1916411 (Refugee)

1916411 (Refugee) [2020] AATA 4703 (5 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1916411

COUNTRY OF REFERENCE: Thailand
MEMBER:Anne Grant
DATE:5 October 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 October 2020 at 11:39am
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – women – retail business – fear of killing – victim of robbery – random act of property violence – gender-based violence – state protection – applicant jointly purchased a home in Australia – separation from family in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
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 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 12 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Thailand, arrived in Australia [in] May 2007 on a student visa, and subsequently held visas entitling her to stay in Australia and study until she applied for a protection visa on 5 October 2018. The delegate refused to grant the visa and the applicant lodged a request for review of the decision on 23 June 2019.
I exercised the Tribunal’s discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter, the nature of the applicant’s claims and the individual circumstances of the applicant, such as her having been in Australia since 2007, and the inability of the Tribunal to currently conduct in person hearings for the foreseeable period. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant returned the hearing invitation, providing her telephone number and answering ‘No’ to the question on that form asking whether there was any reason why she might not be able to participate by phone or there was any reason why she did not wish to do so.
The hearing proceeded on 30 July 2020 by teleconference. The applicant was not represented in this application by a registered migration agent. The Tribunal was assisted in the hearing by the services of an interpreter fluent in both the English and Thai languages.
The applicant provided a copy of her Thai passport to the Department with her application for protection and has confirmed in her application and at hearing that she is a Thai citizen. Based on the information before me, I find that the applicant is a citizen of Thailand and that Thailand is the country of her nationality and the receiving country in considering her protection claims.
The applicant had provided a statutory declaration on 20 July 2020 in which she provided new claims. Those will be discussed below. At the commencement of the hearing, I indicated to the applicant that, because the delegate had never had an opportunity to discuss her claims with her and because of this new information, all aspects of her protection claims including the truth of those claims and whether there was a real chance of persecution or a real risk of significant harm were in issue before me.
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 applicant is a refugee and, if not, whether there are substantial grounds for believing that there is a real risk that she will suffer significant harm as a necessary and foreseeable consequence of her being returned to Thailand.
According to her statutory declaration, the applicant claims that she was born in Bangkok, Thailand. She has also provided a Thai passport in support of her application for protection. I find that Thailand is the country of her nationality and the receiving country in considering her protection claims.
Her claims for protection as per the original Protection Application Form 866C declaration, at Question 78, describe her becoming involved in a brawl where one of her friends attacked a ‘well connected’ man who then targeted them, and that she fears she will be tortured and stabbed by that man. The applicant has confirmed that this information is untrue and that she wishes to abandon those claims. She said she did not read the application for protection which was completed by someone to whom she told her story. She claims that they must have misunderstood what she told them. That was why she has now sent in a statement about her true reasons for seeking protection.
The applicant’s declaration received on 20 July 2020 makes those new claims. It includes the following information:
1. I was born on [date] in Bangkok of Thailand.
2. I state that my first arrival in Australia [in May] 2007, to study course of Certificate III in ESL (Access) and [another course] during 2007 until April 2008. Then I re-apply student [visa], on 5-10-2010 my visa was granted and visa expired date on 18-06-2012. During I had been studying, the college was closed at the end of year 2011. After that I must re-apply student [visa], lodged on 19-03-2012 and visa expired date on 14-05-2014. Moreover, I took [another] course from 2014 until 2017.
3. During I studied I went back to my home country to visit my family, I helped my family to take care the shop as usual, however, at that period of time happen, there was a thief coming into my mom’s shop. I gave them money with fearing and frighten as his threat me. They threat and came to bring my money again and again “Don’t tell police. If you do I will kill you.” I was so scared. I didn’t tell police. So after, I came back to Sydney, Australia to complete my course until my visa finished in year 2017. I was so nervous still fear to back to my home country, therefore, I decided to re-apply study at [a named college] but my visa was refused. At that time, I was so worried to go back my home country, until I met one lady at Thai temple, she gave phone number to contact the one lady in Melbourne that can help me about visa and telling my story happen background to her. She advised me to do protection visa. At that period, I felt so excited and full of hope. To be honest, I did everything that safe me away from fear in the past.
4. At the situation result, I feel that so violence and harmful threatening. I feel terrible to go back to my home country. I feel unsafe and dangerous; because I’m so scared that it will be happen again.
5. Consequently, some worst will happen to me. I want to be safe and I need safe place to live. I don’t want to go back to Thailand. I don’t like and don’t agree with violence and dangerous by just looking at me as a woman without a fight.
6. I am the one human that only need to be safe I don’t want to live with violent, fear, scared, terrify, intimidate and unfair. I want to live without fear and scared all my life. I want to live peaceful, happiness and safe. Australia is the only country that keeps me safe. In Australia I have my sister and niece and friends to support me. I guarantee whole my life that I am a good people and I have good manners to the whole community.
7. Therefore, the reason of my decision to stay safe in Australia as being familiar to Australia cause of ever studied in Australia over 10 years. And I have a sister and a niece staying in Australia.
8. June 2019, my sister and I helped to buy a unit [address deleted] that I can live together no need to pay rent. This is the sign that I will have a good life. I can’t leave my dear niece and my sister alone I want to stay in Australia just to be safe. I strongly believe and hope Australia able to protect me to be safe life and happiness.
9. Now my future plan I only hope that I can fulfil my hope to live in Australia with being peaceful and happy. It is the genuine intention that I really fulfil them as much as I can that my sister is not have relative here just I am the one relative. Moreover, I live here the primary benefit of protecting my life and secondary benefit to my sister and niece not alone.
The applicant gave evidence generally confirming the information in her declaration (or letter, as the statement does not bear formal witness or declaratory provisions). She said that the incident of being robbed once in 2016 is the only incident of violence of any kind she has ever encountered in Thailand but it has caused her to be anxious and fearful and to fear returning to Thailand. Also, she wants to stay in Australia because, as is noted in her statement, she and her sister have bought a property and she wants to be with her sister and niece.
The applicant confirmed that she did not report the incident to police, out of fear that the robber would return and harm her. Since she left Thailand, the robber has not returned to threaten her family or to rob the shop. Her parents later closed down the shop and went to work with her sister at a different location. They also did not go to the police, because the applicant was afraid that the robber would harm them if they did. Now her parents work with [a relative] who has a [business]. The robbery incident happened in 2016 when she returned to spend time with her family. At that time, she still had a student visa: so afterwards, she returned to Australia and continued her studies.
At hearing it was noted that the shop where the incident occurred has closed down and the incident was never reported to police and the applicant was asked why she would be fearful of being persecuted in that same shop or by the same robber if she returned to Thailand now. The applicant said that she is scared that the robber will remember her and ask for money again. We discussed that this seemed implausible, because the shop is gone, and because the robber would have no way of knowing who she was, or where she was if she returned, particularly since she never reported the robbery to police. Bangkok is, after all, a big city. The applicant agreed generally with that suggestion but responded that the incident has caused her to have a general fear of harm in Thailand as a woman, at risk of violence from that offender and people associated with them (or other criminals), and she prefers to remain in Australia where she doesn’t suffer from that fear.
Fear of violence from previous robber and or other criminals in Thailand
Taking into account her direct evidence about her written claims, I reject the applicant’s claims about being involved in a ‘brawl’ or fight in which one of her friends injured another person who then targeted the group for harm. Those claims are not true and the applicant has confirmed that and that she does not rely on them. I will not consider her written claims further.
I accept that the applicant was the victim of a robbery whilst working in her parents’ shop in 2016. I also accept her evidence, that this had never happened to her (or her family) before and as far as she was aware, it has not happened again (to any member of her family) since she left. She indicated that her parents closed down the business shortly after the robbery and went to work with her [relative], where they have not experienced any ongoing attacks or threats, from the same robber or any other.
Based on her new claims, the applicant fears that she will be subjected to random acts of violence in Thailand if she returns, similar to her experience of being robbed in 2016 when she was taking care of her mother’s [business]. I accept that the applicant fears that the same particular robber will ‘know and target her’ if she returns to Thailand but also that she fears that she will fall victim to unrelated random acts of violence ‘because she is a woman or if she works in a shop.’ I accept that she prefers to live in Australia with her sister and niece and that she considers Australia a safer place to live.
I accept that being robbed, physically assaulted and threatened would involve causing the applicant serious harm, as required by s.5J(4)(b).
Although the applicant claims to fear harm from the same robber who targeted her in 2016, I consider that the information she has provided does not establish or suggest that the robber knows her personally or that he would have any interest in or capacity to locate or harm her if she returns to Thailand. Taking into account her evidence about the incident, which I characterise as a random act of property violence, I find that the chance that the applicant is targeted or harmed by the same robber if she returns to Thailand is remote, and therefore not a real chance. In relation to her fear of suffering serious harm such as assault, threats and being killed by unknown assailants throughout the country in her workplace and due to being a woman and vulnerable if alone in her workplace (wherever that is), I accept that the applicant holds a subjective fear of that harm, and considers that Australia is a safer place to live and work than Thailand.
I have considered the Department of Foreign Affairs and Trade Country Information Report, Thailand (10 July 2020). The country information generally reflects that domestic, family and gender-based violence is a significant problem in Thailand, affecting all sections of society but is particularly prevalent among ethnic minority groups. (The applicant belongs to the majority Thai ethnic group, according to her application for protection, so does not have that latter profile.) According to DFAT (at 3.93) a number of laws criminalise sexual harassment in both the public and private sectors, and (at 3.95) long standing conservative societal norm and regressive policies continue to restrict the ability of women to participate fully in all facets of life in Thailand, particularly in the economic, political, religious, and national security spheres. DFAT assesses that women in Thailand, particularly members of ethnic minority groups, face a moderate risk of being subjected to gender-based violence (including intimate partner violence.)
As noted at hearing, the country information suggests that gender-based and general violence does occur in Thailand and I accept that to be so. It does not establish that all women in Thailand face a real chance of violence or suggest that general violence such as property crimes target women or even retail workers in particular. I consider that the applicant’s own characteristics and past experience living in Thailand must be taken into account when assessing whether the applicant faces a real chance of persecution now or in the foreseeable future if she returns to Thailand. The applicant’s evidence does not suggest any reason why she would be targeted with violence if she returns to Thailand. For example, she is not in a marriage where she would be subject to domestic violence, nor does she claim that she would face family violence from her own family. I consider that the fact of her being robbed on one occasion in an incident in 2016 does not increase the chance of the applicant experiencing another such act of similar nature if she returns to Thailand, even taking into account her gender or a decision to work in a ‘single person’ occupation. Having considered her evidence as a whole, I am not satisfied that the applicant has established that there is a real chance that she will be targeted for any reason (including because she is a woman or due to her being a shop keeper) and seriously harmed if she returns to Thailand, regardless of where she chooses to reside in Thailand. I consider, based on her own evidence and described experience, the applicant does not have a profile (whether due to her gender or past occupations) which would mean she was of interest to or be targeted by any potential criminal or persecutor in Thailand.
I also note that the applicant fears falling victim to another random act of violence in Thailand – like the one she experienced in the past on one occasion. The potential persecutors in this instance comprise essentially the entire criminal population of Thailand. S.5J(4)(c) provides that for persecution to be well founded, it must involve systematic and discriminatory conduct. The applicant’s claimed fear is of a random act of violence, which by its’ nature of being a random act, would not involve systematic and discriminatory conduct. I find that the applicant’s fear of a random act of violence in Thailand is therefore not a well-founded fear of persecution. In conclusion, I find that there is not a real chance that the applicant will suffer persecution either from the robber who harmed her in the past or from any unknown other member of criminal society, now or in the reasonably foreseeable future, if she returns to Thailand. The applicant has not established that there is a real chance that she will be persecuted in Thailand because she is a woman or because she is working in a retail position, or for any other reason.
Harm due to separation from her sister and niece.

The applicant did not claim that she would suffer serious harm if she is separated from her sister and niece, but this claim arises potentially on her claims and expressed desire not to be separated from them. As discussed with the applicant at hearing, she argued that she feels safer in Australia and wants to continue to live with her sister and niece. I accept that if the applicant must return to Thailand, she may suffer some distress at being separated from her sister and niece and losing their physical and emotional support.
I have considered whether such distress and harm (if it occurred) would satisfy the necessary criteria in the legislation under the refugee provisions. I have concluded that it would not for the following reasons:
a)The harm would not involve any systematic and discriminatory conduct as required by s.5J(4)(c); and
b)the separation and harm would not be for reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s.5J(1)(a); and
c)having considered the description of incidences of ‘serious harm’ in s.5J(5), I am not satisfied that being separated from your family (whether that separation is lengthy or temporary) is of a nature which rises to the level of ‘serious harm’. I find that any distress experienced by the applicant caused by her being separated from her sister and niece would not involve ‘serious harm’ as required by s.5J(4)(b) of the Act.
Conclusion on Refugee provisions
Having considered the applicant’s claims cumulatively and individually, I find that the applicant does not have a well-founded fear of persecution in Thailand, and is not a refugee as described in s.5H.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
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
I refer to and rely on my discussion and findings on the refugee criteria above. I find that there is not a real risk that the applicant will suffer significant harm from the robber who attacked her in 2016. I also find that the risk that the applicant will be harmed in a random act of violence in her workplace or because she is a woman, is remote, and not a real risk. I am also satisfied that the feared harm of an act of generalised or criminal violence is a risk faced by the population of Thailand generally and not the applicant personally. Applying s.36(2B)(4), there is therefore taken to not be a real risk of that significant harm.
In relation to her desire not to be separated from her sister and niece and to stay in Australia to enjoy the lifestyle and her property in NSW, as discussed with the applicant at hearing, these aspects of her claims do not suggest any basis on which the applicant could satisfy the protection criteria, because a desire to remain (or to migrate) to a new country is not due to any protective concern or because of a fear of harm. The applicant agreed with that suggestion but pleaded to be allowed to remain in Australia where she feels settled and safe. Even though she did not raise it, I have considered whether the applicant would suffer significant harm (in the form of emotional distress) if she was separated from her sister and niece. I find that any distress or emotional harm she experiences in being separated from her sister and niece would be because of the act of being removed from Australia and the physical separation from them. For such harm to constitute significant harm, it must satisfy one of the five criteria in s.36(2A). The distress caused by separation from her sister and niece does not involve the applicant being subjected to the death penalty, or to being arbitrarily deprived of her life. It does not involve the applicant being subjected to torture, or to cruel or inhuman treatment or punishment. Similarly, it does not involve the applicant being subjected to degrading treatment or punishment. I find that the harm caused by separation from her Australian resident family members is not due to any of the acts or omissions which could constitute ‘significant harm’ in s.36(2A). I conclude that any potential distress and emotional harm caused by the separation of the applicant from her sister and niece due to her being removed from Australia would not constitute ‘significant harm’ as defined in s.36(2A).
The applicant’s claims have been considered individually and cumulatively. I conclude that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of her being returned to Thailand.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The applicant’s sister is a permanent resident of Australia but is, according to the applicant, not the holder of a protection visa of any kind. There is no suggestion on the information and evidence before me 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.
Anne Grant
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 4703

5 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies