1919739 (Refugee) - [2024] AATA 3530

1919739 (Refugee) [2024] AATA 3530 (23 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1919739
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Jane Marquard
DATE:23 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 July 2024 at 1:08pm
CATCHWORDS
REFUGEE – Protection Visa – Thailand – declined hearing invitation – religion – Buddhist – poor governance and economic conditions – difficult financial circumstances – not satisfied that the applicants face a real chance of harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin 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 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

The applicants have sought review of a decision made by a delegate of the Minister for Home Affairs on 18 July 2019 to refuse to grant them protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicants are citizens of Thailand. They claim to be married.
The applicants first arrived in Australia on[date] November 2011 on Student TU 573 visas. They departed Australia and returned a number of times. They last arrived in Australia on [date] October 2017 on Student TU 572 visas.
They applied for the protection visas the subject of this review on 15 March 2019
A delegate of the Department of Home Affairs (the Department) refused to grant the visas on 18 July 2019.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicants have applied for Permanent Protection (Class XA) (Subclass 866) visas.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1919739 (Refugee)

Details

AGLC: 1919739 (Refugee) [2024] AATA 3530
Case: [2024] AATA 3530
Decision Date: 23 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse protection visas to two Thai citizens. The applicants had arrived in Australia on student visas and applied for protection visas in March 2019. The delegate refused their applications in July 2019, leading to the present review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth). This required determining if they were refugees, as defined by the Act, or qualified for complementary protection, or were family members of someone granted a protection visa on such grounds. The definition of a refugee involves a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and that such persecution would involve serious harm and systematic, discriminatory conduct.

The Tribunal noted that the applicants had been invited to provide further evidence and participate in a hearing but had declined to do so, consenting to a decision on the papers. The applicants claimed to be Buddhist and cited poor governance and difficult financial circumstances in Thailand as reasons for their fear. However, the Tribunal found that no new evidence was provided to support these claims, and the applicants did not complete information forms or attend the scheduled hearing. Without sufficient evidence to establish a well-founded fear of persecution or significant harm, the Tribunal was unable to be satisfied that Australia had protection obligations towards the applicants.

Consequently, the Tribunal affirmed the delegate's decision to refuse the protection visas. The applicants did not satisfy the criteria under section 36 of the Act, and there was no suggestion they qualified as family members of a protection visa holder.

Orders

Orders of the court

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Background

Background to the litigation

The applicants have sought review of a decision made by a delegate of the Minister for Home Affairs on 18 July 2019 to refuse to grant them protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW The applicants are citizens of Thailand. They claim to be married. The applicants first arrived in Australia on[date] November 2011 on Student TU 573 visas. They departed Australia and returned a number of times. They last arrived in Australia on [date] October 2017 on Student TU 572 visas. They applied for the protection visas the subject of this review on 15 March 2019 A delegate of the Department of Home Affairs (the Department) refused to grant the visas on 18 July 2019. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW The applicants have applied for Permanent Protection (Class XA) (Subclass 866) visas.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611. Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4][2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’. 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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision. An applicant must establish that they:a.are a refugee (the refugee criterion);[5] orb.qualify for complementary protection (the complementary protection criterion);[6] orc.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7][5] Section 36(2)(a) of the Act.[6] Section 36(2)(aa) of the Act.[7] Sections 36(2)(b) and (c), the Act. Refugee criterion Section 36(2)(a) of the Act 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.

Evidence

Evidence Before The Court

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) of the Act, which are extracted in Attachment A to this decision.EVIDENCE CONSIDERED IN THE REVIEW The Tribunal has considered the information provided in the application submitted to the Department. No new evidence was provided to the Tribunal although the applicants were invited to provide further evidence. On 23 July 2019 the Tribunal acknowledged the receipt of the application for review. The applicants were invited to provide written material and documents in support of the review. No documents were provided. On 26 March 2024 the applicants were invited to fill in a pre-hearing information form. The form included sections inviting the applicants to provide more details on their claims for protection. The applicants were asked to insert details of family and other evidence. The applicants did not complete the form and return it to the Tribunal. On 15 May 2024 the Tribunal wrote to the applicants to notify them that the Tribunal had considered the material before it but was unable to make a favourable decision on the information before it. The applicants were invited to appear before the Tribunal on 4 June 2024 to give evidence and present arguments relating to the issues arising in the matter. The applicants were asked to read and complete the enclosed ‘Response to Hearing Invitation’ form. The applicants were also invited to provide additional information and documents for the Tribunal to consider. The applicants were advised that if they did not appear at the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear. On 17 May 2024 the applicants wrote to the Tribunal, stating ‘we would like to confirm that we will not be attending the hearing.’ The Hearing Invitation form was attached. The applicants ticked the box which states, ‘no I will not participate in the hearing and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear before it.’ Question 3 of the form stated, ‘do you intend to rely on any documents at the hearing? ‘. This box was ticked ‘no’. As of the date of this decision, no further documents or evidence have been provided. As the applicants have consented to the Tribunal deciding the matter on the papers without a hearing, the Tribunal has determined the matter on the material before it pursuant to s 425(2)(b) of the Act. FINDINGS AND REASONSNationality According to the application, the first applicant was born in [year] in Phuket, Thailand. He has a passport from Thailand. The Tribunal is satisfied that the applicant is a national of Thailand. The second applicant was born in [year] in Phuket, and also has a Thai passport. The Tribunal is satisfied that the second applicant is a national of Thailand.Background, family and claims

Decision

Reasons for decision

There is no suggestion that the applicants satisfy s 36(2) of the Act 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 applicants do not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicants protection visas.Jane MarquardMemberATTACHMENT A - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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