1920956 (Refugee)

1920956 (Refugee) [2022] AATA 530 (31 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1920956
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Amanda Paxton
DATE:31 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 January 2022 at 9:48am
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm because of general economic conditions – unemployment and depression – unsuccessful study and application for protection to obtain bridging visa – work experience – credible witness – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), (5), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
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 dependants.
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 30 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant who is a citizen of Thailand, applied for the visa on 18 October 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) and 36(2)(aa) of the Act.
On 31 July 2019, the applicant validly applied for review of the delegate’s decision to the Tribunal, attaching to the application a copy of the delegate’s refusal notification letter and a copy of the primary decision record.
The applicant appeared before the Tribunal on 27 January 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone via MS Teams as the hearing was held when COVID-19 pandemic restrictions were in place, and the applicant had advised that he did not have video technology. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.
The applicant was not represented at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The audio was clear throughout the hearing and the applicant’s responses to the Tribunal’s questions were appropriate. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Thailand and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
According to the applicant’s Form 866C, Application for a Protection visa, and confirmed at hearing, the applicant was born in the city of [city], in the province of Lampang, northern Thailand on [date] to Thai parents.[1] The applicant acquired Thai citizenship at birth.[2]
[1] Dept File [Number 1], Doc Id. [Number 2].
[2] Ibid.
The applicant provided the Department with an uncertified copy of the bio-page of his passport, issued [in] 2014 and expiring [in] 2019.[3]
[3] Dept File [Number 1], Doc Id. [Number 3].
According to the applicant’s Form 866C, the applicant has never travelled to any country other than Australia, including transits.
According to the applicant’s Form 866C, he arrived in Sydney, Australia [in] August 2014. At hearing the applicant told the Tribunal that he could not remember the type of visa he used to enter Australia, but when he looked at the visa, he thought it looked like a Student visa. He could not remember how he obtained the visa. He said that after he landed in Sydney someone organised for his enrolment in some study, but he could not understand any of it because his English was not good. He said that as he wanted to work and did not have a visa he worked out of town. He wanted a Bridging visa and in 2018 someone told him how to obtain one by applying for a Protection visa. While he tried to find out about visas earlier, he did not understand until someone told him how to apply.
At hearing the applicant confirmed his ethnicity as listed in his Form 866C as Thai and his religion as Buddhist. At hearing he further confirmed that he had never married or been in a de facto relationship, and that he does not have children.
At hearing, the applicant stated his parents are living in Lampang, Thailand and that he has a younger sister in Thailand. He said he is in touch with them from time to time. He stated he does not have any family living in Australia. The applicant stated in his Form 866C that he can speak, write, and read Thai, and can read and write English.[4]
[4] Dept File [Number 1], Doc Id. [Number 2].
Written claims for protection
The applicant’s written claims for protection were put forward in his Form 866C.[5] In summary, the applicant claims that he was unable to obtain employment for several months which led to him developing depression. He felt he did not have a long-term financial future and he did not have any savings. The applicant stated he left his family home for a few months to avoid further depression, but this was unsuccessful. The applicant decided to come to Australia to build a new life.
[5] Ibid, pp 25-27.
In his Form 866C, the applicant claims that if he returns to Thailand, he will get more depressed and may lose his life because of his situation in Thailand.
The applicant states he did not try to move to another part of Thailand to seek employment because the situation is the same throughout the country.
The applicant states he does not think the Thai authorities will be able to assist him in gaining ongoing employment because it is very difficult to get a job in Thailand.
The applicant does not think he will be able to relocate within Thailand to an area where he will be able to gain employment because the situation is the same throughout his country of citizenship.
Apart from the uncertified copy of his passport and his claims for protection contained in Form 866C, the applicant did not provide any further documents to the Department in support of his claim for Australian protection.
The applicant was not invited to attend a protection visa interview with a delegate of the Department, although he was invited to provide further information via ImmiAcount, mail or in person in the Department’s acknowledgment letter dated 7 November 2018.
Relevant Country information
In the following assessment, the Tribunal has taken into account country information provided by the DFAT Country Information Report for Thailand (‘the DFAT Report’), dated 10 July 2020.[6]
[6] DFAT Country Information Report Thailand, 10 July 2020.
According to that report, the county’s government was ousted in a military coup d’état in May 2014, bringing to power a military junta known as the National Council for Peace and Order (‘the NCPO’) headed by General Prayut Chan-ocha. A formal general election took place on 14 March 2019, which was followed by a joint sitting of the new parliament on 5 June 2019 who elected Prayut as the next prime minister of Thailand.
The DFAT Report notes that Thailand has the second largest economy in Southeast Asia, behind Indonesia. It further reports that it successfully navigated the 2008 Global Financial Crisis. According to the DFAT Report, the World Bank has classified Thailand as an upper-middle income economy since 2011, recognising its achievements in increasing Gross National Income per capita, and recognising its significant reduction in poverty (from 67% in 1986 to 7.8% in 2017).
The DFAT Report also notes the major economic sectors are services (contributing 56.3% of Gross Domestic Product (GDP) in 2018), manufacturing (accounts for 35% of GDP), and agriculture (contributing 8.7% to GDP; responsible for one-third of the labour force). Tourism is another major industry and is the main source of foreign currency. Thailand is one of the leading producers and exporters of rice, with other major crops including rubber, sugar, corn, jute, cotton, and tobacco. Fishing also constitutes an important activity, with Thailand a major exporter of farmed shrimp.
Despite Thailand’s considerable economic achievements, the DFAT Report notes several points of vulnerability to its economy. Trade disputes between the United States and China have affected overall trade levels. The DFAT Report states further that ongoing influence of the military in the recently-elected government, and political uncertainty, continues to dampen business confidence. It is also apparent from the DFAT Report that Thailand’s economy has been particularly vulnerable to the effects of the COVID-19 pandemic, given its reliance on tourism. Indeed, COVID-related restrictions and reduced global demand have negatively impacted the country’s main economic growth drivers, and the International Monetary Fund had forecasted Thailand’s economy to contract by 6.7% in 2020, the worst of any of its ASEAN peers. Another risk comes from persistent high levels of household debt, equating to 78% of GDP.
According to the DFAT Report, the current NCPO government was elected on an economic platform which included promises to increase welfare, raise the minimum wage, improve healthcare, assist agriculture workers, boost education, and introduce minor tax reform. In response to the COVID-19 pandemic, special stimulus measures were introduced in April 2020, providing financial support to individuals and businesses, additional support for temporary and contract workers and the self-employed, and funding for community infrastructure.
Thailand’s official unemployment rate, according to the DFAT Report, is 0.7% as of January 2020. This figure is partly due to those working in Thailand’s large informal sector (street vendors, motorcycle taxis, and other self-employed people, accounting for more than 50% of the total workforce) being considered as employed. The DFAT Report concludes that there is considerable unemployment and underemployment in Thailand, including off-season unemployment in the agriculture sector.
Findings and reasons
At hearing the applicant told the Tribunal he had assistance in completing the protection visa application and that he believes the claims made in his application were correct. The Tribunal notes some inconsistencies between the applicant’s written claims and his evidence at hearing but considers his evidence at hearing to be generally open and unembellished and in line with his application. For these reasons, the Tribunal found the applicant’s claims at hearing to be generally credible. On this basis, the Tribunal accepts the applicant’s evidence that after he finished lower secondary school education in Thailand, he did no other training, but helped his parents working on their rice farm. The Tribunal accepts the applicant’s statement that he remained on the family farm for about a year, but he was not able to earn much money, so he went to the city where he worked in a food processing plant. The applicant stated that he found this very stressful because the payment was low, and he suffered from headaches as a result of stress about money. The Tribunal accepts the applicant’s testimony at hearing that he returned to the family home after two or three months and remained there four or five years before coming to Australia with the intention of working to improve his economic circumstances. The Tribunal further accepts the applicant’s evidence at hearing that in Australia he has been working on a [farm] and sends money back home.
The applicant told the Tribunal he applied for a protection visa so he can continue working in Australia where he can make money and send money back to his family. He said that if he were to return to Thailand, he could not make enough money to pay for expenses and he and the family would be in a dangerous economic situation. He stated that it is very hard to get work there because the economy is terrible. In addition, it is hard for him to find work because his home is a long way from town. The applicant said there is no other reason he fears return to Thailand.
In considering whether the applicant has a well-founded fear of persecution on return to Thailand, the Tribunal has considered whether he has a real chance of serious harm because he will not be able to obtain sufficiently well-paid employment and will experience economic hardship as a result. In this consideration, the Tribunal takes into account the independent country information above discussed with the applicant at hearing concerning Thailand’s economic and employment conditions. As discussed with the applicant, in the assessment of the Tribunal the DFAT report indicates that Thailand has experienced strong economic and social development in recent decades, although growth in the Thai economy has slowed in recent years and has been particularly affected by COVID-19 pandemic restrictions. As discussed with the applicant, Thailand has reduced poverty significantly and has established a diverse economy which includes a large agricultural sector, and that Thailand’s official unemployment rate is still low (2.25% in the September quarter of 2021) despite coronavirus restrictions hitting economic activity and jobs. [7] The Tribunal acknowledged that unemployment persists however, and noted that while pandemic restrictions have been eased, it is expected that a full economic recovery will take a while. In response, the applicant stated that there are a lot of people who are unemployed in Thailand, and that this has not changed since restrictions have been lifted.
[7] Thai Q3 unemployment at 16-year high as COVID squeezes economy - Nikkei Asia
In considering the applicant’s claim to face economic hardship on return to Thailand, the Tribunal has also considered the applicant’s circumstances and notes his employment experience is in the agricultural sector working on his family rice farm in Thailand and more recently in [farms] in Australia. The Tribunal considers that this experience makes him well placed to obtain work in Thailand’s large agricultural sector. The Tribunal has considered the applicant’s claim at hearing that it is hard for him to find work because his home is a long way from town, and notes that he wishes to live at home to look after his mother and father. However, taking into account the applicant’s evidence at hearing that his sister is looking after his parents at the moment, the Tribunal is satisfied that the care of his parents will not prevent him from finding work in the town if he seeks to do so. On the evidence before it, the Tribunal is satisfied the applicant will find employment in Thailand. While the Tribunal acknowledges that the applicant may not be able to earn as much as he does in Australia, noting that agricultural work may be seasonal and accepting the applicant’s claim that pay for work in town is low, on the basis of the independent country information before it and the applicant’s experience, the Tribunal is satisfied the applicant will be able to find employment in Thailand which, at minimum, will provide him with the capacity to subsist.
The Tribunal enquired about the applicant’s health and mental health, noting that he mentioned at hearing that he suffered from headaches when he was at the factory and that his application refers to his depression. He stated that he has no health concerns and that his headaches arose because he was stressed about money, not depression. As confirmed by the applicant, DFAT country information indicates that Thailand has universal health care coverage, providing accessible and quality health care, and a modest social welfare system.[8] On this basis, the Tribunal is satisfied the applicant will have access to basic services if required.
[8] DFAT Country Information Report Thailand, 10 July 2020.
For the reasons above, the Tribunal is satisfied the applicant does not have a real chance of serious harm in Thailand, now or in the foreseeable future, as instanced in s 5J(5), such as significant economic hardship that threatens his capacity to subsist, denial of access to basic services, where the denial threatens his capacity to subsist, or denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. Further the Tribunal finds that any economic difficulties the applicant may experience on return to Thailand are not for a s 5J(1)(a) reason: race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds the applicant does not have a well-founded fear of persecution arising from his economic circumstances, or for any other reason.

The Tribunal has considered whether there is a real risk that the applicant will suffer significant harm as defined at s 36(2A) on return to Thailand, that is whether there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment. Considering all the evidence before it, the Tribunal is satisfied that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
Member

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

[2022] AATA 530

31 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction