 2014.
The applicant was an unlawful non-citizen between 8 November 2016 and 2 February 2018 when she was granted a bridging visa associated with the lodgement of a Class XA Subclass 866 protection visa on 22 December 2017.
The applicant’s claim that she was owed Australia’s protection obligations evidence were contained in 866 application forms submitted. The applicant’s claims for protection are summarised below:
·The applicant claims that she was [an occupation] in her country and worked hard for her family;
·The applicant claimed that she witnessed from her side of the [property], a number of cars from other cities at another [property] that was for sale;
·A large number of people were talking and ‘exchanging stuff’ and the applicant noticed they were armed.
·The applicant contacted the police as she worried there might have been a physical attack. After the police left, the fighting was over.
·Two months later, a stranger came to the applicant asking questions and immediately attacked me without notice. Before they departed, they threatened to pay the costs of arrest because the drugs were seized;
·If the applicant does not pay, they will be threatened to kill her, the police cannot help because the other party has power.
·The applicant claims that fearing for her life she fled the country.
·The applicant claimed that she cannot relocate within Thailand because there is a strong network of gangs and they will be able to reach her.
In the same form, the applicant claimed to be Buddhist and ethnically Thai. The applicant also mentioned that she had been married but now separated.
A delegate on behalf of the Minister refused to grant the applicant a protection on 16 May 2018.
On 18 May 2018, the applicant validly applied for the delegate’s refusal decision to be reviewed by the Tribunal. Attached to the review application was a copy of the decision record.
On 16 September 2020, the applicant attended the Tribunal’s scheduled hearing via a teleconference facility to provide evidence and present arguments. The applicant was assisted by an interpreter in the Thai and English languages. No post hearing submissions were required at the end of the hearing.
No further documents or submissions were received for the Tribunal to consider, right up to the time of making this decision.
There are non-disclosure certificates attached to either the Departmental or Tribunal files.
ASSESSMENT CLAIMS AND FINDINGS
Country of nationality
The applicant claims to be a citizen of the Kingdom of Thailand (Thailand) and provided a copy of her passport to the Department with her application. The Tribunal finds that the applicant is a citizen of Thailand and that Thailand is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Credibility and other findings
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v MIEA (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Overall, the Tribunal finds that the applicant had not provided reliable and internally consistent written and oral evidence about her claims for protection. Nor has she provided any supportive documentary and other evidence to substantiate her claims for protection. Having considered the evidence, both individually and cumulatively, the Tribunal makes the following finding with above-mentioned caselaw in mind.
Personal circumstances
Although the Tribunal makes a number of adverse credibility findings in this matter, it accepts that the applicant made a number of uncontroversial claims about her personal circumstances that were credible. The Tribunal makes the following findings in regard to the applicant’s personal circumstances:
It is accepted the applicant was born in [year] in Nong Khai province, as claimed.
The applicant explained to the Tribunal that her father has passed away since arriving in Australia in early 2020 while her mother continued to reside in Nong Khai with one of the applicant’s sister. Another of the applicant’s sister has travelled to Australia on a student visa and shares the same address in Australia with the applicant. It is not claimed the applicant has any other siblings. The Tribunal accepts these aspects of her family composition to be credible.
At the hearing, the applicant claimed that she was married in 2012 or 2013 and that her husband travelled to Australia with her. She claimed that she was not separated at the time of attending the hearing although she was thinking of ending the union when she lodged this application for a protection visa with the Department. There is no marriage certificate to substantiate this. In this regard, the applicant claimed to have provided it to the Department in her and her husband’s earlier visa applications. The Tribunal accepts the applicant is married and not separated to a Thai national currently in Australia.
The Tribunal enquired into whether her husband’s claims were the same as or related to her own. The applicant claimed her husband’s protection claims related to politics and was unsure about the details or if his claims overlapped her own. The applicant knew that her sister had a visa application pending and was not certain if she had made claims that she is owed Australia’s protection obligations. The Tribunal accepts this credibly reflected her knowledge of her sister’s migration status and visa matters.
The applicant claimed that she and her husband have one child, a daughter born in 2012, who is being cared for by relations. She did not claim to have any other children. The Tribunal accepts the applicant has only one minor child living in Thailand.
The applicant claimed that her highest level of education is a bachelor’s degree[at] a Thai university and that she had [worked] in Thailand. She described her income level as low paid. The applicant further claimed to have stopped [working] in 2014. The applicant claimed that she can speak, read and write in the Thai language and described her English language capacity as modest. The Tribunal accepts these aspects of her educational, employment and linguistic background.
The Tribunal further accepts the applicant to belong to the Buddhist faith tradition and that her ethnicity is Thai.
Dispositive claims for protection
At the hearing, the Tribunal enquired into aspects of her visa history. The applicant stated she came to Australia to study [and] was enrolled for a [diploma] The Tribunal enquired whether she had enrolled in a bachelor’s degree given the decision record stated she had been granted a Subclass 573 student visa for higher education coursework in 2014. The applicant said that she could not remember as it was a long time ago. The applicant further states that she did not complete the coursework in which she was enrolled and claimed her family had a problem at the time as they were forced to move to the south of Thailand due to harassment.
At the hearing, the applicant was invited to elaborate on her written claims. However, the applicant was unable to elaborate on the specifics of those written claims beyond holding ‘a fear of death’. After a long silent pause, the applicant claimed that she gave information to the police regarding illicit drugs. She claimed that she came to Australia to seek protection and not for study. The Tribunal enquired into the reasons there was more than a three-year delay between arriving in Australia in July 2014 and applying for a protection visa in December 2017. The applicant claimed that she did not know how to do it, even though she had used specialist migration assistance to obtain an Australian student visa (which included an English capacity test for higher education). The applicant was also an unlawful non-citizen for more than twelve months. The Tribunal asked if she risked being forcibly removed from Australia to Thailand, she would have found migration advice and assistance. The applicant said she did not search the internet as her English is poor. The Tribunal pointed out that not only are there interpreting services available the applicant had a reasonable capacity of [English]. The applicant replied that she was scared. The Tribunal explained that such a long delay in applying for Australia’s protection obligations invites it to consider the claims of the applicant lack being genuine or urgent or deep at the time of her arrival or at the time of the visa was lodged.
The Tribunal again invited the applicant to provide details about her written claims, the applicant outlined to the Tribunal that having informed the police of illicit drug activities, she noticed being followed at a market. She clime that ‘they’ (selling drugs) threatened her family and herself at her home. She claimed what while at her family [property] she witnessed ‘people doing something’ that appeared to be exchanging something in plastic bags. The applicant claimed that she made an anonymous call to the police and the police watched the incident and then arrested two people. The applicant claimed that two weeks after the incident she was threatened. She claimed that as her land was next to the property where the incident occurred.
The applicant claimed the incident occurred about five months before her departure from her country of reference to Australia in July 2014 and that she did so because her family urged her to leave. Asked if she sought the protection of the authorities, the applicant said she did not. Asked if she sought to reside with relatives in another part of Thailand, the applicant responded she remained in the same residence until her departure.
The applicant claimed that the threats conveyed to her were death threats. The Tribunal enquired if that was the case, what were the reason she remained at the same residence. The applicant claimed because she thought the police could protect her.
The Tribunal enquired into the reasons her husband travelled with the applicant, to which she responded he could not be on his own. The Tribunal then enquired into the reason the married couple left their vulnerable minor child in Thailand, to which she responded that that she was the target. The Tribunal reminded that she had claimed the whole family was threatened. The applicant responded that the criminals wanted her the most. She further claimed that she could not relocate because they could find her anywhere and were very influential. The Tribunal pointed out that they were not influential that they did not stop the police confiscating their contraband and arresting them. The applicant response it was a just a small dealer. The Tribunal enquired how did the applicant know whether the criminals were small or larger dealers. The applicant responded that drug dealers and criminals are scary.
The Tribunal enquired into the reasons her family relocated to Thailand’s southern areas. The applicant claimed they did because the family threatened again. She further claimed that the family remained in the south of Thailand for about one year. The Tribunal enquired if the criminals have a large network, why have they not harmed or even killed one of the family members to intimidate the applicant. The applicant claimed that the criminals feared the law, even they were willing to kill her and she did not feel safe.
The Tribunal enquired into the reason the authorities could not protect her as a witness to a crime. The applicant stated corruption among the police prevented her being protected and she had been too afraid to seek the police’s protection when she was first threatened.
The applicant further stated her mother had noticed a stranger monitoring their residence on a continuous basis.
The applicant said she did not have any other fears for any other reasons in returning to Thailand, other that her being a witness to a crime. She also responded that she was not being treated for any health or psychological conditions or problems when the Tribunal enquired and did not advance that her claims overlapped with her husband’s apparent claims for protection based on his political opinion or membership.
Cumulative credibility findings
The applicant’s credibility is of central importance to the Tribunal’s determination of this review application for protection.

When cumulatively consider the applicant’s dispositive claims for protection in the context of the applicant’s substantial three-year delay in applying for protection, the Tribunal is unable to provide the applicant with any benefit of its considerable doubts that the claims about witnesses and reporting a criminal act, receiving threats and not avail herself to the authorities’ protection, were credible or genuine. This is not least because both the written and oral claims, while having some consistency, were otherwise vague, hesitant, and limited in detail. The claims themselves were also inherently unconvincing and not mutually supportive. Furthermore, there are also no third-party statements, witnesses or any documentary or photographic evidence to substantial or support the applicant’s otherwise weak claims for protection.
As mentioned, the applicant’s overall claims were also undermined by a number of the applicant’s mutually unsupportive details. This included claiming the criminals she had witnessed were in a small syndicate or gang but had not way of knowing. Having claimed that the syndicate or gang was not large, she then claimed that the criminals she had reported had a sufficiently large network across the country to discover her whereabouts to harm her. Another weakened claim had been the applicant’s family had been forced to relocate for a year to another part of Thailand to threats but the applicant herself did not relocate for many months before her departure. The applicant claimed that she feared being killed and not protected by the authorities and did not report threats against her by criminals, but her family had not been harmed because the criminals feared the police. The applicant claimed the police were corrupt and unable to control the criminals, but she does not provide an adequate reason as to how the criminals were arrested by the authorities in the first place.
With regards to the substantial delay in applying for a protection and the notable period she was in the community without a visa, the applicant had unconvincingly claimed that, although she departed Thailand for Australia due to her fears, she was unable to locate migration advice and assistance for an extensive period time, although she was a tertiary educated person with a reasonable level of English language capacity to navigate the internet and locate migration advice and assistance. It is not unreasonable to expect such a person to be able to lodge a protection visa within a reasonable amount to time if the reasons for leaving her country was a fear of persecution, despite challenges arising from their relatively recent arrival to a new country. The Tribunal assesses that the applicant’s claimed reasons for the delay in application for protection were unpersuasive and undermined by the applicant’s educational background, demonstrating to it that the applicant did not have a genuine - let alone urgent or deep, fears of persecution on arrival in Australia or at the time of application.
Based on its overall adverse assessment about the credibility of the applicant’s dispositive claims, the Tribunal finds that these critical claims to have been contrivances.
Accordingly, Tribunal does not accept the applicant was a witness to a serious crime from her property having watched or spied some vaguely described exchanges on a neighbouring property. It does not accept the applicant’s anonymous phone call to alert the authorities led to any of these criminals being arrested or their contraband seized. It does not accept that the criminals were corruptly informed or made any cognitive links or associations between their arrest and the applicant residing in the neighbouring property to where the arrests had occurred.
Nor does the Tribunal accept the criminals made threats against her and her family, either directly or indirectly, while in Thailand. Neither does it accept the applicant’s family was forced to relocate from their home area to another part of Thailand for the reasons claimed, after she departed.
The Tribunal further does not accept that the applicant, or any family members ever had experienced any harm or harassment of any kind arising from providing an anonymous call to the police. Nor does it accept the applicant held fears that the authorities would withhold its protection of the applicant and her family based on these weak claims for protection.
Furthermore, the Tribunal does not accept that the applicant holds any genuine personally held or actual fears of persecution in returning to her country of nationality for the reasonably foreseeable future based on her claimed reasons. This is because the Tribunal assesses the applicant had contrived these dispositive claims for migration purposes and not because he is owed Australia’s protection obligations.
In summary, as the applicant’s dispositive claims for protection lacked overall credibility, the Tribunal finds accordingly that applicant does not have a real chance of serious harm for any of the reasons outlined in subsection 5J(1)(a) or any other reasons arising from these week claims for protection, if the applicant were to be returned to anywhere within the Kingdom of Thailand, for the foreseeable future.
As the applicant is not a reliable witness and based on the same adverse credibility findings about these dispositive claims, the Tribunal does not having any substantial reasons for believing that the applicant will suffer a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Thailand, pursuant to the Act’s complementary protection provisions.
Cumulative findings
The applicant did not advance any other reasons for her claims, as discussed in paragraph 45. The Tribunal finds there are no more residual claims to consider in this review application.
It is the context of these considerable adverse credibility findings, cumulatively considered, that the Tribunal does not accept that the applicant had any genuine personally held fears of persecution arising from any reasons outlined in paragraph 5J(1)(a) or any other reason, either written or oral, in returning to the applicant’s country of nationality and reference, as the Tribunal finds that the applicant has fabricated both her written and oral claims for protection, for solely migration purposes.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Based on the adverse credibility findings and the applicant’s accepted circumstances, cumulatively considered, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Kingdom of Thailand there is a real risk the applicant will suffer significant harm, by way of being arbitrary deprived of her life; that the death penalty being carried out on her; that she will be subjected to torture; be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.
Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
Member of the same family unit
Applicant’s spouse
At the time of making this decision, the Tribunal is aware that there is a review applicant whom it is claimed to be the married spouse of the applicant. That AAT case is numbered 2021250. This was discussed at the time of the hearing.
The Tribunal is satisfied that the applicant of this matter is the married husband of the review applicant pertaining to 2021250 and that he is a member of the same family unit as that other applicant as they mutually satisfy regulation 1.12(4)(a): a spouse or de facto partner of the family head.
The Tribunal is satisfied that the applicant of this matter is the married spouse of the review applicant pertaining to 2021250 and that she is a member of the same family unit as the other review applicant as they mutually satisfy regulation 1.12(4)(a): a spouse or de facto partner of the family head. In this regard, the review applicant has an interest in the related matter as he may satisfy s.36(2), if he is a member of the same family unit as a person who satisfies either the refugee criteria under s.36(2)(a) pursuant to s.36(2)(b); or the complementary protection provisions under s.36(2)( (aa) pursuant to 36(2)(c).
At the time of making this decision, no decision has been made on whether the review applicant in 2021250 is found not to satisfy either the refugee or complementary protection requirements.
In this regard, at the time of making this decision, it follows that the applicant in matter cannot met subsections 36(2)(b)(i) or 36(2)(c)(i).
Applicant’s sister
As discussed at the hearing, the applicant’s sister is in Australia and has applied for a review application at the Tribunal for a refused protection visa. That review application lodged with the Tribunal is numbered 1814246 and has not been determined by the Tribunal.
Given that both applicants are adults and there were no evidence or submissions that the applicant’s sister was a dependent on the applicant (or vice versa), the Tribunal finds that the applicant is not a member of the same family unit as the other review applicant in question for the purposes any of the subregulations of r.1.12(4), including being a relative, of the family head, who is dependent on the family head.
In this regard, as the applicant cannot met subsections 36(2)(b) or 36(2)(c) as she is a not a member of the same family unit as review application 1814246.
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).
For the reasons stated above, the Tribunal does not satisfy 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.
Brendan Darcy
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 2015

3 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice