2000189 (Refugee)

2000189 (Refugee) [2022] AATA 577 (21 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2000189
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Catherine Carney-Orsborn
DATE:21 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 January 2022 at 1:07pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from drug gang because of membership of gang – threats to applicant and mother but no harm – short, low-level membership – no evidence of current interest to gang – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 5L, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 (the Department) on 13 December 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 on 8 March 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has 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 (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 owed Australian protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department and the Tribunal files.
The Department file contains the application forms, copy of the applicant’s travel document, copy of the applicant’s aunt’s bank transactions with an Australian financial institution, copies of the applicant’s school transcripts from Thailand, copies of the applicant’s discharge forms from a Sydney hospital, copy of the applicant’s aunt’s Australian conferral of citizenship, copy of the applicant’s curriculum vitae, copies of the applicant’s results and competency levels in English, copy of the applicant’s Thai identity card, copies of untranslated documents in the Thai language, copy of the applicant’s aunt’s Thai travel document, copy of a third party’s national identity card, copy of the applicant’s mother’s power of attorney granting guardianship rights to the applicant’s aunt, copy of the statement of claims by the applicant’s mother, copy of a [Mental health services provider] letter for the applicant, photocopy of the applicant’s tattoo and passport size photo, copy of the applicant’s aunt’s statement of claims, and a copy of the delegate’s decision.
The Tribunal files contains a copy of the application for review of refusal to grant the applicant a protection visa.
The applicant claims he fears harm at the hands of drug dealers’ gang if he is returned to Thailand.
Background of the case
The applicant first arrived in Australia [in] November 2017 holding a student visa.
The applicant then applied for a second student visa with the Department and was granted it on 3 September 2018.
On 8 March 2019, the applicant applied for a protection visa onshore; he was a minor then. On 20 March 2019, the applicant was granted a bridging visa A.
The applicant provided the following information in the application form. He is from [City] in Thailand. He is Buddhist and lived with his mother in Thailand. At the time of application, the applicant was under the guardianship of his aunt who is an Australian citizen by conferral. The applicant declared he first arrived in Australia to study English at a college in Sydney.
The applicant’s claims
The applicant claimed in his application for protection visa that he feared that he would be killed or forced to work for a drug dealer group if he was to return to his country. He also feared for his mother’s safety in Thailand.
He stated that he was forced to join a drug dealer group who operated in his school. They tattooed his body so he could be recognised by other drug dealers.
His mother had sent him to live in Australia because he had told her that the group wanted to kill him if he did not work for them. The group leader had threatened to kill him and rape his mother if he did not continue to work for them.
Prior to coming to Australia, the applicant’s mother had sent him to live in another province, Changrai, with his uncle between 2016 and 2017. This was for his safety; however, the group found him.
The applicant stated that the local police would never have helped them even if they had reported the matter.
The applicant’s aunt’s claims
In an undated written statement of claims to the Department, the applicant’s aunt stated that the applicant’s mother lived in [her work] compound for her safety since the drug gang continued to target her and threaten her because of the applicant.
She stated that the applicant was a stable person while in Australia until his second year in Australia, when he found out that his mother was being abused and that the gang tried to rape her.
The applicant was told that Australia was a good safe place for a child to be protected. He came to Australia to stay with his aunt who could protect him. Otherwise, he would have ended up working in countries such as Laos, Cambodia, Vietnam, and Thailand where the drug gang operates.
She stated that the applicant has a tattoo on his [body].
The applicant’s mother’s claims
In an undated written statement of claims to the Department, the applicant’s mother stated that the applicant was forced to work for the drug gang distributing drugs.
She sent the applicant away to his uncle, but the gang found his whereabouts and threatened her. She did not think police could help.
She requested her [sister] in Australia to help while the applicant studied in Australia until 18 October 2018.
She stated that the drug gang abused her and tried to rape her. The applicant collapsed when he found out about it while he was in Australia.
The Tribunal proceedings
On 6 January 2020 the applicant applied to the Tribunal for a review of the decision made by the Department not to grant him a protection visa.
On 8 November 2021, a social worker contacted the Tribunal requesting a hearing adjournment to the hearing set for 16 November 2021. The applicant had not appointed an authorised representative with the Tribunal.
On 9 November 2021, the applicant contacted the Tribunal in writing requesting a hearing adjournment. He said he would supply the Tribunal with a letter from a community mental health team and that he wished to contact Legal Aid.
The Tribunal granted the adjournment on 10 November 2021.
The applicant appeared before the Tribunal on 8 December 2021 to give evidence and present evidence and arguments to support his case. The applicant was assisted by a Thai and English interpreter during the hearing proceedings. The applicant was accompanied by two support people at the hearing: the applicant’s aunt and the applicant’s case worker. The applicant confirmed he understood the interpreter and preferred to have interpreting throughout the hearing to ensure he understood everything.
The applicant appeared calm at the hearing and was able to participate and appeared to understand the proceedings.
The Tribunal explained to the applicant the criteria for the grant of a protection visa including refugee and complementary protection.
A summary of the hearing is as follows. The applicant said at the hearing that he was [age] years old and had been in Australia for four years.
Tribunal asked the applicant about the level of involvement in drug dealing he had with the drug dealers’ gang. The applicant said that he distributed drugs twice when he was about [age range]. He stopped, as he did not like doing that.
The applicant said that the drug dealers’ gang did not like the fact that his mother was [an Occupation], that the gang targeted poor families.
The Tribunal put to the applicant words to the effect of why the gang did not harm him in Thailand after he said he did not want to work for them up until he left for Australia. The applicant responded with words to the effect that before he left for Australia the gang threatened him and they would take him as soon as he returned to Thailand. He said that the gang operate only nationally.
The Tribunal discussed with the applicant his evidence that his mother continues to live and work at the same place since he was at school and it does not appear that the threats he alleges to have been made have been acted on.
The Tribunal asked the applicant why the police would not protect him, particularly since he had acknowledged that the gang operates only in Thailand. The applicant answered that the local police would not reach provincial areas to give protection for criminal gang issues. He said that the gang knew that he was leaving for another province, not to Australia.
The applicant said that the way the gang operate is that they use innocent people and thus avoid being caught by police. In addition to the fact that the reach of the local police is limited in the applicant’s area and, therefore, he would not be afforded protection.
The applicant claimed that he was a member of a particular social group and his claims fit under that criterion.
The Tribunal discussed with the applicant his medical condition. The Tribunal asked him whether it was correct that his condition was controlled with relevant prescribed medication. He acknowledged his existing condition and agreed it was under control with prescribed medication.
The Tribunal discussed independent country information with the applicant regarding the law enforcement in relation to drug crime and access to health care.
The Tribunal discussed with the applicant whether he still intended to stay in Australia, considering he had applied for two student visas prior to applying for a protection visa. The applicant answer that he still had that intention. He intends to further his education in Australia and stay in Australia because he feels it is safer.
Country Information
DFAT reported in 2020 that many border areas of Thailand are used as trafficking routes for both the import and export of illegal substances for international markets, including opium, heroin, methamphetamine, cannabis, and yaba (a methamphetamine-type stimulant). Such border areas are dangerous due to violence associated with the drug trade. There have been numerous credible reports of some military and police personnel being involved in the drug trade and related violence. A ‘war on drugs’ waged during the Thaksin Shinawatra era in the mid- 2000s caused thousands of deaths while failing to have a significant impact on drug trafficking routes or the drug trade overall.[1]
[1] DFAT Country Information Report Thailand – JULY 2020 at 2.54.
The Royal Thai Police (RTP) is the national police force of Thailand. The RTP has an estimated force strength of between 220,000-230,000. Headquartered in Bangkok, the RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility. The PPD is divided into nine regions that cover all of the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas). Other RTP bodies include the Central Investigation Bureau (CIB), which assists the RTP’s provincial and metropolitan components in preventing and suppressing criminal activity and in minimising threats to national security; the Narcotics Suppression Bureau; the Police Education Bureau; the Tourist Police Bureau; and the Immigration Bureau.[2]
[2] Ibid at 5.6.
In-country sources report that the professionalism of the RTP varies considerably across its various branches, but that in general the RTP provides a higher standard of law enforcement than other regional police services. The CIB has reportedly improved considerably in relation to crime scene preservation, forensics, and disaster victim identification; while other branches have performed well in relation to combating child exploitation and human trafficking.[3]
[3] Ibid at 5.7.
In relation to drug-related crimes and drug use, particularly the increasing use of methamphetamine and intravenous drugs, it continues to be a problem in Thailand. However, Thailand strictly enforces drug laws and penalties for the possession, use, or trafficking of illegal drugs. Convicted offenders can expect heavy fines and long prison sentences under harsh conditions. Thailand's enforcement efforts include the death penalty for drug smuggling.
Thailand has some of Asia’s most crowded prisons, with most inmates jailed for drug offences. Thailand has 361,030 prisoners, 520 of whom are on death row, according to data from the Department of Corrections. Capital punishment can be applied to 35 crimes in Thailand, including murder and drug trafficking.[4]
[4] Thailand executes first prisoner by lethal injection since 2009 | Reuters
In relation to health care, Thailand has a universal health-care coverage scheme (UCS), available to all Thai citizens. The benefits offered under the scheme are comprehensive and include general medical care and rehabilitation services, high-cost medical treatment such as cancer therapy and stem-cell therapy and emergency care. Essential services in preventive, curative and palliative care for all age groups are also included, as are medications such as those for antiretroviral drugs. Holders of UCS cards are entitled to free care at health centres in their home district and contracted hospitals, plus referrals to provincial or tertiary care hospitals in urban areas. A range of medical services are provided under the UCS, including outpatient, inpatient and emergency care.[5]
[5] Thailand: 20191101091806 – Welfare System – Health System – Labour Market – Property Market 14 November 2019 THA-20191101091806.pdf (tribunal.gov.au) Page 3.
The Mental Health Act (2008) brought mental healthcare costs in Thailand under the UCS and established a Department of Mental Health (DMH). The DMH has undertaken numerous awareness-raising campaigns to reduce stigma attached to mental health, including through creating mass media networks for the dissemination of knowledge and research on mental health. There remains a general lack of societal understanding about mental health issues, , and considerable stigma persists. Buddhist- and animist-influenced understandings of mental illness are reportedly common, with many attributing mental health symptoms to spiritual possession. In response, the DMH has worked with local monks on programs to recognise and treat people with mental health conditions, in addition to cooperating in programs that integrate Buddhist concepts of mindfulness and meditation with Western treatments.[6]
Membership of a particular social group
[6] DFAT Country Information Report Thailand – JULY 2020 at 2.26.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Findings and Reasons
The applicant travelled to Australia on a student visa. The applicant submitted his passport a copy of which is held on the Department file. The applicant holds a valid Thai passport and claims to be a citizen by birth of Thailand. The Tribunal accepts that the applicant is a national of Thailand and has assessed his claims against Thailand as his country of nationality.
The Tribunal has considered the evidence and statements provided by the applicant, his aunt and mother.
The Tribunal accepts that at some stage he may have had some low-level involvement with a gang in his school who were dealing with drugs. His evidence was that the gang use underage children.

His evidence is that he assisted once or twice and then decided he did not want to.
After that he claims his mother was concerned about threats and he was relocated to his Uncle for a period of a year between 2016 and 2017. He claims that the threats continued, and his mother was threatened. He claims the gangs operate nationally and the police will not assist.
This contrasts with the evidence that he was able to stop working for the gang after one or two “jobs” because he did not want to continue.
The fact that he was able to indicate that he no longer wanted to participate in a criminal enterprise and was able to continue to live with his mother and then in the country with his Uncle and not be harmed is inconsistent with his evidence that the gang was powerful, had connections, would harm him and operates at a national level and influence throughout Thailand and neighbouring countries.
There was nothing in his evidence which would indicate why these gangs would be so interested in him that they would hunt him down in another province and continue to look for him four years after he left the country and threaten his mother. There is no evidence before the Tribunal to indicate that he is at a high level in the drug gang or an essential part of operation.
The applicant’s evidence is that his mother has continued to work as [an Occupation] at the same [Workplace] and live in the same house since he was a child.
The Tribunal would expect that if such a powerful, dangerous influential drug gang were determined to inflict serious harm on him or his mother, they would have had ample opportunity to do so.
There is no evidence that he or his mother has suffered serious harm.
The applicant claims that he has a tattoo on his [body]. He did not provide any evidence at hearing as to why that tattoo was so significant. In a written statement he referred to it as identifying him as a member of the gang. His evidence is that the tattoo was only small and other gang members have them all over their bodies. He does not. A photo supplied by him shows a small tattoo on his [body].
The applicant has had the financial resources available to him to twice apply for and be granted student visas. The Tribunal considers that if he was so concerned that the tattoo could make him a target from the gang, he could have it removed.
The independent country information indicates that while there may be some concerns with the operations of Thai police the authorities take action against drug gangs and drug related crimes. No persuasive evidence was presented as to why the police would not offer assistance to him or his mother if he was to return to Thailand.
The applicant has been out of Thailand for over four years during that time his mother has not suffered any harm. The Tribunal is not satisfied that the applicant after once or twice being involved in low level criminal activity ie driving a bike so a pillion could deliver a small amount of drugs to a customer, with a school-based drug gang would suffer any danger if he would return to Thailand.
The applicant claimed that [Occupation]s, police and poor families were targeted by the drug gang. The applicant’s evidence is that his mother is in long term employment as [an Occupation]. She continues to work as [an Occupation] and live in the same area. The Tribunal only has the assertions of the applicant and his mother and aunt that threats have been made. The Tribunal accepts that his mother and aunt want him to continue to stay in Australia. The applicant at hearing indicated he wanted to stay in Australia. His family is not poor or connected to the police.
As set out above the Tribunal would expect that if the drug gang were bent on revenge, they would have taken that revenge out on his mother by now as he has been out of the country for four years. His evidence at hearing is that the threats have not been acted on. The applicant applied for two student visas and wanted to continue to study. The Tribunal is of the view that the applicant has filed an application for protection to secure his preferred visa outcome of residency in Australia not because he feared any persecution in his home country.
He is now of an age where he would not be sent back to a school situation and the evidence is that his mother has the resources to assist him if he wanted to undertake further study in Thailand. The evidence provided is that he has developed English skills, and this will assist him with further study and employment in Thailand. He does not have to return to his province but could study in a major area such as Bangkok. Further he is no longer an underage child and his evidence is that the gang wanted children to work for them.
The Tribunal is not satisfied on the evidence before it that the any drug gang would continue to have any interest in him, as due to his age, he will not longer be of use to them. He did not report to the police so there is no motive for the gang to target him as an informer.
The applicant provided evidence that he suffers from a mental health condition. The evidence of his treating team is that his condition is now stable, and he is treated by medication.
The Tribunal after considering independent country information is satisfied that he will be able to source mental health services in Thailand. His evidence is that his mother is in stable employment and is committed to protecting the applicant. The Tribunal is satisfied that he will have the support of his family and mental health services in Thailand to stay stable and access appropriate treatment. There is nothing before the Tribunal to indicate that he would be denied treatment or suffer serious harm because of a mental health condition.
The applicant claimed at hearing when asked by the Tribunal where his claim falls within the definition of refugee that it falls within membership of a particular social group.
Although widely drawn, the concept of persecution is not to be used in defining “particular social group.” Justice McHugh stated in the Applicant A case:
The concept of persecution can have no place in defining the term “a particular social group”. ... Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the “particular social group” ground to take on the character of a safety-net. It would impermissibly weaken, if it did not destroy, the cumulative requirements of “fear of persecution”, “for reasons of” and “membership of a particular social group” in the definition of “refugee.” (Applicant A & Anor v MIEA &Anor (1997) 190 CLR 225 at 242 per McHugh J.)
However, Justice McHugh considered that the actions of the persecutors may serve to identify or cause the creation of a particular social group in society:
[W]hile persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.”(Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225 at 264 per McHugh J.)
The question of whether or not a particular social group shares a unifying characteristic that makes them “cognisable in society” must be considered separately from whether or not its members share persecution in common. The issue is whether there is something other than persecution which makes the group cognisable as a particular social group. Further, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reason of the membership of the particular social group
The Tribunal will now consider the applicant’s position in the present case. Whether the group to which an applicant claims to belong is a “particular social group” for the purposes of the Convention is a question of fact for the Tribunal to determine.
While the Tribunal accepts that in certain circumstances it would be possible to be a member of a particular social group due to being an ex-member of a criminal gang or suffering from a mental health condition the Tribunal does not consider as set out above that the applicant, if he returns to Thailand, will be denied assistance from the authorities both in relation to seeking protection from any criminal gang or due to his having a mental health condition.
The Tribunal is satisfied that if the applicant develops or has a relapse of his mental health, he will be able to access treatment and medication in Thailand.
The Tribunal does not accept that there is a real chance that the applicant would suffer serious harm or significant harm at the hands of the criminal gangs if he were to return to Thailand.
The Tribunal accepts the country information that Thailand has safeguards in place to protect its citizens. The Tribunal finds that the protection available is durable and, in the case of protection by Thailand, the protection consists of an appropriate criminal law, an effective police force and a judicial system that treats drug related crimes and criminal gangs dealing with drugs seriously.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Thailand for reasons of his race, religion, nationality, membership of a particular social group or his political opinion if he returns to Thailand now or in the reasonably foreseeable future.
COMPLEMENTARY PROTECTION
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) of the Act 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 reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1).
As set out above the Tribunal is satisfied that he will be able to access treatment and medication for his mental health condition. There is nothing before the Tribunal to indicate that he will be denied treatment or medication under the universal heath care system offered to Thai citizens.
The Tribunal after considering all the evidence before it, as outlined above, does not accept, due to a lack of credible evidence, that there is a criminal gang operating in Thailand that would want to still extract any vengeance now or in the foreseeable to future to the applicant due to him being involved once or twice in assisting the delivery of drugs, a number of years ago while still a minor. He is now out of school and his mother continues to work as [an Occupation] and live in the same area and his evidence is that she has not come to serious harm.
The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk he will suffer significant harm. He therefore does not satisfy 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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
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 577

21 January 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction