1821406 (Refugee)

1821406 (Refugee) [2021] AATA 4313 (6 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821406
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Jane Marquard
DATE:6 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 September 2021 at 9:51am
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from former business partner – fake complaint to police and business ownership papers – brief, vague written claims – no further information provided or appearance at hearing – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 18B, 25, 33
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 426A, 429A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
SZLVZ v MIAC [2008] FCA 1816
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

The applicant is a man from Thailand, born in [year]. He first arrived in Australia [in] January 2016 as the holder of a [visitor] visa. This visa ceased on 21 April 2016 and the applicant remained in Australia unlawfully.
He applied for a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act) on 10 May 2018 and was granted a bridging visa in association with that application. The applicant claimed that if he returns to Thailand he will be harmed by a former business partner.
A delegate of the Minister for Home Affairs refused to grant the applicant the visa on 13 July 2018. The matter is now before this Administrative Appeals Tribunal (the Tribunal) for review.[1]
[1] s.25, Administrative Appeals Tribunal Act 1975, Cth
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.
COMMUNICATIONS WITH THE APPLICANT
The applicant applied for review on 24 July 2018. On 26 July 2018 the Tribunal acknowledged the application and requested that any changes in contact details be advised to the Tribunal. The Tribunal also invited the applicant to provide material or written arguments for consideration. No response was received by the Tribunal.
On 3 August 2021 the Tribunal contacted the applicant to confirm his correct email address, and the applicant confirmed his email address. The Tribunal wrote to the applicant at that address to advise him that a hearing would be scheduled shortly and to request that he provide additional evidence and availability for a hearing. No response was received by the Tribunal.
On 12 August 2021 the Tribunal wrote to the applicant at the confirmed email address advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give evidence and present arguments relating to the issues arising in his case. He was invited to a hearing on 31 August 2021 by video conference, in accordance with s. 429 A of the Act. He was asked to complete the ‘response to hearing invitation form’ and return it to the Tribunal within 7 days and to provide documents on which he intended to rely by 24 August 2021. No response was received by the Tribunal.
The applicant was also advised in the email from the Tribunal dated 12 August 2021 that if he was not able to appear as scheduled then he should advise the Tribunal as soon as possible. He was advised that if he did not appear at the scheduled hearing the Tribunal may make a decision on the review without taking further action to allow him or enable him to appear before the Tribunal or may dismiss his application without any further consideration.
An SMS reminder sent to the applicant’s mobile number on 24 August 2021. On 26 August attempts to call the applicant to conduct a Pre-Hearing Connection test were unsuccessful as there was no answer on his number.
On 31 August 2021 the applicant did not appear at the time scheduled for the hearing and no reasons were given for his non-appearance. Four attempts were made to contact him by telephone but the calls went to voice bank.
The applicant’s invitation to hearing and further communications were made to his last provided email address, confirmed by him recently, and the provided telephone number. As the applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing or contact the Tribunal to explain his failure to appear, despite numerous efforts to contact him, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it, pursuant to s.426A of the Act.
FINDINGS
For the reasons set out below, the Tribunal has decided to affirm the decision under review.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act. 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) .
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act.
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
President’s Direction
The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[2] In particular the Tribunal has had regard to the requirement that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’[3].
[2] Issued under Section 18B of the Administrative Appeals Tribunal Act 1975 (Cth)
[3] At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).
The Tribunal exercised its discretion to schedule the hearing via MS Teams due to restrictions necessary because of the COVID-19 pandemic. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical and quick.[4] There may have been significant delay to the matter if the hearing was not to be conducted by video. The Tribunal contacted the applicant on a number of occasions at the last provided email and telephone number to advise him of the scheduled hearing.
[4] Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth)
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence made to the Department as the applicant did not appear before the Tribunal on the date and time scheduled or provide any written evidence to the Tribunal.
Summary of evidence in Department files
The applicant provided details of his claims in his application to the Department. A summary of his evidence follows.
The applicant said that he was from Samutprakarn, Lampang Province. He attended university at ‘[name]’ until 2003. He said that prior to leaving the country he had no work and friends helped him survive. He travelled to [Country 1] [in] June 2015.
The applicant claimed that when he was living in Thailand he had a fight with his business partner and friend, over [their business]. His friend took over the business and asked the applicant not to return.
He said that his friend lodged a false complaint with the police and made fake business ownership papers. The applicant lost all of his money.
He claimed that the police cannot help him as his friend has connections with the police.
He said that he did not relocate as he had no money to do so.
The applicant fears that if he return to Thailand his friend will believe that he wants to claim the [business]. This will lead to the applicant being hit, abused or killed.
FINDINGS AND REASONS
Key issues for determination
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
·Whether the incidents described took place (findings of fact).
·Whether there is a real chance of serious harm or a real risk of significant harm.
Findings of fact
When assessing claims the Tribunal must make findings of fact in relation to the claims made, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. The Tribunal recognises that assessment of credibility is an inherently difficult process, that there are special considerations in relation to asylum seekers and that assessment of credibility can be based on imperfect perceptions of truth[5]. The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims[6]. A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’)[8], which provides useful guidance for this Tribunal.
[5] Fox v Percy (2003) 214 CLR 118
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
However it is well established that the Tribunal is not required to accept uncritically claims made by an applicant.[9] The Tribunal is also not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836).
[9] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437 at [451]; MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia[1999] HCA 14; (1999) 197 CLR 510 at [187]).
Although the applicant was invited to provide written evidence and submissions as well as oral testimony at a hearing, he did not do so. The Tribunal has before it only the brief written statements on the protection visa application form. The information is vague and lacking in detail in significant respects. The applicant’s appearance at a hearing would have provided an opportunity to address the various gaps, and to discuss what further information and details are available. He was also given the opportunity to provide written evidence, which he did not provide.
The Tribunal is not satisfied on the evidence before it that the applicant had a fight with a business partner over [their business], and that his friend took over the business and asked the applicant not to return. The applicant did not provide specifics about the nature of the business, their partnership agreement or the fight that took place between he and his partner, or the reason for the fight. No dates or details of the fight were provided. The Tribunal has not been provided with any documents to evidence the business or the partnership, and no witness statements have been provided to evidence the fight. The Tribunal was unable to question the applicant about these matters as he did not appear at the scheduled hearing.
The Tribunal is also not satisfied that the applicant’s friend lodged a false complaint with police and made fake business ownership papers or that the applicant lost all of his money. As the applicant did not appear before the Tribunal, the Tribunal was unable to ask him for details of this complaint, such as when it occurred, to whom, and the nature of the complaint. The Tribunal was unable to ask him about the false papers, or what happened to the complaint once he left the country. No relevant court or business documents were provided to the Tribunal. It would be expected that such documents would be in existence if these incidents happened as described. The Tribunal was also unable to question him as to how he funded his trip to Australia given that he claimed that he had lost his money.
The Tribunal is not satisfied that the applicant’s friend had connections with the police as the applicant did not provide any details of his connections. The Tribunal is not satisfied that effective protection would not be available or that the applicant could not relocate if he returned. The applicant made brief statements about these matters and did not provide reasons for them. The Tribunal would have asked him about these matters had he appeared at the hearing.
The Tribunal is not satisfied on the evidence before it that the applicant fears returning to Thailand as his friend will believe that he wants to claim the [business] and this will lead to the applicant being hit, abused or killed. The applicant made this claim about this fear in one sentence, without any detail. As the applicant did not appear at hearing, the Tribunal was unable to question him as to why he has this fear, why his friend would believe that he wanted to take over the [business] so long after the events in Thailand or why his friend would hit, abuse or kill him. The Tribunal would have questioned him about his friend and all these matters, had the applicant appeared at the Tribunal hearing. The Tribunal would also have questioned him as to whether he still fears harm as his application was made in 2018. The applicant was also provided with an opportunity to provide written evidence and did not do so.
The Tribunal is not satisfied on the very limited information before it that any of the events described by the applicant took place in Thailand, or that the applicant has a genuine fear of returning to Thailand.
The refugee criteria
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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 themself of the protection of that country[10].
[10] Section 5H(1) of the Act
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.
The Tribunal is not satisfied on the evidence before it that the applicant fears being persecuted for one of the stated reasons. As discussed earlier, the Tribunal is not satisfied that the incidents he described in Thailand took place, or that he has a genuine fear of returning to Thailand, on the very scant evidence before it. As the applicant did not provide any written evidence to the Tribunal or appear at the scheduled hearing, the Tribunal was unable to question him as to why he fears being persecuted so long after the alleged incidents took place.
Is there a real chance of serious harm if the applicant were to return to their home country?
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b) of the Act provides an objective element to that concept,[11]; not only must a person fear persecution, there must be a prospect of that fear being realised.
[11] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees

The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J of the Act.
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.
The Tribunal is not satisfied that there is a real chance of persecution if the applicant returned to Thailand. The Tribunal is not satisfied, for reasons set out earlier, that the applicant had a fight with a business partner in Thailand, that he lost his money, that the partner took over the business, that the Tribunal made a false complaint against him, or that the partner would harm or kill him if he returned to Thailand. It follows that the Tribunal is not satisfied that the partner would harm the applicant in any way if he returned to Thailand. The Tribunal is not satisfied that the chance of harm would be substantial, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379) and is satisfied that any chance of harm would be based on conjecture only (MIEA v Guo (1997) 191 CLR 559).
Findings on refugee criteria
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criteria?
If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
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. The Tribunal has not accepted for reasons set out earlier that the applicant had a fight with his business partner, that his friend took over the business and asked the applicant not to return, or that his friend lodged a false complaint with the police, and made fake business ownership papers. The Tribunal has also not accepted that the applicant lost all of his money, that the police cannot help him as his friend has connections with the police, that he could not relocate, or that he fears that if he returns his friend will believe that he wants to claim the [business] and would hit, abuse or kill him. The Tribunal is not satisfied for reasons set out earlier that the applicant has a real chance of serous harm were he to return to Thailand in the reasonably foreseeable future. For the same reasons and on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation were the applicant to be removed from Australia to Thailand.
Findings on complementary protection
The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A - 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 4313

6 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Standing