1816416 (Refugee)

1816416 (Refugee) [2022] AATA 1126 (8 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816416
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Justin Meyer
DATE:8 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 March 2022 at 1:19pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from loan shark – partner borrowed money for gambling using her ID – threats and stress – repaid principal amount – passage of time and lack of subsequent action by loan shark – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 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 16 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Thailand applied for the visa on 12 January 2017. The delegate refused to grant the visa on the basis that:
“The applicant claims to fear harm from loan sharks because she could not repay the money she borrowed from them. The applicant claims that she would be hurt or she will be forced into prostitution in order to repay the debt. In considering the applicant’s claims I am not satisfied that she has claimed she will be harmed because of her religion, race, political opinion, nationality or membership of a particular social group (PSG). The applicant’s claims appear to rest solely on a criminal or personal matter and this will be assessed under the complementary protection provisions below.
I am not satisfied that there is a real chance of persecution for one or more of the reasons mentioned in s5J(1)(a) of the Act in the receiving country. Therefore, the applicant is not a refugee as defined in s5H of the Act and the criterion in s36(2)(a) of the Act is not satisfied for this reason.
…
There is no information before me to suggest the applicant will be denied protection from the Thai authorities for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act.
For the purposes of complementary protection, country information indicates that the Thai authorities would provide the applicant with a reasonable level of state protection, such that there would not be a real risk she will suffer significant harm.”
The applicant appeared before the Tribunal on 22 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by video via Teams. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant agreed to appear before the Tribunal by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to her during the video hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Thailand for one or more of the five reasons set out, and, if not, whether 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 she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In her application to the department, the applicant claimed as follows:
·She borrowed money from unlicensed money lenders due to gambling.
·She fears that if she returns to her country the loan shark would hurt her and maybe sell her for prostitution if she did not repay their debt.
·The police cannot protect her 24 hours and some of them work for the loan shark.
·She cannot relocate or hide in Thailand because the loan sharks have connections everywhere in Thailand.
The applicant made no written submission to the Tribunal.
Evaluation in the light of the applicants’ evidence in the hearing
The applicant said she came from [Town], Nakhon Ratchasima, a large town in Thailand.
A friend helped her with her protection application.
Her father is deceased. The applicant she has contact with her mother who lives in Thailand. She has [brothers].
The applicant is from a farming family. She has worked in [Country 1] on a farm in the past.
In 2016 she went home to Thailand and met her then partner, who influenced her into drinking and gambling.
Her former partner borrowed money, using her ID, from a loan shark. He refused to take responsibility for the loan. She described him as her boyfriend of over a year, from 2014 to 2015.
The applicant has a child from a previous relationship. Her child still lived with his father in Thailand.
The applicant started gambling when she met her former boyfriend. He ran up in her name BHT200,000 in gambling debt. This was from an illegal loan shark. A person took her ID while the couple were gambling at an illegal casino. This took place towards the end of 2015, she said.
She asked her then boyfriend to sort out the matter. She flew to [Country 2] to take a break from the stress of the experience and to get away from the loan sharks.
The applicant said that she received quite a few threats from the loan sharks. They would send others to threaten her. She said that she paid some back, but she did not know why she was the only one that was being held responsible.
I asked for the total the applicant had paid back to which she said BHT150,000. I asked if that was the end of the matter to which the applicant said that she had been told “that’s just the interest”. The repayments she made were on days subsequent days to the day of the loan. It was within a week. The BHT150,000 was all she had. Now she had more but she queried why she had to be responsible all by herself.
Her ex-boyfriend had simply tricked her. The applicant had given her ID because he said he did not bring his. She also did not know that he had borrowed as much as he did. She was also “a bit drunk”.
Her ex-boyfriend had gambled in many ways, including on football, cards and slot machines.
He took borrowed BHT200,000 on the day in question and lost it all. On the day “we paid back BHT50,000,” the applicant said. Later she paid back BHT150,000.
I asked what threats were made. They said the debt goes up every day, or as threatened: “we’ll sell you out.” She said there was physical fighting against her, but her ex-boyfriend did nothing to intervene.
She did not remember the faces of the people, and she was scared and hid.
When the applicant was slapped her ex-boyfriend was present. He did nothing. It seemed as if he had “teamed up” with the men to do nothing.
I asked if the applicant was living with her ex-boyfriend at the time of this incident. She said that that week they were together but “sometimes he went out.”
In October 2016 the applicant left Thailand. This incident took place when she was back from [Country 1] but before she went to [Country 2].
She said there was more violence, ganging up on her and maybe they wanted her to work for them as a prostitute. She did not really know if it was in fact a gang that was doing this. The culmination of all of this was that she planned to leave Thailand.
In Australia she has worked in [a particular] sector. She is trying to save money. She sends money home. She earns some AUD400-700 per week. She plays poker machines as a pastime.
I asked if she went back to Thailand could she settle her loan shark debts. She said she did not want to see them anymore. They did not make her feel good. I noted that the incidents with the loan shark was some five to six years ago. I queried whether loan sharks would still pursue her after this length of time.
The applicant said that she was worried that if the loan sharks knew she was back that they would pursue her. She added that she was ashamed about the matter.
I enquired as to how long she had lived in Bangkok to which she estimated one to two months.
I asked as to whether she had heard form the loan sharks while in Bangkok. She said they tried to find her but she hid. She said they found her because her ex-boyfriend still had her number. She tried to be nice but was tricked again.
I asked how her ex-boyfriend knew she was in Bangkok, to which she said he was in Bangkok too. I asked if she went there with him and she said it was so at the beginning, but they later separated.
In response to being asked if they broke up in June and then got back together, and then moved to Bangkok, she said that when in Bangkok in 2016 they did not live together, but he had her telephone number. He talked to her to be nice.
The parties both went to Bangkok at the same time as a temporary trip to gamble. They lived in the same house in Bangkok for a week, but they went gambling together.
Poker machines are a hobby and she does not think she gambles too much. She has not lost much, although she did lose AUD700 last week
Usually she spends AUD100-200 per week on poker machines and sometimes she wins AUD400.
The applicant cut communication with people in Thailand except her mother. Her mother has not been threatened.
She was not sure where in Thailand she would live if she had to return. Her mother lived in her former locality as well, Nakhon Ratchasima, in central Thailand.
DFAT country information[1] was discussed with the applicant regarding loan sharks:
[3.115]
Victims of Loan Sharks In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.
[3.116]
So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries DFAT Country Information Report Thailand – JULY 2020 45 upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.
[3.117]
DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.
[1] DFAT Country Information Report Thailand, 10 July 2020
The Tribunal discussed whether the applicant had considered approaching police for protection. She said that due to the illegality of gambling in Thailand the police would say that she was in the wrong and not help her.
The applicant also said that the people involved in her case were in their own gang and it was a more serious situation than the DFAT information made out. She said the gang probably works with the police or authorities – otherwise they could not operate a 40 to 50 person gambling venue.
The Tribunal noted that the incidents claimed were some five and half years go and queried why anyone would remember them. The applicant said she did not know what they were thinking and she had too much pressure before.
I asked if the applicant felt she would be found if she lived in a different place to where she was in Thailand. She said she had no idea what they will do. She did not know. When asked if it was possible that the loan sharks would have written off the claimed debt, the applicant said that she was still worried. She just did not feel safe.
The Tribunal asked if she thought she would borrow money again if she lived in Thailand. She said she did not think she would have anything to do with these kinds of people.
I enquired if the applicant borrowed in Australia. She said she sometimes borrowed from friends for groceries and similar. She said that she spends AUD100-200 on gambling per week but sometimes wins back. She had lost AUD700 in the previous week but since then has not been back. She did not think she was addicted. She is single and lives in a share house.
The Tribunal was left with the conclusion that there had been a once off loan from a loan shark towards the end of 2015, around six and half years ago. This had been pursued by the loan shark while she was in Thailand until October 2016, some five and half years ago. The capital (equivalent) was paid off. She has heard no more about the loan since leaving Thailand.
The Tribunal entertained the possibility of her return to Thailand and what would occur to her, especially given that the equivalent of the capital had been paid off years ago. The applicant had little detail as to what would occur. She basically said she was still afraid. It struck the Tribunal as speculative to envisage that she would be pursued by the loan sharks. Creditors have been known to wrote off loans, or simply lose contact with their former clients and pursue other matters instead. The applicant inferred that they would not or might not, but the Tribunal received no detail as to why they would not write it off, or abandon the pursuit.
The Tribunal contemplates that one general scenario might be that a victim hears news from people they know about the subject - but the applicant’s one live contact in Thailand (her mother) had received no contact from loan sharks or news about the subject. The Tribunal cannot look behind why an alleged loan shark would continue pursuing old loans. They might pursue or not pursue for a variety of reasons unique to each lender. It is noteworthy that the equivalent of what was lent (the capital) was repaid to the loan sharks, and this may well have mitigated the loss they suffered and provide less motivation for them to act. The Tribunal has been unable to locate country information on how long loan sharks continue to pursue these matters. It does not stand to reason that their pursuit is necessarily infinite. The Tribunal is unable to find in this instance that there is anything more than a remote chance that they would keep pursuing. This applies to the prospect of the applicant’s claimed future harm, including physical harm and/or being forced into prostitution.
In terms of future debts, I conclude on all the evidence that the applicant is a low-value amount, recreational gambler, who is not addicted, and who can afford to pursue poker machines or similar as a hobby. It is remote that she would have any future loans from loan sharks. The applicant is able bodied and employable in Thailand. She is not vulnerable in this way.
While the Tribunal accepts that a loan was made in her name, the Tribunal does not accept that there is any greater than a remote chance that she will face harm over it upon return to Thailand in any location.

The Tribunal accepts the applicant had a loan of this description at the times described and would have unsatisfactory protection from the state, per the country information. It accepts the loan size and the way in which it occurred by trickery, and that what is being discussed comes under a refugee criterion reason - members of particular social group of people taking out loan shark borrowings. It accepts that the physical harm occurred at the applicant described along with the described demands. But for the reasons given the Tribunal does not accept that with the passage of time and lack of subsequent activity regarding her matter that there would be a real chance of harm anywhere in Thailand - that is to say, anything more than a remote chance.
The Tribunal finds that the applicant does not need to, nor could, should or would relocate, or modify behaviour, upon return.
The Tribunal can discern no other potential source of harm for the applicant.
Does the applicant meet the complementary protection criteria?
The Tribunal turns now to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, there is a real risk that she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act: s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The courts have reasoned that the ‘real risk’ test aligns with the ‘real chance’ test.
The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors in order for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
As the Tribunal has found against the applicant’s claims of potential harm it does not accept that 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.
The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
The Tribunal is also not satisfied that there is a real risk of significant harm in the form of arbitrary deprivation of life.
The Tribunal can discern no other potential source of harm for the applicant.
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) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act.
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.
Justin Meyer
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.
…

[2022] AATA 1126

8 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction