1816711 (Refugee)

1816711 (Refugee) [2020] AATA 4358 (11 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816711
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Tamara Hamilton-Noy
DATE:11 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 August 2020 at 10:07am
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from moneylenders – fraudulent loan attributed to the applicant – political opinion – Red Shirt supporter – no political profile – general political situation in Thailand – COVID-19 pandemic – economic situation in Thailand – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Thailand, applied for the visas on 16 January 2018. The delegate refused to grant the visas on the basis that the applicants are not persons to whom Australia owes protection obligations.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicants travelled to Australia on Thai passports and have at all times maintained that they are citizens of Thailand. The Tribunal finds that the applicants are Thai citizens and has assessed their claims against Thailand as their country of nationality.
Claims for protection
[The second-named applicant] (‘the applicant husband’) arrived in Australia [in] August 2016 as the holder of a student visa which ceased on 20 September 2017. [The first-named applicant] (‘the applicant wife’) arrived in Australia [in] November 2016 as the holder of a student visa which ceased on 23 July 2017.
The applicants lodged a joint application for a protection visa on 16 January 2018, with the applicant wife listed as the primary applicant. In their written protection application, the applicants stated that they are a married couple and were married [in] July 2016. They stated that they had left Thailand to flee from men who had threatened the applicant wife’s life because of a debt that was fraudulently attributed to her. In response to the question as to whether they had experienced harm in Thailand they said ‘no’. They stated that they had not moved to another area of Thailand because they did not know where to go to get away from these men; they have contacts nationwide and it would be impossible to hide from them in Thailand. If they return, they believe they will be threatened; if they do not pay the debt they will be beaten; and if they still cannot pay the debt they will be eventually killed. The harm they believe will occur if they return includes damage to property such as their car, beatings and finally being killed. The people who do this are hired by a very powerful man in their province and they would be charged with collecting a debt he believes the applicant wife owes him. If the applicant wife reported back to him that she could not pay, she would be killed as an example to others. She does not believe the authorities can protect her as they are under his influence. She does not believe she could live elsewhere in Thailand because the man’s influence extends to other areas, as he belongs to an organised crime family that is nationwide.
The delegate of the Department found that the applicant wife does not meet the ‘refugee’ criterion as she had not claimed harm for one of the reasons in s.5J(1)(a) and would not be denied protection for one of the reasons in s.5J(1)(a); and that she does not meet the ‘complementary protection’ criterion because she had not provided further information to the Department about the debt or why she would be harmed, and because she would be able to seek protection in Thailand if she was at risk of harm. A copy of the Department’s decision was provided by the applicants to the Tribunal.
At the time of lodging a review application with the Tribunal, the applicants made further written submissions in support of their claims, in summary that:
·the Department decision was based on information that was incomplete and too general;
·everything claimed in the written protection visa application was true, but the delegate was not aware of all relevant information;
·the entire loan scheme is fraudulent and is a tactic used by moneylenders to harass people for political reasons;
·the moneylenders are the supporters of the Yellow Shirts;
·the applicant wife was an ‘ardent Red Shirt supporter’ and was not a party leader but spoke out in support of the Red Shirts;
·a tactic used by the Yellow Shirts is to claim fraudulent loans and then demand a person leave the country or face prosecution;
·state protection is not available to the applicant wife; and
·she is unwilling and unable to avail herself of the protection of the authorities because she has no faith the criminal justice system will provide her, ‘as a well-known Red Shirt supporter’, fair and adequate protection.
Tribunal hearing
The Tribunal hearing was conducted on 17 July 2020. At the time of the hearing the Tribunal’s Registry was closed due to COVID-19 and the Tribunal decided it was appropriate to conduct the hearing by phone, having regard to the Tribunal’s objectives of providing a mechanism of review that is informal and quick and is proportionate to the complexity of the matter. The applicants were not represented at the hearing and the Tribunal was assisted during the hearing by a Thai interpreter. The Tribunal was satisfied from the answers given by the applicants that they were able to give evidence and present arguments throughout the hearing.
The Tribunal noted in its introductory remarks to the applicants that all matters that had been in issue before the delegate were again in issue before the Tribunal and that matters accepted by the delegate may not be accepted by the Tribunal.
The applicant wife told the Tribunal that she is [age] years of age and was born in [Location 1], Nonghan district in Udon Thani province. She stated she has not travelled to any countries other than Australia. Her parents are living in Thailand and her younger brother is in Australia and lives with her. He is on a bridging visa at present.
The applicant wife stated that she had finished a [qualification] in [Discipline 1] in Thailand but had not worked as an [Occupation 1]. She had done [Occupation 2] work for one to two years in Thailand before she left for Australia. She stated she had married the applicant husband in Thailand, [in] June 2558 Buddhist calendar year.[1] She and her husband had met at school when she was [age] years of age, but they were not in the same year level as she is [number] years older than him. After they were married, they lived with her father and mother. They do not have any children.
[1] [June 2015]: at accessed on 30 July 2020.
The Tribunal observed that the applicant wife had arrived in Australia on a student visa and asked about her studies in Australia. She stated that she enrolled in [a Discipline 1] course, she thinks, but can’t remember. She did not undertake any study in Australia. The Tribunal asked why the applicant had arrived in Australia two months after her husband and she said that they had an intention to come together but didn’t have enough money for the enrolment and so she let him come first. The Tribunal observed that the student visa had expired in July 2017 and asked why the applicant wife didn’t apply for another visa at that time and she said she didn’t know which visa to apply for. The Tribunal observed that the protection visa application had been submitted in January 2018 and asked why it had not been put in earlier. The applicant wife stated that she heard from someone she knows that she could apply for the visa. The Tribunal asked who had completed the protection visa application and the applicant stated it was ‘[Alias 1]’ who knows some English. The Tribunal asked again who had completed the application and the applicant wife stated she thinks the person has now gone home. The Tribunal observed that, in the application, the applicant wife had stated she was assisted by ‘[Mr A]’ and she stated she thinks he is the father of ‘[Alias 1]’ but he is ‘not a local of this country’. As to whether she knows what is in the application, the applicant wife stated that some of it she can remember, and she told the person her date of birth. The Tribunal asked about the submissions provided to the Tribunal in 2018 and the applicant wife stated in response that at that time, ‘[Alias 1] was still here’.
The Tribunal asked the applicant wife why she had left Thailand. She stated that she had heard Australia was a beautiful country and wanted to see it. The Tribunal asked what the applicant wife fears if she has to return and she said she fears COVID-19 and the economy. The Tribunal asked whether there are any other reasons the applicant wife fears returning and she said no, that’s all. She stated that no one had harmed or threatened her before she left Thailand and that she was not involved in any political activities in Thailand.
The Tribunal observed that in the written protection application, the applicant wife had claimed that someone threatened her because of a fraudulent debt attributed to her. She stated in response, ‘no’. The Tribunal observed that the protection visa application process was a serious process, with the applicant wife having declared that the information she was providing was correct and that she understood that providing false information is a serious offence. The Tribunal asked the applicant wife why, given that, she had been prepared to have someone else complete the form with incorrect information in it. She stated that it is hard to explain, but two years ago she applied for ‘work rights’ and it might be that misleading or false information was involved.
The Tribunal asked about the written submissions provided to the Tribunal in 2018, in which the applicant wife claimed she was a Red Shirt supporter. The applicant wife stated that her family is a believer in the Red Shirts but she was not involved in riots or political unrest. She is also a believer of the Red Shirts. Her husband is similarly a believer. No one had threatened or harmed her husband before he left Thailand.
Following a break, the applicant wife was asked whether there were any other concerns about returning to Thailand that she wanted to raise. She said it is only about ‘the political issue’, the economy and COVID-19. The Tribunal asked what the applicant wife meant about the political issue and she said it is the general politics, the overall picture and that the economy is not good in Thailand.
The Tribunal then spoke to the applicant husband. He stated that he was born in [Location 2], in the district Nong-Han, Udon Thani province. His parents and younger brother are living in Thailand and his only family member in Australia is his wife. He stated that he completed high school in Thailand and then did [a qualification] in [Discipline 2] at a [specified] college in Nong-Han. After he finished school he worked in a [workplace].
The Tribunal asked the applicant husband whether he had travelled to any other countries and he stated no. The Tribunal then asked about the written protection application which stated that he worked for two years in [Country 1]. He stated in response ‘oh yes’ and that it was in the application that he went to [Country 1]. The Tribunal asked why he had just told the Tribunal he had not travelled to any other countries and he said he was ‘excited and couldn’t answer’.
The applicant husband stated that he had met his wife at school. They were married when he was about [age] years of age. He can’t remember the date they were married but it was in the month of May. They do not have any children.
The Tribunal asked the applicant husband about the student visa he arrived in Australia on and he said he was enrolled in a [Discipline 3] course but didn’t attend classes. As to why he had arrived in Australia months before the applicant wife, he said because his visa had been approved first.
The Tribunal observed that the applicant husband’s student visa had expired in September 2017 and asked him why he didn’t apply for another visa at that time and he said it was because of financial problems, which was why he didn’t continue his studies. The Tribunal asked why he had left Thailand and he said it was because of the economy and his family doesn’t have much. As to whether he had been harmed or threatened in Thailand, he stated ‘no, not quite’. As to whether he had participated in any political activities in Thailand, he stated that he had participated in a ‘riot’, a political protest in the Buddhist year 2557.[2] The Tribunal asked whether he fears returning to Thailand because of his involvement in the protest, and he said yes, he is scared because there is political unrest again. The protest he was involved in was for ‘freedom’ and ‘rights’. He didn’t come to the attention of the authorities because of his participation in the protest.
[2] 2014: at accessed on 30 July 2020.
The Tribunal then summarised and discussed the following country information with both applicants together.
The most recent DFAT report for Thailand states that Thailand has experienced rapid economic and social development in recent decades and has been classified by the World Bank as an upper-middle income economy since 2011. Poverty has significantly reduced. Thailand has the second largest economy in Southeast Asia, behind Indonesia. The major economic sectors are services, manufacturing and agriculture, and tourism is a major industry and the main source of foreign currency. Points of vulnerability in Thailand’s economy include ongoing bilateral trade disputes between the United States and China, the ongoing influence of the military in the recently elected government, political uncertainty, and the economy’s dependence on tourism within the context of the current COVID-19 pandemic. The current government was elected in March 2019 on an economic platform including increasing welfare and raising the minimum wage. Stimulus measures in response to COVID-19 were introduced in April 2020, providing financial support to individuals and businesses, additional support for temporary and contract workers and the self-employed, and funding for community infrastructure.[3]
[3] DFAT Country Information Report Thailand, 10 July 2020, 2.12 – 2.15.
Thailand’s official unemployment rate of 0.7 per cent in January 2020 is among the lowest in the world. More than half of the labour force is estimated to work in the services sector, about one third in the agricultural sector and the remainder in industry.[4]
[4] DFAT Country Information Report Thailand, 10 July 2020, 2.16 – 2.17.
The Tribunal observed that it could not see from this information that the applicants would face serious harm or significant harm upon return to Thailand because of the economy. The applicant wife stated in response to the above information that it is hard to compare the economy of the current government with the previous government, and the economy of the previous government was better.
There was a return to civilian rule following elections in 2019, although ex-NCPO figures including Prime Minister Prayut remain in power. Although fraud or intimidation were not in evidence, some election monitors were critical of the integrity of the election process. Human Rights Watch in its pre-election report stated that the NCPO had failed to provide conditions for a free and fair election; while the Open Forum for Democracy Foundation stated following the poll that it had not been free and fair.[5]
[5] DFAT Country Information Report Thailand, 10 July 2020, 2.4 & 2.41.

The Tribunal discussed the above information with the applicants during the hearing and the applicant wife stated in response that the current government doesn’t have a lot of democracy.
The Constitution guarantees citizens the right to receive public health services provided by the State. The Constitution commits the State to providing efficient universal public health services, public education on health promotion and disease prevention and to continuously improve the standard and quality of public health services. All sub-districts, districts and provinces have health centres and hospitals. The public sector accounts for 75 per cent of total hospitals and 79 per cent of beds. According to the Global Health Security Index, Thailand’s health sector is the world’s sixth-best prepared for a pandemic. The private system is described as superior to its regional neighbours although the public system is considered less well resourced. The healthcare workforce density per 1000 population is slightly above the 2.28 indicative World Health Organisation benchmark of doctors, nurses and midwives. Thailand has taken a number of measures to ensure adequate healthcare servicing to rural populations and has been internationally recognised for is successful implementation of universal health coverage through a Universal Coverage Scheme introduced in 2002.[6]
[6] DFAT Country Information Report Thailand, 10 July 2020, 2.22 – 2.24.
The Tribunal noted that the applicant wife had raised COVID-19 as one of the reasons she cannot return to Thailand and asked whether she would be denied access for any reason and she said no. The Tribunal observed that it could not see from this information that the applicants would face serious harm or significant harm upon return to Thailand because of COVID-19. The applicants were invited to comment on this information and did not want to make any comment.
Findings of the Tribunal
The Tribunal accepts that both applicants are from Udon Thani province, Thailand. The Tribunal accepts that the applicant wife’s parents are in Thailand, her brother is living in Australia in the same residence as her and that the applicant husband’s parents and younger brother are living in Thailand.
The applicants state they are a married couple. The written protection visa application declared that the applicants were married [in] July 2016. At the Tribunal hearing the applicant wife told the Tribunal that they had been married [in] June 2015 and the applicant husband was unable to recall the year but stated it had been in May. The applicants have consistently asserted that they are a married couple and the applicant wife gave evidence of another person having completed the written protection application. The Tribunal is prepared to give the applicants the benefit of the doubt and find that they met while at school, that they are a married couple, that they were married in Thailand before arriving in Australia and that they have no children. The Tribunal is, further, prepared to accept that the applicant husband lived and worked in [Country 1] for two years before coming to Australia.
Both applicants arrived, separately, on student visas. The Tribunal finds from their evidence that neither applicant attended studies in Australia while on student visas. The applicants submitted a written protection application detailing the applicant wife’s claims that she had had a fraudulent loan attributed to her. The subsequent detailed submissions provided to the Tribunal set out a different set of claims relating to her involvement in the Red Shirts. When the details of the protection application were put to the applicant wife at the hearing, she gave evidence that the claims were not correct and she acknowledged that when she was applying for ‘work rights’, false or misleading information may have been given.
The Tribunal accepts the applicant wife’s evidence, given at the hearing, that the claims set out in the written protection visa application were false. Based on the inconsistencies between the written protection application and the submissions made to the Tribunal, and on the applicant wife’s evidence given at the hearing, the Tribunal finds that the claims for protection in the written protection visa application were not the reasons that the applicant wife and applicant husband left Thailand.
The Tribunal finds that the applicant wife did not flee Thailand because of a fraudulent debt attributed to her. The Tribunal finds that she did not flee Thailand because men had threatened her life because of a fraudulent debt, that the men have nationwide contacts, that they were hired by a powerful man in her province who charged them with collecting a debt that he believes the applicant wife owes him, that the authorities were under his influence or that he belongs to a nationwide crime family. The Tribunal finds that the applicant wife is not at risk of threats, having her property damaged, being beaten or being killed because of a fraudulent debt attributed to her. The Tribunal finds that, as the events claimed did not happen to the applicant wife, the applicant husband is not at risk in Thailand because of a fraudulent debt attributed to the applicant wife. The Tribunal finds there is not a real chance the applicants will face serious harm if they return to Thailand now or in the reasonably foreseeable future because of a fraudulent debt attributed to the applicant wife.
The applicant wife stated to the Tribunal that she had not been involved in any political activities before she left Thailand. It was only when the Tribunal put the substance of the written submissions to the applicant that she then stated that her family were supporters of the Red Shirts. She gave evidence to the Tribunal that she had not been involved in riots or unrest while in Thailand. Based on the inconsistencies between the written protection application and the submissions made to the Tribunal, and on the applicant wife’s evidence given at the hearing, the Tribunal finds that the claims for protection in the Tribunal submissions were not the reasons that the applicant wife and applicant husband left Thailand.
The Tribunal finds that the applicant wife was not an ardent Red Shirt supporter, that she did not speak out in favour of the Red Shirts, that the Yellow Shirts did not use fraudulent loans as a tactic to harass the applicant wife for political reasons and that the applicant wife is not a well-known Red Shirt supporter. The Tribunal is prepared to accept the applicant wife’s family support the philosophy of the Red Shirts and that the applicant husband also shares this philosophy; however, the Tribunal finds that the applicant wife was not involved in any political activities while she was living in Thailand. As the applicant wife was not politically active in Thailand, the Tribunal finds that the applicant husband is not at risk in Thailand because of the applicant wife’s Red Shirt affiliation or activities. The Tribunal finds that there is not a real chance that the applicants will face serious harm if they return to Thailand now or in the reasonably foreseeable future because of the applicant wife’s political views or activity.
The applicant husband claimed at the Tribunal hearing that he had been involved in a political protest in 2014 that related to ‘freedom’ and ‘rights’. This was the first time the applicant husband had raised such claims. However, the Tribunal finds that the protection application was put in based on the applicant wife’s claims and the applicant husband may not have had the opportunity to provide details about his claim previously. The Tribunal is prepared to accept that the applicant husband attended one political protest in Thailand in 2014. The Tribunal accepts his evidence, given at the hearing, that he did not come to the attention of the authorities in Thailand and that he did not leave Thailand because of his involvement in the political protest. The Tribunal finds that the applicant husband does not have a political profile in Thailand and is not known to the authorities as a political activist. The Tribunal finds that the applicant husband would not be at risk upon return to Thailand because of his involvement in one political protest in 2014. The Tribunal finds that the applicant husband remained in Thailand for a further two years after attending the protest without being politically active and finds that the applicant husband would not participate in further political protests if he returns to Thailand. The Tribunal finds that there is not a real chance that the applicants will face serious harm if they return to Thailand now or in the reasonably foreseeable future because of the applicant husband’s involvement in one political protest in 2014.
The applicant wife stated that she fears returning to Thailand because of COVID-19. She gave evidence to the Tribunal that she does not believe she would be denied medical care for any reason. The country information considered by the Tribunal, and discussed with the applicants during the hearing, states that Thailand has universal health coverage and has health centres and hospitals in all sub-districts, districts and provinces throughout Thailand. Thailand is described by DFAT as being the sixth best prepared country for a pandemic across the world. The Tribunal is not satisfied there is a real chance the applicants will face serious harm if they return to Thailand now or in the reasonably foreseeable future because of the COVID-19 pandemic.
The applicant wife stated that she fears returning to Thailand because of the economy. The most recent DFAT report, discussed with the applicants at the hearing, describes Thailand as an upper middle income economy and a country which has seen a significant decrease in poverty. The Tribunal accepts that the pandemic has had a significant impact on Thailand’s tourist economy. However, the government has introduced stimulus measures for people affected by the pandemic. The applicant wife has a [qualification] in [Discipline 1] and the applicant husband has a [qualification] in [Discipline 2] and neither has worked in the tourist industry which is the hardest hit in Thailand. The Tribunal is not satisfied that there is a real chance the applicants will face serious harm if they return to Thailand now or in the reasonably foreseeable future because of Thailand’s economy.
Both applicants gave evidence that they fear returning to Thailand because of politics in Thailand. The applicant wife was vague in her evidence to the Tribunal when asked about this claim and stated it was due to the general politics and overall picture in Thailand. The applicant husband stated he is concerned because of political unrest. The country information discussed with the applicants at the hearing acknowledges that ex-NCPO figures remain part of the current government and that concerns were raised from a number of organisations about the fairness of the election process in 2019. However, Thailand is described as having returned to civilian rule following the 2019 election. The Tribunal is not satisfied there is a real chance the applicants will face serious harm if they return to Thailand now or in the reasonably foreseeable future because of the political situation in Thailand.
The Tribunal is not satisfied the applicants face a real chance of persecution in Thailand for any reason, or when their claims are considered cumulatively. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal then considered the alternative criteria in s.36(2)(aa), that is, whether there are substantial grounds for believing that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. The Tribunal finds that the harm the applicants state they fear, that is harm due to COVID-19, the economy and politics in Thailand, does not amount to significant harm as defined in s.36(2A), when considered individually or cumulatively.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For the reasons given above, the Tribunal finds that there is not a real risk the applicants face a real risk of significant harm if they are removed from Australia to Thailand.
The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal accepts that the applicant wife’s brother is residing in Australia with the applicants. The Tribunal accepts the applicant wife’s brother is on a bridging visa and therefore does not hold a protection visa. The Tribunal finds that the applicants are not members of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criteria in s.36(2).
For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. The decision of the Department not to grant the applicants protection visas is therefore affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Tamara Hamilton-Noy
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.
…

[2020] AATA 4358

11 August 2020

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