1914054 (Refugee)

1914054 (Refugee) [2024] AATA 4261 (18 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1914054
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Haag
DATE:18 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 July 2024 at 3:51pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from loan sharks and former boss – applicant and others left responsible for boss’s debt after he absconded – home invasion and beating – vague and inconsistent claims and evidence, with no supporting documentation – delay in applying for protection – applied after period as unlawful non-citizen – consent to decision without hearing – responsibility to specify claims and provide evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIAC v SZQRB (2013) 210 FCR 505
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 14 May 2019 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 27 August 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations, and who holds a protection visa of the same class as that applied for by the applicant: (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant was invited to appeared before the Tribunal on 1 August 2024 to give evidence and present arguments.
On the papers decision
On 15 July 2024, by written notice, the applicant informed the Tribunal of her decision to not participate in the hearing scheduled for 1 August 2024, and of her consent to the Tribunal deciding her application on the papers without taking further steps to allow her to appear before the Tribunal.
Additionally, the applicant, by email to which the Response to hearing invitation form was attached, stated that she confirmed she will not participate in the hearing, and consented to the Tribunal deciding her application based on the submitted documents without requiring her to appear. The applicant also attached to the email a copy of the biodata page of her expired Thai passport and her current Thai passport.
The Tribunal has no reason to apprehend the applicant’s decision against participating in the hearing, and to require the Tribunal to decide her application on the papers before the Tribunal, was anything other than informed consent freely given. In these circumstances, and having reviewed the Department file and Tribunal file, the Tribunal has decided to proceed to decision based on the applicant’s written case without taking further steps to allow her to appear before the Tribunal, or to seek additional information from the applicant.
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 (DFAT) 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 applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their 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 the applicant in specifying any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
Applicant’s background
In applying for a protection visa, the applicant declared on 25 August 2018, being the date on which she signed the visa application, that she was born on [Date], in Lampang, Thailand, and that she is [Age] years old.
In the application, the applicant was asked to give specific details of the residential addresses where she lived in the last 20 years, inside and outside Australia. She did not do so. The applicant limited the information to her address in Australia and stated that from 2018 to the date of application she resided at [Address, Victoria], Australia.
In the application, the applicant was asked to give specific details of her education history and any qualifications attained since birth, including the commencement and completion dates of any course of study, the full name of the education institution, and the full name of any courses of study she undertook in any specified education institution. The applicant did not do so. She limited the information in her answer to ‘High School’ ‘Completed’ [in] ‘Thailand’.
In the application, the applicant was asked to give her complete employment and unemployment history, including such matters as self-employment, and employment in family businesses, and the commencement and completion dates of all periods of employment and unemployment. The applicant provided no details of any employment or unemployment in Thailand before arriving in Australia. The applicant asserted that in Australia, from 2018 to the date of application, she was unemployed and was supported by family and [from a] ‘savings account’.
Applicant’s identity and country of reference
The applicant provided a certified copy of the biodata page of a passport issued in her name by the Government of Thailand. The Department accepted the document to be a true copy of the relevant page of the applicant’s passport, and proof of her identity and Thai nationality. There is no evidence that the passport document is a non-genuine document.
The information in the passport document is consistent with other relevant information in her application. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any country other than Thailand. The evidence satisfactorily establishes the applicant’s identity, place of birth, nationality, and that she is a citizen of Thailand, and as such her protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant’s migration history is as follows:
·15 January 2014, the applicant was granted a student visa valid to 19 August 2015.
·[February] 2014, the applicant entered Australia lawfully on the student visa.
·19 August 2015, the student visa expired, and the applicant remained in Australia unlawfully.
·28 August 2018, the applicant applied for a protection visa.
·14 May 2019, the delegate of the Minister refused the applicant’s application for a protection visa (the primary decision).
Prior to the hearing, the applicant submitted a copy of the record of the primary decision, and the Tribunal read the decision.
Written claims made prior to the primary decision
The applicant claims to have a well-founded fear of persecution in Thailand for the reason that she is a member of a particular social group, namely victims of loan sharks.
The DFAT Country Information Report Thailand – December 2023 (DFAT report) is relevant and lends general but non-specific support to the applicant’s claim. The report demonstrates the existence in Thailand of the particular social group[1] of which the applicant claims to be a member.
[1] The DFAT report [3.112]–[3.118]
The DFAT report states that loansharking is a serious and widespread problem in Thailand, where it accounts for an estimated 20 per cent of total lending.
The DFAT report states that it can be difficult or impossible for victims to access state protection where the alleged loan shark is a high-ranking official, military or police officer, or local power broker.
The Tribunal notes the following:
DFAT assesses that victims of loan sharks are at high risk from criminal gangs of verbal, social and online harassment, and at moderate risk of violence, including assaults, arson, and vandalism. While avenues exist to seek protection, these are sometimes ineffective, especially where the loan shark is a high-ranking or powerful individual: [3.118].
The applicant’s claim to be at risk of persecution in Thailand is founded on these alleged events:
·The applicant’s unnamed ‘old boss’ borrowed ‘lots of money from some very bad people’.
·The old boss at an unspecified time ‘ran away’ and left her and unspecified other individuals to repay the unspecified debt incurred by her old boss.
·An unidentified lender(s) sent the applicant many unspecified threats demanding repayment of the debt.
·At an unspecified time, at an unspecified address, ‘they’ invaded ‘our home’ and ‘destroyed everything’ and ‘beat us up in daylight’.
·As a direct consequence of the home invasion ‘we got scared for our life so we left our home in Thailand to seek protection in Australia’.
·That she was harmed in Thailand by unspecified physical and verbal abuse, and unspecified death threats that were sent to her by unspecified means, on unspecified occasions.
The applicant also claimed that upon returning to Thailand, she would be ‘hunted down’ by her ‘old boss’, found and ‘most likely tortured’ and killed.
The applicant asserts that her old boss holds a significant position and power over an unspecified community, and the unspecified community is too fearful of her old boss to oppose him, and for this reason, she did not seek help after experiencing the harm she alleged against her ‘old boss’.
The applicant stated she was unable to move to another part of Thailand to seek safety because ‘moving would put [her] in more danger as [she] cannot escape from [her] boss’s network of connections’.
The applicant claimed she would be tortured and killed by her boss if she returned to ‘my home in Thailand’.
The applicant asserted the authorities would not protect her because they would not oppose her ‘boss’ as he holds an unspecified powerful and influential position in ‘the [unspecified] community’.
The applicant also asserted relocation would not protect her from harm because she is unable to ‘keep running away from them’.
Consideration of the claims
In summary, the applicant contends she was forced to leave Thailand because she suffered physical and verbal abuse, death threats and a home invasion in which she was assaulted, and her personal property was destroyed. The home invasion was terrifying, left her fearing for her life, and it compelled her to leave Thailand for the purpose of seeking protection in Australia.
These circumstances resulted from her ‘old boss’ borrowing an unspecified but substantial amount of money from unspecified bad people. The applicant and other unspecified individuals were left to repay the unspecified debt(s) her old boss owed to the unscrupulous lenders before he disappeared.
The applicant claims if she returned to Thailand she would be ‘hunted down by [her] old boss’ and it is most likely she would be tortured and killed.[2]
[2] Department file, protection visa application, [Reference], page 29
There is an evident fundamental inconsistency between the applicant’s old boss ‘running away’ and leaving her and others to be pursued by an unscrupulous moneylender(s) for monies they are owed by the ‘old boss’ and the applicant’s claim that if she returned to Thailand she would be hunted down by her old boss, tortured and killed.
The old boss was supposed to have ‘run away’ yet the applicant claims the ‘old boss’ would be waiting to kill her if she returns to Thailand.
It is difficult to appreciate how the applicant’s old boss would be the one the applicant fears would hunt her down, torture and kill her, or that he would do so, if the Tribunal accepted that:
·The applicant’s old boss had ‘run away’, thereby leaving her and others to repay his debts.
·The disappearance of the applicant’s old boss exposed the applicant to life‑threatening trouble at the hands of very bad moneylenders who sought to force her to pay debts her old boss left unpaid when he ran away.
·After the disappearance of the applicant’s old boss, moneylenders harassed, threatened and assaulted the applicant, threatened to take her life, invaded her home, destroyed her personal property, and induced in the applicant such fear for her life that she believed she had to leave her home and seek protection in Australia.
Additionally, there is a fundamental inconsistency between the applicant’s claim that she came to Australia to seek protection, and her migration history.
According to the applicant’s visa history, she entered Australia [in] February 2014 on a student visa for the purpose of undertaking a course of study in Australia. Her student visa expired on 19 August 2015. She did not apply for another visa until 28 August 2018, when she applied for a protection visa.
After arriving in Australia, the applicant delayed for a period of approximately 4 years and 7 months before she applied for protection. Within that period, the applicant delayed for approximately 3 years after her student visa expired before she applied for protection.
Considering the applicant claims she fled to Australia in fear of her life, and to obtain protection from a present threat to her life, the Tribunal regards the period the applicant delayed before applying for protection to be an unexplained inordinate period of delay. The Tribunal finds the delay, when considered in the context of the applicant’s reasons for leaving her homeland, weighs against accepting that the applicant’s protection claims, and the circumstances she relies on to sustain the claims, are credible.
Additionally, the circumstances the applicant relies on to establish that she meets the requirements of the grant of a protection visa are general in nature, and lacking in cogent specificity, such as the name of her old boss, when he ‘ran away’, the nature of their relationship, the identity of the loan sharks who demanded she repay her old boss’s loan, the sum of money they demanded from her, when and in what terms she was threatened, and the date her home was invaded and her property destroyed.
Additionally, the applicant’s claims and related circumstances are not supported by concrete evidence, such as documentary evidence, or other evidence that establishes to a reasonable degree the identity of the person the applicant refers to as her ‘old boss,’ and the nature of her relationship with him, the destruction of her property during the alleged home invasion, and the existence of and the terms of the death threats she claims she received.
On balance, the written claims, considered alone and cumulatively, together with the evidence relied on to substantiate the claims, the DFAT report, and the applicant’s migration history, are insufficient to establish to the satisfaction of the Tribunal that:
·The applicant was ever called upon to repay a debt(s) incurred by her unidentified old boss.
·The applicant was threatened or otherwise harmed by any person because they were demanding of her that she repay money that was lent to her old boss, or at all.
·The applicant’s home was invaded.
·The applicant left Thailand and came to Australia for the purpose of seeking protection from persecution.
Findings – refugee criteria
Having considered the applicant’s claims individually and cumulatively, the evidence before the Tribunal by itself, and in conjunction with the DFAT report, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for the reason of membership of a particular social group, or for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if she is removed to Thailand now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Findings – complementary protection criteria

The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), pp.170–1 at [1169] and [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246], [297] and [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Thailand now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag

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.
…

[2024] AATA 4261

18 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Jurisdiction