1935629 (Refugee)

1935629 (Refugee) [2020] AATA 5079 (25 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1935629
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Tamara Hamilton-Noy
DATE:25 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 November 2020 at 11:53am
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – supporter of the Red Shirts – credibility concerns – inconsistent evidence – application completed by another person – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
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 21 November 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 23 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 she 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 she is a citizen of Thailand. The Tribunal finds that the applicant is a Thai citizen and has assessed her claims against Thailand as her country of nationality.
Claims for protection
The applicant claimed in her written protection application that she left Thailand for the following reasons:
When I lived in Thailand, I was an active supporter of the “Red Shirts”. This is a political party who supported the Shinawatras. Thaksin Shinawatra was a former prime minister who was removed from office by a military coup and 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. Their political arm was the Yellow Shirts. When the military came to power, the Yellow Shirts took revenge on many of their 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.
In response to the question of whether the applicant had experienced harm in Thailand, she said ‘no’. The applicant stated that if she returns to Thailand:
I would be harassed, physically harmed, and eventually killed if I would not leave Thailand. The organization 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.
On 27 October 2019, the applicant provided further information to the Department in response to a request for information. Her response stated, in relevant part, that:
I returned to Thailand in December 2016 because I thought things had calmed down, but when I returned to Thailand I found that everything is still scary and I cannot trust in having safety.
As far as the details of my involvement in the Red Shirts and my fear of reprisals, here is what I recall. I just joined the rally group associated with the Red Shirts I am a member of the Red Shirts. I can’t remember every event I attended. I don’t attend often, but I participated when I had a free standing. I did not engage in any political activities with the Thai government and I have never been harmed because of my participation in the Red Shirts. But my fear is I have a Red Shirt group membership card. I have now destroyed it, however the opposite side knows my personal information. There are always a large group of threats being circulated. None are specific to me, but I was one of the group members, and the government and their allies have access to all that information.
The delegate of the Department did not accept the applicant was Red Shirts supporter or that she had a Red Shirts membership card or that she attended rallies for the Red Shirts or any other activities adverse to the Thai government or that Yellow Shirts threatened to kill her. The delegate found the applicant does not have a subjective fear of harm upon return to Thailand. The delegate was not satisfied the applicant is a refugee on the basis her claims were unsubstantiated and lacking in credibility. The delegate found that the applicant is not owed complementary protection as there are no substantial grounds for believing that there is a real risk she will suffer significant harm. A copy of the delegate’s decision was provided by the applicant to the Tribunal.
At the time of lodging an application with the Tribunal, the applicant provided written submissions about her claims, dated 17 December 2019, which provided the following information, in summary:
·She was offering the submissions in support of her request for review of a recent refusal of her application for a protection visa;
·Her hope is that the information in the letter will cause the Tribunal to reconsider the decision and approve her application;
·Although the person vetting her application did a thorough job of researching the circumstances associated with her claims, and what is reported to be the current state of the justice system in Thailand, she believes that the vetting was based on information that was a) incomplete and b) too general;
·The decision maker used sources that are mainly concerned with the reporting on activities in and around the large urban areas, and primarily, and sometimes exclusively, on Bangkok;
·The decision maker was apparently not aware of the general political affiliation of the applicant’s 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 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 Shirts support;
·There is not only a lack of enforcement of protective laws, there is a general apathy on the plight of Red Shirts supporters who are constantly under threats of verbal and economic harassment, physical assault and even in some cases, assassination;
·It is for this reason that the applicant is unwilling and unable to avail herself 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 her, as a well-known Red Shirts supporter, fair and adequate protection from wealthy Yellow Shirts who are retired army officers and who have been given free reign to extract retribution from their political opponents.
Tribunal hearing
The Tribunal hearing was conducted on 26 August 2020. The applicant was not represented at the hearing and gave evidence on affirmation, and the Tribunal was assisted at the hearing by a Thai interpreter. At the time of the hearing the Tribunal’s Registry was closed due to the impact of the COVID-19 pandemic. The Tribunal exercised its discretion to conduct the hearing by video, having regard to the Tribunal’s objectives of providing a mechanism of review that is fair, just, economical and quick and having regard to the delay in this matter if it was not conducted by video. The Tribunal was satisfied from the applicant’s answers that she was able to give evidence and present arguments throughout the hearing.
The applicant told the Tribunal that she is [age] years of age and was born in [District 1], Phayao. She said that when she was young she moved to different places, ‘here and there’, and when she was [age] to [age] years of age she studied in Chiang Rai. Before she left Thailand, she was living in Phayao. She has not travelled to any countries other than Australia. She did some work in Thailand and when she graduated, she came to Australia. Her parents live together in Phayao and her [brothers and sisters] also live in Phayao. She was previously married and divorced while living in Australia; her former husband is in Australia, but they no longer have contact. She does not have any children and she does not have any other family members in Australia.
The Tribunal asked the applicant when she had first arrived in Australia and she said it was six years ago. She came to study, on a student visa, and first studied [Subject 1] and then [Subject 2]. She has worked in Australia as [an Occupation 1] but is not working at the moment. The Tribunal asked whether there was any other reason the applicant had left Thailand apart from an intention to study in Australia and she said her father had a problem and she was sent here. Her father joined a Red Shirts protest and so she had obstacles in earning income. The Tribunal asked the applicant why she couldn’t earn income because her father was a Red Shirts supporter and she said again that she had obstacles in earning income. The Tribunal asked what the obstacles were and she said it was when a job application was rejected. The Tribunal asked why she thought the job was rejected because of her father’s political activities and she said in response that when she finished Year 12, she didn’t have income and they couldn’t support her and she heard that she could obtain work in Australia.
The Tribunal asked again why the applicant’s job application was rejected because of her father’s political activities and she said that it was her father who had applied for the job and couldn’t get the job. The Tribunal asked the applicant to tell the Tribunal about her father’s political activities. She said that at that time she was young and studied somewhere else and doesn’t know what they were.
The Tribunal asked whether the applicant had had any other reasons for leaving Thailand and she said that during a holiday she went back to Thailand and there was a threatening letter, so her father said to return to Australia. The letter was threatening her father. The Tribunal asked whether the applicant had any fear of harm if she returns to Thailand and she said, yes, she has fear for herself and her family. As to what harm she fears, she said that she is afraid that what they said in the letter will become a reality. The letter had said that if the protests continue, there is no guarantee of the safety of the family. The Tribunal asked when the applicant’s father had received the letter and she said it was six years ago, at the time she was coming to Australia. In response to further questions from the Tribunal, she said she had returned to Thailand for one month and had stayed with her family. Her father is still living in the house he lived in long-term. As to why he would stay in the same house if he was in fear from a threatening letter, the applicant said it is because it is an asset from his father and becomes her father’s asset, and the letter talked about if the actions occurred again, and that’s why he is still in the house.
The Tribunal asked the applicant why she had returned to Thailand if she was in such fear of harm and she said that when she returned, she didn’t tell anyone; she went there and stayed with her family and didn’t go anywhere. The Tribunal asked who the applicant fears harm from in Thailand and she said she can’t specify the person and that is why she is scared.
The Tribunal asked whether the applicant had been politically active in Thailand and she said not at that time, because she was young. She clarified that she had not been politically active at all in Thailand. She had not been threatened by anyone before she left Thailand. She had not experienced harm in Thailand before she left.
The Tribunal asked the applicant about the protection visa application she had submitted to the Department in April 2018. She said she had asked [Ms A] to complete the application. She does not know what was put in the whole application. The Tribunal asked about the submissions provided to the Department in October 2019 and the applicant said [Ms A] completed these and at that time she advised [Ms A] and it was explained to her what was written. The Tribunal also asked about the submissions to the Tribunal in December 2019 and the applicant said she asked the same person to help her prepare these and she does know what is in them. The same person, [Ms A], assisted her with the hearing response for the Tribunal’s hearing and asked the applicant to come and talk to the Tribunal. [Ms A] is a female Thai person who does not live with the applicant. As to what [Ms A] had told the applicant that she had put in the submissions to the Department and to the Tribunal, the applicant said it was about her joining the Red Shirt protests.
The Tribunal observed that in the protection application, the submissions to the Department and the submissions to the Tribunal, the applicant had not included any information about her father joining the Red Shirts or that he had received a letter. The Tribunal asked why, if that was the reason the applicant had come to Australia, this information had not been raised by the applicant prior to her evidence at the Tribunal hearing. The applicant stated that at the beginning [Ms A] asked her about her reasons and said if that was the case, she ‘may not’ and at that time the applicant was young. The Tribunal asked the applicant to clarify that what she was saying was that [Ms A] had advised her that if she talked about her father, she may not be successful and the applicant stated ‘yes’.
The Tribunal observed that in the protection visa application, the applicant had stated she was very active in the Red Shirts, which was different to what she had told the Tribunal at the hearing. The applicant stated in response that that is her father.
The Tribunal observed that in the protection visa application, the applicant had said the Yellow Shirts threatened her and told her if she didn’t leave Thailand, they would kill her. The applicant stated in response that the information she told [Ms A] might be different to what was written down and that there had been a threatening letter.
The Tribunal observed that in the protection visa application, the applicant had said that if she returns, she will be harassed, physically harmed and eventually killed by Yellow Shirts which was also different to what she had told the Tribunal at the hearing. The applicant said that that was the reason from [Ms A] who assisted her with her claims, and at the beginning she didn’t know what information was in the claim.
The Tribunal asked the applicant whether she had ever held a Red Shirts membership card and she said no. The Tribunal asked why this claim had been included in the applicant’s response to the Department in October 2019 and she said she is not aware of it.
The Tribunal noted that the applicant had described herself as a well-known Red Shirts supporter in the submissions to the Tribunal and asked why and she said she is not aware of it and hasn’t provided the information from [Ms A].
The Tribunal asked the applicant whether she has any other fears if she returns to Thailand and she said no, that is all. The Tribunal asked the applicant why she had waited to apply for protection if she had left Thailand for the reasons she had stated. She said that at the start she was not aware of the existence of a protection visa and thought she would seek a renewal of her student visa.

The Tribunal asked why the applicant requires protection and why she cannot return to Thailand and she said in response that she wants to stay in Australia; in Thailand she doesn’t know what she would face. As to what she fears she may face, she said she doesn’t know whether they will still get a threatening letter. As to her father’s current Red Shirts activities, she said he has ‘gone quiet now’, and that he has not been politically active for some five or six years. As to why she would be at risk now if her father is no longer politically active, she said that that is the reason she doesn’t want to go back. The applicant stated that her [brothers and sisters] still live with her parents. As to why she would be at risk if her siblings are still living with her parents, she said they do not go anywhere and are no longer in school, and her parents have no income. The Tribunal asked what the applicant’s father did during his involvement with the Red Shirts and she said he joined protests but at that time she ‘didn’t know’.
The Tribunal observed that the height of the Red Shirts and Yellow Shirts conflict was in 2010, some ten years ago, and that there were protests up to 2013 but that political violence had ceased since the coup of 2014. The Tribunal observed that it accepted from the country information in the most recent DFAT report for Thailand that people critical of the monarchy are at risk, and that activists are at risk, particularly those involved in environmental and land issues. The Tribunal observed that it also accepted that the government had kept records of Red Shirts and that Red Shirts who are currently active are at higher risk of arrest and prosecution. But, the Tribunal observed, the country information doesn’t support that the applicant would be at risk if her father participated in protests a number of years ago. The applicant stated in response that she did not want to comment on this information.
Findings of the Tribunal
The Tribunal is prepared to accept the applicant’s evidence given at the hearing about her family and living circumstances in Thailand. The Tribunal accepts the applicant is from Phayao, that she studied for a period of time in Chiang Rai, that she lived in Phayao prior to leaving Thailand and that her parents and [siblings] all reside in Phayao.
As to other evidence given by the applicant at the hearing, the Tribunal did not find the applicant to be a credible witness. In reaching this view, the Tribunal has had regard to a number of inconsistencies in the applicant’s evidence, in addition to other reasons as set out below.
The applicant has given inconsistent evidence about her reasons for having left Thailand. In her written protection application, she claimed to have been a Red Shirt supporter and to have been threatened by Yellow Shirts prior to leaving Thailand. At the Tribunal hearing, she claimed that it was her father who had been a Red Shirt supporter. The applicant gave evidence that another individual, ‘[Ms A]’, had prepared her protection application. She gave evidence that she was aware [Ms A] had made submissions to the Department and the Tribunal about her having attended Red Shirt protests, and that she had ‘advised [Ms A]’ and it was explained to her what had been written. The extent of the discrepancies between the applicant’s written claims and her oral evidence to the Tribunal at the hearing, and her awareness that submissions submitted on her behalf claimed she herself was a Red Shirt supporter, lead the Tribunal to have significant doubts about the truthfulness of her evidence given at the hearing.
The Tribunal found the applicant to give her evidence about her father’s political activities in a manner lacking in credibility. She first stated to the Tribunal that she doesn’t know what her father’s political activities were; this was in contrast to her later evidence that her father joined Red Shirt protests. The applicant’s evidence that her father’s political activities caused her problems with income and with a job application was also in contrast to her later evidence that it was her father who had applied for the job in question. The applicant gave evidence that her father had not been politically active for some five to six years but did not respond to the Tribunal’s question as to why she could not now return to Thailand. While the Tribunal accepts the applicant was of young age while she was living in Thailand, the Tribunal considers it implausible that if she had left Thailand because of her father’s political activities, she would be unable to give any detailed evidence as to what those political activities were.
The applicant told the Tribunal that she returned to Thailand for a visit and that during this visit there was a letter threatening her father. Later in her evidence she described that the letter in question had been received six years ago, which was the year in which she first came to Australia. The Tribunal considers it implausible that, if the applicant’s father had received a letter threatening the family as she claims, her evidence would vary as to whether this letter was received before she first travelled to Australia or during her return visit to her family in December 2016.
The applicant first arrived in Australia in August 2014 and did not apply for protection until May 2018. The Tribunal had difficulty accepting her explanation that she was not aware of the existence of a protection visa and thought she would renew her student visa. The Tribunal considers it implausible that, if the applicant had fled Thailand because of her father’s political activities as she states, she would not have investigated options for obtaining protection in Australia prior to May 2018.
The inconsistencies in the applicant’s evidence in addition to her return to Thailand and the significant delay in claiming protection all lead the Tribunal to find that the applicant was not credible as to her stated reasons for having left Thailand. The Tribunal does not accept the applicant was a member of the Red Shirts, was an active supporter of the Red Shirts, was a well-known Red Shirts supporter, that she joined a rally group associated with the Red Shirts, that she attended protests with the Red Shirts or that she was the holder of a Red Shirts membership card. The Tribunal does not accept the applicant was threatened by Yellow Shirts prior to leaving Thailand or that she would face harassment, being harmed or being killed by Yellow Shirts if she returns to Thailand now or in the reasonably foreseeable future. The Tribunal does not accept the Thai government and its allies have a list containing the applicant’s details. The Tribunal does not accept that the applicant’s father was politically active, that he joined Red Shirts protests, that he was active with the Red Shirts or that he received a threatening letter prior to the applicant’s first arrived in Australia or during her visit back to Thailand in December 2016. The Tribunal does not accept that the applicant’s father caused the applicant to have problems with a job application or with earning income or that he had problems with a job application arising from any political activity. The Tribunal finds there is not a real chance the applicant faces serious harm, if she returns to Thailand now or in the reasonably foreseeable future, because of her political opinion or imputed political opinion.
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).
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 there is not a real risk the applicant would 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 5079

25 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice