2007133 (Refugee)

[2024] AATA 3927

2007133 (Refugee) [2024] AATA 3927 (4 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007133

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Matthew Tubridy

DATE:4 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 July 2024 at 4:02pm

CATCHWORDS

REFUGEE – Protection Visa – Thailand – declined hearing invitation – applicant has provided no documentary evidence to establish that she was ever harmed by the military government – no right to give or share own thoughts – not satisfied that the applicant faces a real chance of serious harm –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 April 2019. The delegate accepted that the applicant was a citizen of Thailand but found that her protection claims – about having been harmed by the military government in Thailand, and about wanting to comment on the work of the government, and about having shared her views in public but having been ordered to be silent – were not credible. On this basis, the delegate was not satisfied the applicant was a refugee or that she faced a real risk of significant harm in Thailand, and so the delegate refused to grant the visa.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

   Receiving country

9. The applicant claims to be a citizen of Thailand. I note that under the law of the relevant country: citizenship is conferred at birth where the person has at least one citizen parent; such that person born to a Thai parent (mother or legal father) acquires Thai nationality by birth.[1] The applicant has indicated that she was born in Thailand to parents who were both citizens of Thailand. The applicant has also provided a copy of the biodata page of her passport which confirms her identity claims and presents her as a Thai national.

   [1] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 5.33-5.34.

10. I accept that the applicant is a citizen of Thailand, and I find her to be a national of Thailand, and I find Thailand to be her receiving country for the purpose of this review.

    Background

11. From 1992 Thailand experienced a period of democracy, culminating in the rise of Prime Minister Thaksin Shinawatra during the early 2000s. It is reported that his Thai Rak Thai party enjoyed widespread support in Thailand’s rural north and northeast, but that many urban elites disliked his populist policies and alleged corruption, and his perceived disloyalty to the crown. Over the following decade Thai politics was characterised by conflict between Thaksin’s ‘Red Shirt’ supporters and ‘Yellow Shirt’ royalist opponents.[2] In 2006 a coup removed Thaksin and he fled to the United Kingdom. In 2011 Thaksin’s sister Yingluck was elected Prime Minister but was then also removed by a 2014 coup which installed Army chief Prayuth Chan-o-cha as head of the National Council for Peace and Order (NCPO).[3]  

    [2] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 2.2.

    [3] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 2.3.

12. In the years following the 2014 coup, a range of laws and decrees collectively served to significantly limit freedom of expression and assembly.[4] A notable example was Head of NCPO (HNCPO) order 3/2015, issued in April 2015 under the interim constitution. This consolidated many of the orders issued prior to the lifting of martial law, including a prohibition on unauthorised political gatherings of five or more persons, and providing for punishment of up to six months’ imprisonment or a fine of up to THB10,000 (AUD487). According to the Office of the UN High Commissioner for Human Rights (OHCHR), the NCPO used HNCPO order 3/2015 to summon, arrest and detain approximately 2,000 individuals following the 2014 coup. Those detained included politicians, activists, journalists, and others accused of supporting the deposed government, disrespecting or offending the monarchy, or being involved in alleged anti-coup activities.[5] A leading domestic human rights NGO has reported that the authorities used HNCPO order 3/2015 (and its predecessor, NCPO announcement 7/2014) to file at least 43 cases against a total of 431 defendants from the time of the coup until January 2019, with most cases targeting pro-democracy protesters.[6]

    [4] DFAT, 'DFAT Country Information Report: Thailand', 10 July 2020, 20200710095139, 3.21.

    [5] DFAT, 'DFAT Country Information Report: Thailand', 10 July 2020, 20200710095139, 4.23.

    [6] DFAT, 'DFAT Country Information Report: Thailand', 10 July 2020, 20200710095139, 3.22.

13. Article 116 of the Criminal Code (‘the Sedition Law’) provides for a penalty of up to seven years’ imprisonment for anyone who uses words or writings in order to: 1) bring about a change in the laws of the country or the government by use of force or violence; 2) raise unrest and dissatisfaction among the people in a manner likely to cause disturbance in the country; or 3) cause the people to transgress the laws of the country. Although rarely used before the coup, after May 2014 the authorities consistently used this provision against critics of the government and military; and human rights groups reported that the NCPO charged at least 117 people with sedition between May 2014 and May 2019, with almost any criticism of military rule or the NCPO treated as a basis for charges. It was noted that, given the possible severity of a conviction under Article 116, the filing of sedition charges against government critics has reportedly had a considerable nullifying effect on critical speech.[7]

    [7] DFAT, 'DFAT Country Information Report: Thailand', 10 July 2020, 20200710095139, 3.24.

14. Under Section 112 of the Criminal Code, anyone who ‘defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent’ faces 3-15 years in prison.[8] Thailand’s strict lèse-majesté law forbids all criticism of the monarchy, and does not define what constitutes an insult to the monarchy, leaving courts to interpret a wide range of actions and statements as illegal.[9] An individual can be charged with multiple cases simultaneously, and sentences are cumulative, sometimes resulting in extremely long sentences. In 2021, a 65-year old public servant was sentenced to 43 years in jail for sharing audio clips deemed to insult the monarchy, while in 2017, a man was sentenced to 35 years in jail for social media posts that were deemed to insult the monarchy.[10] Between 2006 and 2017 a total of 141 people were charged with lèse-majesté, including Red Shirts and critics of the 2006 and 2014 coups.[11]

    [8] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.19.

    [9] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.20.

    [10] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.19.

    [11] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.21.

15. Also of note, has been the Emergency Decree on Public Administration in the State of Emergency (2005; ‘the Emergency Decree’) which, when in force, gives the government authority to detain persons without charge for up to 30 days in unofficial places of detention, including military camps or police stations. It was invoked nationwide during COVID-19 lockdowns in 2020-21, and during this period was frequently used to arrest anti-government protestors.[12]

    [12] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 4.19.

16. In March 2019 Thailand held its first general election since the 2014 coup. Seventy-seven parties contested the election, including the former governing Pheu Thai Party (removed from power in the May 2014 coup) and the Democrat Party, previously the main opposition party.[13] On 7 March 2019, the Constitutional Court dissolved the anti-NCPO (and Thaksin-aligned) Thai Raksa Chart party over its nomination of Princess Ubolratana as its prime-ministerial candidate (the court emphasised the importance of the traditional separation of palace and politics), and the court also banned Thai Raksa Chart party executives from running in an election for 10 years, or from setting up or standing as executives of any new party for ten years.[14]

    [13] DFAT, 'DFAT Country Information Report: Thailand', 10 July 2020, 20200710095139, 2.39.

    [14] DFAT, 'DFAT Country Information Report: Thailand', 10 July 2020, 20200710095139, 2.40.

17. The March 2019 elections were administered by the Election Commission of Thailand (ECT). Although fraud or intimidation were not in evidence, some election monitors were critical of the integrity of the election process. In a pre-election report Human Rights Watch (HRW) said that the NCPO had failed to create conditions for a free and fair election, pointing to repressive laws restricting freedom of speech, association, and assembly; media censorship; lack of equal access to the media; the outsized role of the NCPO-appointed Senate in forming a government; and the lack of independence and impartiality of the ECT. Following the election, the Asian Network for Free Elections (ANFREL) reported that the election process demonstrated fundamental democratic shortcomings. In particular, overly restrictive regulations on the validity of ballot marks contributed to a very high number of invalid ballots (2.8 million); while the ‘deeply flawed’ organisation and tally of ballots led to the announcement of inaccurate preliminary results on election night, damaging the perceived integrity of the election.[15]

    [15] DFAT, 'DFAT Country Information Report: Thailand', 10 July 2020, 20200710095139, 2.41.

18. The result of the 2019 elections was that the opposition parties won more seats than the military-backed party, but they were unable to form government, and Prayuth then became Prime Minister.[16] In early 2020, a series of protests began against the Prayuth government, which expanded to include demands for reform of the monarchy. Authorities responded by deploying riot police and arresting hundreds of protesters, many of whom subsequently faced ongoing legal action.[17]

    [16] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 2.3.

    [17] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 2.4.

19. In May 2023 Thailand again held national elections. The campaign was largely a three-way contest between conservative military-backed parties, the Thaksin-backed Pheu Thai party and the progressive Move Forward Party. Move Forward ran on a strongly reformist platform (including a proposal to amend Thailand’s strict lèse-majesté law)[18] and won the most seats, ahead of Pheu Thai, while military-backed parties performed poorly. Move Forward leader Pita Limjaroenrat immediately began negotiations to form a coalition government, including Pheu Thai and six other parties. Move Forward’s bid was strongly opposed by the military-appointed senate, particularly due to their proposed reform of the lèse-majesté law. Under the 2017 constitution, Pita needed the support of a majority of the senate to become Prime Minister and fell well short of this target. Pheu Thai formed a new coalition, including military-backed parties it had previously sworn to exclude, and in August 2022, Pheu Thai candidate Srettha Thavisin was sworn in as Prime Minister.[19]

    [18] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 2.25.

    [19] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 2.26.

20. ANFREL described the May 2023 elections as being ‘well-run’ and ‘mostly free and fair’. Critics pointed to flaws including a constitutional framework that favoured military-backed parties, restrictions on freedom of speech, and state-sponsored disinformation campaigns. While there were some reports of vote buying, there were no reports of violence and ANFREL did not observe voter intimidation or undue influence at polling stations. Voter turnout was a record 75 per cent.[20]

    [20] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 2.24.

21. DFAT reports that, since Thailand’s return to democracy in 2019, Thai politics has featured robust exchanges of political views, and criticism of the government has been common and accepted. In December 2023 DFAT assessed of Thailand that: active anti-government protesters in Thailand face a moderate risk of official discrimination in the form of arbitrary detention, judicial harassment, intimidation, and surveillance. They face a low risk of violence in the form of excessive security responses and possible torture or mistreatment in custody. Former protesters who are no longer politically active, and are not the subject of ongoing legal action, are unlikely to face discrimination or violence for past involvement in protests.[21] Ordinary citizens are generally not at risk of official or societal discrimination or violence on the basis of political opinion, with the exception of critics of the monarchy.[22]

    [21] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.46.

    [22] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.18.

22. Although lèse-majesté prosecutions slowed after the death of King Bhumibol in 2016, they increased dramatically following the 2020-21 protests. Since then, more than 360 people have been charged with lèse-majesté, over twice the number charged during the entire period 2006-2020. In 2021, Future Forward Party leader Thanathorn Juangroongruangkit was charged with lèse-majesté after accusing the government of mishandling the COVID-19 vaccine rollout, and unfairly favouring a vaccine supplier owned by King Vajiralongkorn.[23] DFAT has related that: Since direct military rule ended in 2019, the military-backed government has frequently used criminal defamation suits and accusations of lèse-majesté to silence opposition politicians;[24] and: In-country sources reported in 2023 that the use of the lèse-majesté law was ‘the worst it has ever been’, and that new charges were being filed weekly or even daily.[25] People accused of lèse-majesté are usually denied bail, access to legal aid, and banned from leaving the country. They are rarely acquitted, unless they can show they did not commit the actions they are accused of, for instance if they were obviously framed.[26]

    [23] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.31.

    [24] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.31.

    [25] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.21.

    [26] DFAT, ‘DFAT Country Information Report: Thailand’, 18 December 2023, 20231218091813, 3.22.

    Protection claims

23. The applicant arrived in Australia in February 2017. Two years later, in April 2019, she lodged her protection visa application in which she put forward written claims to protection in response to the questions asked by the application form. Asked to explain why she had left her country, she responded as follows:

    ·     Firstly, I left the country because I would like to improve my skills and I need a new environment where I never have a chance to see in my home country.

    ·     Later, I found the place where I can live with a freedom and safety.

24. Asked if she had experienced any harm in her country, she responded: Yes. Asked to explain, she responded:

    ·     I had not freedom, and no right to give or share my own thoughts and I was harmed by the military government who ordered the Thai people to do not do what they (the Thai people) wanted to do, and not say what they (the Thai people) would like to say.

    ·     I was worried about my safety, and I felt fear all the time because I used to share my thoughts in public and then I was ordered to be silent.

    ·     Recently, there was the election of new government of Thailand. But there was a doubtfulness in the election, and the Thai people were ordered to do nothing and cannot review this election. That made me feel bad and really unbearable to comment on the work of that government.

1. Asked what she thought the authorities of her country could protect her, she responded: No. Asked to explain, she responded:

   ·     I cannot trust anyone because I really feel that. There is no one who can protect me because everyone does not want any trouble.

2. The applicant attached no supporting evidence with respect to her claims other than her passport. On 27 February 2020 delegate emailed the applicant and invited her to explain: when, where and how she was harmed by the military government; also: when, where and how she was ordered to be silent; and also: what subsequent interactions she had had with the government authorities in Thailand. The applicant was also asked to explain why, if her claims were true, she did not apply for protection until April 2019, even though she had arrived in Australia in 2017. The applicant was informed that this information was required so that the delegate could be satisfied that her (the applicant’s) claims to protection were genuine. The applicant was also advised that a decision on her application might be made on the basis of such information as she provided in response, and without her being given another opportunity to present her claims.

3. Even so, the applicant provided nothing further. The delegate, in her subsequent decision, considered that the applicant’s claims provided limited details in relation to the key events that led her to leave Thailand, and that they were overall lacking in substance and detail. The delegate considered that this raised doubts about the credibility of the applicant’s protection claims. The delegate also considered that doubts were raised by the applicant having not applied for protection until April 2019, even though she had arrived in Australia in 2017. The delegate was not satisfied that the applicant’s protection claims were genuine; and found them not to be credible. On this basis, the delegate was not satisfied the applicant was a refugee or that she faced a real risk of significant harm in Thailand, and on 30 March 2020 the delegate refused to grant the visa.

4. Two weeks later, on 15 April 2020, the applicant applied for review of the delegate’s decision. Asked to explain why the decision was wrong, the applicant submitted as follows:

   ·     The current government makes the country where I used to live not liveable with respect to freedom and rights. The government takes a power in the wrong way, and they break the Thai people's rights. The leader of the government always exerts power arbitrarily over the Thai people's own authority. I cannot live a life in that country. Recently, the United Nations Secretary announced Thailand is the one of the most shameful in the world.

   ·     Our leader uses his power to accuse anybody who resists his power, and he encroaches on human right in his own country. In fact, he is not a respectable person because he imagines his personality to be a good person, but he is not a good person at all. He cannot accept his mistakes to manage the country and he is corrupt. In the Covid-19 situation he still does the corruption. He does not help the people in his country. He leaves people to be in difficulty and is only interested in himself and his companions.

5. The applicant attached a copy of her refusal notification from the Department, and also several news articles in the Thai language, but these were provided without any accompanying translations. The first of these was provided in a file labelled: ‘Bar the right of poor people’; the next: ‘Compare Relief Policy of Thailand and Malaysia’; the next: ‘Donate Covid-19 test to ASEANS countries instead of Thai’s people’; and the next: ‘Relief one month for Thai people’.

6. On 16 April 2020 the Tribunal emailed the applicant and acknowledged receipt of her application. This attached an information sheet which advised the applicant that if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible; and that she should provide an English translation for any documents written in other languages. The applicant did not, however, provide any translations for the documents she had submitted on 15 April 2020, nor did she provide any further material or written arguments with respect to her protection claims.

7. On 23 April 2024 the Tribunal emailed the applicant and informed her that her file was being prepared to be given to a Tribunal Member. The Tribunal requested that the applicant complete a pre-hearing information form and return it to the Tribunal within 7 days (to assist the Tribunal in the conduct of the review). The applicant did not do so.

8. On 13 June 2024 the Tribunal emailed the applicant and advised her that it had considered the material before it but was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal on 5 July 2024 to give evidence and present arguments relating to the issues arising in her case. She was advised to provide the Tribunal with any documents she intended to rely on to support her case by

   
   

   28 June 2024, and that she should provide an English translation for any documents written in other languages, and that in preparing for the hearing she should have regard to the reasons given in the Department’s decision, and any changes in her circumstances. She provided no translations or further documents relating to her protection claims, and on

   
   

   1 July 2024 the applicant emailed the Tribunal as follows: ‘I will not participate in the hearing’; and: ‘I consent to the Tribunal making a decision based on the papers without taking further steps to allow me to appear’. Given this, and pursuant to s.425(2)(b) of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

9. The applicant has provided no documentary evidence to establish that she was ever harmed by the military government, or that she was ever was ordered to be silent, nor has she provided any details as to when or where any such purported events occurred, or the circumstances involved. I am not satisfied, and I do not accept that, that any such events ever did occur.

10. In her 2019 protection visa application has asserted that in Thailand she felt she no right to give or share my own thoughts, and that she found that the government restricted freedom of speech and action, and that she considered the 2019 election to doubtful, and that she felt bad about this and that nothing could be done about it, and she wanted to comment on the work of the government. As will be apparent from the background information on Thailand which I have summarised above, such views are held by many Thai nationals. Even so, I am not satisfied that the applicant herself genuinely holds such views, or that she has any interest in giving expression to such views (other than for the purpose of making a protection visa application) given the very general manner in which she has expressed these purported opinions. Likewise, in applying for review with the Tribunal, the applicant has made general assertions to the effect that Thailand is unliveable with respect to freedom and rights, and that the leader of the government always exerts power arbitrarily, and that he has acted corruptly in managing the Covid-19 situation. She appears to have provided the Tribunal with some Thai news articles (without translations) which report on such matters. Again, and while I accept that such views are held by many Thai nationals, I am not satisfied that the applicant herself genuinely holds such views, or that she has any interest in giving expression to such views (other than for the purpose of making a protection visa application) given the very general manner in which she has expressed these purported opinions.

11. On the limited information before me I am not satisfied and I do not accept that the applicant genuinely holds the views she has espoused in her April 2019 protection visa application, and in her April 2020 lodged application for review.

12. Given this, I am not satisfied that the applicant would for the foreseeable future face a real chance of harm of any kind were she to return to Thailand. I am therefore not satisfied that the applicant faces a real chance of serious harm in Thailand; and I am therefore not satisfied that the applicant has a well-founded fear of persecution with respect to Thailand.

13. 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).

14. 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). But, for the reasons already given above, I am not satisfied that the applicant would face a real risk of suffering harm of any kind were she to return to Thailand. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm.

15. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

16. 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

17. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Matthew Tubridy
    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.

    …