1917663 (Refugee)

1917663 (Refugee) [2022] AATA 960 (16 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917663
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Amanda Paxton
DATE:16 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 February 2022 at 1:26pm
CATCHWORDS
REFUGEE – Protection visa – Thailand – member of debt collector group – new claim of inability to repay debt – assaulted by money lender – agricultural family – credibility issues – evidence limited, general, lacking in specificity and hesitant – period of unlawfulness in Australia – delay in protection application – unaware of contents of protection application – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Thailand, applied for the visa on 1 September 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 2 July 2019, the applicant validly applied to the Tribunal for a review of the delegate’s decision to refuse the protection visa, attaching the delegate’s decision record and notification of the Department’s decision.
The applicant appeared before the Tribunal on 20 January 2022 to give evidence and present arguments in relation to his application. The Tribunal exercised its discretion to hold the hearing by MS Teams video. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The applicant did not raise any concerns as to conducting the review hearing by video and confirmed his ability to do so. His representative joined the hearing using the same device.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages also on MS Teams. Both the applicant and the interpreter indicated that they had no difficulty understanding each other.
The video was clear throughout the hearing and the applicant’s answers were appropriate. The Tribunal was satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Thailand and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Written claims for protection
According to the applicant’s Form 866C, Application for a protection visa, [1] and confirmed at hearing, the applicant was born on [date], Chiang Rai, Thailand.
[1] AAT 1917663, [Department file number], Doc Id. [number], 1 September 2018.
According to the applicant’s Form 866C, he departed Thailand on 18 June 2015 and arrived in Australia on 19 June 2015, at Sydney.
According to the applicant’s Form 866C, he helped in the family business in Thailand. He claimed he left Thailand because he wanted to start a new life because he used to be in a group of debt collectors, but when he tried to leave the group, they asked him to pay them money and threatened to beat him if he did not pay. He claimed he was harmed in Thailand because when he left the group, the other group members looked for him and beat him and asked him not to leave the group. The applicant sought advice in Thailand and almost committed suicide because he couldn’t take anymore. He tried to seek safety by moving to another part of the country, but they kept looking for him because the group has members everywhere. He fears that if he returns to Thailand, he will face the same thing he faced before. He thinks that if he goes back, he will be treated the same way. The group probably will kill him.
The applicant does not think the authorities can and will protect him because this group always does things behind the authorities, and they will probably beat him before the authorities arrive.
He claims he can’t relocate in Thailand because the group members are everywhere, and he therefore chose to leave and start his new life.
Relevant Country information
In the following assessment, the Tribunal has taken into account country information provided by the DFAT Country Information Report for Thailand (‘the DFAT Report’), dated 10 July 2020.[2]
Victims of Loan Sharks
1.1     In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.
1.2     So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.
1.3     DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.
[2] DFAT Country Information Report Thailand, 10 July 2020.
Analysis and Reasons
At hearing the applicant stated that he had received help from someone to complete the application and as far as he is aware it was correct, but he is not sure because he did not see the application and his English is not good.
The applicant provided personal information at hearing that departed in many respects from that provided in his Form 866C. The Tribunal acknowledges that the applicant indicated uncertainty about the accuracy of his application because it was completed by someone else and accepts the applicant’s oral testimony as follows as more reliable. As above, the applicant was born on [date] in Chiang Rai province. He stated that his parents are farmers in the hill area of Chiang Rai and members of a minority group. He is in contact with them but not frequently because they need help with the technology and do not read.
The Tribunal accepts that contrary to information in his application, he has many siblings, some in Chiang Rai, and others in different provinces. His [sister] is in Australia, having arrived sometime after he did.
According to the applicant at hearing, he is formally married; he and his spouse have signed a marriage certificate but his spouse lives in Thailand and now has another partner. He has no children.
The applicant gave evidence that he travelled to Australia on a Student visa, but did not intend to study and planned to work. He arrived when he was almost [age] years old and sought out people he knew working here. He worked on a farm and used to move around with the work, but through the COVID-19 pandemic, he has remained in [Town 1] working on a [farm], because they do not have enough employees.
His visa was to last 2 years and 8 months, but it was cancelled because he did not study. He is unsure when it was cancelled because he did not check. He has not departed Australia since his first arrival.
At hearing the applicant indicated that his claims to fear harm on return to Thailand centre around repayment of debt. When it was put to the applicant that this is a new claim and is not consistent with the claims in the Form 866C, which as set out above are related to his membership of a debt collector group, he stated that the written claims were not correct; he had told the person assisting him about his debt, but he is not certain if the person added anything or not. He could not check because his English was poor. On the evidence of the applicant, the Tribunal does not accept the applicant’s written claim to fear harm because he belonged to a group of debt collectors, and when he tried to leave the group, they threatened to beat him if he did not pay them money.
The Tribunal accepts the applicant was not aware of the contents of his application, and that it would not be easy for him to check given his English is poor. However, the Tribunal would expect that if the applicant faces a real chance of serious harm or a real risk of significant harm on return to Thailand that he would seek to ensure that the contents of the application were correct. The applicant’s failure to do so raises serious concerns about the credibility of the applicant’s claims.
The applicant’s responses to enquiry about his life in Thailand were open and direct and on this basis the Tribunal accepts his evidence that when he left school, he helped his parents on their farm where produce [varied] from year to year depending on price and demand.
However, the applicant’s responses to Tribunal questions about the reason for his travel to Australia in 2015 were very limited, general, lacking in specificity and hesitant. When asked the reasons he came to Australia the applicant said it was because he had to leave Thailand. When asked why, he said that someone hurt him. When prompted for more information, the applicant hesitated and using general terms said, “Several things, the poor have to take out a loan.” When asked to expand, he said that “in Thailand if you take a loan from outside system, they will come to hurt you. If he continued to stay in Thailand, they would try to hurt him, because he does not have money to pay back.” Given the significance of these matters to the applicant’s claims and noting that the applicant was invited to elaborate, the Tribunal would expect the applicant would be able to provide more detail about these circumstances if they had occurred as claimed. For this reason, his responses raised serious doubts for the Tribunal about the credibility of these claims.
The Tribunal sought more information about this situation but had difficulty eliciting any detail from the applicant. He said he borrowed money to study and do other things. When the Tribunal asked how much he hesitated before responding around [amount] Thai Baht (AUD [amount]). In response to enquiry who he had borrowed from, he stated “someone he knew that lent money.” He was not able to provide the Tribunal with any specific information about the terms of the loan or the lender. He stated first that he does not remember the name of the lender, later adding that the name was in his hometown language. The Tribunal acknowledges that these events occurred over six years ago, and that memory can lapse. The Tribunal also acknowledges information provided by the applicant’s representative’s that a dialect is also spoken in his hometown which may complicate the name of the lender. However, the Tribunal would expect that the applicant could provide more information about matters as significant as the loan and the lender if he had taken out a loan as claimed. The applicant’s limited responses about the loan raised further concerns about the credibility of his claims.
The applicant stated that he did not have to provide any security for the loan, but he showed his national security card and signed a contract. He said he does not have a copy of the contract, and he probably threw it away when he came to Australia, when he threw everything out. The Tribunal found the applicant’ evidence that he disposed of the contract in this way was unconvincing. Considering this debt forms the basis of the applicant’s claim for protection, the Tribunal would expect that the applicant would retain some record of the matter, leading the Tribunal to doubt the applicant had obtained a loan as claimed.
The applicant told the Tribunal that if he returns to Thailand, they will find him and hurt him. When prompted for more information, he stated that about a year before coming to Australia someone hit him. He said he received treatment at hospital and almost lost the sight in one eye. When asked for more detail, he stated that the person who hit him was working as a debt collector. When the Tribunal asked if the applicant went to the police after this incident, he stated that he did not because there was no point in reporting it because the money was borrowed outside the system so he would not be protected. However, later at hearing, the applicant said he reported this incident to the police who said they would follow-up, but nothing came of it and he was told to keep waiting. The Tribunal considers the applicant’s evidence in respect of this claimed assault limited and inconsistent. On this basis, the Tribunal has serious doubts about the credibility of the applicant’s claim to have been hit by someone working as a debt collector.
In considering whether the applicant has a real chance of serious harm or a real risk of significant harm from debt collectors on return to Thailand, the Tribunal also takes into account that there was a long gap between the applicant’s arrival in Australia and his current application, and a period of unlawfulness, noting that the applicant arrived in Australia in June 2015 and lodged his application for protection in September 2018. When asked about this delay, the applicant said he applied in 2018 “because if you don’t have a visa, you can’t travel around to get work and sometimes there is no work, and someone recommended that he apply for this visa.” He stated that he “had no idea whatsoever about the visa, he was told he could apply for this visa and he could work here and pay tax.” Later he said that he waited until 2018 because he did not know about this visa earlier. The Tribunal suggested that he could have enquired about visa options with people he worked with if he feared harm on return to Thailand. He stated that other Thais also had language barriers and don’t have a clue, it was only when he found someone with better command of English that he learnt about the protection visa. The applicant’s representative also submitted that the applicant has been living in the [Town 1] area since his arrival where until recently there has been no-one to provide affordable professional help to clients such as the applicant.

The Tribunal acknowledges that resources to assist protection visa applicants may be more limited in regional areas but considers that information about visas is readily available on-line and that information would have been available to the applicant should he have made any enquiry. The Tribunal considers that the applicant’s reasons for delay in applying for a protection visa do not indicate that he felt any urgency to seek to remain in Australia and do not support the conclusion that the applicant fears return to Thailand for the reasons claimed. In the view of the Tribunal, the applicant’s delay in lodging a protection visa application does not support a finding that the applicant’s claims for protection should be accepted.
When the Tribunal pressed the applicant to provide further details about the loan, he stated that it was his mother who first borrowed the money and that she looked after the debt. He did not recall the detail but indicated that this borrowing started when he was in high school and had to travel to study in the main town. In considering this, the Tribunal takes into account the independent country information above discussed at hearing, that debt in rural agricultural areas is high and short-term loans from informal moneylenders are commonly used by farmers to “tide them over”. The Tribunal also acknowledges the applicant’s representative’s submission that the middlemen who buy farm produce, also act as banks to help out farmers before they go to market, hence controlling the distribution chain of the cash crop growers, monopolising the buying and selling and fixing the price. The Tribunal acknowledges that loans from informal lenders are as a feature of the rural economy. On this basis, the Tribunal accepts that the applicant’s family as a rural producer may operate using such loans. The Tribunal also accepts the applicant’s evidence at hearing that he sends money to support his family and that this has assisted them to pay on-going debt, although interest remains.
However, the Tribunal has considered its concerns discussed above about the applicant’s evidence cumulatively. Considered together they significantly undermine the credibility of the applicant's claims to have taken out a loan from a money lender outside the system and to fear harm from a debt collector for failure to pay his debt. For the reasons above, the Tribunal is not satisfied that the applicant has been truthful in his claims and the Tribunal is not satisfied as to any of the key substantive claims made by the applicant. On this basis, while the Tribunal accepts the applicant’s rural family may have debt, the Tribunal does not accept the applicant has a loan of any sum with an informal lender/middleman, or that the applicant was hit and injured by a debt collector in the past. The Tribunal does not accept the applicant’s claim at hearing that after this incident he went to Bangkok but they (debt collectors) followed him so he moved back to Chiang Rai. The Tribunal does not accept that on return to Thailand the debt collector will find him and hurt him or that his mother has told him they were looking for him, or that they will find him no matter where he lives in Thailand. The Tribunal does not accept that the applicant left Thailand and came to Australia because he feared harm from a debt collector. The Tribunal does not accept the applicant faces harm from debt collectors everywhere on return to Thailand or that he would be denied protection from the authorities for any reason. Given these findings, the Tribunal is not satisfied the applicant has a real chance of serious harm or a real risk of significant harm for the reasons claimed if he returns to Thailand now or in the foreseeable future.
Race
Noting that the applicant stated that his parents were members of a minority ethnic group in the hills of Chiang Rai, the Tribunal asked the applicant if there were any other reasons, he feared return to Thailand. He told the Tribunal there was no other reason other than his concern that he would not have the income he currently earns if he returned to Thailand. The Tribunal is satisfied the applicant does not hold a well-founded fear of persecution for reason of his family membership of a minority ethnic group.
Findings
The Tribunal has considered all the evidence discussed above cumulatively and is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand there is a real risk that he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 960

16 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Standing