1916434 (Refugee)

1916434 (Refugee) [2020] AATA 3725 (22 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1916434
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Luke Hardy
DATE:22 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 July 2020 at 1:30pm
CATCHWORDS
REFUGEE – Protection visa – Thailand – brawl in the pub – substantial alteration of oral evidence – work purpose – delay in lodging protection application– credibility – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 June 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, Mr [A] and Ms [B] are citizens of Thailand. They both entered Australia on Ms [B]’s student visa [in] January 2016, Mr [A] granted entry as her dependant. Ms [B]’s student visa was due to cease on 29 November 2017. On her evidence before me she did not attend any educational institution on or after arrival, and she and Mr [A] travelled directly from Melbourne airport to rural [City 1]. The applicants’ visas were duly cancelled on 23 March 2016 whereupon they both became unlawful non-citizens.
The applicants lodged a joint protection visa application just over two years later on 16 July 2018. The delegate refused to grant the visas on 17 June 2019. The applicants then lodged a merits review application with this tribunal and submitted a copy of the delegate’s decision for the purposes of the review.
The applicants attended a hearing on 16 June 2020. The hearing was facilitated by an interpreter in the Thai-English medium. The hearing was held during the COVID-19 pandemic. In the circumstances, the applicants and the interpreter attended by telephone. The applicants assured me that they were speaking from a secure and private place with no external extractions. There were no audio issues or artefacts such as might impede clear communication through the interpreter. On review of the proceedings, I am satisfied that that both applicants had a fair opportunity to give oral evidence at the hearing.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), 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 is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, either of the applicants is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In the original application to the Department of Home Affairs (the Department), Mr [A] claimed to come from [City 2] in Nakhorn Ratchasima province in Thailand’s northeast, where his family still resided, and Ms [B] claimed to be from [City 3] province, also in the northeast, where her family still resided. Oddly however, they both claimed to have lived at the same address in Maha Sarakham province since their respective births in [year] and [year].
Both applicants claimed to the Department that they had been unemployed since 2018 and living off financial support from their respective families.
Both applicants made identical claims to the Department. Both claimed they had been out drinking with friends who got drunk and started arguing with another group and became involved in a brawl. Both claimed the other group sent threats to them and their friends a few days later. Both applicants claimed that some of their friends were later assaulted and hospitalised. Both applicants said, “I have been beaten severly [sic.] a couple of times now and they seem to enjoy beating us up and told me they would not stop. Scared for my future I fled the country.”
Both applicants claimed they could not relocate within Thailand because they could not afford to do so and did not have the means to travel for a long time. I note they nevertheless very likely demonstrated that met the financial requirements to be granted student visas and also travelled by air to Melbourne in 2016.
Both applicants said that Thai authorities “turn a blind eye” towards “my situation.” Here and elsewhere the claims appear to lack any sense of relating to shared experience. Both applicant claimed that on return to Thailand, “my life would turn to hell and I would be beaten up again.”
Evidence to the Tribunal
At the Tribunal hearing, Ms [B] told me she did not present herself to begin her scheduled course after arrival in Australia. I asked her why she did not enrol and she said she and Mr [A] had a problem with accommodation and were then helped by one of Mr [A]’s friends. In return they [did some work]; here she seemed to be talking about the move to [City 1].
I asked the applicants why they came to Australia and Mr [A] said, “To work.” He acknowledged not having lodged a protection visa application until after his and Ms [B]’s student visas expired. He again acknowledged that his purpose in coming to Australia had been to work here, which would have been permitted on the student visa for as long as it remained valid or not cancelled, and that he also came here to look after Ms [B]. He said Ms [B] did not present for any course and that she and he went off to work instead. He said he did not know why he did not apply for a protection visa until 2018, two years after arriving here. Ms [B] said she did not apply because she did not have a migration agent to help her after she arrived in Australia.
Mr [A] confirmed that his place of residence in Thailand was in [City 2]. He said he could not return to Thailand because he had an additional girlfriend, in Maha Sarakham, who is still his girlfriend. He said he was with her at her house when a group of men came for him and threatened to kill him if he did not leave. He said and later confirmed that all this happened in 2012, which would have been around three to four years before he came to Australia. Asked if he fled Maha Sarakham, he said he did not but, rather, stayed inside the girlfriend’s house for one year and then came to Australia. I put to him that there were around four years between 2012 and 2016 and he then said that he was threatened in 2015, and his reference to 2012 was to the year he and the other girlfriend met.
Having listed to Mr [A]’s account I put to him that the claims in his protection visa application appeared to be entirely different. In reply, he said Ms [B] would be able to explain. I said to him that I still would like him to tell me why his own two sets of claims were so different, and he merely said that at the time of the original application he did not tell this story. He said he “did not know about my visa” and that Ms [B] knew. I put to Mr [A] that Ms [B] did not appear to be referred to in either of his sets of claims, and that, at least for the time being, this was why it seemed odd to suggest to me that she could explain his case to me. He then said that he had let Ms [B] take care of the original protection visa application.
I asked Ms [B] why she could not return to Thailand and she recounted the story about the brawl in the “pub,” as she called it, and about the other people continuing to be violent beyond the night of the clash there. She said this happened in Maha Sarakham province, but she also said it happened in a town to which the nearest city was [City 3], in her home [province]. She said the other group numbered more than six people. When I asked her if the group was less than ten people, she said it was more than ten people. I asked her why she did not first say the group was more than ten people and she said it first looked like a group of more than six but later looked like a group of more than ten. This did seemed a strange explanation in the circumstances since I was asking her to her current recollection of the group’s size.
Ms [B] then told me that Mr [A] was also at the “pub” on the night of the brawl. She did not expressly say that in her protection visa application, but I note that Mr [A] nevertheless initially claimed to have been there.
Ms [B] said she was living in Maha Sarakham at the time. She said that after the brawl broke out into days of further violence she moved to Bangkok. She did not suggest that anything potentially relevant happened to her in Bangkok. She said she moved to Bangkok in 2015 and then, in the same year “returned” to Maha Sarakham to help her father with his [business]. She said she had been working with her father there for about four or five years. She confirmed, when I asked, that she returned to Maha Sarakham to work with her father. I then put to her that I was concerned that she returned to Maha Sarakham in the claimed circumstances, i.e., of fearing serious and significant harm there. In response, Ms [B] altered her evidence radically, claiming that she never retuned to Maha Sarakham after moving to Bangkok in 2015 and that she had only been talking about her past time in Maha Sarakham before moving to Bangkok. This did not strike me as a satisfactory explanation for the inconsistency, involving a substantial alteration of oral evidence. I am confident that the electronic record of Ms [B]’s oral evidence at the hearing bears out this impression.
I put to Ms [B] that, on the evidence she had given me about having returned to Maha Sarakham to work, she did not appear to be afraid to go there for any potentially relevant reason. In reply, she said she does not want to go back there because she will face trouble again. I asked her why, in the claimed circumstances she could not reside again in Bangkok; she had already told me about having resided in Bangkok’s [a specified] district. In reply, she said the other group already knew her address in Bangkok and knew she had come to Australia. Notwithstanding this suggested detail, she indicated she did not know who any of these people were. I put to her that on the evidence so far no-one had harassed her in Bangkok. In reply, she said that these people were nevertheless “the ones who have power.” Essentially, this she did not address the point of the observation I had put to her. I therefore repeated the position and then Ms [B] said that the group did threaten her in Bangkok and that she therefore returned to stay and work for her parents.
Here Ms [B] reverted to the claim she had just denied: the claim about returning to stay and work in Maha Sarakham in 2015. I put to her that it seemed illogical that to escape a group from Maha Sarakham that was harassing her in Bangkok she returned to Maha Sarakham. I invited her to comment on this and on anything else in this case and she said that she wanted to stay in Australia where she can be protected.
I put to Mr [A] that his protection visa application includes the same story about the clash in the “pub” but seemed to imply at various points that he suffered the experience on his own. I invited him to comment and he said, “I just want to stay here.” I asked him again to comment on why his claims in his protection visa application appeared to be about him alone and he said his experiences had been the same as Ms [B]’s.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either "well-founded" or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to "significant harm". It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a 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 his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.
In assessing the credibility of an applicant's claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
In this specific case, the applicants’ claims relate in no way, either separately or cumulatively, to any of the five criteria in s.5J(1)(a) of the Act.
I also find that the respective evidence of each of the applicants individually is undermined by inconsistency.
Ms [B]’s evidence about herself is undermined by claims she asserted, then strongly denied and then seemed to assert again about whether she returned to live in Maha Sarakham after relocating to Bangkok.
Mr [A]’s claims are undermined by the inconsistent timelines in his account of the gang trying to oust him from his other girlfriend’s house (he did not satisfactorily explain how 2012 became 2015) and also by his vague, and far-fetched account of being able to stay in that house for a year by the same gang that came to oust him from that place. This account also strikes me as being sufficiently mutually exclusive from his suggestion that he was with Ms [B] in the same “pub” where and when she was first harassed, because he claimed to have gone from the other girlfriend’s house directly to Australia. I note Mr [A] saying that he omitted the “other girlfriend” account from his original evidence because he had simply let Ms [B] do all the work, hence, her indicated the identical accounts in their respective application forms, but this does not satisfactorily explain why the first set of reasons he gave me at the hearing were never included by him or Ms [B] in the original application. One can postulate that a person might have been reluctant to tell his partner of another girlfriend, but Mr [A] never suggested anything like that to me, so I am not prepared to speculate that this might be a reason for the omission.
Along with each applicant’s respective claims being internally inconsistent, i.e., with each applicant’s own evidence, respectively, there is also the issue of the significant delay in the applicants lodging their protection visa application. Both applicants separately acknowledged that Ms [B] made no attempt to present for the study that had been the basis for the student visas in this case. Neither applicant provided, for his or her own part, a satisfactory explanation for the delay in lodging a protection visa application so long after coming to Australia and not commencing study. I have given some weight to this delay. Meanwhile, both applicants separately told me that their intended purpose in coming to Australia together was “to work.” I give some weight to this evidence as well, as, along with the delay, it casts the applicants’ protection visa application in the light of disingenuous afterthought, especially since they were able to negotiate their way from Melbourne to [City 1] and to work in the latter location.
Having considered all of the evidence before me, separately and cumulatively, I am not satisfied that either of the two applicants faces a real chance of being persecuted in Thailand in the reasonably foreseeable future for any reason in s.5J(1)(a) of the Act. Their claimed fear of being persecuted in Vietnam is not well founded. They are not refugees.

For the reasons given above, I am not satisfied that either of the two applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that neither applicant meets the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) 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.
Relevantly, s.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 (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she is subjected to the death penalty; or arbitrary deprivation of life; or torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture, which are further defined in s.5(1) of the Act: essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission.
Torture 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 ICCPR. Cruel or inhuman treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Degrading treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that both applicants are citizens of Thailand, I find that Thailand is the “receiving country” in this case.
I find that the harm identified in this case includes “arbitrary deprivation of life,” “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” and, arguably, “torture.”
The applicants’ claims to complementary protection in this matter are essentially the same as their refugee status claims. As shown above, the applicants’ claims have failed due to inconsistency and lack of credibility, and hence to an overall lack of a real chance of being persecuted. In the circumstances, and bearing in mind that the "real risk" test, here, imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of being persecuted, the applicants’ claims in this application can no more succeed as complementary protection claims.
Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that either of the applicants will suffer significant harm.
Accordingly, I am not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that either of the applicants 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, neither of them satisfies the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy
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 3725

22 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction