1918741 (Refugee)

1918741 (Refugee) [2021] AATA 5079 (18 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1918741
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Paul Windsor
DATE:18 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 November 2021 at 10:33 am
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from former employer for refusing to participate in illegal activities – harassment, beatings and death threats – credibility – vague, inconsistent and unconvincing claims and evidence – delay in applying for protection – applied after studying for one week then working, and significant period as unlawful non-citizens – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 4 July 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Thailand, applied for the visas on 19 February 2019.
In her application, [the first applicant] stated she was born on [date] in [City 1] Thailand, is ethnic Thai, a Buddhist, and is married to [the second applicant]. In his application, [the second applicant] stated he was born on [date] in Udon Thani Thailand, is ethnic Thai and a Buddhist. The applicants indicated they departed Thailand legally on [date] March 2015 and arrived in Sydney, Australia on [date] March 2015, entering on Student visas.[1]
[1] See the Departmental file.
In the protection visa application it was indicated that [the first applicant] was raising her own claims for protection while [the second applicant] was relying on his wife’s claims. In the application it was stated that [the first applicant] left Thailand because she was harassed, attacked both verbally and physically, and threatened that she would be killed by her old boss because she refused to do some illegal activities for him, such as tax evasion and dealing drugs.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding that, after considering relevant country information, there are effective protection measures available to the applicants in Thailand. In relation to the complementary protection criterion, the delegate found the applicants could obtain, from an authority of the country, protection such that there would not be a real risk they would suffer significant harm.
The applicants applied to the Tribunal for review of this decision on 11 July 2019. They provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicants appeared before the Tribunal by Microsoft Teams video-link on 17 November 2021. The hearing was conducted with the assistance of an interpreter in the Thai and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The first applicant]’s claims for protection, as set out in her protection visa application, are summarised as follows:[4]
·She left Thailand due to her old boss who has a business selling famous brand names online. He started to put pressure on her trying to force her to do some illegal activities for him, such as tax evasion and dealing drugs.
·When she refused his offer he started to harass and attack her both verbally and physically (she was beaten up). Over the weeks his attacks escalated and eventually resulted in death threats. She had to flee the country for her own safety.
·If she returned to Thailand it would mean death for her as her old boss would track her down, kidnap her and torture her before killing her.
·She did not seek help as she would have died because her boss has paid informants. The authorities are being paid off to not help her, or make her situation worse.
·She did not try to move to another part of the country as she did not have the funds and power to run for extended periods of time without being found out. Her boss has lots of connections and friends and can easily track her down.
[4] See the Departmental file.
Findings and reasons
Identity
On the basis of the copies of their Thailand passports submitted to the Department,[5] the Tribunal accepts that the applicants are both nationals of Thailand and that their identities are as claimed. The Tribunal accepts that Thailand is their ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether either of the applicants has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to their receiving country of Thailand, there is a real risk either applicant will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons set out below, the Tribunal did not find [the first applicant] to be a credible witness and considers her claim to fear an old boss who sought to force her to engage in illegal activities has been concocted.
Assessment of claims
Evidence from the hearing
At the start of the hearing the Tribunal observed that the application indicated that [the first applicant] was the principal applicant who had claims in her own right while [the second applicant] was relying on her claims, and asked if this was correct. [The first applicant] indicated she was the one who applied and the claims are hers, but added that [the second applicant] ‘processed’ the documents.
When asked if she was sure that everything in her protection visa application is true and correct as far as she knows and believes, [the first applicant] indicated it was. When asked if there were any mistakes she would like to point out to the Tribunal, contrary to the advice in the application (where it stated that no assistance, including interpreting assistance, had been received in completing the form), [the first applicant] said a friend helped her. When asked, she did not name the friend, commenting that they had returned to Thailand. She said she used this person because of ‘the language’, commenting that they suggested this visa to her. When asked if she was satisfied that this person had recorded her information correctly, she said she was, commenting that they wrote down what she told them. The Tribunal asked her if she asked her friend to read back to her what they had written. She indicated she did.
[The first applicant] confirmed the advice in her application that she came to Australia on a student visa. She said she came to study English language. She indicated that she attended her course for one week only because she had to earn money. Observing that it is a requirement for the grant of a student visa that applicants demonstrate that they have sufficient funds both for their course fees and for living costs for themselves and their dependants, the Tribunal asked [the first applicant] how she was able to meet the criteria for the visa if she couldn’t study because she needed to work. She said she borrowed money to show she could meet the requirements. She indicated that she came to Australia to study but when she got here she founds the hours for work were not enough to cover their expenses and a friend suggested she apply for ‘this visa’.
The Tribunal observed that she did not apply for a protection visa until February 2019, nearly four years after she arrived in Australia, and asked why she waited so long to apply. She said she was earning money working while holding the student visa. She said her student visa was valid for two years and eight months. When asked, she said her English language course was for one year, but indicated she had no other study plans.
[The first applicant] indicated that she and [the second applicant] had been working in [City 2] Victoria in [orchards] but in the last week had moved to Queensland where they are working on a [farm]. When asked, she indicated they have been earning on average around $800 a week each.
[The first applicant] indicated she had her parents and a younger brother in Thailand. She said her parents are rice farmers and her brother helps their parents in the rich field. When asked, she also indicated she has a [age] year old son who is being cared for by her mother in Thailand.
Noting that the only education details provided in her application indicated she had completed a course at a vocational university in Thailand (without indicating when this was), the Tribunal asked [the first applicant] about her education. She indicated she undertook vocational study at school in Udon Thani. She also had not provided any details regarding her employment history, but when asked, said after she left school she worked in a [factory] in Chonburi, which she indicated is near Bangkok, for seven years before she came to Australia.
The Tribunal asked [the first applicant] if she had been told by an agent that she could get work in Australia. She indicated she had. She indicated she applied for a protection visa because she had a problem working because she was illegal.
[The first applicant] indicated that while she was working in the factory in Chonburi she worked with a person who gave out loans. When asked, she said she did not know the name of the person she claimed to have worked for. The applicant was extremely vague about this matter but after repeated questioning she indicated that she was approached by a man about giving loans to employees at the [factory] where she worked. She said he charged 10 per cent interest and she would get 3 per cent of the 10 per cent interest. When asked, she indicated this was not a legal business. When asked why she got involved in this, [the first applicant] said they made lots of money. When asked why she was approached by this man to get involved, she said she had time. When queried why she was not busy at work in a [factory], she said she worked around ‘production and computer information’.
The Tribunal asked [the first applicant] whether this person worked in the factory. She indicated they did not. When asked how she met this person she said she was introduced to him by a friend who said she would get good money from it, so she met with this person for something to eat.
The Tribunal asked the applicant what went wrong. She said she didn’t want to do illegal things and indicated that she didn’t want to sell drugs. The Tribunal asked when the issue of selling drugs arose if she got involved with this person for the purpose of giving people loans. [The first applicant] replied, ‘later on’, adding that she did not want to do that so fled to Australia. The Tribunal asked why she didn’t just return home to [City 1]. She said the people involved are very influential.
The Tribunal asked [the first applicant] what happened when she said she did not want to deal drugs. She said a threat was made and they were scared. When asked, she indicated she arranged ‘lots’ of loans for two years but never dealt in drugs. [The first applicant] said she did not know what type of drugs this man wanted her to sell. She indicated he was not involved in any other businesses. When asked what he did when she refused to deal in drugs, [the first applicant] said he got upset. When asked for more detail, she indicated he just threatened to harm her but never actually physically harmed her. She said she left work, went home to study and made a visa application to come to Australia. When pressed, she said she left the day after she was asked to sell drugs. When asked, she indicated she had no further contact with the man after that.
The Tribunal expressed to [the first applicant] that it was finding her evidence unconvincing and asked why, if what she was telling the Tribunal is true, she did not apply for protection until nearly four years after she arrived in Australia. She said she did not know what visa options were available to her apart from a student visa. The Tribunal observed that she was at risk of her student visa being cancelled if she had only attended her course of study for one week, yet delayed applying for protection for nearly four years.
The Tribunal asked [the first applicant] what she fears would happen if she had to return to Thailand now. She said she was worried this man would harm her.
The Tribunal read to [the first applicant] what had been written in her application regarding why she left Thailand, commenting that it is very different to what she had said in her oral evidence at the hearing, where she had made no mention of this man having a business selling famous brand names online, that he sought to get her involved in tax evasion, that he attacked her physically/beat her up, and that his attacks escalated ‘over the weeks’ eventually resulting in death threats. The Tribunal also observed that her written statement made no mention of her being involved in illegal money lending for this man.
In response, [the first applicant] commented that she asked a friend to complete the application and they wrote it.
When asked, [the first applicant] indicated she did not have any other matters she wished to raise.
When asked if there were any matters he wished to raised or comments he wished to make, [the second applicant] commented that he just told a friend and the friend lodged the application for them because they do not have much knowledge of the language. He indicated they had no knowledge about what to do to come to Australia so they relied on an agent and a friend. He added that the claims are the truth.

[The second applicant] also asked that the Tribunal consider allowing them to stay in Australia for another one to two years so that he can earn money for medical treatment for his mother, who recently had five fingers amputated. The Tribunal explained that its role is limited to reviewing the decision to refuse them protection visas, as outlined in its introductory remarks.
Assessment
Having considered the applicants’ evidence, the Tribunal finds that the claim that [the first applicant] was threatened by a man she had worked for, because she refused his overtures to deal in illicit drugs on his behalf, has been concocted. The Tribunal does not accept that [the first applicant] was ever involved in unlicensed money lending, was ever asked to deal in illicit drugs, or was ever harassed, attacked verbally and physically, or threatened that she would be killed, because she refused to be involved in drug dealing. This is for the following reasons, considered cumulatively.
Firstly, the Tribunal found [the first applicant]’s evidence regarding the claimed arrangement with a man to facilitate loans, and subsequent claimed request to deal in illicit drugs, to be vague, lack spontaneity and to be entirely unconvincing. As discussed above, she could not give the name of this person even though she claims to have arranged many loans on his behalf over a two year period. Her oral evidence was brief, stilted and disjointed. Persistent close questioning was required to elicit any evidence regarding the claimed relationship, activities and threats.
Second, there were significant and material inconsistencies between [the first applicant]’s oral evidence at the hearing and her written statement of claims. Contrary to what was stated in her written claims, she indicated that she was never physically harmed, just threatened. She indicated that she left and returned home a day after she was asked to deal drugs and never had any further contact with this man, rather than this man’s attacks on her escalating over a period of weeks, involving beatings, and culminating in a death threat. She indicated that this man had no other businesses, rather than stating he had an online business selling famous band names. She made no mention of him seeking to force her to be involved in tax evasion. In her written claims she made no mention of being involved in unlicensed money lending.
Contrary to her written claim that she did not return home because it would mean death for her because her boss would track her down, torture her and kill her, [the first applicant] indicated at the hearing that she did return home before she came to Australia, to study and apply for a student visa, and stated she had no further contact with this man after she left her employment at the factory. In her application, [the first applicant] made no mention of working at a [factory] (she did not provide any employment details) but at question 31 stated her occupation as ‘SELF BUSINESS’. Noting [the first applicant] indicated at the start of the hearing that she was satisfied that what was in her application was correct, the Tribunal does not find convincing her suggestion at the end of the hearing that she did not know what was in the application because a friend lodged it for her. The Tribunal considers that a friend would have no reason to write something that is so different from the applicant’s account if they were simply writing down what she was telling them, rather than concocting a set of claims on her behalf.
Third, the Tribunal does not accept that if [the first applicant] genuinely feared for her safety in Thailand, she would have found out about protection visas and made a protection visa application well before she did (nearly four years after she arrived in Australia). This is particularly the case given she ceased attending her course of study after one week, and therefore she and her husband were at significant risk of their student visas being cancelled. In any event, by her account, they had a significant period as unlawful non-citizens as their visas ceased after two years and eight months, and only sought protection because they experienced difficulties obtaining work when they became illegal (unlawful non-citizens). The Tribunal considers that if [the first applicant] really feared serious or significant harm in Thailand, the applicants would have been highly motivated to find out about their visa options, would have identified resources such as the Department’s website, migrant resource centres, asylum seeker support services and/or registered migration agents, from which they would have found out about protection visas.
The Tribunal concludes that [the first applicant] did not work for a man involved in unlicensed money lending and was not harassed, verbally and physically attacked or threatened by this man that she would be killed because she refused to become involved in drug dealing for him. Accordingly, the Tribunal finds that there is not a real chance that either of the applicants would be harassed, verbally and physically attacked, threatened with death, tortured or killed by this man and/or his agents should they return to Thailand now or in the reasonably foreseeable future.
Accordingly, the Tribunal finds that the applicants re not in need of protection from the authorities in Thailand.
Does either of the applicants have a well-founded fear of persecution if they returned to Thailand?
For the reasons given above, the Tribunal does not accept that there is a real chance that either of the applicants will suffer persecution involving serious harm from an unlicensed money lender/drug dealer and/or their agents, or any other authority, organisation, person or group, for one or more of the five reasons mentioned at s.5J(1)(a), if they were to return to Thailand, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that neither of the applicants meets the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that either of the applicants will suffer significant harm, as a necessary and foreseeable consequence of their being removed from Australia to Thailand, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicants’ circumstances, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Thailand, there is a real risk that either of the applicants will suffer significant harm, as set out in s.36(2A), from an unlicensed money lender/drug dealer and/or their agents, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that either 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, neither applicant satisfies the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Paul Windsor
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.
…

[2021] AATA 5079

18 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction