2002151 (Refugee)

2002151 (Refugee) [2022] AATA 2139 (25 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2002151
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Tamara Hamilton-Noy
DATE:25 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 May 2022 at 8:47am
CATCHWORDS
REFUGEE – protection visa – Thailand – threatened by money lenders after friend borrowed money – application completed and lodged by agent without applicant’s knowledge – written claims withdrawn at hearing and new claim of fear of harm from controlling father made – family and work history and financial independence – request for referral for ministerial consideration not granted – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(5), 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for a protection visa on 7 August 2019.
On 24 January 2020, a delegate of the Department refused to grant the applicant a protection visa.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated that he was born in Bangkok, Thailand and that he lived at one address in Bangkok between [Birth] and 2016. The applicant stated he had never been married, that his parents are both Thai citizens and that he is Thai and is Buddhist. He stated that he departed Thailand [in] July 2016 and that he left the country legally and that he arrived in Australia on the same date on a student visa.
In the written protection application, the applicant stated that he had left Thailand because his friend took out an illegal loan and didn’t pay it back and the applicant, as his friend, was dragged into the mess. He received physical threats which scared him. He stated he had experienced harm in Thailand in the form of mental harm, ‘and might get physical harm’. He stated he had sought help from local authorities but the loan group in the area control everything. He stated he tried to move to other areas in Thailand, but they were very powerful and he didn’t know whether they would find out where he lived. He stated that, if he returns to Thailand, if they find out where he is, he will get into serious trouble and may be physically harmed by them, including that he may be hit, kicked or punched.
A delegate of the Department had regard to relevant country information and found from this that the authorities in Thailand are prioritising a crackdown on loan sharks and that a range of new laws were put in place in 2017. Arrests and prosecutions of loan sharks had taken place and the Thai government had introduced schemes to assist and mitigate loans taken out from loan sharks. The recently appointed government had announced its intention to continue tackling loan shark activity. The delegate found that, while the country information indicated some corruption in the police and within the judicial system, there was nothing to suggest the applicant could not obtain state protection from loan sharks or gangs. The delegate found that the applicant is not a refugee because they were satisfied there are effective protection measures available to the applicant and that he does not have a well-founded fear of persecution. The delegate found the applicant is not owed complementary protection because, having regard to the same country information, they were satisfied the applicant could obtain protection from the authorities such that there would not be a real risk he would suffer significant harm if removed from Australia to Thailand.
Evidence before the Tribunal
On 4 November 2021, the Tribunal wrote to the applicant stating that it had considered all of the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments on 23 November 2021. At the time of the hearing, the Tribunal’s Registry remained closed due to the impacts of the COVID-19 pandemic and the Tribunal considered it appropriate to hold the hearing by video, having regard to the Tribunal’s objectives of providing a mechanism of review that is informal and quick and is proportionate to the complexity of the matter, and to the delay in this matter if it were not heard by video.
On 19 November 2021, the applicant wrote to the Tribunal requesting an adjournment on the basis that he had spoken to his agent and required more time to prepare for the hearing. The adjournment request was granted by the Tribunal.
On 12 January 2022, the Tribunal wrote to the applicant and invited him to appear before the Tribunal to give evidence and present arguments on 24 January 2022, by video.
On 19 January 2022, the applicant’s newly-appointed representative wrote to the Tribunal requesting an adjournment on the basis that they had sought documents from the Department that they were still awaiting. This adjournment request was granted by the Tribunal.
A Tribunal Officer attempted to contact the applicant’s representative on several occasions in February and March 2022 without success, to determine whether the documents sought had been received by the representative. On 28 April 2022, the applicant’s representative wrote to the Tribunal stating that they were no longer acting on behalf of the applicant.
On 29 April 2022, the Tribunal wrote to the applicant and invited him to attend the Tribunal’s Melbourne Registry on 17 May 2022 to give evidence and present arguments.
On 10 May 2022, the applicant wrote to the Tribunal requesting an adjournment in this matter in order to prepare further for the hearing.
This request was carefully considered by the Tribunal and was refused, on the basis that the Tribunal was not satisfied on the information given by the applicant that he was unable to attend the Tribunal’s premises to give evidence and present arguments and again having regard to the Tribunal’s objectives of providing a mechanism of review that is informal and quick. The applicant was advised on 10 May 2022 that his request for a further adjournment in this matter was not granted.
On 16 May 2022, the applicant provided a written statement (undated) which set out the following matters:
·He came to Australia on a student visa in 2015 and has studied English, Certificates III and IV in [various subjects] which he graduated from in 2018;
·He then applied for a job at [Employer] in [Suburb]. He was offered a part-time role but hadn’t realised he had to apply for a post graduate visa to obtain a work certificate. His education agent had left the position and had not given the applicant information about the visa process;
·He didn’t know he could lodge his visa application himself and thought he needed to do this through an agent. He didn’t contact another agent because he was in financial hardship. He got in contact with his former agent and asked whether there was any visa he could apply for to retain his work status. The applicant continued to do odd jobs and a few months later the agent contacted him and told him that he had lodged a protection visa for the applicant and it had been refused. The agent told the applicant he had no other option after he ran out of time to apply for a postgraduate visa. He submitted all the documents on the applicant’s behalf without advising him. The agent said he would apply for a bridging visa on behalf of the applicant and told the applicant he would need to attend his Tribunal hearing. The applicant did not know what the agent had put in his visa application;
·The applicant went to Immigration and signed documents for a Bridging Visa C approval. After that, he contacted a migration agent and found out from her that his former agent had signed all of his protection application forms. The agent had made up a misleading story and lodged the applicant without the applicant’s permission. The applicant had been told by his lawyer that there was nothing he could do and he needed to go to his hearing and that he is not eligible for any other visa unless it is a partner visa.
·The applicant also noted that he is passionate about [Work sector 1] and has been involved in this field his whole life and ran [a Workplace 1] in Thailand from 2006 to 2014 and had had two years’ experience at [a Workplace 1] in Australia. He is currently working in [Work sector 1] in Victoria.
·He wants to correct his visa status to allow him to continue on his permanent resident pathway.
The Tribunal hearing was conducted on 17 May 2022. The applicant appeared before the Tribunal and gave evidence on affirmation and the Tribunal was assisted during the hearing by a Thai interpreter. The Tribunal took evidence from Mr AH and Mr JT during the hearing and their evidence is referred to further below. Mr JT provided a one-page letter of support to the Tribunal at the hearing which was also considered by the Tribunal in making a decision in this matter.
On 23 May 2022, the applicant wrote to the Tribunal requesting Ministerial Intervention.
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.
Assessment, Reasons and Findings
The applicant travelled to Australia on a Thai passport and has at all times maintained he is a citizen of Thailand. The Tribunal accepts the applicant is a Thai citizen and has assessed his claims against Thailand as his country of nationality.
The Tribunal finds from the evidence given by the applicant at hearing that he was born in Bangkok and that he lived in Bangkok his whole time in Thailand, apart from the last three years he was in Thailand, when he was living in [District], Thang province while undertaking a bachelor’s [degree]. The Tribunal is prepared to accept the evidence given by the applicant at hearing that he is an only child, that his parents separated when he was [age], that his father went to study in [Country] and that he lived with his grandparents while growing up. The Tribunal is prepared to accept that the applicant’s mother passed away some ten years ago and that his father, two uncles, aunt and four cousins all reside in Bangkok.
The Tribunal is prepared to accept the evidence given by the applicant at hearing that he completed high school in Thailand and then commenced a bachelor’s degree [but] did not complete this course. The applicant stated that he was self-employed in Thailand [in] Bangkok and also held other positions in a [Workplace 2] and on a [Workplace 1]. He told the Tribunal that he has worked in various roles in Australia including in a [Workplace 3], [Workplace 1], [Work sector 2] and a [Workplace 1]. He gave evidence that he has studied [various subjects] in Australia and is currently working on a commercial [Workplace 1]. The Tribunal accepts this evidence as correct.
The Tribunal asked the applicant about his claims for protection and his evidence was consistent with the statement he provided to the Tribunal prior to the hearing. The Tribunal accepts from this evidence that the protection visa application in this matter was submitted by the applicant’s former agent, that the applicant was not aware a protection application had been submitted on his behalf and did not provide any reasons to the agent as to why he had left Thailand or why he fears harm upon return to Thailand. The applicant gave evidence to the Tribunal at the hearing that he had not left Thailand because his friend took out a loan or because he became involved and was threatened by loan sharks.
The Tribunal finds from the evidence given by the applicant at hearing that he did not leave Thailand because his friend took out an illegal loan or failed to pay back a loan. The Tribunal does not accept the applicant was dragged into a mess caused by his friend failing to repay a loan, or that the applicant received physical threats or mental harm. The Tribunal does not accept the applicant sought help from local authorities due to threats by a loan shark group or that the applicant tried to relocate to other areas of Thailand out of fear of a loan shark group. The Tribunal is not satisfied that the applicant fears harm from a loan shark group if he returns to Thailand or that he will be in trouble, physically harmed, hit, kicked or punched. The Tribunal finds there is not a real chance the applicant faces serious harm from a loan shark group or from anyone else associated with a loan shark group, if he returns to Thailand now or in the reasonably foreseeable future.
The Tribunal asked the applicant whether he had experienced harm in Thailand and he stated that he had ‘maybe’ experienced emotional harm from his family. When asked for details about this, the applicant stated it was from his father only, that his father had not lived with him and he had been brought up by his grandfather and that when his father returned to Thailand from [Country], he didn’t seem to care about the applicant. The applicant stated his father was a very controlling person. He stated that he would not need to live with his father if he returns to Thailand and he had lived independently of his father before the applicant left Thailand. He stated he does not fear harm for any other reasons, just from his father.
The Tribunal finds that the applicant lived independently of his father while he lived in Thailand and that he has worked in Thailand and has found a range of work in Australia, in addition to completing studies in several different areas in Australia. The Tribunal finds from this evidence that the applicant has been financially independent from his father in both Thailand and in Australia. The Tribunal finds that, if he returns to Thailand now or in the reasonably foreseeable future, the applicant would not return to live with his father on the basis of his financial independence and because he did not live with his father while growing up in Thailand. The Tribunal is not satisfied that, if he sees his father in Thailand, any emotional pressure or stress placed on the applicant by his father amounts to serious harm, having regard to the instances of serious harm set out in s.5J(5). The Tribunal is not satisfied that the applicant faces a real chance of serious harm from his father if he returns to Thailand now or in the reasonably foreseeable future.
The applicant gave evidence to the Tribunal at the hearing that he does not fear harm for any other reasons if he returns to Thailand. He called two witnesses at the hearing. Mr RL told the Tribunal that he had known the applicant for five years during which time the applicant had undertaken casual labouring work for him. Mr RL told the Tribunal that that applicant previously had health issues and Mr RL is concerned about the environmental risks to the applicant if he returns to Thailand.
Mr JT told the Tribunal that the applicant has worked for him for the past nine months and has told him that his relationship with his father is not good. Mr JT talked about the valuable contribution the applicant was making to his workplace. Mr JT provided to the Tribunal a letter of support from the founder and chief [Position] of the company who also spoke of the applicant’s positive contribution to the company.
Given the matters raised by Mr RL in his evidence to the Tribunal, the Tribunal then asked the applicant about the environmental risks and health concerns of the applicant if he returns to Thailand. The applicant stated that he has a back injury at the moment. When asked by the Tribunal what reduced hours he was working because of the back injury, he stated he is working 40 hours per week. The Tribunal observed that Thailand has universal health coverage,[1] and asked why the applicant would not be able to access medical care for his bad back if he returns to Thailand. The applicant stated that yes, they do, but when he lived in the Eastern suburbs he suffered from anxiety because he is in Australia on his own. When asked by the Tribunal whether he has accessed medication or counselling in Australia for any mental health concerns, he stated ‘not yet’. As to Mr RL’s evidence about any environmental risk or problems in Thailand, the applicant stated that that is Mr RL’s opinion and the applicant considers that the environment in Thailand is not that harmful to him.
[1] DFAT Country Information Report Thailand, 10 July 2020, at 2.24.

The Tribunal is prepared to accept that the applicant suffers from back pain, but finds that he remains able to work the equivalent of full-time hours each week. Thailand has universal health coverage and the right to receive health care is enshrined in the Constitution.[2] All sub-districts, districts and provinces have public health centres and hospitals and the private health care system is of international standard and superior to Thailand’s neighbours.[3] The Tribunal finds that the applicant would be able to access medical treatment, if needed, for his back in Thailand.
[2] DFAT Country Information Report Thailand, 10 July 2020, at 2.22.
[3] DFAT Country Information Report Thailand, 10 July 2020, at 2.23.
The applicant stated he had experienced anxiety while at a previous address. The applicant has not sought medication or counselling and the Tribunal is not satisfied that the applicant is currently experiencing mental health issues. On this basis, the Tribunal is not satisfied the applicant would require intervention in Thailand for any mental health concerns.
The applicant gave evidence that the environmental concerns raised by Mr RL are not shared by the applicant if he returns to Thailand.
The Tribunal finds that the applicant does not face a real chance of serious harm because of his bad back, previous feelings of anxiety or the environment, or for any or all of these reasons combined, if he returns to Thailand now or in the reasonably foreseeable future.
The Tribunal has considered the cumulative claims of the applicant and finds that he does not face a real chance of persecution for any reason, if he returns to Thailand now or in the reasonably foreseeable future.
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. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Having considered the claims raised by the applicant at hearing, the Tribunal finds there is not a real risk the applicant faces arbitrary deprivation of his life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as a necessary and foreseeable consequence of being 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).
Following the hearing, the applicant requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant did not raise any additional matters when making this request. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.
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.
…

[2022] AATA 2139

25 May 2022

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