1919739 (Refugee)

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 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] or
b.qualify for complementary protection (the complementary protection criterion);[6] or
c.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.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)) although there are exceptions to this, set out in the provision. Effective protection measures are defined in s 5LA of the Act.
The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct. (s 5J(4)). Indicative examples of serious harm are set out in s 5J(5) of the Act.
Conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee (s 5J(6) of the Act).
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-5LA of the Act, which are extracted in Attachment A to this decision
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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 REASONS
Nationality
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
The first applicant said in his application that he was born in Phuket, Thailand. He is a Buddhist.
The second applicant was born in [year] in Phuket. She is also a Buddhist.
No other family, background or employment details were provided.
The applicants said that they were students in Thailand and had not been employed.
In the application, in the question which asked for reasons that the applicants left their country they stated:
I left my own country because of distrust of the judiciary and low enforcement, poor system of government, burreacracy starting from the lowest lever up to the top. The distribution of the global economy impact on the nations economy. Poverty and unemployment are still big, due to such problems, as the people of Thailand, I has been living in harsh conditions so I had to borrow money from my relatives because of that I finally could not pay the debt. I live in mental distress and fear. Many people in Thailand have problem like me, who borrowed money had been hit, injured and killed. I hope government of Australia can hear what I mentioned above. I (name of applicant) appeal for Minister of Immigration to approve my application your cooperation is highly appreciated.
Asked if the applicants had experienced harm in Thailand, they answered ‘no’.
The applicants said, in response to whether they tried to move to another part of the country:
I did not try to move to another part of the country because this is a matter of my parents and at that time I in Australia until now to continue my studying. So the cases happened when I already happened in Australia.
The applicants said that if they returned to their country, they would:
get caught by the gorups of gengstrer and could be beaten, injured or killed. They will searching me anywhere.
The applicants said that the authorities could not protect them because:
this is a matter of personel and gangsterism. Also many authorities in corruptions.
Did the applicants borrow money from relatives?
The Tribunal has considered the claims for protection made in the application, as no further evidence or corroborative material was provided, although the Department and Tribunal had requested more information.
The claims for protection are contained in a number of short paragraphs in the application, which was made in 2019. The applicants claims that they left Thailand as due to poor governance and economic conditions they had to borrow money from relatives and could not repay, so they lived in ‘mental distress and fear’. They referred to many people who had been hit, injured and killed. They also said that they would get caught by groups of gangsters who would harm them.
The Tribunal is unable to accept on the basis of this brief information, that the applicants borrowed money from relatives due to difficult economic conditions or poor governance in Thailand, that they could not pay the money back or that they lived in mental distress or fear from relatives or gangsters.
The information before the Tribunal is lacking context and detail in significant respects and is simply a set of assertions. The applicants were provided with opportunities to provide written evidence on a number of occasions but did not do so (details of these communications are set out earlier in the decision). The applicants’ appearance at a hearing would have provided an opportunity to address the various gaps in the evidence. If the applicants had attended a hearing, the Tribunal could have requested context and detail and discussed the gaps in evidence including the following:
·What family the applicants have in Thailand and their financial circumstances.
·Why they left the country to study in Australia.
·How they financed their travel to and study in Australia if they were suffering financially.
·Why and when they borrowed money.
·Which relatives they borrowed money from.
·Whether they approached banks or other institutions for a loan.
·How much money they borrowed.
·What the terms of the loan were, for example interest rates and term.
·Where the loan documents are.
·How much money they repaid.
·What attempts they made to re-finance.
·Whether they approached family members for help.
·Why they lived in ‘mental distress and fear’.
·Who specifically they fear.
·Why they fear getting caught by groups of gangsters and being beaten, injured or killed.
·Whether they sought help from police or non-government organisations and if not, why not.
·Whether they have now paid all or part of the money back.
·Why they did not move elsewhere.
·Why they claim there is corruption by authorities.
·Details of their various returns to Thailand.
·What they now fear returning to Thailand and why.
·The details of departure from Thailand.
The Tribunal is not required to accept uncritically claims made by applicants for protection visas[8].
[8] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[1994] FCA 1253; MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155.
Applicants are required to specify particulars of claim and make out the statutory elements.[9]
[9] Section 5AAA of the Act; Abebe v Commonwealth of Australia197 CLR 510.
On the limited material available to it, the Tribunal is unable to be satisfied that the applicants borrowed money from relatives due to difficult financial circumstances, that they could not pay the debts or that they lived in mental distress or fear. The Tribunal is also unable to be satisfied that they left the country for these reasons and for distrust of the judiciary, ‘low enforcement’, the ‘poor system of government’ or bureaucracy, or because of poverty and unemployment. The Tribunal is not satisfied on the bare information provided that they departed Thailand because they feared being hit, injured or killed by gangsters. The Tribunal is unable to be satisfied that the applicants fear returning to Thailand because of gangsters or for any other reason. There is simply too little information about these matters.
Do the applicants have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.[10]
[10] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicants have a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Do the applicants fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion?
The persecution feared must be for one or more of the reasons mentioned in s.5J(1)(a) of the Act. These reasons are race, religion, nationality, membership of a particular social group or political opinion.
Section 5L of the Act defines ‘particular social group’ as follows:
..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.
In the application they expressed fear of relatives or gangsters for not paying a debt. This does not appear to be persecution for reasons of membership of a particular social group or for any other of the stated reasons.
On the very bare information provided the Tribunal is not satisfied that the applicants fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Is there a real chance of serious harm if the applicants were to return to their home country?
Section 5J(4)(b) of the Act provides that the persecution must involve serious harm. The Tribunal must assess whether there is a real chance of serious harm in the reasonably foreseeable future.[11]
[11] Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66; and MIEA v Wu Shan Liang (1996) 185 CLR 259 at 279 where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b) of the Act, provides an objective element to that concept,[12] - not only must a person fear persecution, there must also be a prospect of that fear being realised.
[12] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[13]
[13] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

Earlier in this decision, the Tribunal has not accepted on the very minimal evidence provided that the applicants borrowed from relatives, or that they could not pay the money back or that they lived in fear and or that they feared harm from relatives or gangsters. The Tribunal has not accepted on the very basic information provided that they departed Thailand because of distrust of the judiciary, poor government, economic conditions or fear of relatives or gangsters.
As the Tribunal does not accept that the applicants were unable to repay debts to relatives, or lived in fear and distress, or have a fear of harm, the Tribunal is also not satisfied that there is a real chance of serious harm from relatives or gangsters if the applicants were to return to Thailand in the reasonably foreseeable future. The applicants have not provided context and detail to the Tribunal about who they fear and why they fear them and why there is a real chance of harm in the reasonably foreseeable future. The Tribunal finds that such a fear is merely assumed or is mere speculation’[14] and therefore does not amount to persecution.
[14] MIEA v Guo (1997) 191 CLR 559.
No other claims of persecution were made in the application.
The Tribunal is not satisfied therefore that there is a real chance of serious harm for any of the reasons set out in the legislation.
The Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the legislation.
Do the applicants meet the complementary protection criterion?
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has not accepted that the applicants borrowed from relatives, or that they could not pay the money back or that they lived in fear and or that they feared harm from relatives or gangsters. The Tribunal has not accepted on the very bare information provided that they departed Thailand because of distrust of the judiciary, poor government, economic conditions or fear of relatives or gangsters. As set out earlier in this decision, the Tribunal is not satisfied that there is a real chance of serious harm for any of the reasons set out in the legislation. Reasons for these findings are set out earlier in the decision.
For the same reasons, and on the basis that the test for real risk is the same as the test for real chance (as found in MIAC v SZQRB [2013] FCAFC 33), the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation were the applicants to be removed from Australia to Thailand.
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
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 Marquard
Member

ATTACHMENT A - 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.
…

[2024] AATA 3530

23 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Standing