1917671 (Refugee)

The applicant, a national of Thailand, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in Thailand due to a fear of being arrested and subjected to abuse during mandatory military service, and also feared physical assault and home invasion by individuals associated with the military. The applicant contended that these fears placed them within a particular social group for the purposes of the *Migration Act 1958* (Cth).

The Federal Circuit Court was required to determine whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, as defined by international refugee law and applied within Australia's migration framework. Specifically, the court had to consider whether the applicant's claimed fear of arrest and abuse during military service, or the threat of physical assault and home invasion, constituted persecution for reasons of membership in a particular social group, and whether the Thai law of general application regarding military conscription and the enforcement of criminal laws was relevant to this assessment.

The court reasoned that while the applicant's fear of arrest for evading military service was based on a law of general application, the potential for abuse during military service, coupled with the threat of physical assault and home invasion, could, in certain circumstances, amount to persecution. However, the court found that the evidence presented did not sufficiently establish that the applicant's fear was *because of* membership in a particular social group, as opposed to general economic reasons or a fear of ordinary criminal activity. The court applied the principles established in refugee law concerning the definition of a "particular social group" and the distinction between persecution and general hardship or the consequences of breaching general laws.

The decision under review was affirmed.