1922909 (Refugee)

1922909 (Refugee) [2024] AATA 4280 (1 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1922909
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alexander Reilly
DATE:1 August 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 August 2024 at 12:01pm

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from money lenders – business loan – lenders increased interest rate, tried to force applicant to do illegal activities for them, threatened and attacked applicant, and destroyed business property – police collusion and corruption – vague and unconvincing evidence – application made by friend without applicants’ knowledge of contents – some claims discontinued – late claim of low-level pro-democracy protest activity – not a member of any organisation – country information – member of family unit wife – Australian-born child’s separate application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan 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 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 15 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Thailand, applied for the visas on 8 May 2019. The delegate refused to grant the visas on the basis that effective protection measures are available to the applicant in Thailand.
The applicants appeared before the Tribunal via video link on 9 July 2024 to give evidence and present arguments. The applicants were supported by a friend who attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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.
Country of nationality
The applicants travelled to Australia on an apparently genuine Thai passports, copies of which are contained on the Departmental file. They have at all times stated that they are citizens of Thailand and they have been assessed on that basis by the Department. The Tribunal finds they are Thai citizens and has assessed their claims against Thailand as their country of nationality and the receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants arrived in Australia on Visitor visas [in] November 2018. They lodged an application a Protection visa on 8 May 2019.
The applicants have family in Australia and Thailand. The primary applicant’s brother has lived in Australia for approximately 20 years. When he first arrived, the primary applicant helped this brother to paint his house in Darwin. Since that time the primary applicant has been involved in [workplace] work around Darwin. The applicants have a son born in Australia on [Date]. The applicants submitted a separate application for a Protection visa on behalf of their son.
Original application
In the application for a Protection visa, the primary applicant stated that he took out a loan for a business from local community lenders. The money lenders raised the interest rate and tried to force the primary applicant to do illegal activities for them. They threatened those around him, and entered his business destroying property and physically attacked him.
He could not seek help from the local community as it wanted nothing to do with the family business due to the influence and wealth of the money lenders. It would be useless to move and would just put the applicants and people around them in even more danger. The money lenders have the influence and power to easily track them again and so running away would achieve nothing.
The primary applicant stated in the application that he would be mentally and physically abused if he returned to Thailand. The money lenders would destroy everything the applicant has and do the same to people around them. They will ‘definitely take revenge’.
Corruption still exists in Thailand and therefore the primary applicant did not feel safe and confident seeking help from authorities. The money lenders have ‘very strong networks with bad people’ due to their illegal activities. They would be able to find the applicants if they relocated to any other part of Thailand.
Evidence at the Hearing
At the hearing, the Tribunal spoke to the two applicants separately.
Evidence of the Primary Applicant
The Tribunal asked the primary applicant whether he had completed the application himself. The applicant stated that a friend had completed it for him and that he did not see the application before it was submitted. The Tribunal asked whether the primary applicant had discussed the application with his friend before the friend completed the form. The applicant answered that when he first came to Australia, there was a protest happening in Thailand. But the primary applicant did not know what his friend wrote down. At the time of the hearing, the primary applicant had not seen the application since its submission in May 2019.
The Tribunal read out the claims in the original application and asked the primary applicant whether any of the events described in the application occurred. The applicant stated that it was only ‘half of the truth’ and that the real reason related to him being a protestor.
The Tribunal asked whether the applicant had taken out a loan for a business. The primary applicant confirmed that he had taken out a loan and also went to a protest.
Claim to fear harm from money lenders
In answer to direct questions from the Tribunal, the primary applicant stated that he borrowed ‘a few 100,000 baht’ at 7 per cent interest, and that he had only paid back the interest and not the capital. When asked how he was paying for the interest, he said ‘maybe 20,000 each time’. The last time he made a payment was ‘a long time ago’. In answer to the question how much he had paid back, the primary applicant stated he was ‘not sure’ but maybe 50,000 - 60,000 baht.
The Tribunal asked why the primary applicant borrowed money. The primary applicant said he was thinking about starting a small business. However, he did not start the business because there was a protest happening. The Tribunal asked what the primary applicant did with the money, and he stated he ‘used it to travel to the protest and join it’. The Tribunal asked whether he had used the money for anything else. The applicant said no.
The Tribunal asked whether the moneylenders had ever threatened the primary applicant. He answered ‘sometimes’. The Tribunal asked what they said. The Primary applicant replied, ‘Things like they might hurt me’. The Tribunal asked whether they had ever physically attacked him. He answered, ‘No. Not yet.’ The primary applicant stated that he knows nothing about the money lenders. He said they were not an identifiable group, but that they just had power in the area where he lived.
The applicant had contact with the money lenders ‘about three months ago’. The Tribunal asked what happened three months ago. He answered that ‘They want their money back but I don’t have money.’ The money lenders contacted him through a relative who lives in the same village. The applicant did not know the details of the conversation, only that the money lenders want their money back. Later in the hearing the Tribunal asked what threats the money lenders made. The applicant responded that the threats included threats to hurt him violently because they ‘have people everywhere’.
The applicant did not know how many times the money lenders had contacted him but said his cousin would always tell him. When pushed, the primary applicant estimated it was about ten times in the last 5 years. He does not know how much he still owes the money lenders. They just say they want their money back.
The Tribunal asked whether the applicant could go to the police about the money lenders. The applicant replied that he probably could not involve the police because there was a contract.
The Tribunal asked whether the applicant could move somewhere else in Thailand to live, for example could he move to Bangkok, or move to Northern Thailand to live. The applicant responded that ‘within Thailand they can find me’.
The Tribunal invited the applicant to comment on the delegate’s finding that he was able to get state protection. The applicant responded that he did not follow the news. He said that country information might say the authorities are going to follow up loan sharks, but they can’t do it.
The Tribunal put to the applicant country information from the DFAT Country Information Report Thailand which stated that ‘the police investigate loan shark claims and loan sharks are regularly arrested and imprisoned’.[1] The respondent replied that if the police catch one loan shark, a new one will appear.
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, [3.116].
The Tribunal asked whether the applicant had ever been to the police about the money lender. The applicant replied that he did not go to the police, but that it would have made no difference. It is not useful in any way.
Claim to fear harm as a result of participation in a protest
The claim to have participated in an anti-government protest was raised for the first time at the hearing. When invited to tell the Tribunal about the protest he had attended, the applicant answered, ‘Have you been ever watching the YouTube – something like that, exactly like that’. At this point, the Tribunal explained to the applicant that there were many protests on YouTube and it was not going to help his claim for the Tribunal to look generally at protests on YouTube. The Tribunal explained that the applicant needed to provide evidence of particular protests he had participated in, and why he feared returning to Thailand as a result of his participation.
When pressed to provide details of the particular protest in which he participated, the applicant still provided the most general of descriptions – that there was violence, they used real bullets and people died. The applicant also said that he lost contact with friends who had participated in the protest in the months following the protest. He believes these friends were killed or taken by the government. He fears that anyone associated with the protests and might appear on media coverage is at risk of being harmed by the government.
The Tribunal asked when the protest occurred. The applicant stated it was about 2553 (in the Thai calendar). The interpreter explained that this was 2010 in the international calendar. The Tribunal asked what the protest was about. The applicant replied ‘democracy’. The Tribunal asked the applicant whether he was part of a particular group. The applicant responded that ‘he just liked the ideas’ that opposed the government. It was an anti-government protest. The applicant did not hold any official role in a protest group. He was ‘just part of them’.
The applicant believes that the government will harm people who participated in protests and appear in media. There is a group called ‘Get rid of the mob’ or ‘Clear the mob’. They get rid of the people who are in all the media. The applicant is fearful that he will appear in pictures associated with the protest. Some of the applicant’s friends went missing after the protest. He was no longer able to contact them. This occurred up to 5 to 6 months after the protests. The applicant believes that they have been harmed by the government and that he is also at risk of being harmed as a result of his participation if he returns to Thailand.
Evidence of the Second Applicant
The second applicant did not know how the application for protection was completed. She only knew that it was an application for protection, but not what was included in the application. When the Tribunal read out the original claims, the second applicant agreed that that those were the reasons she feared returning to Thailand.
The Tribunal asked if there was anything else she feared about returning to Thailand. The applicant stated that the claims in the application were the only reason she feared returning to Thailand.
The Tribunal asked the applicant if she could tell the Tribunal what she knew about the loan that her husband took out. She said that she knew nothing about it. She only knew about the loan when the lenders came to their house. They came and asked for their money back. That is all she knows about the loan.
The Tribunal asked whether the money lenders threatened her or her husband. She said that they threatened her husband, but not her because she has nothing to do with it. She did not know how they threatened her husband because she left. The Tribunal asked whether the money lenders had contacted her husband since they had been in Australia. She stated that she thought it was about four or five years ago.
The Tribunal asked if there was anything else that made her fear living in Thailand. The applicant responded that it was only the threats made to her husband. She was concerned they might want to hurt her husband.
She fears that the money lenders might kill her and her husband. This is based on the fact that they have power. They are the mafia over there. She stated that she could not go to the police because the police work with them. She knows that because the money lenders work with the police as a team. She knows this because they are powerful in that province, and nobody can do anything to them. This is well known in the province.
The Tribunal asked the applicant what her husband was wanting to do for work. She stated that her husband may have been considering starting a business, but he did not tell her.
The applicant is concerned that police protection is not effective.
Assessment of the applicants’ claims
Section 423A Procedural Requirements
Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred.
The applicants acknowledged that a friend had completed their application, and that they did not know what the friend had written in the application. They just knew it was an application of protection. The Tribunal is aware that it is common for applicants for a Protection visa to outsource responsibility for completing their applications to third parties because of their lack of language ability and legal knowledge, and as a result, not being aware of the claims being made on their behalf.
The Tribunal notes that the applicants did not have the benefit of professional migration advice since they arrived in Australia. They were not offered a departmental interview to provide evidence in support of their claims for protection. In these circumstances, the Tribunal hearing is the first opportunity for the applicant to articulate the true basis of her claims for protection.
In these circumstances, the Tribunal does not draw an inference unfavourable to the credibility of the claims or evidence not raised before the primary decision was made.
Participation in Political Protest
The Tribunal accepts that the applicant may have attended a protest in 2010. The DFAT Country Information Report for Thailand notes that in early 2010, the Red Shirt protest movement held mass demonstrations against the Abhisit government for several weeks. Government authorities carried out a violent crackdown that killed dozens and wounded hundreds more. The Tribunal accepts that it is likely to be one of the Red Shirt protests in early 2010 in which the primary applicant participated.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, [3.37].
Country information also indicates that the Red Shirt movement is much less prominent than in the past.[3] DFAT assesses that people associated with the Red Shirt movement who are no longer politically active are not at risk of official discrimination or violence. Given that the applicant is not even associated with the Red Shirt movement, or any other organisation, the risk of official discrimination is likely even lower.[4]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, [3.39].
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, [3.40].
The primary applicant was not able to explain the reasons he participated in the protest and did not claim to have any association with political parties or organisations. The Tribunal finds that the applicant is not a committed political activist, and that his attendance at the protest was circumstantial. It is noteworthy in this respect, that the applicant’s wife did not make any mention of the political protest in her evidence. The Tribunal concludes that it is highly unlikely the Thai authorities will have a record of the applicant’s participation in a protest, and even if they did, the authorities would have no interest in taking action against the applicant for his involvement.
Fear of harm from loan sharks
The DFAT Country Information Report Thailand states the following in relation to loan sharking in Thailand:
[3.112] Loan sharking is a serious and widespread problem in Thailand, where it accounts for an estimated 20 per cent of total lending. At least half of those who owe money to loan sharks also have debts with formal lenders. In many cases, victims owe money to multiple lenders and borrow from one lender to pay off another. Victims range from factory workers and day labourers to small-scale farmers, economic migrants, and operators of SMEs. Loans range from as little as THB 3,000 (AUD 120) to THB 1 million (AUD 40,000) or more.
[3.113] Loan sharks typically charge extremely high interest, often calculated daily. For instance, a victim may take out a THB 5,000 (AUD 200) loan on which they must pay THB 125 (AUD 5) interest per day for 25 days, at which point they must repay the principal in full, an interest rate of more than 60 per cent. Borrowers often receive considerably less than the nominal amount borrowed: a victim may borrow THB 10,000 (AUD 400) and only receive THB 7,200 (AUD 300) due to ‘deductions’ charged by the loan shark.
[3.114] Small borrowers often hand over bank cards or identity documents as collateral. Farmers tend to secure their loans against land deeds. Many loans are not secured against assets, however, are guaranteed by a relative or village headman. Loans which are secured against assets, such as farm machinery, are typically easier to settle if the borrower defaults, since the lender can repossess the asset to pay off the debt. Military personnel sometimes fall victim to loansharking by senior officers, who lend them money to assist with the corrupt purchase of ranks; they are reportedly expected to repay their debts through further corruption.

Country information suggests that it would be quite possible that the applicant took out a loan with a loan shark in Thailand. However, the applicant’s evidence about the loan was unconvincing and the Tribunal finds that it is unlikely that the applicants took out a loan, and still more unlikely that they continue to have contact with loan sharks about repaying the loan.
There are several reasons for these findings. First, given the applicant did not complete the original application himself, and did not see the application before it was submitted, the Tribunal does not place any weight on the claims in the original application. Furthermore, the Tribunal notes that the applicant resiled from some of the details about the loan in evidence at the hearing, including that the applicant was ‘forced to do illegal activities for them’, and that they ‘entered his business and destroyed property and physically attacked him’. As a result, the Tribunal only places weight on the claims made in evidence at the hearing.
There were many aspects of the applicants’ oral evidence that casts doubt on the credibility of the claim. The primary applicant was vague about details of the loan. He was not clear on the exact amount he borrowed, stating it was ‘a few hundred thousand baht’, he did not know the last time he had made a payment stating it was ‘a long time ago’, and he did not know how much he had paid back on the loan. He also knew nothing about the money lenders and was vague on what the money lenders had done when he did not pay back the loan.
The first applicant’s evidence on why he had borrowed the money was particularly unconvincing. He stated he borrowed the money to start a small business but did not start the business. He then made the improbable claim to have used the money to ‘travel to the protest and join it’. He said this was the only use to which he had put the money. It is not clear why the applicant would need money to join a protest.
Finally, the Tribunal does not accept the first applicant’s claim that that he had contact with the money lenders ‘about three months ago’. This conflicts with his evidence that he does not know how much he owes on the loan. When the Tribunal pressed the applicant on this communication, he was not able to provide any details. He simply stated, ‘they want their money back’. The applicants submitted no corroborating evidence of this communication.
The second applicant was only able to add that she found out about the loan when the money lenders came to their house. She does not know any other details about the loan. This complete lack of knowledge of the loan is surprising given the length of time that the applicants have had the loan, and the fact that the loan is so central to their claims for protection. The second applicant’s complete lack of knowledge of the loan combined with the first applicant’s vague knowledge of the details of the loan strongly suggest that there was no loan.
The Tribunal concludes that it is unlikely that the applicants took out a loan in Thailand based on the evidence presented to the Tribunal. Even if the applicants did take out a loan, the Tribunal does not accept that they are still in contact with money lenders who are seeking to recover their money.
Refugee Criteria
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).
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.
The applicants evidence reveals two possible claims for protection. First a fear of harm from government in response to the primary applicant participating in an anti-government protest in support of democracy in about 2010, and second, a fear of harm from money lenders.
For refugee protection, there must be a real chance that the applicant will face harm in the reasonably foreseeable future for a refugee reason. In relation to the first claim, the reason the primary applicant fears harm is because of his political opinion. Based on the country information outlined above, and the primary applicant’s marginal involvement in political protest, the Tribunal finds that there is only a very remote chance that the applicant would be harmed for reason of his political opinion if he returned to Thailand. This does not reach the threshold of a ‘real chance’ which the High Court has interpreted as conveying the notion of ‘a substantial, as distinct from a remote chance, of persecution occurring’.[5]
[5] Chan v MIEA (1989) 169 CLR 379, 389 per Mason CJ.
In relation to the second claim, as the Tribunal does not accept that loan sharks are still pursuing the applicants for repayment of a loan, the Tribunal is not satisfied that the applicants have a real chance of serious harm for this reason if they return to Thailand.
Complementary Protection
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 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.
The ‘real risk’ element of the test in s.36(2)(aa) is the same as the ‘real chance’ test for s.36(2)(a).[6] Given that the Tribunal has concluded that there is not a real chance of the applicants suffering harm if they were to return to Thailand as a result of participation in a political protest or as a result of having a debt to loan sharks, the Tribunal also concludes that there is no ‘real risk’ of them suffering harm for the purposes of complementary protection.
[6] MIAC v SZQRB [2013] FCAFC 33.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
The applicants do not satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. The applicants are in the same family unit as their son who submitted a separate application to the Tribunal (case number 2306816). The Tribunal rejected the son’s application for protection. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Alexander Reilly
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.
…

[2024] AATA 4280

1 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies