1926191 (Refugee)

1926191 (Refugee) [2022] AATA 5055 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926191
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alison Murphy
DATE:24 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 October 2022 at 3:28pm
CATCHWORDS
REFUGEE – protection visa – Thailand – credibility issues – inconsistent claims and evidence in protection visa application – employed as a military spy by the Thai government to infiltrate Islamic separatist groups – business owner – targeted by criminals or gang members demanding protection money – Tribunal did not accept the applicant’s claims to be true – no real risk the applicant will face significant harm from Islamic separatist groups, gangs or criminals as a consequence of being returned to Thailand from Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 17 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa [in] October 2018. The delegate refused to grant the visa on the basis that the applicant is not a person owed protection by Australia.
The applicant first appeared before the Tribunal (differently constituted) on 7 December 2021. At the conclusion of that hearing the Tribunal adjourned to allow the applicant to provide further information in support of his claims. The Tribunal member constituted to the review (the first Tribunal member) subsequently became unavailable to complete the review and the review application was reconstituted to a different member (the current member).
The applicant was invited to a further hearing before the 2 September 2022 to give evidence and present arguments and at the commencement of the hearing the applicant provided three folders of further documents in support of the review. 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.
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 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 as such a person and that person holds a protection visa of the same class. 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 an apparently genuine Thai passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Thailand and he has been assessed on that basis by the Department. The Tribunal finds he is a Thai citizen and has assessed his claims against Thailand as his country of nationality and the receiving country.
The applicant’s personal background
It is not in dispute that the applicant arrived in Australia in October 2018 as the holder of a visitor visa and that he has not departed Australia since. The protection visa application is signed by the applicant and was lodged with the department on 23 October 2018.
In the visa application the applicant states that he is [age deleted] male from [District deleted] [in] Thailand and this is confirmed by the bio page in his Thai passport. He states that he is of Thai ethnicity and Buddhist religion and that he departed Thailand legally using a passport issued to him by the Ministry of Foreign Affairs.
However at the two tribunal hearings, the applicant gave evidence that almost every other detail in the visa application about his personal details and protection claims in the visa application is incorrect.
In the visa application he gives his name as [name deleted] and states he has never been known by another name. However he produced to the Tribunal a change of name certificate indicating that in July 2015, he changed his first name from ‘[name 1]’ to ‘[name 2]’.
In the visa application he does not declare a partner or dependent children, stating that his only family member is a sister in Thailand, now [age deleted], with whom he speaks weekly on the phone. However at the first Tribunal hearing he gave evidence that his parents separated when he was a child and he grew up with his mother and her partner, his brother and two half-sisters. He stated he has a partner from whom he separated in 2016 and a child, now[age deleted] , whom he continues to financially support. He stated that the person named as his sister in the visa application is actually his partner.
In the visa application he states that he lived at the same address in Samut Prakarn from 1991 until he travelled to Australia in 2018. However at hearing he stated he lived in [District deleted] until around May 2005 when he moved to Bangkok to attend university.
In the visa application he states that he had only a primary school education and was self employed as a [occupations deleted] between 1991 and 2003 and the operated a [goods] stall from 2004 – 2018. However at the second Tribunal hearing he produced a copy of his CV indicating that he undertook a diploma at [a] college in [District deleted] during 2004 and 2005 and then undertook the first two years of a [degree deleted] at [a] University in Bangkok. He told the Tribunal that he didn’t complete his university studies because he ran out of money. He has produced academic transcripts in the name of [name deleted](also spelled [name 1]) [applicants surname deleted] relating to his secondary education, vocational certificate and university studies.
In his curriculum vitae, which he told the Tribunal contained the correct details of his employment history, he states that he worked as an [occupation 1] and [occupation 2] for various companies in Thailand from 2006 until 2018, most recently for[company 1]. An organisational chart attached to that CV indicates that he was the [occupation 2]for [Company 1] on [a particular] Project. Pictures of that project submitted by the applicant indicate that it was undertaken in 2018. When these discrepancies were discussed with the applicant by the Tribunal, he maintained that his education and employment history was as set out in his CV and educational documents.
The sheer amount of what is now said to be incorrect information in the protection visa application causes the Tribunal to doubt all aspects of the applicant’s identity and personal history. However for the purposes of the current review, the Tribunal makes the following findings:
·The Tribunal notes the photographs of the applicant with a young child and accepts the applicant is separated from his partner and that their child is now aged about [age]. The Tribunal further accepts that the applicant sends money back to Thailand for the support of his child;
·In light of the Change of First Name certificate issued by the Registrar in Samut Prakan province dated [in] July 2015, the Tribunal accepts that in July 2015 the applicant changed his first name from ‘[name 1]’ to ‘[name 2]’ while retaining his surname ‘[name deleted]’;
·The Tribunal accepts that the applicant’s correct education and employment history is as set out in the curriculum vitae and education transcripts submitted to the Tribunal. In particular the Tribunal accepts that he undertook vocational level studies in [occupation 1] at [a] College in [District deleted]and university level studies in [occupation 1]at [a] University in Bangkok (although he did not complete his [degree]) before working [in occupation 1]and [occupation 2] for various companies in Bangkok from 2006 until 2018. In making this assessment the Tribunal notes the letter of support from his current employer, [Company 2] in [Australian State deleted], indicating that he has worked for them as [occupation 1] since 1 June 2022 and describing him as a hard working skilled professional. A letter dated 9 September 2020 from [Company 3] states he was employed by them as a [occupation 3] implementing a new [system] between 15 January 2019 and 9 September 2020. Given the applicant’s employment in Australia in [occupation 1 fields], the Tribunal accepts his account at hearing of his education and employment history in Thailand;
·As the Tribunal accepts the applicant’s education and employment history is as set out in the curriculum vitae and education transcripts submitted to the Tribunal, it accepts that the applicant lived in [District deleted] where he undertook his college studies before moving to Bangkok around May 2005, completing his university studies in that city. The Tribunal accepts his evidence that he remained living in Bangkok until he left Thailand in October 2018.
In the visa application he states he has never undertaken any military service nor been employed as an intelligence officer or an agent of an intelligence or security agency, but before the Tribunal he claimed to have completed two years compulsory military service between [years deleted] before being employed as a military spy between [years deleted] where he was one of [the] officers tasked with infiltrating Islamic separatist and terrorist groups operating in Thailand’s [are deleted] border provinces of [Province 1], [Province 2] and [Province 3] . The Tribunal’s particular findings on these claims are set out below.
The applicant’s claims for protection
Claims in the visa application
In his protection visa application, the applicant stated that in summary that he owned a [goods] stall at the markets and that gangs would come and demand money from him for protection. He claimed he was beaten up on many occasions and his stall destroyed because he refused to give them money. He claimed the gangs were well-connected with criminals and government officials and the police were unable to assist as they were afraid of the gangs too. He claimed that on one occasion he retaliated and hurt one of the gang members which led to people coming to destroy his stall and threatening to kill the applicant and his sister. He claimed that if he returned to Thailand the gang will harm and kill him as well as harm his sister.
However at both Tribunal hearings the applicant denied these were the reasons he had claimed protection, telling the Tribunal that he had sought the assistance of a friend to make the visa application because he did not speak English and that his claims were misrepresented. When asked by the first Tribunal if the contents of the visa application were true and correct, the applicant stated that he went through roughly the document that was sent back to him and the story was a bit distorted and wrong and he was not sure if it was his story in the visa application. He acknowledged signing the visa application, stating that he was rushed and didn’t understand the effect it might cause. He said he told his friend the story and he said to leave it with him and he would process it for him. The applicant said that when the document was emailed to him, he became aware that his story was wrong.
At the second hearing the Tribunal summarised the above claims for the applicant and sought his confirmation as to whether he had any fear of harm for those reasons. The applicant indicated that what was written was not his story and that he did not have any fear of harm for these reasons. He told the Tribunal that he became aware of these claims at the first Tribunal hearing in December 2021 but the facts were that he had a good life in Thailand, he had millions of bahts in his bank account as established by the bank statement submitted to the Tribunal, he was not in financial difficulty and he did not operate a [goods] stall in Thailand. The statement from [a] Bank indicates the applicant held a savings account at that institution in the name of [name 2] [surname] during 2017 and 2018 to which there were regular deposits and withdrawals. A reference letter from that bank dated 16 August 2018 and addressed to the Consul General at the Australian Embassy in Bangkok states that the applicant had maintained that account for two years; it had a balance of $AU8,818 and the bank considered it was capable of financially supporting the applicant during his trip to Australia.
For the reasons set out above the Tribunal has accepted that the applicant was working as an [occupation 1] and [occupation 2] in Bangkok during the period the visa application states he operated a [goods] stall in Samut Prakarn. Given the applicant’s evidence that he never operated a [goods] stall, was not in financial difficulty and had no fear of harm for the reasons set out in the visa application, the Tribunal finds the events described in the visa application did not occur; that the applicant did not operate a [goods] stall and was not harmed or threatened by criminals or gang members demanding protection money. The Tribunal finds there is no real chance the applicant will face serious harm from gangs or criminals if returned to Thailand for the reasons set out in the visa application, now or in the foreseeable future. For the same reasons the Tribunal finds there is no real risk the applicant will face significant harm from gangs or criminals for the reasons outlined in the visa application as a necessary and foreseeable consequence of being returned to Thailand from Australia.
New claims made to the Tribunal
At both Tribunal hearings the applicant claimed to face harm in Thailand for reasons not mentioned in the visa application. After first making these new claims at the hearing before the first Tribunal in December 2021, the applicant set them out in a written statement to the Tribunal dated 16 December 2021. At the second hearing in September 2022, the applicant gave further evidence about his new claims.
In summary the applicant claims that after undertaking military service between May 2001 and May 2003, he was recruited as one of [the] military officers to work as spies infiltrating Islamic separatist groups operating in the area in the [border provinces] of [Province 1], [Province 2] and [Province 3]. He claimed the duties of [these] military officers were to infiltrate the group, known as [Islamic separatist group , to confirm the details and locations of suspected terrorists before their arrest by the military. Some of the leaders in the group had been sent to Syria for training and wanted an independent state governed by their own laws.
He claims one of the ways he infiltrated the group was by enrolling in his vocational studies in Samut Prakarn. He said the terrorist group he infiltrated were made up of students and he had to apply to study in order to infiltrate the group and gain their trust. The information he provided was used to convict and jail a number of terrorists. He claimed that the military spy positions were necessarily highly secretive and if they had been caught the military would deny any knowledge of them. He gave evidence that he received a lump sum of danger money when he finished his service but there was no other evidence of his connection to the military. He accepted the position because he wanted to use the lump sum he was paid at the end to further his studies, but ran out of money before finishing his [occupation 1] degree.
The applicant claims that he had no problems in Thailand until April 2016, when Muslim people went to his mother’s house in [District deleted], identified themselves as friends and asked her for his current address. His brother later instructed his mother not to provide any information about the applicant to others.
In June 2016, the applicant claims he was informed that his [former] military spy colleagues had disappeared or died in circumstances connected to their former employment. One died in June 2016 from a traumatic injury, another disappeared in [location deleted] province in the same month and the [other] migrated to Laos in September 2016 in order to escape the [Islamic separatist group] The applicant claims that in August 2016 he made enquiries of his former military department unit and was informed that terrorists who had been arrested and jailed on the basis of information provided by the applicant and his former colleagues had since been released by the courts. He claims he was advised that as he was no longer serving in the military, they would not protect him and the applicant was afraid for his life and that of his family.

He claims that in December 2016 he noticed a suspect car with a licence plate displaying the [Province 1] sign in front of the [area] where he was working. The applicant recognised one of its occupants as one of the terrorists he had spied on while in the military. Another person got out of the car and made enquiries about the applicant in the neighbourhood area and the applicant left rapidly. One week later, he saw the same vehicle with the same occupants [outside] where he has working, but that vehicle now had a license plate showing the Bangkok province sign. He left in a company car and started to move around hotels before going to stay with a friend who lived in the military camp. He stayed with that friend in the military camp from the beginning of 2017 until he travelled to Australia in October 2018. He started saving money to apply for a tourist visa to travel to Australia and travelled here to start a new life without the fear of the [Islamic separatist group] who could end his life at any time.
Assessment of new claims
At each of the Tribunal hearings, the Tribunal discussed with the applicant that his claims were entirely different to those contained in his protection visa application, noting that s 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of new claims or evidence unless satisfied there is a reasonable explanation as to why those claims or evidence were not raised or presented before the primary decision was made.
In response, the applicant told the first Tribunal that he told his friend who helped him with his visa application the full details and he was not sure why he did not write it down that way. When pressed about whether he had checked the application before it was submitted he stated that he couldn’t read English and he asked his friend what he had written and his friend told him he had already submitted it. He stated that his friend seemed frustrated and he did not want to bother him. He stated that he had never had an opportunity to discuss his claims with anyone from the Department and had not been offered an interview. He stated that he tried to tell the Tribunal that none of the claims in his protection visa application were true from the beginning of the hearing.
At the second Tribunal hearing the applicant said that because he didn’t speak English and didn’t know about protection visas, he asked a friend from Laos to help him submit the application. He gave that person the documentation relating to his claims in Thai, but the Laotian and Thai languages are similar but not the same. He now knows that the claims written in the visa application are not correct but the claims made in the three folders of information he provided to the Tribunal at the start of the second hearing are true.
The Tribunal has considered those explanations. However it notes that this is not a case where details of the applicant’s claims are omitted or incorrectly recorded, rather the claims presented to the Tribunal are diametrically opposed to those made to the department. As well, a very significant proportion of the applicant’s personal details have been misrepresented in the visa including his education, employment and residence history as well as his family composition. Other personal details in the visa application appear to be correct, such as the applicant’s name, date and place of birth, religion, parents’ citizenship and visa and travel history. In such circumstances the Tribunal has very great difficulty accepting that the applicant provided the correct information to the person assisting him to make the visa application or that the differences arise from language difficulties or innocent errors or misunderstandings by the person who completed the visa application form.
For these reasons the Tribunal is not satisfied the applicant has a reasonable excuse for not raising or presenting his claims to the primary decision maker. The Tribunal also has other significant concerns about the credibility of the applicant’s new claims as discussed below.
The applicant’s military service
The Tribunal accepts the applicant completed military service between 2001 and 2003, despite the contrary statement in the protection visa application. In making that assessment the Tribunal notes DFAT’s advice that Thailand’s Constitution enshrines military service as a ‘national duty’, with men becoming eligible to be drafted to or volunteer for military service from the age of 21. Recruitment takes place through a lottery system and at hearing the applicant confirmed that he was drafted into service. The applicant’s evidence that he served two years in military service is consistent with DFAT’s advice that draftees who have not completed a university degree serve for two years.
The applicant has provided some photographs and news articles relating to the DFAT reports that there is a long-running separatist insurgency in Thailand’s [area deleted] Border Provinces driven by a complex mix of factors, including issues of territory, language and religious and ethnic identity. The conflict is reported to have re-ignited in late 2001 and worsened again after January 2004, accounting for thousands of deaths involving shootings, arson attacks and bombings up to January 2020 when the Thai government commenced direct peace talks with the most prominent group, Barisan Revolusi Nasional. The single deadliest attack is reported to have occurred in [Province 1] in [date deleted], when gunmen attacked [a] checkpoint killing [a number of people] people, many of whom were [Village] Volunteers.[1]
[Country information link deleted]
However for the following reasons, the Tribunal does not accept the applicant was recruited as a military spy tasked with infiltrating Islamic separatist groups operating in the area in the [area deleted] Border Provinces of [Province 1], [Province 2] and [Province 3] between 2003 and his relocation to Bangkok in May 2005 as claimed.
Firstly, the academic transcript submitted by the applicant records that he completed four semesters of study at [a] [College] in [District deleted] between his admission date [in] May 2003 and his graduation [in] April 2005. This is inconsistent with his claim that he was working as a military spy in the [area deleted] Border Provinces, several hundred kilometres away from [District deleted]. While the applicant gave evidence at the second Tribunal hearing that he enrolled in the course at [a] [College] in order to gain the trust of a group of students suspected of being part of the separatist group, he did not suggest that at the first hearing. Rather at the first hearing he gave evidence that he was living with the villagers in those [area deleted] border provinces during 2003 – 2005.
Secondly, the date on the change of name certificate submitted by the applicant is not consistent with the events that the applicant claims caused him to change his name. At the Tribunal hearings and in his written statement lodged with the Tribunal, the applicant claimed that his difficulties in Thailand started in April 2016, when Muslim persons went to his mother’s home in [District deleted] asking about the applicant’s whereabouts. He claims that [his] former colleagues were killed or disappeared in mid-2016 and that members of [Islamic separatist group] tracked him down at work in December 2016. At the second hearing he gave evidence that he changed his name because of these problems. However the change of name certificate that the applicant has submitted indicates that he changed his name in July 2015, before any of these events occurred. For these reasons the Tribunal does not accept the applicant’s name change relates to any fear of harm from [Islamic separatists].
Thirdly, the applicant remained living in Thailand for almost two years after he claims the terrorist group located him at his workplace in Bangkok in December 2016, telling the Tribunal that in early 2017 he moved in with a friend who lived in a military camp and remained there until he left Thailand for Australia. At the second hearing the applicant said that during this time he was living off his savings and did not go out in public.
However the applicant also gave evidence that the CV he provided to the Tribunal at the second hearing was an accurate account of his employment in Thailand. That CV indicates that the applicant was working as a [coordinator] for [Company 1] during 2017 and 2018. An organisational chart submitted by the applicant describes him as the [occupation 2] from the [project name deleted] being undertaken by [Company 1] and he has also provided a number of photographs of himself [at his place of work] as evidence of his work in 2018. The job description in his CV indicates his tasks included meeting with [professionals] and undertaking [work duties deleted].
At hearing I discussed with the applicant that work appeared to be inconsistent with his evidence to the Tribunal that he was living off his savings while in hiding with a friend in a military camp during 2017 and 2018. The applicant stated he worked mainly by video conference and occasionally paid military staff cash to use their cars and work as his bodyguards when he had to go on site. The Tribunal does not accept that explanation, rather it considers the applicant’s evidence that he was living off his savings while in hiding at a military camp in 2017 and 2018 to be inconsistent with his evidence as to his employment during the same period.
For the above reasons the Tribunal does not accept the applicant’s new claims to be true. In particular the Tribunal does not accept the applicant was employed as a military spy by the Thai government to infiltrate Islamic separatist groups active in Thailand’s [area deleted] Border Provinces in 2003 – 2005. The Tribunal does not accept that members of that group made enquiries about the applicant’s whereabouts from his mother in 2016, nor that the applicant’s former colleagues were murdered by that group or disappeared for fear of harm from that group. The Tribunal does not accept the applicant lived in a military camp in Bangkok in 2017 and 2018, nor that he was of any adverse interest to separatist groups when he travelled to Australia in October 2018.
For these reasons the Tribunal does not accept there to be a real chance the applicant will be targeted or harmed by [Islamic separatist groups] if he returns to Thailand, now or in the foreseeable future. Therefore he does not have a well founded fear of persecution and he does not come within the definition of a refugee in s 5H.
For the same reasons the Tribunal does not accept there are substantial grounds for believing there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand. Therefore he does not meet the criteria set out in s 36(2(aa).
CONCLUSIONS
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.
Alison Murphy
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 5055

24 October 2022

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