1924838 (Refugee)

1924838 (Refugee) [2020] AATA 3914 (7 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1924838
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Tamara Hamilton-Noy
DATE:7 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 September 2020 at 3:08pm
CATCHWORDS
REFUGEE – Protection visa – Thailand – applicant had no fears of returning to Thailand – debt – applicant was unaware the visa he had applied for was a protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65,499
Migration Regulations 1994, Schedule 2
CASES
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 August 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa on 29 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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 meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on a Thai passport and has at all times maintained that he is a citizen of Thailand. The Tribunal finds that the applicant is a Thai citizen and has assessed his claims against Thailand as his country of nationality.
Claims for protection
The applicant arrived in Australia [in] April 2016 and lodged a claim for protection on 29 May 2018.[1] In his written protection application, the applicant stated that he had left Thailand for the following reasons:
When I lived in Thailand, I was very active in the “Red Shirts”. This is a political party which supported the Shinawatras. Thaksin Shinawatra was a former prime minster who was run out of the country by the military and the opposing party, the “Yellow Shirts”. After an interim government, a new prime minister was elected, Yingluck Shinawatra, the former prime minister’s sister. The military could not abide this and deposed her in a coup. They were supported in this coup by the Yellow Shirts. When the military came to power, the Yellow Shirts took revenge on many of their Red Shirt political opponents knowing the military government would not intervene. The Yellow Shirts threatened me and told me if I did not leave Thailand they would kill me.
[1] Taken from Department decision, a copy of which was provided by the applicant to the Tribunal.
The applicant stated that he had not experienced harm in Thailand. He had not tried to move to another area of Thailand because: “There would be no use moving to another part of Thailand. All of Thailand is now under control of the military junta, and the Yellow Shirts are a nationwide organisation”. As to the harm he fears if he returns to Thailand, the applicant stated:
I would be harassed, physically harmed, and eventually killed if I would not leave Thailand. The organisation responsible would be the Yellow Shirts, and their actions would be supported by, or at least tolerated by, the now-ruling military junta. They would harm me to force me to leave Thailand and to send a message to others to stop being outspoken political opponents of the current military junta.
Prior to making a decision, the Department wrote to the applicant seeking more information about his claims. In response to the request for information, the applicant stated that in the past he had a Red Shirt card but everything had been abandoned because people found with such documents were likely to be arrested. The applicant said that in 2016 he had decided to study in Australia and hoped the situation would calm down. He finished his studies and after seven months decided to apply for protection.
At the time of lodging an application with this Tribunal, the applicant provided further submissions in support of his claims, in relevant part and in summary that:
·He is offering the submissions in support of his request for a review of a recent refusal of an application for a protection visa;
·His hope is that the information in the letter will cause the Tribunal to reconsider the decision and approve his application;
·Although the person vetting the application did a thorough job of researching the circumstances associated with his claims, and what is reported to be the current state of the justice system in Thailand, he believes this vetting was based on information that was a) incomplete, and b) too general;
·The decision maker was apparently not aware of the general political affiliation of his home province, and the ramifications that has on the ability and willingness of the local and regional police and courts to enforce and prosecute corruption and organised crime laws in favour of the Red Shirts and against “Yellow Shirts” who are strong supporters of the current military junta, especially those that have a connection with the military;
·The more specific facts are that although the junta claims to be “cracking down” on corruption and organised crime, these activities that do exist are focused on the urban areas and sections of Thailand that have strong Yellow Shirt support;
·It is for this reason that the applicant is unwilling and unable to avail himself of the protection of the administrative authorities in Thailand;
·The applicant has no faith that the local criminal justice system, and that includes the police and courts, will provide him, as a well-known Red Shirt supporter, fair and adequate protection from wealthy Yellow Shirts who are retired army officers and who have been given free rein to extract retribution from their political opponents.
Tribunal hearing
The Tribunal hearing was conducted on 2 September 2020. At the time of the hearing, the Tribunal’s Registry was closed due to COVID-19 and the hearing was conducted by telephone. The applicant was not represented at the hearing and gave evidence on oath. The Tribunal was assisted at the hearing by a Thai interpreter. The applicant confirmed at the commencement of the hearing that he was in a space on his own where he could give evidence to the Tribunal without anyone overhearing him. The Tribunal was satisfied from the answers given by the applicant throughout the hearing that he was able to give evidence and present arguments to the Tribunal.
The applicant told the Tribunal that he was born in [in] an area [number] kilometres from the city of [City 1]. He lived there until he applied for a visa for Australia; he did not live in any other areas of Thailand but visited other provinces for holidays. He has not travelled to any countries other than Australia.
The applicant said that his mother, father, younger sister, aunt and uncle all live in [City 1] together and work as [farmers]. He is not married and he does not have any family members in Australia. The applicant said that he completed high school [and] then worked in the industrial district in [City 1]. He worked for eight or nine months, but didn’t have much income and so applied to come to Australia after a cousin who lives near him suggested that he study in Australia. His mother and father borrowed money and he organised everything, using an agent. He arrived in 2016 on a student visa but can’t remember what he studied. He only studied for two months in Sydney before he was tricked into farm work. He was tricked after making an inquiry into work and being told a person could change his visa to a working visa if he worked for them for a few months. He paid money for this, but the person took his money and he could then no longer contact them. He doesn’t know who this was as it was many years ago, but they said they were a local.
The Tribunal observed that the applicant had not applied for protection until two years after he arrived in Australia and asked why he had not applied earlier and he said his student visa was cancelled and at that time he was living without a visa. A person approached him and asked him if he wanted to apply for another visa. They said he could pay them after his visa was approved; this was a friend of a friend, and he was told that if he was interested, he could work legally and could pay them later.
The Tribunal asked about the protection application submitted to the Department in 2018 and the applicant said he doesn’t know what was in it; he doesn’t know what visa it is and wants to live in Australia legally. The Tribunal asked why the applicant had left Thailand and he said when he came, he had applied for a student visa. Before COVID-19 everything looked promising and he was planning on earning money and studying. The Tribunal asked the applicant whether he fears anything if he returns to Thailand and he said no.
The Tribunal asked whether the applicant had been politically active in Thailand and he said no. The Tribunal asked whether the applicant had been threatened by anyone in Thailand and he said no, he came to Australia on a student visa and was tricked to pay money. The Tribunal asked whether the applicant had experienced any harm in Thailand and he said no. The Tribunal asked the applicant whether he understood he had submitted a visa application to the Department that said he fears harm if he returns to Thailand and he said no, he doesn’t know and that he was advised he could live here legally.
The Tribunal observed that in his protection application the applicant had described himself as an active Red Shirt supporter. He stated in response ‘no’. The Tribunal observed that the applicant in a response to the Department had said that he had a Red Shirts card and he stated in response that for the visa there was an agent who processed it but he doesn’t know who this is. He had had a connection through a friend of his and the person would contact him by phone but there was no caller ID. He said that he did not know that information had been provided on his behalf saying he had a Red Shirts card. The Tribunal observed that the applicant had provided submissions to the Tribunal in which he described himself as a well-known Red Shirts supporter. The applicant stated in response no, the person who ‘processed this’ was an agent and he was told to pay them at the time. He was not aware of submissions that he was a well-known Red Shirts supporter and just wants to live in Australia legally.
The Tribunal observed that the applicant had given evidence that he had no fears of returning to Thailand and asked him why he couldn’t return. He said that the only reason is a debt for money for [studies] and his student visa. He owes money to the village co-op for studying and for his visa and his sister also borrowed money for studying. As to how he had been in Australia for four years and not repaid what was borrowed, he said he ‘doesn’t work here’. As to what would happen if he returned without repaying the amounts borrowed, he said they will take away his family’s land because his parents used the land for the loan. As to why this had not been raised earlier, the applicant said he doesn’t know anything because the agent ‘processed’ his application.
The Tribunal asked whether the applicant could return to live with his family and find work in Thailand and he said he tried to work in Australia and send money back home. Once he has paid the loan off, he can return and start working in Thailand. As to how much he owes, he said he owes [amount] baht. The Tribunal observed that this equated to some [amount] AUD and the applicant said he just paid the interest. The Tribunal said it was having difficulty accepting that student loans and the cost of a visa would amount to [amount] baht and the applicant said the loan is for his studies, but also that his father applied for work overseas and his sister borrowed money for studying. The Tribunal observed that it was having a lot of difficulty accepting this would amount to [amount] baht and the applicant said it had been [amount] or [amount] baht at a time. The Tribunal observed that these amounts would not add up to [amount] baht and the applicant said in response that the land has many titles, that he ‘approached one title’ and had offered another title.
The Tribunal asked when the amount was borrowed from the village co-op and the applicant said it was when he was young, in 2549 or 2550,[2] and the amount was ‘[amount] baht and four land titles’, he doesn’t know which one his dad ‘applied’, but his father put land as a mortgage and borrowed money for his agricultural business. The applicant said he was young and his father told him he was in debt when the applicant came to Australia.
[2] 2006 and 2007 Gregorian calendar
The Tribunal asked how much money the applicant had been sending back to his family and he said he can’t remember but it is over [amount] baht each time. As to whether he had documentation about the loan from the village co-op, he said it is at home and is in Thai, and he doesn’t know whether he could obtain this ‘because the loan was done separately’.
The Tribunal asked what the applicant would be concerned about if he had to return to Thailand. He said his only concern is that he has to pay off the debt first and he is worried that the land will be taken away. As to why he thinks the land would be taken away, he said that his family don’t earn much from [farming] to live by. The capital hasn’t been paid off, only the interest. The Tribunal observed it was having difficulty understanding what harm the applicant was submitting he would fear because of this and he said no harm, but his only concern is paying the debt.
The Tribunal asked what would happen if the applicant returned without paying the debt and he said he is worried about the amount borrowed and if he doesn’t pay, the interest will increase. If they don’t pay the loan according to the timeline, the land might be taken away. He is not working at the moment. The Tribunal asked what the village co-op had done since the applicant had been unable to work and he said that they haven’t done anything and that his parents are paying the interest each month.
The Tribunal asked about the applicant’s claim to owe [amount] baht and asked what this amount was made up of and what was borrowed. The applicant stated that he doesn’t know ‘each one of them’ but someone appraised the value of the land. He then came here and doesn’t know what was borrowed.
The Tribunal asked whether the applicant wanted to add anything else about his claims and he said that his work rights were granted two months ago and he wants to pay tax. There are not many issues that he worries about. He queried whether, if his visa is denied, he can apply for another type of visa.
Findings of the Tribunal
In assessing an applicant’s credibility, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant and is not required to have rebutting evidence available to it before it can find a particular fact asserted by an applicant is not made out.[3] The applicant was not interviewed by the Department and the Tribunal had the benefit of speaking to him during a hearing about his background, his reasons for leaving Thailand and about his claims for protection. The impression formed by the Tribunal was that the applicant was confused about the reasons for the Tribunal hearing and was unaware that the visa he had applied for was a protection visa. The applicant was focused throughout the hearing on being able to maintain his ‘working rights’. There were aspects of the applicant’s evidence that were given in a spontaneous and clear manner and, for these reasons, the Tribunal considered that the applicant provided evidence at the hearing about his background and about his reasons for having left Thailand in a credible manner. However, the Tribunal had significant doubts about other aspects of the applicant’s evidence, in particular around his concerns about returning to Thailand at present, which are detailed further below.
[3] Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA (1994) 34 ALD 347; Kopalapillai v MIMA (1998) 86 FCR 547.

The Tribunal accepts from the evidence given at the hearing that the applicant is [a] village area out of the main city. The Tribunal accepts the applicant’s parents, sister, aunt and uncle live together in [City 1] and that his parents are farmers. The Tribunal accepts the applicant completed high school and worked briefly in the industrial district in [City 1] before travelling to Australia.
The Tribunal is prepared to accept the evidence of the applicant that he perceived his income was low and he decided to come to Australia to study on the advice of a cousin. The Tribunal is prepared to accept that the applicant or his parents borrowed money for an agent to prepare the applicant’s paperwork to travel to Australia. The Tribunal accepts the applicant arrived in Australia on a student visa but only studied for two months before he started working. The Tribunal accepts that the protection visa application was submitted on behalf of the applicant by an agent and that the applicant does not know what claims were made on his behalf in the protection visa application, or in the subsequent response to the Department or in the submissions made to the Tribunal.
Based on the evidence given by the applicant at the hearing and on the two year delay between his arrival and his claim for protection, the Tribunal finds that the applicant did not leave Thailand because he was in fear of harm or because he intended to seek protection in Australia. The Tribunal finds from the evidence of the applicant that the protection visa was lodged within the context of the applicant seeking an avenue to work legally in Australia.
Given these findings and based on the applicant’s evidence at the hearing, the Tribunal finds that the applicant was not politically active in Thailand, that he was not threatened by anyone before leaving Thailand and that he did not leave Thailand because he was in fear of harm. The Tribunal finds that the applicant was not an active Red Shirts supporter, that he was not a well-known Red Shirts supporter and that he did not hold a Red Shirts card. The Tribunal finds that the applicant was not threatened by Yellow Shirts and told that if he did not leave Thailand, they would kill him. The Tribunal finds that the applicant does not fear being harassed, physically harmed or killed by Yellow Shirts if he returns to Thailand. The Tribunal finds that the applicant does not fear harm from Yellow Shirts in an attempt by the Yellow Shirts to force him to leave Thailand and to send a message to others to stop being outspoken against the military junta. The Tribunal finds that the applicant would not be politically active if he returns to Thailand. The Tribunal finds that there is not a real chance the applicant faces serious harm if he returns to Thailand now or in the reasonably foreseeable future because of his political opinion or imputed political opinion.
The Tribunal finds that the applicant did not experience serious harm in Thailand. As to his risk of harm if he returns to Thailand, the applicant raised for the first time at the hearing that he feels that he cannot return to Thailand until a debt is repaid to the village co-op. The applicant told the Tribunal that the debt was accumulated from his student visa application and [studies], that his sister had also borrowed money for studying, and that the amount owed totals [amount] baht. It was only when the implausibility of this amount being accrued was put to the applicant that he then told the Tribunal that his father had also applied to work overseas and that there was a mortgage over the family land. The applicant gave evidence that [amount] baht had been borrowed in 2549 or 2550, when the applicant was [age]or [age] years of age.
The applicant not raising in evidence that his family had a mortgage over their land until the implausibility of the applicant’s evidence was put to him, in addition to his willingness to have someone prepare false protection claims on his behalf and the significant delay in claiming protection, all lead the Tribunal to have significant doubts about the credibility of the applicant’s evidence. The Tribunal does not accept that the applicant, or the applicant and his family in combination, owe [amount] baht to his village co-op because of borrowing money for his student visa, his [studies], his sister’s studies, a mortgage on the family’s land or for any combination or all of these things.
The Tribunal is prepared to accept that the applicant, or his parents, borrowed an amount for the applicant’s student visa application and that he owes money from his [studies] in Thailand. The applicant has now been in Australia for four years and has, on his own evidence, been able to send money back regularly to his family. The Tribunal does not accept that the applicant owes a debt to the village co-op for money he borrowed in 2016 that, if unpaid, will result in his family’s land being taken away. The Tribunal finds that there is not a real chance the applicant faces serious harm if he returns to Thailand now or in the reasonably foreseeable future because of money borrowed from the village co-op for his student visa application or for his [studies].
The Tribunal is prepared to accept that the applicant’s family, rather than the applicant himself, owe a debt to their local village for a mortgage taken over their land when the applicant was in his early teenage years. The applicant’s evidence was that, since he has not been working due to COVID-19 restrictions, his family have been paying the interest on the loan back. The Tribunal is prepared to accept that the applicant’s family or sister borrowed money for the applicant’s sister’s studies, however is not satisfied that the amount borrowed was by the applicant himself. The Tribunal finds that there is not a real chance the applicant faces serious harm if he returns to Thailand now or in the reasonably foreseeable future because his family has a mortgage on their land or because they borrowed money for the applicant’s sister’s studies.
The Tribunal accepts that the applicant perceives that the family’s entire debt is partly his responsibility to repay and has also considered whether the applicant is at risk of harm if he is unable to help repay his family’s debt. The Tribunal finds that the applicant was able to find employment in Thailand and that he has found work in Australia that is of sufficient remuneration that he has been able to support himself and send money back to his family. The applicant gave evidence that his parents have been able to continue to make interest payments on their mortgage without the assistance of the applicant’s income. The Tribunal finds that the applicant and his family will be able to continue making payments towards the family’s debt if the applicant returns to Thailand. The Tribunal finds that there is not a real chance the applicant faces serious harm if he returns to Thailand now or in the reasonably foreseeable future because of a mortgage that the family owes.
The Tribunal has also considered the cumulative claims of the applicant but is not satisfied that the applicant has a well-founded fear of persecution for any reason.
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). This requires the Tribunal to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk the applicant will suffer significant harm.
Section 36(2)(aa) 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. For the reasons stated above, the Tribunal finds that there is not a real risk the applicant will suffer significant harm if removed from Australia to Thailand.
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.
Tamara Hamilton-Noy
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.
…

[2020] AATA 3914

7 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction