2010120 (Refugee)

[2025] ARTA 550

2010120 (Refugee) [2025] ARTA 550 (13 May 2025)

Applicant:BXFHJ

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2010120

Tribunal:Justice Kyrou, President

Deputy President S Burford
  Deputy President K Dordevic

Place:Melbourne  

Date:13 May 2025

Decision:The Tribunal affirms the decision under review.

.................................[sgd].......................................

Justice Kyrou, President; Deputy President S Burford; Deputy President K Dordevic

Pursuant to an order made by the President on 5 May 2025, the applicant is referred to by a pseudonym. In accordance with s 369 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant. Accordingly, precise dates and place names are not used in some parts of the Tribunal’s reasons.

Catchwords

PRACTICE AND PROCEDURE – mode of determination of proceeding – circumstances in which Tribunal may decide proceeding without holding a hearing – protection proceeding – respondent non-participating party – applicant requested Tribunal make its decision without holding a hearing – meaning of phrase ‘it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding’ in s 106(3)(c) of Administrative Review Tribunal Act 2024 – appropriate for a decision to be made without holding a hearing in present case.

PROTECTION – whether applicant satisfies refugee criterion for protection – whether applicant satisfies complementary protection criterion for protection – found that applicant does not satisfy these criteria.

Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Migration Act 1958

Migration Regulations 1994

Cases

EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
Kowalski v Military Rehabilitation and Compensation Commission (2011) 191 FCR 345
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39
Secretary, Department of Social Services and FTXB (2024) 184 ALD 29; [2024] AATA 3021

SZIMG v Minister for Immigration (2008) 167 FCR 362

Secondary Materials

Department of Foreign Affairs and Trade, ‘DFAT Country Information: Thailand’ (18 December 2023)

Table of Contents

INTRODUCTION AND SUMMARY

RELEVANT STATUTORY PROVISIONS AND MINISTERIAL DIRECTIONS

Administrative Review Tribunal Act and Administrative Appeals Tribunal Act

Migration Act and Migration Regulations

Ministerial Direction No. 84

RELEVANT CASE LAW

RELEVANT PRINCIPLES FOR MAKING A DECISION WITHOUT A HEARING

PROCEDURAL HISTORY

SHOULD A DECISION BE MADE WITHOUT A HEARING IN PRESENT CASE?

Did the applicant request a decision without a hearing?

Can issues for determination be adequately determined in absence of parties?

APPLICANT’S CLAIMS AND EVIDENCE IN SUPPORT

Evidence before the Department and delegate’s decision

Evidence before the Tribunal

FINDINGS AND CONCLUSION

Identity and receiving country

Does the applicant satisfy the refugee criterion for protection?

Does the applicant satisfy the complementary protection criterion for protection?

Conclusion

DECISION

APPENDIX

Statement of Reasons

INTRODUCTION AND SUMMARY

1. By an application for review dated 17 June 2020, the applicant applied to the Administrative Appeals Tribunal (‘AAT’) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (‘Minister’) on 25 May 2020 to refuse to grant the applicant a Subclass XA-866 Protection Visa under s 65 of the Migration Act 1958 (‘delegate’s decision’).

2. As the application for review was not determined by 14 October 2024, when the AAT was replaced by the Administrative Review Tribunal (‘ART’ or ‘Tribunal’), the application falls to be determined by the ART in accordance with the provisions of the Administrative Review Tribunal Act 2024 (‘ART Act’).[1]

   [1]See item 24 in schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024.

3. As is the case for all reviews under Part 5 of the Migration Act, the parties to this proceeding are the applicant and the Minister, who is a non-participating party.[2]

   [2]Section 348A(1) of the Migration Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act.

4. Section 106(3) of the ART Act empowers the ART to decide an application for review without holding a hearing if three requirements are met. The third requirement is that ‘it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.’[3]

   [3]Section 106(3) of the ART Act is set out at [‎10] below.

5. For the reasons that follow, we have decided as follows:

   (a)It is appropriate for the application for review to be determined without holding a hearing, in accordance with s 106(3) of the ART Act.

   (b)The decision under review should be affirmed.

   RELEVANT STATUTORY PROVISIONS AND MINISTERIAL DIRECTIONS

   Administrative Review Tribunal Act and Administrative Appeals Tribunal Act

6. Section 9 of the ART Act sets out the ART’s statutory objective. Relevantly, it provides as follows:

   9  Objective

   The Tribunal must pursue the objective of providing an independent mechanism of review that:

   (a)is fair and just; and

   (b)ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

   …

   (e)promotes public trust and confidence in the Tribunal.

7. The core function of the Tribunal is to resolve applications for review, either by agreement through its alternative dispute resolution processes or by conducting a review on the merits of the decision the subject of the application and making a fresh decision which it considers to be the correct or preferable decision. Sections 56 and 63(2) of the ART Act reflect that core function. Section 56(1) imposes obligations on decision-makers and their representatives to use their best endeavours to assist the Tribunal to ‘make the correct or preferable decision’ in relation to the relevant proceeding and to achieve the objective in s 9. Section 63(2) empowers the Tribunal to make orders requiring a non-participating party to take certain steps (including appearing in a Tribunal case event and making written submissions) where the Tribunal considers that such a step ‘would assist in progressing the proceeding or in making the correct or preferable decision’.[4]

   [4]Section 348A(4) of the Migration Act provides that an order under s 63(2) of the ART Act in a migration or protection matter (namely, a reviewable migration decision or a reviewable protection decision as those terms are defined in the Migration Act) can only be made by the President or a Deputy President.

8. Section 55(1) of the ART Act contains a general natural justice provision, which is in the following terms:

   55  Right to present case

   General rule

   (1)The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:

   (a)present the party’s case; and

   (b)access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and

   (c)make submissions and adduce evidence.

9. An Act which confers jurisdiction on the ART may exclude or modify s 55(1) of the ART Act. For example, s 357A(2B) of the Migration Act excludes s 55(1)(b) of the ART Act in relation to migration or protection matters under Part 5 of the Migration Act[5] and s 357A(2C) provides that Division 4 of Part 5 and certain other provisions of the Migration Act exhaustively set out the requirements of the natural justice hearing rule provisions that apply to such matters.[6]

   [5]See also n 4 above.

   [6]Section 357A of the Migration Act is extracted in the appendix to these reasons.

10. Section 106(1), (2) and (3) of the ART Act relevantly provides as follows:

    106  Circumstances in which Tribunal may reach decision without hearing—review of decisions only

    Tribunal may make decision without hearing in certain circumstances

    (1)  The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.

    Parties consent

    (2)  This subsection applies if:

    (a)all of the parties to the proceeding consent to the proceeding being determined without the hearing of the proceeding; and

    (b)it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

    Where only parties are applicant and non‑participating party to the proceeding or hearing

    (3)  This subsection applies if:

    (a)the only parties to the proceeding are the applicant and a non‑participating party to the proceeding or the hearing of the proceeding; and

    (b)either:

    (i)    the decision is wholly in favour of the applicant; or

    (ii)   the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

    (c)it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

11. In a case such as the present, s 106(3) provides that the following requirements must be met in order for the Tribunal to decide the case without conducting a hearing:

    (a)The only parties to the proceeding are the applicant and a non-participating party.

    (b)Either the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding a hearing.

    (c)It appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.

12. Here, the first requirement is satisfied, and therefore no further reference to it is required.

13. The second requirement contains two alternatives. Where either of these alternatives is satisfied, the Tribunal must still be satisfied that both the first and third requirements are met. Because we are not satisfied that we are able to make a decision that is wholly in favour of the applicant, we need to be satisfied that the applicant has requested the Tribunal to make its decision without holding a hearing. This issue is discussed below under the heading ‘Did the applicant request a decision without a hearing?’.

14. The key issue in the present case is the third requirement, which is discussed below under the heading ‘Can issues for determination be adequately determined in absence of parties?’.

15. Section 34J(1) of the Administrative Appeals Tribunal Act 1974 (‘AAT Act’) provided as follows:

    34J  Circumstances in which hearing may be dispensed with

    (1)If:

    (a)  it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

    (b)  the parties consent to the review being determined without a hearing;

    the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

16. Section 34J(1) of the AAT Act is similar to s 106(2) of the ART Act, which applies where all the parties to the proceeding consent to it being determined without a hearing. Section 106(3) of the ART Act, which applies where the respondent decision-maker is a non-participating party, did not have an equivalent in the AAT Act. However, it is readily apparent that s 34J(1)(a) of the AAT Act is substantially the same as s 106(2)(b) and s 106(3)(c) of the ART Act.

17. Section 34J of the AAT Act did not apply to applications for review under Part 5 or Part 7 of the Migration Act, which dealt with migration and protection cases. There was no equivalent provision under the Migration Act, which instead provided exceptions to the requirement that an applicant be invited to appear before the AAT to give evidence and present arguments. This included where the applicant consented to the AAT deciding the review without the applicant appearing before it (former s 360(2)(b) of the Migration Act) and where the AAT considered that it should decide the review in an applicant’s favour on the basis of the information before it (former s 360(2)(a) of the Migration Act). In such circumstances, the question of whether the issues in the proceeding could be ‘adequately determined in the absence of the parties’ in s 106(3)(c) of the ART Act did not arise for consideration.

18. Section 106 of the ART Act now applies to all proceedings before the Tribunal, including migration and protection cases.

    Migration Act and Migration Regulations

19. The criteria for a protection visa are set out in s 36 of the Migration Act and schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Migration Act. That is, the applicant must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa) and holds a protection visa of the same class.

20. Section 36(2)(a) of the Migration Act 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 Australia has protection obligations because the person is a refugee.

21. A person is a refugee if they are outside the country of their nationality and, owing to a well-founded fear of persecution, they are unable or unwilling to avail themselves of the protection of that country.[7] 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 that 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.[8]

    [7]Migration Act, s 5H(1)(a).

    [8]Migration Act, s 5J(1).

22. 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) to (6) and ss 5K to 5LA of the Migration Act, which are extracted in the appendix to these reasons. Among other things, persecution must involve serious harm[9] and systematic and discriminatory conduct.[10] In addition, the reason (or reasons) for the feared persecution in s 5J(1) must be the essential and significant reason for the persecution.[11]

    [9]Migration Act, s 5J(4)(b). Section 5J(5) contains a non-exhaustive list of examples of serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b).

    [10]      Migration Act, s 5J(4)(c).

    [11]Migration Act, s 5J(4)(a).

23. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Migration Act, they may nevertheless meet the criteria for the grant of a protection visa if they are a person in respect of whom Australia has protection obligations because there are 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 they will suffer significant harm.[12] 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 subs 36(2A) and (2B), which are extracted in the appendix to these reasons.

    [12]Migration Act, s 36(2)(aa) (‘complementary protection criterion’).

    Ministerial Direction No. 84

24. In determining an application for a protection visa, and in accordance with Ministerial Direction No. 84, which was made under s 499 of the Migration Act, the Tribunal must also take into account:

    (a)the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (‘Department’), to the extent that they are relevant to the decision under consideration; and

    (b)country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, where relevant.

    RELEVANT CASE LAW

25. Because the ART Act has been in force for a relatively short period, there has not been any judicial consideration of s 106. Although s 34J of the AAT Act was in force since 1995,[13] only one case has considered it in any detail.

    [13]Section 34J (previously s 34B) amended 2022, s 34B added 1995.

26. That case is EIZ20 v Child Support Registrar.[14] There, the parties to a child support proceeding in the AAT consented to the AAT determining the proceeding without conducting a hearing. The AAT made a decision that was adverse to one of the parties. That party sought judicial review of the AAT’s decision on the grounds that the AAT denied that party procedural fairness and failed to discharge what was said to be its duty to inform that party of deficiencies in its case and an opportunity to provide further evidence to address those deficiencies.

    [14]EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (‘EIZ20’).

27. Judge Kirton rejected both grounds. She stated as follows:

    [I]n properly carrying out its duties the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation to seek further information or hold a hearing.[15]

    [15]EIZ20 [2023] FedCFamC2G 637, [60]. See also Franks and Lester for the Plains Clans of the Wonnarua People v National Native Title Tribunal (No 2) [2011] FCA 1531, [28].

28. Judge Kirton noted that, while the AAT is empowered to obtain information from parties, it is not necessarily obliged to seek comments or information from them when it is minded to decide a matter adversely to a party. She said that the AAT’s obligation to have enough information before it to adequately review a decision does not require it to inquire as to whether a party may be able to support their case with other evidence.[16]

    [16]EIZ20 [2023] FedCFamC2G 637, [66], citing Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, 588 [49].

29. In the case before her, Judge Kirton held that it ‘was open to and reasonable’ for the AAT to conclude that the parties had provided ‘all the information they considered important and relevant’ and that the AAT could properly review the relevant decision with the information before it.[17] She said that this was because, after consenting to the AAT proceeding without a hearing, the AAT gave the parties an opportunity to submit any further information that they considered relevant or material, and neither party provided any further information or raised an issue about the AAT proceeding without a hearing. In those circumstances, Judge Kirton held that the AAT did not ‘have to inquire on the mere possibility that either party might have something further to say.’[18]

    [17]EIZ20 [2023] FedCFamC2G 637, [59].

    [18]EIZ20 [2023] FedCFamC2G 637, [66].

30. In some cases, including those under the Migration Act where the respondent is a non-participating party, the Tribunal proceeds in an inquisitorial rather than adversarial manner. However, subject to any contrary provision in an enabling Act, this does not mean that the Tribunal is under a general duty to undertake its own inquiries in addition to the information provided to it by an applicant.[19] Generally, it is up to an applicant to make out their case.[20]

    [19]Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, 16 [1], 21 [24]; [2009] HCA 39 (‘SZIAI’).

    [20]WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225, [73]; Minister for Immigration and Citizenship v Le (2007) 164 FCR 151, 172 [60].

1. In Minister for Immigration and Citizenship v SZIAI,[21] the High Court accepted that there may be some situations where a tribunal’s failure to make an obvious inquiry on a critical fact before it may amount to jurisdictional error. The Court expressed the relevant principle as follows:

   Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.[22]

   [21](2009) 111 ALD 15; [2009] HCA 39.

   [22]SZAI (2009) 111 ALD 15, 21 [25]; [2009] HCA 39. (citations omitted).

2. The above principle was applied to the AAT by the Full Court of the Federal Court in Kowalski v Military Rehabilitation and Compensation Commission.[23] In that case, Cowdroy J said that s 40 of the AAT Act (which empowered the AAT to require a person to appear at a hearing to produce documents or to give evidence) did not require the AAT ‘to make investigations on behalf of a party, nor to find evidence to support an applicant’s case.’[24] Dowsett J (with whom Logan J agreed) stated:

   Pursuant to the AAT Act, the AAT is obliged to review those decisions which are within its jurisdictional remit. Whether or not, in a particular case, such review requires further inquiry will be a matter of fact in each case. However care must be taken to avoid placing too heavy a burden on the AAT as it will inevitably be transferred to the parties, at least in part. Further, the AAT may appear to become inappropriately involved in the case. The AAT’s role is to provide independent review of administrative decisions.[25]

   [23](2011) 191 FCR 345 (‘Kowalski’).

   [24]Kowalski (2011) 191 FCR 345, 359 [81].

   [25]Kowalski (2011) 191 FCR 345, 350 [20], 360 [88].

   RELEVANT PRINCIPLES FOR MAKING A DECISION WITHOUT A HEARING

3. The meaning of the requirement that ‘the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding’ in s 106(3)(b)(ii) of the ART Act is clear. However, difficult factual issues may arise in its application in some cases.

4. For example, where an applicant’s representative purports to make a request in accordance with s 106(3)(b)(ii) of the ART Act contrary to the applicant’s instructions, such a request would not be an effective request for the purposes of that section.[26] By way of further example, if an applicant’s request is conditional, in the sense that the applicant requests the Tribunal to decide the matter without holding a hearing only if the Tribunal will confine itself to the same factual basis as the delegate, s 106(3)(b)(ii) may not be engaged where the Tribunal intends to decide the matter on a different factual basis.

   [26]Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572, 586 [63], 587 [65], 589 [74].

5. If there is ambiguity about an applicant’s intention, the Tribunal may need to consider contacting the applicant to clarify this, including by noting that the Tribunal may consider factual bases that were not previously considered by the primary decision-maker. In such circumstances, the Tribunal may send a notice to the applicant explaining how the Tribunal proposes to interpret the applicant’s request and to proceed in the light of that interpretation and give the applicant an opportunity to write to the Tribunal within a specified timeframe to explain the meaning of the request (if it is different from the Tribunal’s proposed interpretation) and to provide any further information the applicant wishes to rely upon. The Tribunal’s notice should make clear that the Tribunal has not yet formed a view on whether the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding and that the Tribunal will not form such a view until after it considers any further information that the applicant chooses to provide within the specified timeframe.

6. In the present case, the types of considerations referred to at [‎34] and [‎35] above do not apply. Accordingly, it is not necessary for us to discuss s 106(3)(b)(ii) of the ART Act further. We will focus on the proper construction of s 106(3)(c).

7. In the absence of any direct judicial guidance on the proper construction of s 106(3)(c) of the ART Act, we will rely on well-established principles of statutory interpretation.

8. In Secretary, Department of Social Services and FTXB,[27] the President summarised the principles of statutory interpretation that are presently relevant as follows:

   The starting point in construing a statutory provision is its text, considered in the light of its context and purpose.[28] It is necessary to strive to give meaning to every word of the provision.[29]

   Context includes the surrounding statutory provisions because the meaning of a statutory provision must be determined by reference to the language of the statute viewed as a whole. It is necessary to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute.[30]

   …

   Section 15AA of the Acts Interpretation Act 1901 provides that, in interpreting a provision of an Act, ‘the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.’

   With regard to the purpose of a statutory provision, purpose resides in the text and structure of the statute. The search for purpose does not permit or require some search for what those who promoted or passed the legislation had in mind when the statute was enacted.[31] ‘Purpose’ encompasses the existing state of the law and the mischief which one can discern that the statute was intended to remedy.[32]

   [27](2024) 184 ALD 29, [2024] AATA 3021, [62]-[63], [65]-[66] (citations included n 28-32 below).

   [28]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-7 [47] ; SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20].

   [29]Commissioner of State Revenue v EHL Burgess Properties Pty Ltd (2015) 209 LGERA 314, 328 [50]; [2015] VSCA 269 (‘EHL Burgess Properties’), citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71] (‘Project Blue Sky’).

   [30]EHL Burgess Properties (2015) 209 LGERA 314, 328 [47]; [2015] VSCA 269, citing Project Blue Sky (1998) 194 CLR 355, 381 [69].

   [31]Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 389 [25].

   [32]EHL Burgess Properties (2015) 209 LGERA 314, 328–9 [51]; [2015] VSCA 269, citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

9. Section 106(3)(c) of the ART Act uses three distinct phrases that require interpretation, namely: ‘it appears to the Tribunal’; ‘the issues for determination in the proceeding’; and ‘can be adequately determined in the absence of the parties’.

10. In relation to the phrase ‘it appears to the Tribunal’, the fact that Parliament has used this expression rather than words such as ‘the Tribunal is satisfied’[33] suggests that s 106(3)(c) of the ART Act contemplates that the Tribunal’s view regarding determination of the issues in the proceeding without a hearing may fall short of a definitive conclusion. Such an interpretation would be consistent with the fact that the view is to be formed prior to the conduct of the substantive review (with or without a hearing). However, it is not necessary to finally determine this question. That is because, irrespective of the precise meaning of the phrase ‘it appears to the Tribunal’, if the Tribunal were to have any real concern about whether the issues in the proceeding could be adequately determined without a hearing, it should not proceed under s 106(3) of the ART Act.

    [33]See e.g. ART Act, ss 97(b), 99(b), 101(1). See also s 28(4).

11. The phrase ‘the issues for determination in the proceeding’ in s 106(3)(c) of the ART Act presupposes that the issues that the Tribunal must resolve in order to determine the application for review can be identified from the documents or things lodged with the Tribunal in relation to the application. If the issues cannot be identified, the Tribunal cannot proceed under s 106(3), and will have to consider the legislative options that are available. Depending on the circumstances of each case, those options may include requesting the applicant to provide further information, or dismissal of the proceeding under sections such as ss 97 and 101.

12. It is not necessary for us to say anything further about the phrase ‘the issues for determination in the proceeding’ in the present case. That is because, in reviewing a decision to refuse to grant a protection visa to a person, the issues which the Tribunal is required to determine are:

    (a)whether the person faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Migration Act if returned to their receiving country; and

    (b)if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act.

13. Accordingly, the issues in the present case are readily identifiable and are discussed later in these reasons.[34]

    [34]See [‎118]-[‎148] below.

14. The key phrase in s 106(3)(c) of the ART Act that requires detailed consideration is ‘can be adequately determined in the absence of the parties’ and, in particular, the word ‘adequately’.

15. In accordance with the principles of statutory interpretation summarised at [‎38] above, we commence with the text.

16. The Macquarie Dictionary defines the adjective ‘adequate’ as ‘equal to the requirement or occasion; fully sufficient, suitable, or fit’.[35] The Oxford Dictionary defines the adverb ‘adequately’ as ‘to a satisfactory or acceptable extent’.[36]

    [35]Macquarie Dictionary (online at 13 May 2025) ‘adequate’.

    [36]Oxford Dictionaries (online at 13 May 2025) ‘adequately’.

17. We accept that the proper interpretation of the adverb ‘adequately’ cannot be determined by simply substituting different words such as ‘sufficiently’, ‘suitably’, ‘fittingly’, ‘satisfactorily’ or ‘acceptably’. Nevertheless, these synonyms are helpful in identifying that the adverb ‘adequately’ does not describe an absolute state, but one that involves some questions of degree that are informed by the circumstances of each case.

18. We next turn to context.

19. The role of the adverb ‘adequately’ in s 106(3)(c) of the ART Act is to describe the verb ‘determined’. That verb refers to the final resolution of the proceeding. The fact that the outcome of the application for review, and thus the applicant’s claims, will be decided on a final (rather than preliminary) basis without a hearing is important to assessing whether the issues in the proceeding can be adequately determined without a hearing.

20. Paragraph (c) of s 106(3) of the ART Act must also be considered in the context of para (b)(ii). The fact that the applicant exercises a choice in requesting the Tribunal to make a decision without a hearing is relevant to assessing whether the issues in the proceeding can be adequately determined in the absence of the parties. The availability of a choice provides a safeguard against applicants being deprived of a hearing against their wishes. It also reinforces the principle that, unless the requirements of s 106 are satisfied or some other section provides to the contrary, the Tribunal will conduct a hearing.

21. Section 106(1) of the ART Act also provides a safeguard which is relevant to assessing whether the issues can be adequately determined in the absence of the parties. That is because, under s 106(1), the Tribunal must consider the documents and things given to the Tribunal before it can determine the issues in the proceeding without a hearing.

22. The statutory context that is relevant to the proper construction of the adverb ‘adequately’ in s 106(3)(c) of the ART Act includes ss 9, 55, 56(1)(a) and 63, which are set out or summarised at [‎6] to [‎8] above, or the modified or substituted versions of those provisions where they are overridden by an Act conferring jurisdiction on the ART.[37] Sections 9, 55, 56(1)(a) and 63 of the ART Act require the Tribunal to:

    (a)conduct its reviews in a ‘fair and just’ manner;[38]

    (b)give ‘proper consideration of the matters before the Tribunal’;[39]

    (c)afford the parties procedural fairness;[40] and

    (d)make the ‘correct or preferable decision’ in relation to the proceeding.[41]

    [37]See, e.g. [‎9] and n 4 above.

    [38]ART Act, s 9(a).

    [39]ART Act, s 9(b).

    [40]ART Act, s 55(1). As noted at [‎9] above, s 55 of the ART Act does not apply to migration and protection matters under Part 5 of the Migration Act. See ss357A and 359A of the Migration Act, which are extracted in the appendix to these reasons.

    [41]ART Act, ss 56(1)(a) and 63(2).

23. The above provisions mean that the requirements of s 106(3)(c) cannot be satisfied – and therefore the Tribunal could not make a decision in a proceeding without holding a hearing – where a review without a hearing:

    (a)would not be ‘fair and just’;

    (b)would not enable the Tribunal to give ‘proper consideration of the matters before the Tribunal’;

    (c)would not comply with the procedural fairness provisions that apply to the type of case that is before the Tribunal; and

    (d)would not enable the Tribunal to make the ‘correct or preferable decision' in relation to the proceeding.

24. We next turn to purpose.

25. The obvious purpose of s 106(3) of the ART Act is to provide for a method of determination of a proceeding other than by conducting a hearing, namely, by consideration of the documents and things given to the Tribunal (colloquially known as a determination ‘on the papers’). This purpose supports the objective of the Tribunal resolving applications for review quickly and with little formality and expense.[42] A hearing on the papers is capable of saving the applicant time and possibly expense, as well as enabling the Tribunal to optimise the use of its resources.

    [42]ART Act, s 9(b).

26. Importantly, a determination of a proceeding without conducting a hearing cannot take place under s 106(3) of the ART Act unless an applicant requests this or the Tribunal’s decision is to be wholly in the applicant’s favour on the material before the Tribunal. The section provides for an applicant to make a choice about the method by which the Tribunal is to determine their proceeding, based on what they consider to be the most appropriate in their circumstances. As we have already stated, the absence of compulsion is an important safeguard to the operation of the section.

27. The abovementioned purpose of s 106(3) of the ART Act is consistent with our interpretation of the meaning and intended operation of that section.

28. As we have already stated, the ART Act reflects the principle that, unless the requirements of s 106 of the ART Act are satisfied or some other section provides to the contrary, the Tribunal will conduct a hearing. However, the fact that s 106 constitutes an exception to the principle that, ordinarily, a hearing will be conducted does not mean that s 106 should only be applied in rare or exceptional circumstances. Rather, in the light of the important purpose that the section serves, it should be applied according to its terms.

29. Where an applicant has requested that the Tribunal make a decision without holding a hearing in accordance with s 106(3)(b)(ii) of the ART Act, the Tribunal can seek further information from the parties where it considers that this is necessary to enable it to decide whether the issues in the proceeding can be adequately determined without a hearing. In other words, a decision whether to proceed under s 106(3) need not be made solely on the basis of the material relied upon by the applicant when they lodged their application for review. However, where the Tribunal is of the view, on the basis of the documents and things already before it, that the issues in the proceeding can be adequately determined in the absence of a hearing, consistent with the principles summarised at [‎33] to [‎58] above, the Tribunal can proceed to do so without being obliged to seek further information.

30. The answer to the question of whether the issues in a proceeding can be adequately determined without a hearing does not turn on whether the Tribunal has sufficient information to determine the case in the applicant’s favour. This interpretation is consistent with the existence of s 106(3)(b)(i) of the ART Act, which empowers the Tribunal to make a decision without a hearing where the decision ‘is wholly in favour of the applicant’. However, limiting the power to make a decision without a hearing under s 106(3) to circumstances where the decision is to be determined in the applicant’s favour would render s 106(3)(b)(ii) redundant. The Tribunal may find that there is sufficient information before it to enable it to adequately determine the issues in the proceeding, yet still determine that there is insufficient evidence to substantiate the applicant’s protection claims.[43]

    [43]EIZ20 [2023] FedCFamC2G 637, [69].

31. It is relevant to the appropriateness of the Tribunal exercising the power to make a decision without a hearing under s 106(3) of the ART Act that the applicant has been provided with reasonable opportunities to present evidence and make submissions in support of their application for review, including during the conduct of the proceeding before the Tribunal.[44] While it is a matter for the Tribunal to assess whether the applicant has had a reasonable opportunity to make their case, it is important that this is undertaken with reference to the Tribunal’s objective in s 9 of the ART Act, including that the Tribunal resolve applications fairly and justly and ‘as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits’.

    [44]See ART Act, s 55(1), which is set out at [‎8] above. See also [‎9] and n 40 above.

32. In a protection case such as the present, matters relevant to assessing the opportunities afforded to an applicant to present their case may include: any opportunities provided prior to the delegate’s decision being made; the opportunity provided to respond to the matters raised in the delegate’s reasons for refusing the visa when lodging an application for review with the Tribunal; any responses to Tribunal outreach; and any responses to the general invitation in a notice of hearing for any further submissions or evidence in support of the application to be provided to the Tribunal.

33. As we have already stated, generally, it is up to an applicant to make out their case.[45] This principle is important to the question of whether the issues in a proceeding can be adequately determined in the context of a request by an applicant that a decision be made without a hearing. Unless any of the factors set out at [‎53] above apply, it is reasonable to approach that question from the position that, in making the request, the applicant has provided all the information they wish the Tribunal to take into account prior to making a decision. There may be many reasons for an applicant seeking to forego the opportunity to appear before the Tribunal at a hearing. However, it is unlikely that those reasons will be relevant to the question of whether the issues can be adequately determined without a hearing.

    [45]See [‎30] above.

1. The general principle that it is for an applicant to make their own case may be supported by specific legislative obligations. With respect to applications for a protection visa, it is an applicant’s responsibility under s 5AAA of the Migration Act to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim.

2. Section 106(1) of the ART Act uses the verb ‘may’, which indicates that the Tribunal retains a discretion. However, in circumstances where an applicant has expressly requested that a decision be made without holding a hearing and the other requirements of s 106(3) – as we have explained them above – are satisfied, it is difficult to envisage a situation where it would be a proper exercise of the discretion to refuse to decide the proceeding without holding a hearing and, instead, insist that the applicant attend a hearing.[46] The Tribunal is entitled to rely on an applicant’s exercise of their choice to waive their right to a hearing and have their application for review determined on the papers.[47]

   [46]SZIMG v Minister for Immigration (2008) 167 FCR 362, 369 [21] (‘SZIMG’).

   [47]SZIMG (2008) 167 FCR 362, 369 [21].

3. In circumstances where an applicant has expressly requested that a decision be made without holding a hearing and the other requirements of s 106(3) of the ART Act – as we have explained them above – are met, it would be inappropriate to insist that an applicant attend a hearing and then dismiss the proceeding under s 99 if the applicant fails to appear at the hearing. That is because such a dismissal would deprive the applicant of a decision on the merits in relation to the application for review when the applicant at no stage agreed to forgo a review on the merits but simply chose one mode of determination (namely, on the papers instead of a hearing) of those merits. Such a dismissal would also mean that the Tribunal will fail to perform its core function of conducting a review on the merits. The fact that an applicant whose application is dismissed under s 99 can seek reinstatement under s 102(7) does not affect this analysis.[48] That is because an applicant should not be put to the trouble of seeking reinstatement and, in any event, the Tribunal would retain a discretion whether to reinstate under s 102(9).[49]

   [48]In relation to migration and protection matters under Part 5 of the Migration Act, the Tribunal’s power to reinstate an application for review which is dismissed under s 99 of the ART Act is contained in s 368C of the Migration Act, which displaces s 102 of the ART Act.

   [49]See also s 368C(3) of the Migration Act.

4. The proposition set out at [‎66] above would not apply where, although the applicant has requested a decision be made without holding a hearing, the other requirements of s 106(3) of the ART Act – as we have explained them above – are not satisfied. It will be recalled that the requirements of s 106(3)(c) cannot be satisfied where any one of the four factors set out at [‎53] above are present. Two of those factors are that, in the absence of a hearing, the Tribunal would not be able to give ‘proper consideration of the matters before the Tribunal’ or make the ‘correct or preferable decision’.

5. Possible examples where one or both of those factors may be present are as follows:

   (a)Where the proceeding involves issues which require an assessment of matters which can only be tested in the presence of the applicant at a hearing because the Tribunal considers that it cannot determine such matters without taking evidence orally from the applicant at a hearing. Examples may include:

   (i)where the applicant must satisfy the Tribunal as to the genuineness of their intention to comply with the purpose of a visa or their intention to abide by the conditions of a visa;

   (ii)where the applicant must satisfy the Tribunal about their knowledge of an intended course of study and its value to their future, which are considerations in determining a criterion for the grant of a visa;[50]

   (iii)where, in a social security context, the matter turns on whether a payment was received in good faith or whether a person knowingly made a false statement or representation;

   (iv)where, in a protection context, documents central to the claim have been submitted by the applicant but the Tribunal considers that it is not in a position to accept that the documents are genuine.

   (b)Where the Tribunal considers that serious issues such as criminality or fraud may be involved and that these issues cannot fairly or properly be considered without a hearing in which the applicant is invited to give oral evidence with appropriate warnings (if required).

   [50]See for applications for the visa from 23 March 2024: the Migration Regulations cl 500.212(a) and Ministerial Direction 106 ‘Assessing the genuine entry and stay requirements for Student visa and Student Guardian visa applications’ (commenced 23 March 2024), para 8(4)-(5). See for applications for the visa prior to 23 March 2024: Migration Regulations cl 500.212(a) and Ministerial Direction 108 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (commenced 23 March 2024), paras 11-12.

6. In such circumstances it would be appropriate for the Tribunal to notify the applicant that it cannot adequately determine the application for review in the absence of the applicant giving evidence at a hearing and to list the matter for hearing. If the applicant does not appear in those circumstances, it may be appropriate to dismiss the application. This is to be distinguished from a situation where the Tribunal considers that it cannot decide the matter in the applicant’s favour due to the evidence which has been provided by the applicant being insufficient to satisfy the Tribunal as to the applicant’s claims.

   PROCEDURAL HISTORY

7. The following procedural history is drawn from the delegate’s decision record and the Tribunal’s file with respect to the application for review.

8. The applicant is a citizen of Thailand. According to the delegate’s decision, the applicant first arrived in Australia in early 2009 as the holder of a student visa, which expired a few months later. He held a series of student visas before his last student visa application was refused in 2013.

9. The applicant’s application for a protection visa was received by the Department in May 2019. In May 2020, the delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

10. As we have already stated, on 17 June 2020, the applicant applied to the AAT for review of the delegate’s decision. In August 2022, the applicant notified the AAT that he had appointed a lawyer, William Levingston, as his representative. However, as that notification was received from an email address which was not registered on the AAT’s file, the representative was not formally recorded on the AAT’s file as the representative until a further appointment form was filed in January 2025.

11. On 13 December 2024, the ART sent the applicant a notice of hearing, informing him that his application had been constituted to a member who would hold a hearing and make a decision about his review. He was also informed that his matter had been listed for hearing on 20 January 2025 at a particular registry. The notice of hearing enclosed a ‘Response to hearing notice’ form.

12. The notice of hearing included a section addressing the situation where an applicant wants the Tribunal to make a decision without holding a hearing. The notice explained that the applicant could use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. The notice went on to explain that if the applicant requests the Tribunal to make a decision without a hearing and the Tribunal considers that the issues can be determined in the applicant’s absence, this did not guarantee that he will receive a favourable decision.

13. The notice of hearing also invited the applicant to provide to the Tribunal all documents upon which he intended to rely to support his case by 13 January 2025 if he had not already done so. No further documents in support of the application were received from the applicant or his representative.

14. On 14 January 2025, Mr Levingston sent an email to the Tribunal attaching a completed ‘Response to hearing notice’ form and a form signed by the applicant appointing Mr Levingston as the applicant’s representative. The ‘Response to hearing notice’ form was signed by Mr Levingston. In that form, in response to the question ‘Will you take part in the hearing scheduled for 20 January 2025?’, Mr Levingston ticked the box which stated, ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’.

15. Mr Levingston’s email dated 14 January 2025 stated that he had been instructed in the matter and that his instructions were that ‘the applicant wishes to have this matter heard “on the papers”.’

16. By email dated 16 January 2025, the Tribunal acknowledged receipt of the request for a decision on the papers and stated that the scheduled hearing had been cancelled and the Tribunal would proceed to determine the issues in the review in the absence of a hearing. The case was then de-constituted for consideration of referral to the Guidance and Appeals Panel (‘GAP’).

17. On 28 April 2025, the Tribunal sent a letter by email to the applicant, care of Mr Levingston:

    (a)acknowledging the applicant’s request for the Tribunal to make a decision on his application for review without holding a hearing;

    (b)informing the applicant that his application for review had been referred to the GAP;

    (c)informing the applicant that, if there is any further information or submissions he would like to provide to the Tribunal before it makes a decision, he should provide that information by 4pm on 1 May 2025;

    (d)advising the applicant that, if he has any questions, he should contact the Tribunal by email or telephone.

18. On 28 April 2025, Mr Levingston sent an email to the Tribunal advising that he no longer represents the applicant and that he had forwarded the Tribunal’s correspondence to the applicant at his email address.

19. On 5 May 2025, the President revoked the referral of the application for review to the GAP, having determined that it was no longer appropriate for the referral to continue because, for proceedings referred to the GAP, the respondent ceases to be a non-participating party, thus rendering s 106(3) inapplicable. On the same day, the Tribunal sent a notice to the applicant which:

    (a)informed him of the revocation of the referral of the application for review to the GAP;

    (b)advised him that the revocation will not affect how the proceeding will be determined (that is, without holding a hearing) or by which members;

    (c)informed him that, if there is any further information or submissions he would like to provide to the Tribunal before it considers his application for review and makes a decision in relation to it, he should provide that information or submissions to the Tribunal by 4pm on 12 May 2025; and

    (d)advised him that, if he has any questions, he should contact the Tribunal by email or telephone.

20. On 7 May 2025, the applicant provided a signed form to the Tribunal withdrawing his authorisation for Mr Levingston to act as his authorised recipient. That form did not withdraw authority for Mr Levingston to act as his representative. On 12 May 2025, the applicant provided a further signed form to the Tribunal withdrawing his authorisation for Mr Levingston to act as his authorised recipient as well as to act as his representative. The applicant did not provide any further evidence or submissions in support of his claims on either 7 or 12 May 2025.

21. As at the time of these reasons, the applicant has not responded to the Tribunal’s invitations to provide any further information or submissions.

    SHOULD A DECISION BE MADE WITHOUT A HEARING IN PRESENT CASE?

    Did the applicant request a decision without a hearing?

22. Whether an applicant has requested the Tribunal to make its decision without holding a hearing for the purposes of s 106(3)(b)(ii) of the ART Act is a question of fact to be determined by the Tribunal in the circumstances of each case. If the Tribunal is satisfied on the information before it that a request for a decision to be made without a hearing was made by an applicant, or a representative authorised to engage with the Tribunal on their behalf with respect to the application for review, this requirement will be satisfied.

23. Matters which may be relevant to satisfying the Tribunal that such a request was made may include:

    (a)whether the communication from an applicant was by a method associated with the application for review (such as registered email, telephone or other method provided by the applicant for the purposes of communicating with the Tribunal); and

    (b)whether the communication clearly amounted to a request that the application for review be decided without the applicant attending a hearing (whether or not a hearing has been scheduled).

24. In the present case, the applicant was invited to attend a hearing to give evidence and present arguments.[51] The letter containing that invitation was sent to the applicant’s email address registered with the Tribunal for his application for review. The notice of hearing explained that, if the applicant requests the Tribunal to make a decision without a hearing and the Tribunal proceeds to do so, a decision without a hearing would be made on the evidence before the Tribunal and may not be in the applicant’s favour. The applicant was given an opportunity at that point to provide further evidence to support his claims, but he did not do so.

    [51]See [73]-[75] above.

25. The applicant expressed his request that the Tribunal make a decision on the papers without him participating in a hearing in his response via his representative to the hearing notice issued by the Tribunal. The applicant’s representative marked on the ‘Response to hearing notice’ form that the applicant would not be attending and requested a decision be made without a hearing being held. The text of the email from the representative reiterated this request and asked that a decision be made ‘on the papers’. We consider the intent of that communication to be clear. There can be no doubt that the applicant requested the Tribunal to make a decision in his case without holding a hearing.

26. Neither the applicant nor Mr Levingston made further contact with the Tribunal between 14 January 2025 and 28 April 2025, when the Tribunal wrote to the applicant care of Mr Levingston. As discussed at [‎81] above, on 28 April 2025, Mr Levingston advised the Tribunal that he no longer represents the applicant. Further, as we have already stated, the applicant did not respond to the Tribunal’s invitations dated 28 April 2025 and 5 May 2025 to provide any further information or submissions.

27. Based on the applicant’s response in the ‘Response to hearing notice’ form submitted via his representative, we are satisfied that he requested the Tribunal to make a decision without holding a hearing. We note that this request was made on the applicant’s behalf by his then-representative (who, as we have already said, is a lawyer). We consider there is no ambiguity about the request. We are therefore satisfied that the correspondence considered above establishes that the applicant has made a request that the Tribunal make a decision without holding a hearing of the proceeding within the meaning of s 106(3)(b)(ii) of the ART Act. Accordingly, that section is satisfied.

    Can issues for determination be adequately determined in absence of parties?

28. The applicant has been given several opportunities to present evidence in support of his case. This includes in the application for the visa, in response to correspondence from the Department prior to the delegate’s decision being made, in lodging his application for review, in response to the Tribunal’s notice that the proceeding had been set down for a hearing and in response to the Tribunal’s correspondence dated 28 April 2025 and 5 May 2025.

29. As noted above, the Tribunal’s hearing notice explained that, if the applicant requests the Tribunal to make a decision without a hearing and the Tribunal proceeds to do so, a decision without a hearing would be made on the evidence before the Tribunal and may not be in the applicant’s favour. The applicant had an opportunity at that point to provide further evidence to support his claims but did not do so. Neither the applicant nor his representative provided, or indicated they wished to provide, any further evidence or submissions, including addressing the issues raised in the delegate’s decision leading to the refusal of the visa application.

30. The Tribunal has before it a copy of the Department’s file, which includes the applicant’s identity documents, his protection visa application form (which contains biographical information and his claims for protection) and a copy of the delegate’s decision. The Tribunal also has a copy of the current country information in the relevant DFAT report.[52] The details of that information are considered further below. [53]

    [52]DFAT Country Information Report: Thailand (18 December 2023) (‘DFAT Report’).

    [53]At the time the delegate made their decision, there was no DFAT Country Information Report for Thailand, but the delegate provided an account of open source country information available at that time in their reasons. DFAT has since produced two Country Information Reports for Thailand, the most recent in 2023, which is the report we have considered.

31. From this information, the Tribunal can determine the applicant’s identity and receiving country and make findings about the issues for determination set out at [‎42] above based on the information the applicant has provided in support of his application and without seeking further evidence or submissions from him. There is nothing to suggest that any of the factors set out at [‎53] above would apply if we were to accede to his request that a decision be made on his application for review without conducting a hearing.

32. Accordingly, we consider that the issues for determination in the proceeding can be adequately determined in the absence of a hearing, and therefore the requirements of s 106(3)(c) are met.

33. We will now decide the proceeding without conducting a hearing.

    APPLICANT’S CLAIMS AND EVIDENCE IN SUPPORT

    Evidence before the Department and delegate’s decision

34. In his protection visa application form, the applicant indicated that he was born in a particular town in Thailand in a particular year in the 1980s. He is a Thai citizen and provided a certified copy of his Thai passport which was issued on a date in 2015 and expired on a date in 2020. He indicated that he left Thailand lawfully on his Thai passport. He also provided to the Tribunal a letter from the Thai Consulate indicating that he is a Thai national and has submitted an application for a new passport which was scheduled to be delivered on a particular date in 2020. He speaks, reads and writes in Thai and English and is a Buddhist.

35. The applicant indicated that he had never been married or in a de facto relationship and listed his parents as living in their home town in Thailand. The applicant’s parents are both Thai citizens and the applicant indicated that they reside in Thailand and he contacts them by telephone monthly. He did not list any other family members in his application form.

36. The applicant listed one residential address in Thailand in a particular town from 1999 to 2009. His occupation was listed as a ‘farming’ in a family business during a specified period and then as ‘self-employed’ in a particular type of shop during a specified period. Prior to working, he indicated that he was a student and was financially supported by his family. He indicated that he had never applied to enter any country other than Australia and had not travelled to any other country in the 30 years prior to making his application for a protection visa.

1. In his application for protection, the applicant stated his reasons for leaving Thailand as follows:

   A few years ago, we had a small business. After my parents grew old, I decided to continue the business and support my parents. However, after sometime, some people came and look for me saying that my father owed them a lot of money because he borrowed from them to do the business. I cannot pay them and don't know if it is true or lie. They wanted to force me to work in massage parlour and sex shop because I am a trans-gender. I have been living as this situation since i was a teenager. I was very afraid for my life. They slap me and punch me. I quickly ran away. I go to police to report but they tell me that they cannot do anything as there is no proof. After that I notice some people following me everyday and keep disturbing me in my work. The people keep disturbing me and touch me all over and keep trying to force me to work in massage parlour. I decide to look for help in Australia as I know i cannot get help in my country and will suffer badly if I am there.[54]

   [54]All errors in original.

2. In response to the question, ‘What do you think will happen to you if you return to [Thailand]?’, the applicant stated, ‘I will be caught by those people and force me to work in massage parlour or sex shop or they will beat me badly and destroy my face. I will suffer badly’.[55] He stated that he was previously slapped and punched and touched all over and fears that he will be forced to work in a massage parlour and be a prostitute. He said that he was unable to move to another part of Thailand to seek safety because he is single and has to take care of his parents and he does not know many places and has few friends. He said he is very afraid to go anywhere in Thailand because ‘they will find me anywhere in Thailand’.

   [55]All errors in original.

3. With respect to seeking protection from the authorities in Thailand, the applicant claimed that he tried to go to the police but they cannot help him and that he is afraid to lodge a report as there would be serious repercussions and his parents’ lives, and his life, would be in grave danger. He stated:

   The person is very well protected and connected. Although the police in Thailand is effective in someways and there are rules and regulations that they follow, there is a limit on what the police can do. There are many cases that action had been taken by the police against underground mafias but there are also cases that some police are in cahoots with the undesirable and questionable criminals. There were cases of people suddenly disappearing and people getting shot and killed by underground criminal gangs. Many times the police cannot solve these cases and will not provide 24 hour protection for ordinary citizens like me.

4. The applicant claimed that the only safe place for him is Australia where he can live peacefully and have a ‘meaningful life’ and where he does not need to constantly fear if he will be ‘killed or murdered’. He further claimed that he would not suffer ‘depression, emotional and mental stress’ fearing for his life when he is in Australia.

5. The applicant was not invited to attend an interview with the Department to discuss his claims and he did not provide any additional information in support of his application other than the information contained in his application form.

6. As noted at [‎93] above, the delegate’s decision is included in the Department’s file, a copy of which is before the Tribunal. The delegate’s decision includes an account of the applicant’s migration history, a summary of his claims and an account of relevant country information at the time the delegate’s decision was made. We have had regard to the delegate’s decision in that context.

7. The delegate’s decision record indicates that the applicant was advised in June 2019 that he could provide further information to the Department in support of his application and claims. No further information was provided to the Department.

8. On 25 May 2020, the delegate made their decision refusing the application for a protection visa.

9. The delegate considered country information with respect to LGBTQIA+ persons, loan sharks, law enforcement and security apparatus, and the judiciary in Thailand.[56]

   [56]The delegate used the acronym ‘LGBTI’. The DFAT Report wo which we will refer uses the acronym ‘LGBTQIA+’. We have adopted this acronym in these reasons.

10. The delegate’s decision records the applicant’s migration record in Australia between 2009 and 2019 as follows:[57]

    [57]We have not set out the precise arrival and departure dates and have not included some other details in these reasons in order to protect the applicant’s identity.

2009	First arrived in Australia on a student visa valid until later that year
2009	Applied for further student visa onshore
2009	Student visa granted valid until February 2012
2010	Departed Australia
2010	Arrived in Australia
2011	Departed Australia
2011	Arrived in Australia
2012	Applied for further student visa onshore
2012	Student visa granted valid until August 2013
2012	Departed Australia
2012	Last arrived in Australia
2013	Applied for further student visa onshore
2013	Student visa application refused
2019	Applied for protection visa
2019	Associated bridging visa granted

1. The delegate noted that the applicant had left Thailand on a student visa and returned in 2010, 2011 and 2012, but he did not seek a protection visa until May 2019.

2. The delegate expressed credibility concerns regarding the applicant’s general claims and found his claim to fear serious harm on return to Thailand due to instances of past harm and due to being transgender was not genuine having regard to the evidence provided in support and to his migration history. The applicant has offered no response or evidence that might address those issues.

3. The delegate did not accept that the applicant had a genuine fear of returning to Thailand for the reasons claimed. Further, and in any event, having regard to the country information cited, the delegate considered that there were effective protection measures available to the applicant in Thailand with respect to the types of harms he claimed to face. The delegate found that the applicant was not a refugee and did not satisfy s 36(2)(a) of the Migration Act.

4. With respect to complementary protection, the delegate found that, given the country information relating to Thailand and the personal circumstances of the applicant, he could obtain protection from the authorities in that country such that there would not be a real risk that he will suffer significant harm. Accordingly, the delegate concluded that the applicant was not a person with respect to whom Australia had protection obligations under s 36(2)(aa) of the Migration Act.

   Evidence before the Tribunal

5. The applicant lodged an application for review of the delegate’s decision with the AAT on 17 June 2020.

6. The applicant has not submitted to the AAT or the ART any further information, evidence or submissions in support of his application at any stage after 17 June 2020.

   FINDINGS AND CONCLUSION

   Identity and receiving country

7. The applicant claims to be a national of Thailand and has provided a copy of his Thai passport and a letter from the Thai Consulate confirming an application for a further passport. The applicant has consistently claimed to be from Thailand and the delegate accepted his claimed identity.

8. We accept that the applicant is a citizen of Thailand, which is also his receiving country for the purposes of refugee and complementary protection assessments.

   Does the applicant satisfy the refugee criterion for protection?

9. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[58] The mere fact that a person claims to fear persecution for a particular reason does not establish the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

   [58]Summaries of the principles relating to credibility findings are provided by CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 507-9, [36]-[38]; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175, 183-84 [30]; and BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184, [32]–[34].

10. The criterion in s 5J(1)(a) of the Migration Act contains a subjective requirement (that an applicant must in fact hold a fear of being persecuted), while s 5J(1)(b) imposes an objective standard (that there be a real chance the person would be persecuted). A ‘real chance’ is one that is not remote or insubstantial 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.[59]

    [59]DQU16 v Minister for Home Affairs (2021) 273 CLR 1, 9-10 [10], citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 389, 398, 407, 429.

11. We accept that the applicant is a man in his 40s from Thailand who came to Australia in early 2009. His parents remain in Thailand living in the same area in which we accept the applicant was born. We also accept the applicant is Buddhist and has not travelled to any country other than Thailand and Australia.

12. The applicant claims that he left Thailand because he was targeted for harm by people to whom his parents owed money, which they had borrowed for the family business. He claims these people wanted him to work in a massage parlour or sex shop because he is transgender and that they slapped and punched him but he ran away. He claims that he reported this to police but they could not do anything because there was no proof and that the police cannot protect him. He claims that his and his parents’ lives would be at risk if he made a complaint to authorities. He also claims that, if he returns to Thailand, he would be physically and mentally harmed and forced into prostitution by the people who loaned his family money.

13. The applicant stated in his application that if he were permitted to remain in Australia he would not suffer ‘depression, emotional and mental stress’ fearing for his life. However, the applicant did not raise any claims or provide any evidence that he suffers from any mental health condition or that his mental health would suffer on return to Thailand for any reason other than his claims that his life was in danger from those seeking to enforce a debt against him.

14. We accept, based on the country information detailed in the delegate’s decision and in the DFAT Report, that illegal money lending is a common practice in Thailand.[60] However, other than the statements made in his application form, the applicant has not provided any details about the circumstances in which these claimed incidences of harm from loan sharks or illegal money lenders occurred or the details of those from whom he fears harm on return throughout Thailand. He claims he was physically beaten and attempts were made to force him to work in the sex industry due to debts incurred by his family. However, he has provided no details of those debts, or the circumstances, timing or nature of the attacks against him. He has not provided any corroborating or supporting evidence, including from family members regarding the nature and status of the alleged loans, the individuals who pose a claimed threat to him and his family or the instances of the alleged past harm.

    [60]DFAT Report, [3.112]-[3.118].

15. The applicant has provided no information to suggest that there have been any further instances of harm or threats from those he claims harmed him in the past and pose a risk to him on return, including towards his parents who are said to have incurred the debts and have remained living in Thailand in the more than 15 years since the applicant departed. In our view, this is not consistent with the claims that he would be pursued for enforcement of these debts on return to Thailand throughout the country, now or in the reasonably foreseeable future.

16. Further, although the applicant claims to be transgender, he has provided no evidence to corroborate or support this claim, including from anyone in Australia who is familiar with his personal circumstances and gender identity. In any event, the applicant has made no claims to have suffered harm on the basis of being transgender, other than his claim that those enforcing the debt against his family attempted to force him into sex work because he is transgender.

17. As noted earlier, s 5AAA of the Migration Act requires an applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to make the relevant factual findings. A decision-maker is not required to make an applicant's case for them. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.

18. Given that the applicant maintains that he left Thailand due to claims of serious harm, including beating and attempts to force him into sex work, it is reasonable to expect that he would raise his claims for protection at the earliest available opportunity.

19. As noted above, the delegate’s decision records that the applicant arrived in Australia in early 2009 on a student visa. He held a series of student visas between 2009 and 2013, when his final student visa application was refused. During that period, he made several trips outside Australia, which the delegate concluded were return trips to Thailand. Given that the applicant declared in his application that he had not travelled to any country other than Thailand in the 30 years prior to making that application, we consider it is reasonable to conclude that the applicant returned to Thailand several times prior to his last student visa application being refused. The applicant has offered no explanation for these return trips in the context of his claimed fears of persecution. This is not consistent with his claims to fear harm on return to that country, including from detection by criminal gangs or loan sharks throughout the country, and it contributes to our concerns regarding the credibility of the applicant’s claims.

20. Further, it was not until 2019 that the applicant applied for protection. This was 10 years after he first came to Australia on a student visa due to what he later claimed were threats made by those enforcing debts against his parents. The applicant has offered no explanation as to why it took 10 years for him to make a claim for protection, despite the adverse credibility finding made by the delegate with respect to this delay. We find that the applicant’s migration history and the significant and unexplained delay in applying for protection significantly undermine the credibility of his claims to have left Thailand due to instances of harm there arising from his gender identity and debts owed by his family’s business.

21. Having regard to the evidence before the Tribunal and the credibility concerns detailed above, we are not satisfied that the applicant was beaten and threatened by any person due to debts incurred by his parents with respect to the family business. We are not satisfied there is any real chance the applicant will suffer harm, including mental or physical harm, due to debts owed by his family’s business on return to Thailand now or in the reasonably foreseeable future.

22. Whilst we have concerns regarding a lack of evidence to support the applicant’s claim that he identifies as transgender, we are prepared to afford him the benefit of the doubt and accept that he does identify as a transgender person. We are also prepared to accept that the applicant would be so identified on return to Thailand. We have used the pronoun ‘he’ to describe the applicant for consistency of reference based on the material before us, without in any way detracting from our acceptance of his gender identity. However, we do not accept that he faces a real chance of serious harm on return to Thailand on the basis of his gender identity.

23. Having regard to the limited evidence before the Tribunal and noting the credibility concerns detailed above, we do not accept that the applicant was beaten or forced to engage in work in a massage parlour or sex shop for reasons associated with being transgender or due to debts incurred by the family business. The applicant made no other claims to have suffered serious or significant harm for the essential and significant reason of his sexuality or identity as a person who identifies as transgender.

24. The delegate’s decision considered country information[61] suggesting that while LGBTQIA+ persons may suffer some forms of societal discrimination in Thailand – including that transgender persons cannot change their gender on identification documents – authorities in Thailand take adequate measures to address these issues and the delegate concluded that, as such, there is no real chance of serious or significant harm on this basis.

    [61]See n 53 above.

25. The applicant did not offer any evidence or submissions to counter this assessment by the delegate or to articulate any specific claims arising on the basis of his status as a person identifying as transgender in response to the delegate’s assessment that no such claims had been raised. It is reasonable to conclude in such circumstances that the applicant had no such evidence to offer.

26. Country information contained in the current DFAT Report is broadly consistent with the information cited in the delegate’s decision with respect to transgender persons.[62] The DFAT Report indicates that Thailand has a reputation for tolerance towards members of the LGBTQIA+ community and DFAT is ‘not aware of any pattern of societal violence against the LGBTIA+ community or individuals in recent times’. Nor are LGBTIA+ persons excluded from the civil service. [63]  The report noted that:

    Some LGBTQIA+ people remain uncomfortable disclosing their identity due to concerns of social stigma or rejection. Until recently, lesbians and trans men were much less visible in Thai society than gay men or trans women, although in-country sources reported this was rapidly changing.[64]

    [62]See n 53 above.

    [63]DFAT Report, [3.77]-[3.78].

    [64]DFAT Report, [3.79].

27. The DFAT Report confirms that transgender people are unable to change their sex on official documents, even when they have had sex reassignment surgery (‘SRS’) and that this ‘can lead to difficulties in travel (if the sex on an individual’s passport does not match their appearance) and employment.’[65] It is not clear whether the applicant has undergone SRS but, in any event, he has travelled repeatedly and made no claims to have suffered harm on this basis, either during travel or when living in Thailand. The applicant did not claim to fear harm due to an inability to have a change of sex recognised on return to Thailand and we do not accept that he faces a real risk of harm on that basis.

    [65]DFAT Report, [3.83].

28. The DFAT Report suggests that training for police in LGBTIA+ issues has improved and that police treat LGBTIA+ victims of crime the same as others, with the exception of sexual crimes where there was a tendency to ‘downplay’ sexual abuse or not to take harassment seriously.[66] Overall DFAT assesses that LGBTIA+ individuals face a low risk of official discrimination and a low risk of societal violence and discrimination.[67]

    [66]DFAT Report, [3.86].

    [67]DFAT Report, [3.88].

1. In our opinion, the country information contained in the DFAT Report is consistent with the lack of claims by the applicant that he faces a risk of harm associated with his transgender identity except with respect to the enforcement of debts owed by the family business. As noted earlier, we are not satisfied the applicant faces any real chance of harm with respect to such debts.

2. Given our findings, we are not satisfied that the applicant faces, now or in the reasonably foreseeable future, a real chance of harm, including mental or physical harm, in Thailand from any person on the basis, individually or cumulatively, of:

   (a)his real or imputed gender identity as a transgender person; or

   (b)debts owed by him or his family members to unidentified persons in that country including loan sharks, gangs or members of the ‘mafia’ in that country.

3. Considering the applicant’s circumstances individually and cumulatively, we are not satisfied that he has a well-founded fear of persecution as required for the purposes of the definition of a ‘refugee’ in s 5H(1) of the Migration Act.

4. For these reasons, we are not satisfied that the applicant has a well-founded fear of persecution. Accordingly, he does not satisfy s 36(2)(a) of the Migration Act.

   Does the applicant satisfy the complementary protection criterion for protection?

5. In assessing whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Migration Act, we have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.

6. For the reasons set out above, we have found there is not a real chance the applicant will experience harm from anyone due to debts owed by him or his family to loan sharks, gangs or mafia members or any other person if he returns to Thailand, now or in the reasonably foreseeable future. We have also found the applicant does not face a real chance of harm as a person who identifies as transgender on return to Thailand. We have considered those claims on an individual and cumulative basis having regard to the evidence and credible country information and have found there is no real chance of harm to the applicant for any of the reasons claimed.

7. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ for the purposes of s 5J of the Migration Act.[68] It follows that we do not accept that there is a real risk that the applicant would face significant harm if returned to Thailand for reasons of his real or imputed gender identity as a transgender person or due to debts owed by his family’s business, individually or cumulatively.

   [68]Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 551 [246], 557-58 [297], 565 [342].

8. For the reasons given above, we are not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will face significant harm, as defined in s 36(2A) of the Migration Act, if he is removed from Australia and returned to Thailand. We are therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act.

   Conclusion

9. For the reasons given above, we are not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act.

10. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Migration Act, we have considered the alternative criterion in s 36(2)(aa). We are not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act.

11. There is no suggestion that the applicant satisfies s 36(2) of the Migration Act 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

12. The Tribunal affirms the decision under review.

    I certify that the preceding 149 paragraphs are a true copy of the written reasons for the decision of Justice Kyrou, President, Deputy President Burford and Deputy President Dordevic.

    ........................[sgd]..........................

    Associate:

    Dated: 13 May 2025

    APPENDIX

    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.

    …

    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.

    …

    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.

    …

    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.

    …

    357A  Exhaustive statement of natural justice hearing rule

    (1)The relevant provisions are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

    (2A)If there is any inconsistency between the relevant provisions and any of the following provisions of the ART Act, the relevant provisions prevail to the extent of the inconsistency:

    (a)section 49 (Tribunal has discretion in relation to procedure);

    (b)section 50 (Tribunal is to act informally etc.);

    (c)section 53 (Tribunal controls scope of review of decision);

    (d)section 55 (right to present case).

    Note: The ART Act generally applies in relation to reviews by the ART (see subsection 336P(1)).

    (2B)Without limiting subsection (2A), paragraph 55(1)(b) of the ART Act does not apply in relation to a review of a reviewable migration decision or a reviewable protection decision.

    (2C)As an exhaustive statement of the requirements of the natural justice hearing rule, the relevant provisions do not require the ART to observe any principle or rule of common law relating to the matters the relevant provisions deal with.

    (2D)In this section, the relevant provisions are:

    (a)this Division; and

    (b)sections 374, 375, 375A and 376 and Division 7, in so far as they relate to this Division.

    (3)  In applying this Division, the ART must act in a way that is fair and just.

    359A  Information and invitation given by ART

    (1)Subject to subsection (2), the ART must:

    (a)    give to the applicant, in the way that the ART considers appropriate in the circumstances, clear particulars of any information that the ART considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)    invite the applicant to comment on it.

    (2)If the information or invitation is given to the applicant in writing, the information and invitation must be given:

    (a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

    (b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

    (4)This section does not apply to information:

    (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)that the applicant gave for the purpose of the application for review; or

    (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c)that is non‑disclosable information; or

    (d)that was included, or referred to, in the written statement of the decision that is under review; or

    (e)that is prescribed by regulation for the purposes of this paragraph.

    (4A)The ART is not required to give particulars of information mentioned in subsection (4) to the applicant before making a decision on the application under section 105 of the ART Act or section 349 of this Act.

    (5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 368C(6).