2004936 (Refugee)

2004936 (Refugee) [2024] AATA 3808 (8 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Theeradech Paopeng (MARN: 0851174)
CASE NUMBER: 2004936

COUNTRY OF REFERENCE: Thailand
MEMBER:Suhad Dutra
DATE:8 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 August 2024 at 9:07am
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – online opposition to the government – delay in applying for protection – Australian citizen child with documented special needs – NDIS services – strong compassionate circumstances – referral for Ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 425, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 February 2020 (“Delegate’s Decision”) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The application for review was lodged on 11 March 2020 (“Review Application”). The Department’s letter to the applicant notifying her of the Delegate’s Decision was submitted to the Tribunal by the Applicant, but not the Delegate’s Decision.[1]
[1] The Delegate’s Decision was, however, available to the Tribunal through the Department file
The applicant claims to be a citizen of Thailand. She lodged her Protection Visa application (“PVA”) on 3 March 2019. There, she claimed to fear serious harm in Thailand in connection with political opinions she expressed against the Thai junta. The delegate refused to grant the visa, finding that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant was not represented before the Department. In respect of the Review Application, her Registered Migration Agent (“RMA”) was identified as Mr Theeradech Paopeng. The Tribunal was notified, in relation to the Review Application, that the applicant does not make any claims for Australia’s protection; that she has lodged the PVA and Review Application in order to make a request for Ministerial intervention[2]; and that she would like the Tribunal to consider referring her matter to the Department for consideration of Ministerial intervention.[3]
ISSUES FOR DETERMINATION
[2] pursuant to s 417 of the Act, the Minister has a personal and non-compellable 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
[3] Letter from the Applicant dated 30 June 2024
Protection Visa
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. This requires the Tribunal to make findings regarding the credibility of the applicant’s claimed circumstances. Based on what the Tribunal accepts of the applicant’s circumstances, the Tribunal must determine whether the applicant meets the ‘refugee’ criterion and, if not, the ‘complementary protection’ grounds. The criteria and relevant law for a protection visa are attached.
For the reasons detailed below, the Tribunal has concluded that the decision under review should be affirmed.
Ministerial Intervention
In relation to the applicant’s request for Ministerial Intervention, the Tribunal has considered the available evidence against the Minister’s Guidelines on Ministerial Powers (s351, s417 and s501). As reasoned below, I consider there to be unique and exceptional circumstances arising in this matter, and refer the case to the Department for consideration of onward referral for Ministerial intervention.
CLAIMS AND EVIDENCE
Claims and Evidence Before the Department
In the PVA the applicant sought Australia’s protection so she does not have to return to Thailand. She declared that she came to Australia to study and got involved in an online campaign against the Thai junta; she wants democracy in Thailand; and fears mistreatment by the junta in Thailand.
The applicant was not invited to a department interview before the Delegate’s Decision was made. The Delegate’s Decision noted the applicant’s delay of around five years since her arrival in Australia, before lodging her PVA. The Delegate considered this to raise concerns regarding the credibility of the protection claims made. In a letter dated 20 December 2019, the department put this and other concerns to the applicant for her comment and response. The department did not receive any response from the applicant. The delegate concluded that the protection claims made were not credible, and that the applicant was not a person in respect of whom Australia has protection obligations.
Claims and Evidence Before the Tribunal
The applicant did not make protection claims before the Tribunal. Rather, in a letter to the Tribunal dated 30 June 2024 (“2024 Letter”) she informed the Tribunal that she does not make any claims for Australia’s protection; she understands the Tribunal will affirm the Delegate’s Decision to refuse to grant the PVA; requested that the Tribunal makes its decision so that a request for Ministerial intervention can be made; and requested that the Tribunal considers referring her case for Ministerial intervention. She also submitted documentation in support of her request for Ministerial intervention.
PROCEDURAL MATTERS
Prior to the Tribunal’s receipt of the 2024 Letter, the Tribunal had, by letter dated 23 April 2024, notified the Applicant that her Review Application is being prepared for allocation to a Tribunal Member. It requested that she completes and submits a Pre-Hearing Information Form (“PHIF”) within 7 days of receiving the email. A hyperlink to the PHIF was included. No response was received from the Applicant.
By letter dated 11 June 2024, the Tribunal invited the applicant, under s 425 of the Act, to appear before it at 1:30am on 1 July 2024 (“Hearing Invitation”) to give evidence and present arguments in respect of her case. The Hearing Invitation informed the Applicant that, having considered the material before it, the Tribunal is unable to make a favourable decision in her case. The letter included that, if the Applicant did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear or may dismiss the Review Application without any further consideration. The letter asked the applicant to submit all documents she intends to rely on in support of her case by 24 June 2024.
By email dated 20 June 2024 the applicant acknowledged receipt of the Hearing Invitation and indicated her intention to “send information to the Tribunal in the coming week to request that the application be decided without me attending a hearing”. By email dated 30 June 2024 the applicant again requested that the Tribunal decide her Review Application without a hearing. That email referred to attachments. While several documents were attached, they could not be opened. They were re-submitted by the applicant on 1 July 2024. They included the 2024 Letter seeking consideration of referral for Ministerial intervention, and other documents supporting that request, considered further below.
On the basis of the applicant’s consent for the Tribunal to decide the review without her appearing before it, the Tribunal has finalised the review without a hearing[4].
CONSIDERATION OF CLAIMS AND EVIDENCE
[4] Pursuant to sections 425(1) and (2) of the Act
Nationality
In her PVA the applicant claims to be a citizen of Thailand and of no other country. She declares that she has no right to enter or reside, either temporarily or permanently, in any country other than Thailand. Copies of an expired and current Thai passport issued in the applicant’s claimed identity were submitted to the Tribunal. The current Thai passport was issued in [2023], expiring in [2033]. It was issued by the Thai Ministry of Foreign Affairs. I consider that evidence reliable and find that the applicant is a Thai national and that her identity is as claimed. Accordingly, Thailand is the receiving country against which her protection claims have been assessed.
Background
In her PVA lodged in March 2019, the applicant declared that she was born in [specified year] in Chaiaphum, Thailand. She has been a Thai citizen since birth, born to Thai citizen parents. She speaks, reads and writes in the Thai and English languages. She is of Thai ethnicity and the Buddhist religion.
Her relationship status was then “divorced.” This is supported by a Thai divorce certificate issued in the name of the applicant and another person [in] August 2015. She declared having a male child [Son A] born in Australia in [specified year]. At the time of application, [Son A] was residing in Chaiyaphum, Thailand. The applicant’s parents, [and siblings] were also declared to be living in Thailand at that time. The applicant was in monthly contact with them.
She declared in the PVA that she had lived in Australia since August 2013. She returned to Thailand after that entry, and last departed Thailand for Sydney in May 2016.
Regarding her study and work history, she declared that she was supported by her parents financially while studying. She worked as [an occupation 1] at [an agency] in Bangkok between [specified years]. She undertook college and vocational studies in Bangkok between [specified years], obtaining a certificate in [occupation 1]. Her primary, middle and high school was also completed in Thailand between [specified years]. In Australia, she completed short courses in general English in 2013 and 2014; and studied towards a [Qualification 1] between July 2014 and June 2017.
In the applicant’s 2024 Letter she added that the Student visa she held on first arriving in Australia in August 2013 was valid until 10 April 2017. In [year] she fell pregnant. In [year] her son, [Son A], was born. His father is [X]. Both X and [Son A] are Australian citizens. In support of those claims the applicant submitted a copy of [Son A’s] birth certificate and Australian passports for [Son A] and X. I accept that the applicant’s child, [Son A], is an Australian citizen child born in [year] to an Australian citizen father [X].
The 2024 Letter states that the applicant’s relationship with X ended in 2016, when [Son A] was aged around [age]. The applicant had sole responsibility for [Son A]. X has had no contact with the applicant or [Son A] for three years and does not provide support for them.
[Son A] attends school in Australia, but has special needs, behavioural conditions and psychological conditions. He receives weekly NDIS support comprising occupational and speech therapy. Documentation evidencing that support was submitted and is detailed further below.
The applicant overstayed her student visa in Australia. She lodged the PVA on 3 March 2019 and has held a Bridging Visa E since then.
In February 2023 her daughter [Daughter A] was born. [Daughter A’s] father is [Mr A]. The applicant says [Mr A] is a Thai national who holds an Australian Student visa. [Mr A] is not an Australian citizen or Australian permanent resident. The applicant and [Mr A] live together as boyfriend and girlfriend in Australia, together with [Son A] and [Daughter A]. The applicant submitted a birth certificate confirming [Daughter A’s] birth in [a named] Hospital in [year] to a mother of the applicant’s name and a father named [Mr A]. However, the birth certificate identifies [Mr A] as a student born in [Country 1], and does not refer to his Thai citizenship. Evidence of [Mr A's] citizenship is not before me.
On the basis of the available evidence, I accept that the applicant’s family, education, employment and family background is generally as set out above. Specifically, I accept that the applicant first came to Australia in August 2013 as a student; that she has undertaken some study in Australia; that she overstayed her Australian Student visa; that she has had 2 children who were born in Australia who currently live with the applicant and [Mr A]; that the first of these children, born in [year] (i.e. [Son A]) is an Australian citizen child, born to an Australian Citizen father; that she is currently in a relationship with a foreign national ([Mr A]) in Australia with whom she has had a child [Daughter A], born in 2023; that the applicant [Mr A], [Son A] and [Daughter A] currently live together in Australia.
Protection Claims
Political Opinion (Thai Junta)
While the applicant claimed, in the PVA lodged on 3 March 2019, that she feared harm in Thailand from the Thai junta, her evidence to the Tribunal, as set out in the 2024 Letter, was that she has no claims for Australia’s protection; she lodged the PVA and Review Application for the purposes of accessing Ministerial intervention; she knows that the Tribunal must affirm the Delegate’s Decision.
The applicant has not, at any time, submitted evidence to support the PVA claims that she expressed opinions critical of the Thai junta. Nor is there any probative evidence before me to suggest that the applicant has ever expressed such opinions. In that context, together with the applicant’s 2024 Letter expressly stating that she has no claims for Australia’s protection, I find that the applicant has never publicly expressed political opinions critical of the Thai junta. I find that she has never had any actual or imputed political profile relevant to Thailand, that she has no desire or intention to express political opinions relevant to Thailand and that that she does not face a real chance of serious harm in Thailand in the reasonably foreseeable future for reason of political opinion. I therefore find that she does not face a well-founded fear of persecution in Thailand for reason of political opinion.
Family Circumstances
In support of the applicant’s request that the Tribunal considers referring her case for Ministerial intervention, she submitted the following:
a.copies of her Thai passport(s);
b.identity documents for her children, including [Son A’s] Australian passport and a NSW birth certificate for [Daughter A];
c.a copy of the Australian passport of X (identified by the applicant as [Son A’s] father), issued in June 2017;
d.a Paediatric Therapy report for [Son A], dated February 2024. It records that [Son A] is a NDIS participant; seems to erroneously identify [Son A] as born in Thailand, where he has [older aiblings]; as at the time of the report, [Son A] lives in [Suburb 1] with his mother (the Applicant), father, a Step Grandfather and younger sister, [Daughter A]. It reports that [Son A] “does not have a confirmed diagnosis”; and that his mother has reported him having delayed speech and that his day care providers suggested autistic traits. It notes reduced fine motor skills and gross motor skills, and concerns regarding [Son A’s] balance, with further assessment recommended; and that [Son A] engages in fortnightly occupational therapy sessions;
e.an NDIS Plan Approval letter for [Son A], dated [in] March 2021, confirming that his NDIS Plan commenced [in] March 2021 and will be reviewed by [March] 2022.
f.an NDIS Service Agreement for [Son A] identifying his NDIS plan commencing [in] March 2024 and ending on [date]. The services provided related to capacity building for early childhood.
g.a Behaviour Assessment Report for [Son A], prepared on referral regarding [Son A’s] development, in particular his social skills and behavioural matters including increased screaming, not following instructions and difficulty with transitions. He was aged [age] at the time of assessment. It reports that he spent a year and half living in Thailand with his grandmother before returning to Australia in June 2019. It concludes that [Son A’s] symptoms are consistent with Autism Spectrum Disorder Level 2 and Attention Deficit Hyperactivity Disorder (“ADHD”). Further assessment is recommended, together with psychological and occupational/speech therapy supports and parenting workshops for his mother.
The applicant has not claimed to fear or face serious harm in Thailand in connection with the circumstances detailed above. No such claims arise on the available evidence. On the evidence before me, I find that the applicant does not face a well-founded fear of persecution in Thailand in connection with the family circumstances detailed above.
Findings on the Refugee Criterion
A refugee is a person who is found to have a well-founded fear of persecution in their country of reference. A fear is well-founded if there is a factual or objective basis for that fear or if there is a ‘real chance’ of it occurring. A real chance is a substantial, as distinct from a remote chance or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
As reasoned above, I am not satisfied that the applicant faces a real chance of serious harm in Thailand in the reasonably foreseeable future for any of reason claimed or arising on the evidence. I am therefore not satisfied that the applicant faces a well-founded fear of persecution in Thailand under section 5J of the Act.
Findings on Complimentary Protection
Having found that the applicant does not meet the refugee criterion, I have considered whether on the evidence before me, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand. The threshold for assessing “real risk” is the same as for assessing “real chance”.
As reasoned above, I have found that the applicant does not face a real chance of serious harm in Thailand for any of the reasons claimed or identifiable on the evidence. Based on the same factual analysis and findings I am also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand that there is a real risk she will be arbitrarily deprived of her life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusions - Australia’s Protection Obligations
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). I am 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).
Accordingly, the Tribunal affirms the decision to not grant the applicant a protection visa.
Ministerial Intervention
The applicant has requested that the Tribunal refer her case to the Department for consideration by the Minister pursuant to s 417 of the Act, which gives the Minister a personal and non-compellable 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. I have considered that request in the context of the Minister’s Guidelines on Ministerial Powers (s 351, s 417 and s 501J) (“Guidelines”).

As reasoned above, I accept that the applicant’s general background is as claimed. I accept that she is the primary carer for her 2 young children in Australia. I accept that one of those children, [Son A], is an Australian citizen born in [year]. I accept that [Son A’s] father is an Australian Citizen who has had little, if any, contact with the applicant and/or [Son A] for several years. I accept that the applicant has had a second child in Australia, being [Daughter A]. I accept that the father of this child is [Mr A]. I find that [Daughter A] and [Son A] are half siblings, who cohabit in Australia with the applicant and [Mr A]. I accept that [Daughter A] and [Mr A] are not Australian citizens or Australian permanent residents. I accept that the applicant’s Australian citizen child, [Son A], has documented special needs which are currently serviced under an NDIS plan in Australia.
The Guidelines identify cases involving unique or exceptional circumstances which should be brought to the Minister’s attention. They include cases involving “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.” The Guidelines also identify other relevant information. These include:
a.circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations; and
b.circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme.
In the present case, the applicant has a young Australian Citizen child with documented special needs which are currently the subject of NDIS subsidised services. That child has an Australian Citizen father. While the applicant’s evidence is that the child’s father has had no contact with the applicant or the child for around 3 years, this cannot be verified by the Tribunal. Should the applicant return to Thailand, as [Son A’s] primary carer, [Son A] faces a range of uncertain possibilities, including returning with her to Thailand which would remove him from his country of citizenship, the country of his father’s citizenship, the NDIS services he currently has access to in Australia, from the possibility of developing a meaningful relationship with his Australian Citizen father. These circumstances cumulatively are of a strong compassionate nature, involving an Australian citizen child.
For the above reasons I refer this matter to Department for consideration of Ministerial intervention.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Suhad Dutra
Member
ATTACHMENT -
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.
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.
…

[2024] AATA 3808

8 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction