1916734 (Refugee) - [2024] ARTA 589

1916734 (Refugee) [2024] ARTA 589 (28 October 2024)

Decision and
Reasons for Decision

Respondent:

Minister for Home Affairs

Tribunal Number:

1916734

Tribunal:

General Member R Johnston

Date:

28 October 2024

Place:

Sydney

Decision:

The Tribunal affirms the decision under review.

Statement made on 28 October 2024 at 1:09pm
CATCHWORDS
REFUGEE – protection visa – Thailand – imputed political opinion – low-level party member and local administrative worker – knowledge of government agency misconduct, business corruption and organised crime – party overthrown in coup – harmed and threatened by leaders and supporters of other party and hunted by powerful military group – harassed during return visits – exaggerated description of role and limited details of threats and harm – delay in applying for protection – visa and travel history – low-level member and worker in home country and no political activity in Australia – country information – current political situation – member of family unit partner – death of father and mental health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473

Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

_________________________________________________________________________________ In accordance with s 369 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicants or any relative or dependant of the applicants.
Statement of reasons

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home
Affairs on 3 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants who claim to be nationals of Thailand, applied for the visas on 12 April 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative
Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT, in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for the purposes of the proceeding after 14 October 2024. Anything done in, or in relation to, the proceeding after 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal.

BACKGROUND

First named applicant

The first named applicant (the applicant) was born in [Year] in Nakhon Phanom, Thailand.
According to the Departmental delegate’s Decision Record, the applicant arrived in Australia [in] July 2007 as the holder of a Student Visa (Subclass 570). She was granted a Student Visa (Subclass 572) on 14 February 2009 and subsequently departed Australia [in] February 2009, returning [in] March 2009.
The applicant was granted a further Student Visa (Subclass 572) on 27 September 2010, and on 30 September 2011 lodged an application for a Student Subsequent Entry Visa (Subclass 572), as a dependent applicant on the second named applicant’s Student Visa (Subclass 572) which had been granted by the Department on 6 July 2011.
The applicant, along with the second named applicant, departed Australia [in] May 2012 and returned to Australia [in] July 2012. On 15 May 2013 the applicant was the dependent applicant in a Temporary Work Visa (Subclass 457) lodged by the second named applicant. That application was refused on 20 September 2013. The applicants subsequently sought review of the refusal decision by the Migration Review Tribunal (MRT) on 8 October 2013, where the decision was set aside.
[In] January 2016 the applicants departed Australia, returning to Australia [in] February 2016. The applicant was refused a Temporary Work Visa (Subclass 457) on 4 January 2017, with a review at the MRT finalised on 17 February 2017 as there was no jurisdiction to review the decision. On 12 April 2017 the applicant lodged a Protection Visa application (Subclass 866).

Second named applicant

The second named applicant was born in [Year] in [District], Uthai Thani, Thailand.
According to the Departmental delegate’s Decision Record, the second named applicant arrived in Australia [in] July 2009 as the holder of a Student Visa (Subclass 572). On 6 July 2011 she was granted a further Student Visa (Subclass 572). On 28 October 2011 she was granted a Student Subsequent Entry Visa (Subclass 572).
The second named applicant departed Australia [in] May 2012 and returned [in] July
2012. On 15 May 2013 she lodged an application for a Temporary Work Visa (Subclass 457), within which the applicant was included as a dependent applicant, and which was refused on 20 September 2013. On 3 December 2014 the MRT set aside the refusal decision of the second named applicant’s Temporary Work Visa (subclass 457).
[In] January 2016 the second named applicant departed Australia, returning to Australia [in] February 2016. On 4 January 2017 she was refused a Temporary Work Visa
(Subclass 457), with a review of that decision before the MRT finalised on 17 February 2017 on the basis there was no jurisdiction to review the decision.
On 12 April 2017 the second named applicant was included as the dependent applicant in the applicant’s Protection Visa application (Subclass 866).
CLAIMS AND EVIDENCE

Claims and evidence before the Department

Protection visa application

On 12 April 2017, the applicant lodged an application for a protection visa. The second named applicant is the applicant’s de facto partner and was included in the application as a member of the same family unit. She did not put forward her own claims for protection before the Department and sought to rely on the applicant’s claims.
The applicant, in her protection visa application, provided the following:
•    She belongs to the Thai ethnic group and is a Buddhist.
•    She is in a de facto relationship which commenced in December 2009.
•    Her brother and sister remain in Thailand.
•    She was the holder of an Australian student visa between 11 July 2007 and 11 February 2008. She held a Bridging Visa B (Class WB) between 5 January 2016 and 21 February 2016.
•    She departed and re-entered Australia for Thailand between [February] 2009 and [March] 2009 and [May] 2012 and [July] 2012. She returned to Thailand between [January] 2016 and [February] 2016 to visit her family.
•    She has not travelled to any country other than Australia in the last thirty years.
•    She completed a Bachelor of [Subject 1] at [University 1], Thailand, between [Year] and [Year].

Between July 2007 and January 2008 she completed a general English course, intermediate level, in Sydney, Australia.
• Across March 2008 and October 2010 she completed a Certificate II in [Subject 2a], a Certificate III in [Subject 2b], and a Certificate IV in [Subject 2c] in Sydney.
• Whilst in Australia she has worked in a [workplace], as [an occupation] and manager at [an occupation] business, and as a supervisor in [job task].

The second named applicant, in the protection visa application, provided the following:
•    Her sister resides in Thailand.
•    She has held a student visa in the past. She held a Bridging Visa (Class WB) between 5 January 2016 and 21 February 2016. She returned to Thailand to visit family between [January] 2016 and [February] 2016.
•    Between [Year] and 2000 she lived in Uthai Thani. Between 2000 and 2009 she lived in Bangkok.
•    She has not worked.
•    In 2007 she undertook a course in [Subject 3] in Thailand.
•    In 2013 she undertook a [Subject 2a] in Australia.
The applicant makes the following claims in her protection visa application form:
•    When she was in Thailand from 2004 to 2006, she led high profile work with the political party ‘Thai Rak Thai’ led by Mr Thaksin Shinawatra.
•    She was responsible for co-ordinating, promoting, and creating marketing strategies in order to boost up the voting scores. What she did helped the party achieve success. However, her role affected negatively other opposition political parties. The other parties including government officers who were supported by other parties and local businesses lost benefits and votes. During that time those people threatened her verbally, but the party she worked for had her back, so she was safe at that stage.
•    After 19 September 2006, Mr Thaksin Shinawatra was overthrown in a military coup. The Royal Thai Army staged a coup d’état against the elected caretaker government of Prime Minister Thaksin Shinawatra. His party was outlawed, and he was barred from political activity. Those in other parties were back in power and authority.
•    From then she received harm and threats from many powerful people and citizens who are against the Thai Rak Thai party. This makes her scared and she couldn’t continue her life and career in Thailand. She decided to come to Australia since then.
•    She rarely returned to visit her family. When she went back only for a brief visit, she was so scared that she did not go out freely. Wherever she goes, she is afraid that someone will attack or kill her. It seemed like her life in Thailand was like walking on eggshells. Especially now those who lost power when she was working are now in positions of authority. She is not able to go back to Thailand.
She received several threats against her life. These people threated her to get rid of her or even sent someone to kill her. This did not happen once but there were several threats from 2006 to 2007.
•    She tried to seek help and justice, but it did not work as those people were back with authority and power.
•    The situation had a very big impact in Thailand, even until now. The number of people against Mr Thaksin Shinawatra and the Thai Rak Thai party has expanded country wide. She does not believe there will be any safe place for her within the country.
•    She believes she will be harmed by adversaries if she returns home. From her experiences she wouldn’t be able to tell exactly the name of a person threatening her, but she is sure they are those people who don’t want a member of the Thai Rak Thai party to be able to grow or stay in Thailand or even in a society. Threats such as of assassinations or physical and mental attacks are what she has experienced before coming to Australia and she believes it will continue to happen.
•    She doesn’t think the authorities of Thailand will be able to protect her because those people are strongly against Mr Thaksin Shinawatra. A government under Miss Yingluck Shinawatra, ex-Prime Minister of Thailand and a sister of Mr Thaksin Shinawatra was overthrown in a miliary coup by the Thailand government recently.
•    She doesn’t think she will be able to relocate within Thailand because although it has been eleven years since the overthrown military coup of Mr Thaksin Shinawatra, people are still very furious and have a harsh temper against Mr Thaksin Shinawatra and strongly remember the situation. This also continued to affect the elected government of Miss Yingluck Shinawatra because they are brother-sister.

Interview with the delegate

18.The applicant attended an interview with a delegate of the Department on 14 May 2019. The second named applicant did not attend the interview. The interview was conducted with the assistance of an interpreter in the Thai and English languages. In the interview, the applicant responded to questions and elaborated on her claims. The Tribunal has listened to a recording of the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.

Post-interview evidence

On 14 May 2019 the applicant provided the Department with further evidence, including a number of photographs of groups of people. The applicant also provided the Department with an article from the daily news website from 17 June 2016, in Thai and with a noncertified translation, referring to the apparent suicide of a [Age] year old man known as [Mr A].
On 16 May 2019 the Departmental delegate wrote to the applicant’s authorised recipient seeking a copy of the applicant’s written statement, which the applicant had referred to in their Departmental interview. On 19 May 2019 the applicant’s statement was provided to the Department.
In the applicant’s statement, dated 3 April 2017, the applicant advanced a number of the same claims as in her protection visa application. She also claimed:
After the 19 September 2006 military coup, Mr Thaksin Shinawatra has lived in selfimposed exile. He was sentenced in absentia to two years in jail for abuse of power. It is also claimed that he has continued to influence Thai politics through the ‘red shirt’ ‘movement from abroad. Those in other parties were therefore back in power and authority.
•    She received several threats against her life. These people threatened to get rid of her and even sent someone to kill her and her participants, who had been informed by fraud and corrupt information. This did not happen once but there were many threats between 2004 and 2006.
•    Three people were shot and died by gunmen, so she tried to seek help and justice, but it did not work as those people were back with authority and power. Facing increasing threats she was fearful and concerned about herself and her family members and how she could save them. Her mother who is important and who she cares a lot about in her life passed away. She still had to keep her promise with her to save her life and protect her family so she made the decision to quit her job and fled to Australia on a student visa and hoped the political situation would be better shortly.
•    The worst situation continues after more than ten years, and two military coups have happened in Thailand. She rarely returned to visit her family. She only took brief visits and was so scared she did not go out freely and was afraid that someone will attack or kill her. She fled from death threats in Thailand and she and her partner would not go back to face those threats again.
•    Those who lost power when she was working are now in positions of authority. Thailand is now under the Armed Non-State Actors and has a grave breach of International Law and Humanitarian Law, also gross violence and human rights. They are suffering from estoppel under military ruling (tribal rules). Too many democratic activists against junta have been jailed of stifling of speech unfairly. Most have never been under the conduct of the judicial system. The Tribunal of Thailand has not been under conditions of judicial conduct and rule of law.
•    Many serious cases are happening with many activist people such as enforced disappearances, torture, confinement, attitude adjustments, and also abuse of power, including the Law Article 112 (Lese-Majeste Law), Article 116 and Article 44.
•    She and her partner feel stressful, fearful, and depressed about their life and future life if they have to go back and stay in Thailand.
On 19 May 2019 the applicant also provided the Department with clarifying answers arising out of her Departmental interview on 14 May 2019. That document is not dated and includes the following details:
•    In relation to her areas and duties, they include [Districts 1-3] on the opposite side of Burma. They have [municipalities], [subdistricts],
[villages] and government agencies and state enterprises that she worked at. The Burmese army against minority groups (Karen, KNU) included the forced razing and relocating of villages, systematic murder, rape and robbery and rounding up of slave labour. The majority of people flee across the Thai border every month, with 2-3 million migrants from Burma currently in Thailand. There are 3 camps prepared to support 25,000 refugees and the Ministry of Defence plays a major role in those areas. Without refugee status exiles are vulnerable to abuse, human trafficking problems, poor employment, and corruption. There are high-profile cases of illegal Burmese workers involved in violent crimes, illegal contraband and drug smuggling.
Through the main policy of Thai Rak Thai party and her missions she was found out. These include anti-human trafficking, anti-money laundering, a war on drugs, counter corruption, and bad influential people. The missions involved underground duties where she had to survey the root of problems in a wide perspective to get the real information and report to the department of the party to investigate. Many Thai Army members, police officers, border officers, government officials, local politicians, bad influential people who were deeply involved in those problems faced the investigations and got punishments. One day someone was warning her to stop doing reports and offered benefits and she recognised that someone caught her up. After that they started threatening her. They were mad and aggressive, and this is caused by revenge, and they made her face a difficult life.
•    As to why she did not post or express her attitude of the political problem, she thinks the King is the same with everybody that we are human. She would not judge people who she does not know exactly, and everyone has their own reason for doing something based on their life experiences. That is why she could not say if she loved or not. If she could ask him, she would ask about domestic politics, his opinion on the conflict between military and political forces continuing for more than ten years, and democracy or absolute monarchy. If he prefers an absolute monarch, she believes the Prime Minister Mr Prayut Jun-ocha should change. If she lives in Thailand, she will face punishment by law and she and family members will be bullied by radicals and royalists as well. She felt nervous being asked the question.
•    Regarding yellow or red shirts and where she stands, she said in her interview she stands in the middle. Her meaning is with yellow shirts, all those people are against democracy and support the military coup and that is the reason she could not stand with them. Regarding red shirts, she agrees they adhere to the democratic system, but Mr Thaksin abused his office for political gain and allegedly for financial gain, and she disagreed with hate speech, riots and bloodshed. She could not stand with redshirts either.
•    She made the decision to move on and flee and she does not want to express her opinion to the public or online because she wants to save herself and her family in safety. She knows many red shirts who stayed overseas and who still express their opinions or hate speech then their family in Thailand faced threats and problems. She doesn’t know how they handled problems like that, and she doesn’t want to make it happen too.
Included with her supporting documentation given to the Department throughout the process was:
•    Her transcript from [University 1], Bangkok, Thailand dated [Date].
•    Jonathan Head, ‘Defaming a dog: The ways to get arrested for lese-majeste in Thailand’, BBC News, 16 December 2015.
•    [Bank] account certificate of balance in the names of the applicants dated 26 July 2013.
•    Residential Tenancy Agreement in the names of the applicants for a property in the Sydney region commencing on 18 July 2012.

The delegate’s decision

24. On 3 June 2019, a delegate of the Minister refused the applicant’s protection visa application.

The delegate did not accept the applicant will be threatened or harmed by persons in Thailand due to her political involvement with the Thai Rak Thai party. Nor was the delegate satisfied that the applicant’s claims as a whole were genuine, credible, or reflective of her true circumstances. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk that she will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations, and nor is the second named applicant.

Evidence before the Tribunal

Review application

25.On 25 June 2019, the applicants lodged an application for review of the delegate’s decision. They included with their application a copy of the delegate’s decision.

Pre-hearing evidence

On 3 August 2019 the applicant submitted a number of documents in support of their review:
•    A picture of the Thai Rak Thai party logo.
• Untranslated document purported to be an Initiation of Constitution document from 4 February 1997.
•    [Company] company outline.
•    Untranslated records claimed to indicate candidates for Thai Rak Thai in 2000, including [B].
•    Uncertified translation of a news article from 16 August 2015 including a photograph referring to [B] and [Mr C].
•    Uncertified translation of records of the Thailand House of Representatives meeting from October 2001.
•    Untranslated document claimed to be a notification of the Prime Minister’s office of the King’s Celebration naming [B].
•    ‘Thai junta to push eviction for special economic zones in northern border’, BioThai, undated.
•    Uncertified translation of information claimed to be about former Prime Minister Thaksin Shinawatra visiting [District 1] to inspect and promote the Thai Rak Thai party.
•    Uncertified translated information from a variety of sources regarding [District 1], [Mr C], Mr Shinawatra’s political history, the Deputy Minister of Interior, human trafficking into Thailand, smuggled goods, gambling, corruption, illegal labour smuggling, the Thai-Myanmar friendship bridge, and drug wars.
•    Uncertified translation of a document stated to be from 19 November 2006 although referring within it to 18 May 2003 and 18 March 2003 relating to the deaths of two people who transported products in [District 1].
‘DSI brewed the case to kill, excuse the two spouses, send the NCC’, Crime News Team, 7 May 2009.
•    Gay Alcorn and Margaret Simons, ‘Revealed: Thailand’s most senior human trafficking investigator to seek political asylum in Australia’, The Guardian, 10 December 2015.
•    Various photographs hand-marked with the names of people and information about how the applicant is connected to them.
On 3 April 2024 the applicant provided the Tribunal with a pre-hearing information form dated 2 April 2024. In that form the following information was included:
•    The death of the second named applicant’s father makes the second named applicant stressed and feel guilty until now.
•    The second named applicant had depression for one to two years and she felt bad she couldn’t go back to attend her father’s funeral. She started to look healthier in the middle of 2022 but now she is back to being stressed and sometimes having panic attacks because of the mafia. At Uthai Thani province the Deputy Minister of Interior has been appointed and he has been assigned the power to suppress the mafia network throughout the country. In the past this person eliminated people who were political rivals and government officials he did not like, just like using a gun to solve the problem.
•    The second named applicant witnessed a shooting incident when she was a teenager and now those horrifying scenes have come back to haunt her again.
On 3 April 2024 the applicant also provided the Tribunal with a number of documents. These were photographs of various government officials and politicians, stated to be [D], [B], [Ms E], and [Mr F]. The applicant stated in her correspondence the photographs are examples of the connections she relied on whilst working in Thailand almost twenty years ago.

The hearing

The applicant and the second named applicant appeared before the Tribunal on 30 September 2024 to give evidence and present arguments. The applicants were not represented in relation to the review.
The hearing was conducted with the assistance of an interpreter in the Thai and English languages. The Tribunal confirmed with the applicants they were able to understand the interpreter. The applicants were able to answer questions without hesitation and their answers demonstrated an understanding of the questions being put to them.
At the hearing the applicant provided the Tribunal with a newspaper article in the Thai language, stating it was a BBC article about a high-ranking officer seeking refuge in Australia in relation to their work in Thailand. The Tribunal requested the applicant provide the Tribunal with an English language translation or English version of the article.
At the commencement of the hearing the Tribunal discussed with the applicants their prehearing information form. The Tribunal explained the information in that document appeared to suggest the second named applicant was raising her own claims for protection, whilst also relying on the applicant’s claims. The Tribunal proposed both applicants have the opportunity to discuss their claims with the Tribunal in the absence of each other and proposed the second named applicant give evidence to the Tribunal first, subject to their
views and comment. The applicants agreed to this course of action, with the second named applicant giving evidence first, followed by the applicant.
The Tribunal is satisfied that the applicants had a reasonable and genuine opportunity to be heard, present their case, make submissions, and participate fully in the hearing. Where relevant, the applicants’ oral evidence to the Tribunal is referred to in the analysis below.

Post-hearing submissions and evidence

On 7 October 2024, the applicant provided the Tribunal with photographs she claims verify her brother has moved to [Country 1], as well as a social media screen grab indicating his graduation from [University 2] in [Year].
In a separate email to the Tribunal on 7 October 2024 the applicant also provided an English language version of the Thai BBC article she provided the Tribunal at hearing on 30 September 2024. That article, titled ‘Thailand trafficking: Top policeman seeks Australian asylum’ and dated 23 February 2022 refers to a policeman who led an investigation into human trafficking in Thailand having told the BBC he plans to seek political asylum in Australia following him quitting the Thai police a month earlier and after influential figures in Thailand implicated in trafficking wanted him killed. The article refers to him being appointed to investigate trafficking networks after the discovery of mass graves at migrant camps and the investigation being halted and wound up after five months by influential people in the government, military and police.
The applicant also provided the Tribunal on 7 October 2024 with a series of other news articles, pasted in Microsoft Word documents or attached as a PDF. The titles and dates of the material as referenced by the applicant are:
•    ‘Gen. T. T. Pawin Pongsirin: The chronology of The Rohingya human trafficking case that caused the former chief investigator to flee to Australia’, 25 April 2022.
•    ‘Thailand general jailed for human trafficking at mass trial’, 20 July 2017.
•    ‘Sakae Krang River Basin to Khlong Lamp “Chada Thaiset” Mafia Slayer’, undated.
The applicant referenced in their material of 7 October 2024 an article by Johnathan Head on human trafficking, which the Tribunal understands to be ‘Sold for ransom: on the trail of Thailand’s human traffickers’, BBC News, 22 May 2015. An article claimed to be about Chada Thaiset was also included, with Chada Thaiset stated by the applicant to be known as the Mafia at Uthai Thani Province and a politician of Phumjaithai Party and known to be close to King10.
With the information provided to the Tribunal on 7 October 2024 the applicant included a Word document titled ‘add more details’. In that document the applicant expanded on her claims as expressed at hearing and in her written claims. That document includes the following information/claims:
•    The reason for being threatened and intimidated came from the beginning of finding information about human trafficking, from the method of luring to forcing refugees out of the centre, escape routes, bribery methods, lists of participants in the process both in practice and accepting bribes by position in all three government agencies, military, police, administration, including the method of laundering illegal money (taking money through the temple, becoming donations), finding information about drugs, smuggling, illegal labour from Burma, including various corruption projects of local agencies.
Human trafficking is the most dangerous because it is a matter that is directly under the responsibility of the military, both soldiers in the area and soldiers from the 3rd Army (Phitsanulok Province - Naresuan Unit).
•    As for the situation of being threatened, she intended to explain it to give a picture on the hearing day, but when the day came, she really couldn't say it. She would like to explain more, starting from the destruction of things, the use of force (strangling), threatening words, insults, devaluation, and vulgarity. She still remembers everything (even though she wants to forget it very much), but she can't explain it. She can only say that she was forced to leave the area as soon as possible, otherwise she would come back and they would do what they threatened.
•    After that, [Mr C], who was close to the military, said that he would handle this problem, but he wanted her to return all the information to the military. However, she decided to refuse because she did not want [Mr C] to suffer from this matter. Even if she decided to stay, it did not mean that she would be safe. She was not sure when she would be eliminated.
•    She worked for the party. It should be the party’s duty to protect her. The party should receive information on this matter because this is not just a crime, but also a human rights issue. As a result, she decided to leave the area, return to Bangkok, and forward all the information to her supervisor ([G], secretary) and request a one month leave because she had never taken a day off during her entire employment. After that, she travelled back to Nakhon Phanom to take care of her mother who was sick (cancer).
•    During that time, about one to two months later, she found out that the information she sent might not be used for further investigation and might be returned to the military by making a copy. But one thing is for sure, her name and surname were disclosed to the military. When she found out, she called her supervisor to complain about how he could disclose the details of the source. It was a serious violation of ethics. This would be killing her while she was still alive. The leader informed her that other party executives (Mr. Phumtham Wechayachai) wanted to please the high-ranking military, did not want the military to be angry, was afraid that the military would revolt, the military would give whatever the military wanted, without considering the safety of her and her sources (the information included the names of the commander of the 3rd Army at that time, Phitsanulok, General Saprang Kalyanamitra, including the 1st and 2nd Army regions, and the names of many subordinates).
•    This matter made her feel bad about the people in the party, the working methods, and the vision of the party executives. So she came back to think and look at it from a new perspective, and question what exactly happened. Starting from the policy to suppress influential people and drugs, when receiving the information, they announced that the military and police could extrajudicially kill (shoot without investigating) those people. In the period of three months, there were almost 2,000 cases like this that were reported, but an unknown number were not reported. The real reason for the announcement might be a way to eliminate those who were involved so that they would not have the opportunity to report the real masterminds (the military and police executives).
•    The various crimes that happened were definitely because this group of people gave them the opportunity to happen. Until the disclosure of her name and information this time, everything was done to please those soldiers and police, for their own benefit.
•    She thought she would not be revolutionized, but in the end, she was revolutionized anyway. When she had the chance to go back to take care of her sick mother until she passed away, she crystallized that when the time came, she should let her go so that she would not have to suffer from the pain of that disease anymore. And it is not only the patients who suffer from the disease. The caregivers and children also suffer when they see the people they love in pain. Her aunt, who had always taken care of her mother, did not seem to be very sad on the day of her mother's funeral. She said that she had been sad since the day she found out that she had a serious illness. Now, she should be happy that she does not have to see her sister suffer anymore.
•    Another intention of her mother was to see her continue her studies. All of these things were the reasons that made it easier for her to decide to quit her job and come to study language in Australia. During the time she was living in Australia, she secretly changed her perspective from many perspectives until she came to the perspective that King Rama 10 and Thaksin were selfish in one way: keeping all the power for himself. King Rama 10 transferred all the power of the military to himself, while Thaksin himself never let the power of the party leader go to anyone other than his family, even if it meant destroying their families. Starting from his own family, his sister's family - Yingluck, his other sister's family - Yaowapha Wongsawat, Somchai Wongsawat, until now, his daughter's family, Paethongtarn, the hostage prime minister, who will make Thaksin not dare to come back to Thailand. And the reason he was able to return to Thailand was because King Rama 10 allowed him to return. He could return, it did not depend on Thaksin. As for King Rama 10, the reason he had to let Thaksin return was because he felt that he had lost power again.
•    The people really like the new political party. Even though the party that was established was dissolved and the party leader was removed, all the power he had was used. The rule of law and justice were all tarnished, but it did not make this party decline. So he thought of using Thaksin to pull the popularity of this party (1.Future Forward party, 2 Move Forward party, and now the people party). In fact, he forgot that Thaksin had lost popularity long ago because the people know that others cannot cheat, but Thaksin can. He forbids others from cheating because he will keep it to cheat himself.
•    Regarding the royal power of King Rama 10 (Vajiralongkorn), there is no point in demanding any changes in this reign. All the power lies with King Rama 10. Calling out now will only affect yourself and your family. Some lawyers are in jail and have to ask for donations to take care of themselves. Some have been laid off or their parents have been laid off. Some have had their property destroyed or were physically harmed many times, while the police did not care, or the police were involved in the harm.
•    She has attached an example of the impact of calling out. Overall, it is only the military and police who harm the people. She does not agree with the youth who come out to demand until they have lawsuits and are imprisoned because in the future, it will be very difficult to find a job in Thailand. Up until now, she has not seen anyone succeed in calling out. Everyone should be patient and just wait for the power to change hands. When that time comes, it is not too late to call out. Only time is on their side at this moment. She asks why do we fight against someone we know we will lose? She says to re-strategize. She also asks when the time is right, how can we play the game to achieve success as quickly as possible?
•    She used to wonder why it had to be Prayut Chan-o-cha who is not very smart or Prawit Wongsuwan whose health is so bad that he can barely walk, because King Rama 10 only wanted people who could follow orders successfully. They do not have to be very smart. You probably think that smart people are difficult to govern. This kind of thinking can be applied to the people as well. The smarter the person, the more they demand, and suppress them for as long as possible. When she thinks back to when she was in primary school, the words “Thailand is a developing country ”, even now, almost [Number] years later, it is still “a developing country”, nothing changed. But King Rama X probably did not care because no matter what, he still had enough to eat, to use, and to be comfortable as usual.
•    As for herself, she thinks it is more dangerous and riskier than being charged with Section 112 or other political asylum cases. Because she was being hunted by a powerful military group who chose to use dark power to deal with her. The term “dark power” does not only refer to the military, but also includes mafia groups, gangsters, etc. who have connections. Therefore, even though the old power is gone, the new power holders still have a duty to carry out orders successfully. Her being hunted did not end. The only thing she could do was to stay quiet while in Australia.
•    She understands the assessment method for applying for an asylum visa somewhat. There should be a police report, a lawsuit from Thailand, threats, evidence. If there isn’t any, there should be some. In her opinion, it seems very contradictory. If she wants peace and a safe place, but come out to call out, will she get peace or not? Will she be safe? Another thing is that she thinks that when she comes to live in another country (Australia), she should not cause problems or create too many problems.
•    Thailand and Australia have always had good relations. She should respect her host (Australia). She knows someone who received a refugee visa in Australia. [Mr H], who was a friend when she studied language at [College], but they haven't contacted each other for a long time, more than 10 years. If she were to contact him for advice or consultation, she would think that she would get useful information. Or even contacting the UNHCR for advice or supporting documents to increase credibility. But she didn't do that because she is confident that the words and stories she has told are all true without anyone having to guarantee them.
•    The last thing is about her return to Thailand. The average rate is 3 times in 10 years, from 2007-2016. But only 3 times, there were problems after returning 2 times, which is quite a serious problem in her opinion. If she had been caught in front of others, the second named applicant and she would definitely not have had the opportunity to come and ask for a refugee visa at this time.
•    The second named applicant, from 2009-present, fifteen years, she had the opportunity to return to Thailand only two times. And after the most recent return, that terrible incident happened to her father and her family, causing her to not even have the chance to pay her respects to her father's body.
•    In the two to three times that she and the second named applicant returned, there was still a chance to return to Australia. But this time, if they go back, they probably won't have the chance to return, and they won't have the chance to go anywhere else. The fear, anxiety, and various feelings that arise are completely different from the previous times. Being abducted is no longer a distant thing. Paranoia, not daring to meet people, having to move frequently because of fear, even getting a good night's sleep will be difficult for her and the second named applicant.
•    Her desire is nothing special. She just wants to live a normal life. There are some difficult days, some happy days, laugh and cry sometimes. She just wants a place where she can live safely and sleep soundly. That's all. She seeks consideration for the safety of her life and the life of the second named applicant.

Attached with the applicants’ information from 7 October 2024 was a PDF document titled
‘Home coup wounds: 10 years of using the family as a tool to suppress people’, dated 22
May 2024, and containing information stated to be from The101.world, a Thai site. The
information refers to young activists and former activists in Thailand, the conduct of police officers in relation to activists, the context of family with activism, the prosecution of political activists, and political activism in relation to the 2014 coup.
CONSIDERATION OF CLAIMS AND EVIDENCE

Criteria for 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

45.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.

REASONS AND FINDINGS

46.The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Receiving country and family unit

The applicants claim to be citizens of Thailand and provided a copy of the biodata pages of their Thailand passports to the Department. The delegate was satisfied that the applicants are using their own identity and that they are citizens of Thailand. The applicants presented their Thailand passports to the Tribunal at their hearing on 30 September 2024.
In the absence of evidence to the contrary, the Tribunal finds the applicants are citizens of Thailand and Thailand is their receiving country for the purposes of assessing their claims for protection.
The Tribunal is satisfied that the applicant and second named applicant are in a de facto relationship. The Tribunal is satisfied that the second named applicant is a member of the same family unit of the applicant as defined in s 5(1) of the Act.

Analysis, reasons and findings

In the hearing, the Tribunal discussed the applicant’s protection claims, what she claims occurred in Thailand, why she fears returning to Thailand, and her work, family, education, travel and residential history. The Tribunal also discussed with the second named applicant her claims for protection, why she fears returning to Thailand, her work and family history, and her mental health history.
The Tribunal has considered the applicants’ written and oral evidence throughout the process. Whilst the Tribunal is satisfied the applicants are drawing on personal experience in detailing the applicant’s role as a worker of the Thai Rak Thai party, the Tribunal finds the applicant has embellished the role she had within the Thai Rak Thai party as an investigator and reporter of sensitive and government information, including about human trafficking and missing refugees, and does not draw the same conclusions as the applicants as to their circumstances on return to Thailand owing to the applicant’s past work in Thailand.
At hearing the applicant advance the same claims as set out in her protection visa application and supporting evidence. She claimed she would be harmed on return to Thailand owing to her work with the Thai Rak Thai party, indicating from powerful highranking officials would believe she has information about them. She also raised general concerns about the mafia in Thailand, the democratic process, and her ability to express her political views. The applicant reiterated and expanded on these claims in her post-hearing evidence, stating the military have been provided with details of her name and documents from her prior work with Thai Rak Thai.
Whilst the second named applicant did not make any of her own claims for protection in the protection visa application, at hearing the second named applicant raised concerns about her safety in connection to the applicant’s past work with the Thai Rak Thai party. She also discussed with the Tribunal her concerns on return to Thailand in relation to the unlawful actions of people in power, referring to a shooting she witnessed as a teenager and the continuing power these people exert in Thailand. Whilst she did not spontaneously raise any mental health concerns on return to Thailand, the applicant indicated she did not want to experience mental health concerns again.
Each of these claims and the Tribunal’s analysis and findings are discussed in more detail below.

The applicant’s work with the Thai Rak Thai party

The applicant explained at hearing she grew up in Nakhom Phanom, Thailand, completed high school there, and then moved to Bangkok to compete her university studies. Towards the end of her university degree in [Year] she stated she moved to [District 1], where she commenced a role assisting the Thai Rak Thai local representatives to gain votes in the House of Representatives. She explained they lost the election, but she stayed on in [District 1]
to work for the Thai Rak Thai party, living there full time, and returning occasioning to Bangkok for work. She also explained she crossed the border a few times to Burma for her work.
The applicant provided the Tribunal in advance of the hearing with a number of documents relating to social justice and political issues in [District 1] and the surrounding borders between Thailand and Burma, and photographs and documents of various entities and individuals associated with the Thai Rak Thai party, the [District 1] area and Thailand politics. The Tribunal found it difficult to deduce from this material and across her pre-hearing written claims and evidence at her Departmental interview what specific role the applicant had in the Thai Rak Thai party and what her work involved in the [District 1] area. At hearing the Tribunal explored with the applicant what her work with the party involved and how the documentation she had provided to the Tribunal in support of her claims related to her claims.
In discussing her specific role in the party the applicant explained that the former Prime Minister did win and was able to form a government although the party didn’t win where she was based so she remained there to do strategy planning for the next election in order to win. She stated the party policies were about drugs, the mafia, and corruption, and she stayed in the area to get information about misconduct and crime.
When asked what specifically she did in her role she explained she obtained information or news about the route of drug trafficking, misconduct in government agencies, illegal acts, the behaviour of police or soldiers, foreign labour, the Burmese who crossed the border and worked illegally, and the importing and exporting of illegal agents. She stated in that area there were three refugee camps so she would look into information about the refugees who went missing from the camps and that with each case before reporting it to the party there must be evidence to support the case. The applicant provided no details in her evidence about how she worked across these broad areas, how specifically she obtained information, how she recorded or reported information, and what she did with information.
The applicant explained although she worked for the Thai Rak Thai party, she would travel into Burma through her connection with [Mr C] and his company [Company], who sold [product] to Burma. The Tribunal asked the applicant about the photographs and other documents she provided the Tribunal, including of people such as [D], [B], [Ms E] and [Mr F]. She stated she provided evidence of these individuals to illustrate she did work in the [District 1] area. She stated three of these people still live in [District 1] and she used to live there with them and have a connection with them. The applicant indicated she is not scared of the people in the photographs, and the photographs were provided to show the work she did. When asked if she had any other documentation of her specific role in Thai Rak Thai, including employment contracts or committee documents showing her name, she stated she did not and after the coup documents got destroyed.
In discussing Mr Thaksin Shinawatra, the leader of Thai Rak Thai and the party’s policies and what attracted her to work for the party and how the party connected with her own beliefs, the applicant stated she was just out of university and had competed a degree in media and he had a policy about anti-corruption and illegal drug use, and it felt good to have a chance to be a part of making society better. She explained he had a policy that was going to solve the route of problems of illegal drug corruption and foreign labour and it was a positive thing to do.
The applicant indicated she ceased working for Thai Rak Thai in February 2006, although she didn’t resign straight away. In February 2006 she returned to her hometown, where she remained whilst her mother passed away in April 2006. She explained after her mother’s funeral in July 2006 she moved to Bangkok. The applicant stated in February 2006 she no longer wanted to live in [District 1] and wasn’t going to return and her mother’s death made the decision to move to study easier.
The applicant outlined she lost confidence in the policies she was working on. She explained after reporting on corruption, some local informants she had worked with, including businesspeople and a small grocery mini mart owner were shot and accused of selling drugs. The applicant explained they were accused of selling drugs but only later on she realised their deaths were possibly due to the conflict or wanting to get rid of the source of information. The applicant stated in her oral evidence someone came to her office to threaten her and after that she no longer felt safe. The applicant explained they dug up some story about refugees that had gone missing, and she found out later that was a no-go zone, and she shouldn’t have done that.
In discussing the threat the applicant received in further detail she stated she found information and reported to the party about corruption and crime, and someone came and threatened her in her office saying they knew she did the report. The applicant explained they complained about her work on a story about missing refugee people and one thousand refugees had gone missing and when they came to threaten her in her office, they gave her a deadline to move out as soon as possible. She stated she knew she could not live in [District 1], and she no longer felt safe. The Tribunal queried with the applicant when she was threatened, to which she stated it was before deciding to return to her hometown and then Bangkok. The applicant did not outline who it was that threatened her, how the threat was made, and what was said to her. Nor did she provide specific details about the story of the refugees that she claims led to the threat.
The Tribunal asked the applicant whether she was threatened, intimidated, harassed, or persecuted at any other times in Thailand. She explained after the threat and consideration of the problems that happened to people around her, she didn’t want to do anything that is risky to herself and when she was told to move out, she did it quickly. She stated she is a careful person, and she doesn’t wait for bad things to happen to her, and she would rather leave problems first. The applicant did not outline in her oral evidence, nor in her posthearing submissions, any other instances of harm she experienced whilst working for the Thai Rak Thai party.
The Tribunal also discussed with the applicant the documentation she had provided to the Tribunal in relation to the deaths of suspected drug dealers in [District 1]. The Tribunal raised with the applicant that in that material the deaths of some of the businesspeople are stated to have occurred in May 2003, several years before she left the [District 1] area, and that she is not referred to in any way. In response she stated they were the source of her information and when they died, she didn’t connect the link straight away and only found out later they were being accused for what they had told her. She stated she didn’t realise it had happened because of her. The applicant outlined there would be no evidence referring to her as when finding news or information the source of the information must be kept secret so there was probably no evidence directing to her. The Tribunal did not find the applicant’s responses that she was connected to or responsible for their deaths persuasive in circumstances where she herself was not a target of harm at the time and where she was able to remain in the [District 1] area working for the Thai Rak Thai party for several years after the deaths of these individuals without issue.
When asked why she fears returning to Thailand and what will happen to her if she returns there the applicant stated she has a feeling of paranoia, and her father was a soldier and when a leader gives an order one must accomplish it. She stated the information she obtained in the past involved high-ranking soldiers, and she is fearful of being assaulted and disappearing without a trace. In response to the Tribunal asking who it is that will harm her on return to Thailand the applicant stated with the illegal conduct in [District 1], and the missing refugees, normally it’s the same group of people, soldiers, police who are the same group who have lost benefits from what she reported. She stated probably the high-ranking soldiers within this group and also the mafia. The applicant did not provide the Tribunal with any specific details in her response, including which soldiers, officials, police officers, or members of the mafia she fears harm from, whether they remain in Thailand, or if she had named any soldiers or officials or mafia members in her prior work that contributed to her fears on return to Thailand.
The second named applicant was similarly asked at hearing why she fears returning to Thailand. She stated she mainly fears harm give the applicant’s claims, although also discussed with the Tribunal general concerns relating to the abuse of power in Thailand, discussed in more detail below. When asked who would harm her on return to Thailand, the second named applicant stated the people in power that the applicant used to work with who were high ranking and that they didn’t specify who those people are, but they are connected to the applicant’s work in the past.
The Tribunal had concerns about the general nature of the applicant’s evidence throughout the process as to her role with the Thai Rak Thai party, the extent to which she worked on sensitive issues and with informants, how she named officials in her work in any way, and the extent to which she claimed she was and would be a target of harm due to her former work for the party. The Tribunal formed the impression the applicant worked for the Thai Rak Thai party, including in the [District 1] area given her knowledge of the area and the individuals involved in the party, but that she had exaggerated the extent of her political profile, investigative role within the Thai Rak Thai party, and the degree to which she worked on sensitive matters given the limited information she was able to provide the Tribunal about what it was she specifically investigated and reported on within the broad issues she spoke about as occurring in [District 1] and within the policy ambit of the Thai Rak Thai party, how she conducted her work, why she would be at risk of harm on return to Thailand in the future, and who it is that would target her or seek her out on return to Thailand and why.
The applicant’s pre-hearing written evidence provides a broad survey of a multitude of issues occurring in the [District 1] area, including human trafficking into Thailand, smuggled goods, gambling, corruption, illegal labour smuggling, and drug wars. At hearing the applicant explained she obtained information on missing refugees, drug trafficking routes, government misconduct, illegal acts, the behaviour of police, foreign labour, and illegal Burmese workers. When pushed to explain what her specific role in Thai Rak Thai was, the applicant was unable to describe what was involved in her work beyond providing a general overview of the type of information she obtained. Across the hearing the applicant referred to obtaining information about and working on a story on refugees who had gone missing, although in referring to this in her oral evidence she was unable to provide any specific details about what this investigative work involved, how she undertook that work, how she obtained information, what was sensitive about it, and whether she named specific people who were complicit in specific behaviours of concern to the Thai Rak Thai party.
The Tribunal did not ascertain from her evidence how she obtained and recorded information, what specific information she was documenting or maintaining, who she was giving that information to on a day to day basis and for what purpose, and what was done with that information by the Thai Rak Thai party. The applicant did not indicate who it was that threatened her in her office, whether she had named that individual in some way in any information or reports, and who specifically it is that she fears would harm her on return to Thailand. The Tribunal was left without a clear sense of how the applicant reported on corrupt or illegal activity within her Thai Rak Thai role, what that activity was, and why anyone would still be interested in her now, more than eighteen years later.

The Tribunal raised with the applicant at hearing its concern that it may find she has exaggerated and embellished her role within the Thai Rak Thai party as an investigative informant and a person connected to government officials and politicians given her answers as to how she operated in her role, functioned in the Thai Rak Thai party in an official capacity, and who she specifically fears harm from were largely general and devoid of specific detail, and considering the absence of any documentary evidence in relation to any official role she had with the Thai Rak Thai party or any party committees. The Tribunal explained it may find on her evidence she did not have a significant public or political profile, that she was not well known amongst political, government, or military figures, that she would not be considered an ongoing threat to anyone, and that she would not face a real chance of serious or significant harm on return to Thailand given her past work with the Thai Rak Thai party.
In response the applicant stated she has explained about her role in more detail, and she didn’t keep evidence as she didn’t believe she would need to use it later. She indicated the photographs she has provided are of party candidates, the daughter of a military leader, and that she used to get information from these people. She explained she sent all the paper evidence to the party but the person who keeps targeting her thinks she kept some evidence, and they don’t know how she works so she thinks it is a possibility they think that. The Tribunal considered the applicant’s response and did not find it alleviated its concerns.
In her post-hearing submissions of 7 October 2024 the applicant provides a broad outline as to why she was threatened and intimidated in relation to her role in finding out information about human trafficking. She also claims she was asked to return all information to the military, and that after she left the [District 1] area she forwarded all information to her supervisor, only to be informed one to two months later that the information she sent might not be used for further investigation and might be returned to the military and that her name and surname was disclosed to the military. She states in that document that the information included the names of the commander of the third army at that time, General Saprang Kalyanamitra, including the 1^st and 2^nd army regions, and the names of many subordinates.
Whilst the applicant expands in her post-hearing submissions on the information she claims she sought when working in the Thai Rak Thai party, listing that she would find information on escape routes, bribery methods, lists of participants across government agencies, the method of laundering illegal money, drugs, smuggling, illegal labour, and corruption, as with her oral evidence, the information provided by the applicant post hearing contains no persuasive details as to how she undertook these tasks and what specific information she obtained. Her claim she forwarded information to her supervisor and was subsequently exposed to the military similarly lacks any persuasive and specific detail as to what information was forwarded from her role in Thai Rak Thai, what she reported about and that contained her name, and what specifically she was working on that was sensitive involving General Saprang Kalyanamitra, the 1^st and 2^nd army regions, and any subordinates. The Tribunal finds the applicant has attempted in her post-hearing submissions to overcome the concerns raised by the Tribunal at hearing about the lack of detail contained in her evidence throughout the process. The lack of persuasive personal detail in the applicant’s post-
hearing submissions about her specific Thai Rak Thai work furthers the Tribunal’s concerns as raised with her at hearing that she has embellished her role in the Thai Rak Thai party as an on the ground investigator and reporter and do not overcome the Tribunal’s concerns.
The Tribunal has considered the supporting evidence the applicant provided the Tribunal on 7 October 2024 and does not find this material overcomes the Tribunal’s concerns as raised with the applicant at hearing. The reports relating to Paween Pongsirin refer to his appointment as a police investigator of trafficking networks that resulted in more than one hundred and fifty arrest warrants, including for politicians, policemen and military figures. The Tribunal finds the applicant’s profile and work within the Thai Rak Thai party to be significantly different to Paween Pongsirin, who was a leading appointed police investigator. The articles referring to human trafficking and political activism are broad overviews. The articles provided by the applicant to not refer to her in any way, and do not alleviate the Tribunal’s concerns as to the specific role the applicant had in the Thai Rak Thai party and the nature of her activities in [District 1] and its surrounds.
The Tribunal has considered the applicant’s oral and written evidence throughout the process, her response to its concerns, and her post-hearing submissions and supporting evidence. The Tribunal accepts given the passage of time the applicant may not have kept records from her employment from almost twenty years ago. The Tribunal accepts the applicant worked for the Thai Rak Thai party between [Year] and February 2006, including in the [District 1] area. The Tribunal is prepared to accept the applicant worked alongside [D], [B], [Ms E], and [Mr F] as part of her role at Thai Rak Thai and that as a party worker she had some connection at times within the government and with political parties. The applicant has provided photographs of herself undertaking work in the uniform of the Thai Rak Thai party, as well as photographs and detailed information about each of the individuals stated above, demonstrating a degree of understanding of their roles and the political history in [District 1] and of contact with them.
Whilst the Tribunal accepts the applicant worked for the Thai Rak Thai party from [Year] to
2006, and that this work included exposure to refugee communities in the areas surrounding [District 1], for the reasons outlined above, the Tribunal was not persuaded by the applicant’s evidence that she performed high level investigative work for the party that involved reporting on high-ranking officials or that she had a significant profile within the party for that purpose. The Tribunal does not accept that the applicant was known amongst the military, politicians, or other officials in respect of any specific political profile or sensitive undercover and reporting work for the Thai Rak Thai party. The Tribunal finds the applicant had a low level community role within the Thai Rak Thai party across [Year] to February 2006. Given this, the Tribunal does not accept the applicant provided her supervisor or anyone else with any documents, reports, or investigative materials related to any sensitive issues in the [District 1] area or anywhere else or that any documents or materials the applicant worked on whilst a Thai Rak Thai party member were provided to the military or that her name was exposed to the military for any reason. The Tribunal does not accept the applicant named General Saprong Kalyanamitra, the 1^st and 2^nd army regions, or any of their subordinates in any materials in relation to any sensitive matters, including relating to any missing refugees.
At hearing the applicant provided limited details about the nature in which she was threatened throughout her work in [District 1]. She did not detail who it was that threatened her, the specific information or report over which she was threatened, and specifically why any information over which she was threatened was sensitive. In her post-hearing submissions the applicant outlines she intended to explain at hearing how she was threatened in [District 1] before she left the area, however, she was unable to do so at the time. In that document she claims there was the use of force (strangling), threatening words, insults, devaluation, and vulgarity when she was threatened.
Whilst the Tribunal has some reservations about the applicant’s claim she was threatened, including by whom she was threatened and why she was threatened given the limited details in the applicant’s claims, as outlined above, the Tribunal cannot find with confidence that a threat would not have been made to a worker of the Thai Rak Thai party in early 2006 given the political instability occurring in Thailand across 2005-2006 and the coup that ultimately led to the overthrow of the party and Prime Minister Thaksin Shinawatra that occurred later in 2006[1]. The Tribunal proceeds on the basis the applicant was threatened to leave the [District 1] area in early 2006 given her general work with the Thai Rak Thai party, although does not accept given the limited details the applicant was able to provide the Tribunal about her specific role at Thai Rak Thai, including in relation to investigations of missing refugees and how she obtained, recorded, and reported any information, or who it was that threatened her, that she was threatened in early 2006 over any investigative role she had performed, a specific report, document or information she had produced for the Thai Rak Thai party, or in connection to any specific individual she had named in any material.
[1] Department of Foreign Affairs and Trade Country Information Report – Thailand, 18 December 2023, 2.3, 6.
On the evidence before it, where the applicant provided limited details about the single threat that occurred in 2006, and where the applicant did not outline in her oral evidence that she was threatened or harmed in any other way in relation to her Thai Rak Thai work, the Tribunal does not accept the applicant was intimidated, harassed, threatened, or harmed on any other occasion in Thailand owing to her work with the Thai Rak Thai party, other than the single threat she received to leave the [District 1] area in early 2006.
The Tribunal is prepared to accept three people in the [District 1] area were killed whilst the applicant was working for the Thai Rak Thai party. In circumstances where the applicant provided limited details of her direct involvement with informants, two of the individuals are reported to have been killed in May 2003 and the applicant continued to work in the [District 1] area without threat or harm for more than two years after their deaths, and the Tribunal has found the applicant was a low level party worker who did not undertake investigative work for the party, the Tribunal finds on the evidence before it the individuals killed in the [District 1] area were not known to the applicant owing to any informant role they had with her, and that they were not killed due to any role in providing information to the applicant.
The Tribunal raised with the applicant at hearing it has been over eighteen years since the overthrow of Thaksin Shinawatra and since she claimed to have undertaken work with the Thai Rak Thai party. The Tribunal explained given the passage of time since she undertook her work in Thailand, was last in Thailand, and given her evidence about the work she undertook, and that she has not continued any political work or agitation, it may find that she would not be perceived as an ongoing threat to anyone, and will not face a real chance of serious or significant harm from anyone on return to Thailand in the reasonably foreseeable future for any reason, including in respect of her past political work.
In response the applicant stated she doesn’t have any problems with any politicians, police, or soldiers, and just the bad guys who still think she has evidence to prove them wrong about something and that she kept the evidence. She stated back then because of her little work experience she touched on some topics that were beyond her capacity and got involved in things too far. The Tribunal considered the applicant’s response and did not find it persuasive in circumstances where the applicant could not identify who it was that would harm her, what specific evidence she is believed to have, and why anyone would be concerned about that information eighteen years later. As outlined above, the Tribunal considered the applicant’s post-hearing submissions and evidence and given the lack of specific detail provided in that documentation does not find it overcomes the Tribunal’s concerns.
The Tribunal also discussed with the applicant country information before it that indicates Mr Shinawatra has returned to Thailand from exile, has been pardoned, and is freely in the community[2], and that his daughter has recently been elected as the Prime Minister in August 2024³. It explained given the changed political context in Thailand, the Tribunal may find the applicant would not face a real chance of serious or significant harm on return to Thailand in the reasonably foreseeable future given her past work for the Thai Rak Thai party. In response the applicant stated Thaksin can’t do anything freely and is bound by the control of the royal family so he can’t take action like he used to in the past and his daughter is held hostage not as a Prime Minister. The Tribunal did not find the applicant’s response alleviated its concern as to whether she would face a real chance of serious or significant harm on return to Thailand in relation to work she undertook for the Thai Rak Thai party in circumstances where its former leader had been pardoned and remained in the Thailand community and his daughter has recently been elected the Prime Minister. The applicant’s post-hearing submissions reiterated her claims Mr Shinawatra is under the control of the King. The Tribunal considered the applicant’s post-hearing submissions and evidence and finds it does not alleviate the Tribunal’s concerns as raised with the applicant at hearing.

The applicants’ travel to Thailand across 2009-2016

[2] ‘Thailand: Former PM Thaksin Shinawatra receives royal pardon’, DW, 17 August 2024. ³ ‘Ex-PM’s daughter picked as youngest ever Thai leader’, BBC, 16 August 2024; ‘Thailand’s new prime minister renews the legacy of her father, Thaksin Shinawatra’, NPR, 16 August 2024.

In her protection visa application the applicant indicated she travelled back to Thailand from Australia between [February] 2009 and [March] 2009, [May] 2012 and [July] 2012, and [January] 2016 and [February] 2016. The Tribunal explored with the applicant at hearing where she went on those trips and what occurred on them. The second named applicant also gave evidence at hearing about her return travel to Thailand.
The applicant explained she has an apartment in Bangkok but on the first trip back to Thailand in 2009 she went to visit her younger brother in [Location]. She explained after visiting her brother he was hassled and after a year he moved to [Country 1]. In discussing this in more detail with the applicant she stated her brother’s wife told her someone came looking for her at her brother’s place asking for her and damaged the front of the house, throwing rocks at it, not allowing her brother to live a normal life, and maybe issued a threat.
The applicant didn’t provide any details in her evidence as to who it was that hassled her brother, what they wanted with her, and why they were looking for her. Her evidence was uncertain as to whether any threat was issued in relation to her. When the Tribunal raised its concern with the applicant as to how she knew her brother was being hassled in relation to her, she stated the person came to look for her, even though they didn’t meet her they kept harassing her brother and it led him to eventually move. The applicant’s response, which was vague and devoid of information about who was looking for her and what they said and did, did not alleviate the Tribunal’s concern as to her knowledge about whether her brother had been hassled or threatened in relation to her.
The applicant’s evidence that her brother was threatened and hassled by someone in 2009, leading to him moving from his residence, is nevertheless consistent with her evidence at her Departmental interview. The Tribunal is prepared to accept the applicant’s brother was hassled after the applicant’s 2009 visit to Thailand. In her 7 October 2024 post-hearing evidence the applicant provided the Tribunal with photographs claimed to be of her brother having moved to [Country 1]. The Tribunal accepts after her brother was hassled and threatened, he moved to [Country 1].
The Tribunal has found, as outlined above, that the applicant had a low level role in the Thai Rak Thai party. On her own evidence, the applicant was able to return to Thailand and visit her brother for a period of almost four weeks in 2009 without issue. Considering these factors and given the limited details in the applicant’s evidence about who asked about her at her brother’s address, why they were asking about her, and why her brother was being hassled, the Tribunal does not accept the person hassling the applicant’s brother was connected to her personally, either in [District 1] or through her former employment, or that anyone hassling or threatening the applicant’s brother in 2009 asked about her.
The Tribunal finds the applicant was not threatened, harassed, persecuted, or harmed on her visit to Thailand between [February] 2009 and [March] 2009.
The Tribunal accepts the applicant travelled to Thailand from Australia between [May] 2012 and [July] 2012. The applicant explained the second named applicant wanted to return to Bangkok to see her family and so she travelled with her but did not visit her own family or brother or stay in Bangkok. In discussing this trip the applicant explained nothing happened to her as she was always on the move and staying three to five days in a hotel and using cash. Although not without reservations, the Tribunal is prepared to accept the applicant stayed in hotels on her 2012 return trip to Thailand in the countryside outside of Bangkok. The Tribunal accepts the applicant and the second named applicant were not harmed throughout the duration of their stay in Thailand between [May] 2012 and [July] 2012.
In relation to the applicants’ trip back to Thailand between [January] 2016 and [February] 2016, the applicant explained she thought some time had passed so she decided to go home. She explained [Mr C], who had assisted her with her work in [District 1], had passed away in 2012 and she wanted to pay respect to his body and spend some time in Bangkok. In describing where specifically she travelled to on this trip the applicant stated she went to Bangkok then [District 1] for one night, then Uthai Thani to stay with the second named applicant in her house, and then Bangkok.
The Tribunal asked the applicant if she experienced any harm, intimidation, or harassment on her 2016 return trip to Thailand. In response she explained her car was smashed in [District 1]. When asked why she believes her car damage was a threat or connected to her past work, the applicant explained her car was parked in front of the hotel area and what happened was someone reversed their car and hit it and the light was smashed and there was deliberate damage to the car. She explained from her experience in working in the news she knew how powerful people and gangsters operate and this was something along those lines. She stated [Mr C] was an influencer in the area and knowing his people and how he operated he influenced others. The Tribunal queried why the applicant was concerned about [Mr C]’s influence given her claim he had helped her travel between various areas in the [District 1] area. In response the applicant confirmed as she wasn’t a local, she had used his connections and power to refer her to her source of information and he did help her, and she owes him a debt of gratitude, but she also knows how he ordered his people and how he trained them to deal with things. The second named applicant also outlined in her evidence that the applicant received a threat in the Tak Province in Thailand before she arrived in her hometown on the 2016 trip, with the applicant’s car being damaged in a continuation of her being targeted and attacked.

The applicants raised broader concerns in their written and oral evidence about general security issues in Thailand, including potential harm from the mafia, politicians, and the appointment of the Deputy Minister of Interior in Uthai Thani. On 7 October 2024 the applicants provided the Tribunal with articles related to Chada Thaiset, claimed by the applicants to be the mafia in Uthai Thani and a politician of the Phumjaithai Party with strong connections to King 10. As outlined above, the Tribunal raised with the applicants that the security situation in Thailand is generally stable, and it did not appear they were the target of harm from anyone in relation to their general security concerns on return to Thailand. The Tribunal did not find the applicant’s responses referring to Paween Pongsirin and her own past work with the Thai Rak Thai party, or the general supporting evidence the applicants provided the Tribunal in respect of their claims, to be persuasive that they would be a target of harm from Chada Thaiset, the mafia, politicians, or anyone else on return to Thailand in the reasonably foreseeable future.
The second named applicant witnessed a shooting as a teenager although has not been the ongoing target of any harm in Thailand for any reason. Other than the single threat made against the applicant in 2006 to leave the [District 1] area, the Tribunal has found the applicant did not experience any other intimidation, harassment, or harm within Thailand for any reason. The Tribunal finds the applicants were not the target of harm from the mafia, soldiers, politicians, or anyone else before their departure from Thailand to Australia and were not the target of harm for any reason from anyone on any of their return trips to Thailand.
Considering the applicants’ profiles and individual circumstances, their evidence throughout the process, their claims individually and cumulatively, and the country information set out above and as discussed with the applicants at hearing, the Tribunal finds there is no real chance the applicants will face serious harm in relation to the general security situation in Thailand, or from the mafia, soldiers, politicians, or Chada Thaiset the Deputy Minister of Interior in Uthai Thani or from anyone connected to them in the reasonably foreseeable future on return to Thailand, including Bangkok.
The Tribunal has accepted the second named applicant has experienced mental health symptoms in the past. At hearing the second named applicant discussed her grief in relation to her father’s death and explained she had obtained medical assistance from a general doctor. Whilst the Tribunal appreciates the second named applicant experienced mental health symptoms after the death of her father and that she does not want to experience an exacerbation of those symptoms on return to Thailand, as raised with the applicant at hearing, the Tribunal finds the applicant’s mental health concerns on return to Thailand are not for a s 5J(1)(a) reason and that they do not amount to serious harm in accordance with s 5J(5).
The Tribunal has accepted the applicant holds political beliefs and that she broadly believes in social justice issues and democracy. Whilst the applicant did not confirm she would express her political views on return to Thailand, she stated she had limited the expression of her beliefs out of fear, both in Thailand and in Australia. The Tribunal is mindful the applicant is not required, and cannot be expected, to take reasonable steps to avoid persecutory harm in relation to the expression of her political views or live discreetly on return to Thailand to avoid such harm[11].
[11] Appellant S395/2002 v MIMA (2003) 216 CLR 473.
The Tribunal has considered the manner in which the applicant will express her political views on return to Thailand and whether she faces a real chance of serious harm for holding or expressing her political views. The Tribunal struggled to ascertain from the applicant’s oral evidence at hearing a strong sense of what her political beliefs entail. She spoke of democracy and of wanting to make a positive difference in the community. In response to the Tribunal asking what political views she would want to express in Thailand she stated there is no truly right or wrong thing who gets benefits. In discussing whether she would express her political views on return to Thailand she referred to people in Australia being yellow shirts and red shirts and how she may gain some support, but she may also create some enemies. The applicant did not indicate specific support for any political party, policies, or indicate that she holds clear views in opposition to the monarchy, or that she wished to express such views.
As raised with the applicant at hearing and outlined above, the country information indicates ordinary citizens are generally not at risk of official or societal discrimination or violence on the basis of political opinion. The exceptions relate to sensitive or controversial matters, including opinions involving the monarchy. The Tribunal has found the applicant does not hold sensitive or controversial political views or political convictions in opposition to the monarchy.
The Tribunal has considered the applicant’s evidence throughout the process, her responses to its concerns, the country information referred to above and as discussed with the applicant at hearing, and the Tribunal’s findings, as set out above. Whilst the applicant has indicated she has been fearful to express her political views on return to Thailand, and that she has stayed quiet while in Australia, the Tribunal finds on the evidence before it and having considered its findings as to the nature of her political views and political convictions, the applicant can express her political views freely and without harm on return to Thailand. The Tribunal finds she does not hold views in opposition to the monarchy, that she will not need to modify her behaviour in any way to avoid a real chance of persecution, such as concealing her true political beliefs or altering her true political beliefs, and that she will not face a real chance of serious harm on return to Thailand in the reasonably foreseeable future for reason of her political opinion and the continued expression of her political beliefs.
The applicants did not claim, and there is nothing in the material to suggest, that they fear persecution for any other reason in Thailand.
For the reasons given above, and having considered the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that if the applicants return to Thailand now or in the reasonably foreseeable future that they face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicants have a well-founded fear of persecution, the applicants do not meet the definition of refugee in s 5H(1) and do not satisfy the criterion set out in s 36(2)(a).

Do the applicants satisfy the complementary protection criterion for protection?

Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand.
For the reasons set out above, the Tribunal has found that there is not a real chance that the applicants will experience harm in relation to the applicant’s past work with the Thai Rak Thai party, or from the mafia, high ranking soldiers, the police, politicians, Chada Thaiset, the Deputy Minister of Interior, the military, or generally in relation to the security situation in Thailand for any reason if they return to Thailand. Nor has the Tribunal found that there is a real chance that the applicants will experience harm for reason of the applicant’s political opinion or in relation to the continued expression of the applicant’s political beliefs. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[12]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicants do not face a real risk of significant harm for any reason.
[12] MIAC v SZQRB [2013] FCAFC 33.
As discussed above, the second named applicant raised concerns about her mental health on return to Thailand. As raised with the second named applicant at hearing, country information before the Tribunal indicates mental health services are available in Thailand. Whilst these services may not be as abundant as they are in Australia, the Tribunal finds there is no intentional act on the part of anyone or any groups to cause the second named applicant harm on return to Thailand in respect of her mental health, and that her mental health concerns on return to Thailand do not amount to significant harm in accordance with s 36(2A) of the Act.
On the evidence before it, whilst the Tribunal is sympathetic to the applicants’ circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, there is a real risk that they will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to Thailand that they will be arbitrarily deprived of their lives or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal is therefore not satisfied the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

Conclusion

For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

DECISION

159. The Tribunal affirms the decision under review.

Date of hearing: 30 September 2024
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.

…

Respondent:	Minister for Home Affairs
Tribunal Number:	1916734
Tribunal:	General Member R Johnston
Date:	28 October 2024
Place:	Sydney
Decision:	The Tribunal affirms the decision under review.

…
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