1926831 (Refugee)

1926831 (Refugee) [2021] AATA 4515 (13 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926831
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Christine Cody
DATE:13 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 October 2021 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion and economic conditions – no political activity in home country or Australia – no claim of past harm but fear of future harm – credibility – inconsistent claims and vague and evasive evidence – claim of local political activity and fear of harm from members of rival party raised for first time at review hearing – adverse inference – delay in departing and voluntary returns – no harm to family members – delay in applying for protection – applied after separating from primary visa holder wife – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 423A
CASES
Dranichnikov v MIMA [2003] HCA 26; (2003) 77 ALJR 1088
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 4 September 2019 to refuse to grant the applicant, who claims to be a citizen of Thailand, a protection visa under s 65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A.
Migration history
The applicant was granted a dependent student visa (Subclass 573) on 18 November 2014, which was due to expire on 8 March 2016. He left Thailand legally on [Date 1] December 2014 and arrived in Australia on [Date 2] December 2014 as the holder of a Subclass 573 Student (Dependent) visa. On 8 March 2016 he was granted a Subclass 572 visa which ceased on 23 November 2018. His wife was the primary student visa holder.
The applicant applied for the protection visa on 10 October 2018.
The Departmental file
The applicant submitted a protection visa application form as well as identity documents: his passport, issued [in] 2015, which expired [in] 2020 and his ID card issued 24 March 2017.
Application form
According to his application form the applicant is aged [age] years old. He is a Buddhist. His only nationality is Thai. In Thailand he lived at the same address from his date of birth to [Date 1] December 2014. He is separated from his wife. He is not employed although he works illegally as [an Occupation 1] in [Work sector 1] sometimes, because he needs to eat and pay for living costs.
When asked the reasons why he left his country he stated:
I'd like to apply this Visa because of these reason Since A coup in Thailand on April 20 , 2014 by Prayut Chanocha, as the result Thai people included me lack of the Freedom of political Election.
I don't like and I against oppose the coup because it is unlawful and population lost the democracy. Thai People lost the right freedom to election and political. Thai coup were damaged The economy of Thailand, resulting in unemployment and debt. So and I don't want to go to Thailand.
When asked if he had experienced harm in Thailand, he said no.
When asked if he had ever moved, or tried to move, to another part of that country or other countries to seek safety he responded:
Yes But Wherever I moved, the coup revolutionary person is the one who have power. No other power and no monitoring. People lost all rights and freedoms of the election and democracy. The economy, politics, elections, participation in the administration and lack of democracy.
When asked to explain what he thinks will happen to him if he returns to Thailand, he stated:
The power of the coup governs the entire administration. Therefore, moving to the rest of the country will continue to suffer from the same problems.
He claims he will be harmed or mistreated if he returns to Thailand:
Yes, in that I will lose the right to liberty, political and democracy. I will be controlled in the political opinions of the country. I will face unemployment because of the economic downturn. I would have been under the power without the righteous. This is my unacceptable to democracy.
He claims he cannot seek protection in Thailand because:
The coup is equivalent to seizing power from the people in the administration of the country, so the people have no right to vote or election and politically he would like to relocate to Australia because Australia give citizens the rights and freedoms of democracy. And the citizenship is the best and most complete but In Thailand none. The Australia government promotes and supports civil rights, human rights, political rights. And the Australia government came from the people's election. Without corruption and any insertion. He would like to relocate to Australia
The delegate’s refusal of the application
The delegate noted that the applicant has been provided with opportunities to specify the particulars of his claims; the application form stated he should provide all the details about why he is seeking protection and, where possible, documentation to support the claims. It also stated that the decision on his case may be made on the information provided in the application and it was important to include all details. A further opportunity was offered to the applicant to provide supporting information on 6 November 2018, however at the time of decision no additional information has been received by the Department.
The delegate noted that the applicant has not claimed to have engaged in any political protests in Thailand or Australia, nor has he indicated that he would engage in activities on return. There is no evidence to suggest that the applicant is of adverse interest to the authorities. This is further supported by his ability to obtain a passport and leave the country, indicating that he is not high profile or of adverse interest to the authorities due to any anti-government political opinion or for any other reason. The delegate was unable to be satisfied there is a real chance that on return to Thailand the applicant would suffer persecution for reasons relating to his political opinion.
The delegate considered the law and the country situation concerning economic situation and employment and whether the applicant will face unemployment due to an economic downturn in Thailand. The delegate did not accept that he met the relevant criteria.
There are no non-disclosure certificates on file.
The Tribunal
The applicant applied to the Tribunal for review, providing a copy of the delegate’s decision record. He was requested to provide any relevant documents or information to the Tribunal as soon as possible. No documents were provided.
The Tribunal considered it was reasonable to conduct the hearing by telephone during the period of the COVID-19 pandemic restrictions in NSW in October 2021 and the applicant agreed to the hearing taking place by telephone.
The hearing was scheduled to commence at 10 am on 8 October 2021 but the applicant did not attend. A few hours later he returned the Tribunal’s calls. He said that he had been asleep because he took medication the previous night. He said he was ready to have the hearing late. The applicant then appeared before the Tribunal by telephone to give evidence and present arguments. The Tribunal noted that he had informed the hearing assistant that he had a clear head for the hearing. The Tribunal asked whether there was anything impeding him from giving evidence to the best of his ability and he said there was nothing, and he had no particular medical condition.
The applicant gave some background information including that he and his wife separated in early 2018, and she has a new boyfriend. His parents and the three children live in his home in Thailand; they have lived there ever since the applicant left Thailand. He has twin sons aged [age] years and a daughter aged [age] years. The sons are working; his daughter attends online school due to the pandemic. His parents work, selling [produce] from home.
The applicant worked in a [department] in the [Work sector 2] area for 17 years until just before he came to Australia; prior to that job he was [an Occupation 2]. In Australia he does some [Work sector 1 work] and he works in a [specified] shop. Before the COVID-19 pandemic he would work on average 30 hours per week and now works around 10 hours per week. He has a work permit. He has done nothing else with his time while in Australia; if he is not working he just stays at home.
The applicant gave his evidence with the assistance of an interpreter in the Thai language. The Tribunal was satisfied that the applicant understood the proceedings and was able to give evidence and present arguments.
The Tribunal put to the applicant at hearing that, although it has not made up its mind, it has concerns with the credibility of his claims. Further relevant evidence is referred to below.
CONSIDERATION OF CLAIMS
Country of reference
The applicant produced a passport to the Department which shows that he is a Thai citizen. The Tribunal accepts that the applicant is a national of Thailand, and that the appropriate country of reference for the assessment of his refugee claims and the receiving country for the purposes of his complementary protection claims, is Thailand.
The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Concerns as to the credibility of the applicant’s claims
Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
As Kirby J observed in Dranichnikov v MIMA:[1]
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[2]
[1] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at [1100].
[2] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].
The Tribunal has a number of concerns with the case that this applicant has advanced on the basis of inconsistent, changing and vague evidence. The Tribunal’s concerns are set out below.
The applicant’s inconsistent claims
The Tribunal expressed concerns that the applicant’s claims changed significantly between his application form and his evidence at hearing. As noted above, his written claims were concerned with the consequences of the 2014 coup, as said there were subsequent adverse consequences in terms of democracy, human rights, political freedom and the economy.
At hearing, however, the applicant’s claims were completely different. When asked for the reason why he did not want to return to Thailand, he told the Tribunal that the following had occurred in Thailand before he left:
·     When he was working in Thailand, he had a friend whose mother was a local politician and she asked him to find people who would vote for her. In the meantime, there was another party and he happened to know the members of the other party as well. Because he knew them, that other group/party expected him to help them and when they thought he was helping his friend’s mum, they were not happy.
·     When asked if his friend’s mother or the other group belonged to a political party, he said no, they were just local.
·     The other group thought he had double-crossed them. Before he came to Australia, he felt like someone was following him; he felt like he was in danger and was being followed because he did not help the local group.
·     He tried to leave the area and he thought they might hurt his family as well. His wife had a brother-in-law living in Australia and so they came to Australia.
·     When asked if there was anything else to say, he said that was all. When asked whether there was any other reason why he didn’t want to return to Thailand, he said he doesn’t want to go back to face more problems from these people.
The Tribunal put to the applicant that the significant change in his claims undermined his credibility, noting that the only claims he made to the Tribunal were not in his application form, and the claims in his application form were not made to the Tribunal.
The Tribunal also specifically referred to s 423A of the Act, explaining that the Tribunal is required to draw an adverse inference about new claims or evidence if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, if it is not satisfied that the applicant has a reasonable explanation as to why the claim was not made or evidence not presented before the primary decision was made. The applicant said that his application form was done by his friend, he didn’t do it himself, because he doesn’t know English, and he doesn’t know what his friend put in the application form. The Tribunal put to him that this explanation is difficult to accept given he had been asked him at the beginning of the hearing whether his application form was true and correct, whether there were any errors or mistakes or anything missing, and he has replied that it was all true and correct. The Tribunal noted he did not say, at that time, that he was unaware of the contents of his application form. The applicant was silent and when the Tribunal asked him if he wanted to comment, he said he thought that his friend might have recorded in the application form what he said, “but that’s all right, don’t worry”. The Tribunal put to him that it is difficult to understand why his friend would insert a completely different version of events if the applicant was telling his friend his version of events. In response he said “yes”. The Tribunal is not satisfied that there is a reasonable explanation as to why the applicant did not raise the new claims he raised at hearing before the primary decision was made. Therefore, the Tribunal draws an adverse inference about the credibility of these new claims.
Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of these claims because the applicant only made these claims after his application was refused by the Department, and because of concerns with the evidence given in relation to these claims, which is discussed further below.
The applicant’s lack of knowledge of the name of the politician he assisted
The applicant did not know the name of his friend’s mother, the politician whom he was helping. When asked by the Tribunal, he initially said he doesn’t know her real name, he just calls her mum. After some further thought, he said he now remembers her name, which is [Ms A]. He said he had lost touch with her because he doesn’t want to get involved and that’s why he couldn’t remember her name. The Tribunal put to him that it is difficult to accept that he did not recall her name, and in response he said that is the Thai custom, “we don’t call people by their names, we call them mum or dad, like my friends, I can’t remember their names, only their nicknames”. The Tribunal put to him that that may be the case in relation to family and friends, however he is suggesting that he was asking members of the public to vote for a politician. In such circumstances, it is reasonable to expect that he would know the name of the politician he was asking people to give their votes to. In response he said it was a long time ago and “I have been thinking a lot”.
The Tribunal does not find the applicant’s reasons to be persuasive, and it considers that if his activities in support of a politician led to such serious consequences for him, including that he had fears for his safety and that of his family, leading to him fleeing his country, he would have known when first asked the name of the politician.
The applicant’s evidence that nothing happened to him despite his belief that people wanted to harm him, and his claimed lack of recall of how many times he returned to Thailand after having left there in danger
The applicant had said that he was helping his friend’s mum in about May or June 2014; then within 1-2 months people saw him talk to villagers asking them to cast votes for his friend’s mother. The only adverse incident that had occurred to him was that he thought he was being followed. The Tribunal put to him that the other group would have been aware of his actions in about July or August 2014, however he did not leave Thailand until December 2014, so if anyone wanted to harm him, they had plenty of time to do so before he left. The Tribunal noted that they were local people and it was his evidence that he had been doing the same job for the last 17 years, and he had lived at the same house all of his life; if people were seeking to harm him, they would have had the opportunity to locate and harm him for 4 months. In response the applicant said that he knew he was in danger and he had to take care of himself and so he had a gun when he was walking around. He had to be aware of the safety of himself and his family.
The Tribunal put to him that he also returned to Thailand after he arrived in Australia. The applicant’s evidence in this regard was vague and evasive. When the Tribunal asked how often he went back, Initially he said he thinks he went back once to Thailand. When the Tribunal asked again he said perhaps it was once or twice, he can’t remember. The Tribunal put to him that his children are back there, as are his parents, as are the local people who want to cause harm; in such circumstances the Tribunal would think that he would recall how many times he returned to Thailand. He then said that he thinks he went back once to Thailand since arriving in Australia. The Tribunal put to him that his passport stamps provide different information: they show that he had departed Thailand [in] April 2016 , [April] 2017 and [December] 2017, indicating that he had returned to Thailand three times since he arrived in Australia. The Tribunal put to him that if he left Thailand because he thought that he was in danger, and that even today he considers that the danger still exists, then it is difficult to accept that he would return three times. When asked whether he wanted to comment, he said it is up to the Tribunal, but every time he went back to Thailand he had a talk with these people and he asked his former boss for some help, to ask these people to forgive him and to check whether the issues are all over, but they were still unhappy and the situation remained. He missed his children and family, so he went back. The Tribunal put to the applicant that if the group confirmed on his first trip that they would not let the issue go, this would mean he was still in danger and so it does not make sense that he returned to Thailand a second and third time. When asked if he wanted to comment he said he has no comment, it is up to the Tribunal.

The Tribunal put to the applicant that it is difficult to understand that he could not remember how many times he had returned to Thailand after his arrival in Australia, given the serious consequences he claims await him in Thailand. In response he said it could be because he is stressed. While the Tribunal accepts that the applicant may have been stressed when attending a hearing, it does not accept that this can explain why he could not remember how many times he had returned to a place of danger after having arrived in a place of safety.
The Tribunal is not satisfied that the applicant’s evidence supports his claims. As put to the applicant, the people he claims wanted to harm him had plenty of opportunities to do so, yet they did not. While accepting that he may have been missing his family, it is difficult to accept that if he had a fear of harm from local people, he returned to his local area on three occasions since fleeing to Australia. The Tribunal also considers that if returning to Thailand meant that his life was in danger, he would have been able to recall how many times he had made the serious decision to return to Thailand.
The applicant’s willingness to leave his children behind while claiming that these people are dangerous and could harm his family
The Tribunal put to the applicant that if, as claimed, these people were so dangerous that he needed to carry a gun, and he was scared they were capable of harming his family, it did not understand why he was prepared to escape the country with his wife, while leaving behind vulnerable family members, namely his parents and his young children. In response he said yes, he has nothing else to say, it is up to the Tribunal.
The Tribunal considers that the applicant’s inability to explain his thought process in this regard undermines his claims.
The applicant’s delay in claiming protection
The Tribunal put to the applicant that there were concerns with his delay in claiming protection. His fears arose in 2014, he arrived in Australia in December 2014, but he didn’t claim protection until October 2018[3]. The applicant responded that he came as a student and after he talked to his friends, they advised him to apply for this visa. The Tribunal put to him that he had separated from his wife, according to his evidence, in early 2018, which would have meant that he knew he could not remain as her dependent. Even so, he still did not claim protection until October 2018. In response the applicant said he spent time trying to convince her not to leave him. The Tribunal acknowledges the reasons that the applicant did not claim protection for almost 4 years after his arrival in Australia, and gives some weight to these reasons. However, it does remain a concern that if the applicant considered that he faced serious or significant harm in Thailand when he first came to Australia, he did not take steps to lodge a protection visa application earlier.
[3] This information is set out in his application form/delegate’s decision record that he provided to the Tribunal.
On the basis of the above concerns, the Tribunal does not accept that the applicant is a witness of truth in relation to his claims of past harm and future fears.
Findings as to the applicant’s claims
The Tribunal accepts that the applicant came to Australia as a dependent on his wife’s student visa; they separated in early October 2018 , and he has three children living at home with his parents. It accepts that he was previously employed in Thailand.
On the basis of the adverse credibility finding the Tribunal does not accept that the applicant was involved politically in Thailand. It does not accept that he was a supporter of a local politician, that he encouraged people to vote for her, that he was targeted for that reason and felt fearful for himself and his family members. It does not accept that he attracted adverse attention. The Tribunal does not accept claims that flow from these claims. The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Thailand. The Tribunal does not accept that there has been any adverse interest in the applicant since he came to Australia. The Tribunal finds that he returned to Thailand on three occasions (as referred to in his passport stamps) and that he faced no harm or adverse attention on those occasions. It does not accept that he feared harm or engaged in attempts to mitigate harm when he returned to Thailand.
The Tribunal does not accept the applicant’s claims of past political involvement and it does not accept that there is a real chance or real risk of the applicant becoming involved in any way in political matters in Thailand nor of being imputed with such involvement leading to adverse interest and/or a real chance of serious harm or a real risk of significant harm in Thailand.
The Tribunal put to the applicant that it would appear the claims he made in his written application form were not the reasons why he did not want to return to Thailand, given that he did not mention these claims when asked to tell the Tribunal all the reasons why he did not want to return. In response, he said the form was written by someone else and he has no idea about that and what was written.
On the evidence before it, the Tribunal does not accept that the applicant maintains any claim to the effect that he faces harm for the reasons stated in his application form, including the coup, human rights, political freedom, democracy, liberty and the economy. The Tribunal is not satisfied that the applicant has a genuine subjective fear of harm for any of these reasons; nor did the applicant suggest that any of these factors in Thailand would support an objective basis for him to fear persecution.
The Tribunal noted that it is required to have regard to the Department of Foreign Affairs (DFAT) Report which provides information as to the country conditions in Thailand. The Tribunal put to him that if it did not accept his claims, then having regard to the country conditions it did not appear that he faces a real chance of serious harm or a real risk of significant harm. The applicant said that he understands, and he doesn’t want to say anything else.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above. The Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
Concerning the claims made in his written materials, the Tribunal has found that the applicant does not maintain those claims. He did not suggest to the Tribunal that he faced a real risk of significant harm for such a reason. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for the reasons stated in his application form, including the coup, human rights, political freedom, democracy, liberty and the economy.
The Tribunal does not accept that the applicant has experienced any adverse interest as claimed or that he has the political profile or involvement as claimed. It thus does not accept that he has or will come to adverse attention for such reasons nor is it satisfied that the applicant seeks to or would like to engage in expression of political views. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Thailand, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - 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. 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–5LA, 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.
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.
…

[2021] AATA 4515

13 October 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Natural Justice

Procedural Fairness

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Jurisdiction

Appeal