2012379 (Refugee)

2012379 (Refugee) [2022] AATA 547 (14 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2012379
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alan McMurran
DATE:14 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 January 2022 at 5:57pm

CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – opposition to military rule – warnings from police – economic conditions – fear of arrest – freedom of political expression – return visits to Thailand – delay in applying for protection – limited knowledge about Thai politics – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 3 August 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 7 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa on 17 January 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 under s36(2)(a) or s36(2)(aa) or a member of the same family unit as a person who holds a Protection visa.
On 7 January 2022, the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted virtually using MS Teams. The Tribunal determined that it was reasonable to conduct a virtual hearing having regard to the nature of the matter, and to the Tribunal’s statutory objective of providing a mechanism of review that is fair, just, economical, informal, and quick.
The Tribunal received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance by telephone of an interpreter in the Thai and English languages. The Tribunal did not detect any issues with interpretation and no objection was made to the hearing process, and the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments in the manner afforded to her by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are:
·Whether the applicant meets the refugee criterion and is a refugee and entitled to a protection visa because of a well-founded fear of persecution, and that there is a real chance, if the applicant returns to her country of nationality, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion;[1]
or if not,
·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her country of nationality, there is a real risk that she will suffer significant harm. [2]
[1] The Act, s.36(2)(a), and s.5H (“refugee”) and s.5J (“well-founded fear”) definitions;
[2] S.36(2)(aa)
Nationality
It is accepted that the applicant is a national of the Kingdom of Thailand on the basis of her Thai passport submitted to the Department and her oral evidence, and the Tribunal will assess her claims on that basis. The Tribunal further accepts that the applicant does not have the right to reside in any country other than Thailand. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and Thailand is the receiving country for the applicant for the purposes of s 36(2)(aa).
Background
The Tribunal has available an electronic copy of the Department’s file and the Tribunal’s file. At the time of her application, the applicant provided a copy of her passport which, together with the statements in the form itself, comprised the supporting information. The applicant filed with the Tribunal a copy of the Department notification of refusal letter, but not the attached decision record. A copy of the decision record is however included with the Tribunal’s electronic copy of the Department file.
At the hearing, the Tribunal outlined the Tribunal’s function in the review process. The Tribunal explained that the Department had refused the application with its decision as it was not satisfied that under Australian law the applicant was a refugee with a well-founded fear of persecution. The applicant acknowledged that she understood.
The Department had invited the applicant to submit any additional information in support of her application by letter issued 22 January 2020, to which the applicant did not respond. The Department did not invite the applicant for an in-person interview.
The applicant is [an age]-year-old citizen of the Kingdom of Thailand, presently residing in Sydney. The applicant identified herself under oath at the hearing and confirmed her date of birth. The Tribunal sent an invitation to the applicant to provide any additional information, by letter dated 3 December 2021. The applicant responded to accept the Tribunal’s hearing invitation sent 6 December 2021, asking for a telephone interview. At the hearing, the applicant said she had no additional information and was ready to proceed. The applicant accepted that the hearing was by video using MS Teams, and was recorded.
According to her Department application, the applicant is a single woman with no dependents. The applicant’s visa history shows that she first arrived in Australia on a student visa [in] July 2015. The applicant was subsequently refused a further student visa by the Department on 5 February 2018. That case was reviewed by the Tribunal on 6 December 2019 and the Department decision affirmed[3]. The applicant did not lodge an appeal against that decision but filed a further application with the Department for a Protection visa, which is now the subject of this review. Between July 2015 and August 2019, the applicant left Australia on seven occasions, returning to Thailand each time. The applicant is currently on a renewed Bridging visa.
[3] Case Number 1804264
Protection claims
The applicant set out her claims for protection in the Department application form[4]. The Tribunal asked at hearing on commencement if there was any additional information to be provided. The applicant responded saying “no” and that she has applied to be “a political refugee”. The Tribunal asked if the applicant had any assistance with the form of application. She said a “friend of a friend” who was not a migration agent but who speaks English had helped her complete the form. She said she had told the person she wanted to apply for “political asylum” in Australia which she had learned about from social media enquiry. She said she knew this person through her work at a [business] in [Suburb 1], where she said she works as [an occupation 1].
[4] pp. 11,12 of the application
The applicant’s claims in summary are as follows:
·the applicant is a national of the kingdom of Thailand and does not have any other citizenship
·Thailand has political problems and issues with a current government and military dictator, preventing expression of thought
·the applicant has not been harmed in Thailand and has not relocated from her family village as it is very dangerous for her to live in another place
·people in the government or military will catch the applicant and take her to the military court
·the applicant cannot be protected and does not want to return to Thailand where she feels unsafe and prefers to remain in Australia, which is the best place for her to live
·the applicant is ethnically of the Thai race and a Buddhist with a valid passport issued by Thai authorities
The hearing
The Tribunal pointed out there was little information supporting the application, other than a copy of the applicant’s passport, and the applicant confirmed that all the information she intended to provide had been provided. She explained that she had a “political fear” and did not agree with “the revolution”, which appeared to be the principal basis for her claims.
At the hearing, the applicant made the following additional claims:
·she divorced her Thai partner in Thailand in 2017 and has [children of specified ages]
·the applicant’s children presently live with her father and her [sibling] in the family village and the applicant regularly has returned to Thailand to visit them
·the applicant has regular communication with her children from Australia “once every two days”, and last saw them in Thailand in August 2019
·a policeman from her village who may have been in the military (he was not in uniform) visited the applicant’s home on her return to Thailand in 2017, 2018 and 2019; she recalled a visit at night in 2017 and said she received a warning from the policeman not to talk about politics or something would happen to her and she might disappear
·the applicant believes the policeman was sent by a superior to give her a warning
·the applicant has talked with her friends in Thailand about politics amongst other things and at parties but does not know who may have reported her
·following the warning from police in 2017, the applicant minimised her “talking”
·the policeman still visited the applicant every time she returned to Thailand in 2018 and 2019 with the same warning not to speak out
·people in Thailand do not have freedom and cannot speak out or express their opinion and many are warned, and as a consequence the applicant is very afraid
·she tries not to be interested in politics, does not express opinions, is not a member of any political organisation or group and does not post comments directly on the Internet, although she shares comments from others and is careful because she does not want to harm her family in Thailand
·her ex-husband is not a political activist and she has no connections with any activist or protest leaders and when in Thailand lives quietly with her [children]
·she wants Thai people to be able to express their opinions and not be led by the King or the military and is afraid that any criticism will cause her to disappear
·she does not know why police visit her as she has no profile that she is aware of and does not really understand why she is afraid except for the fact Thailand’s economic situation is very bad compared to Australia where she would like to live and remain because the quality of life is better; her family is safe in Thailand and she is able to support them from Australia while she is working
·the applicant would not be able to find employment if she returned to Thailand where her previous business has stopped and she has no savings and a house which is subject to a bank loan
The Tribunal explained the criteria for a refugee claim under the Act, and that it was necessary to establish a well-founded fear of persecution in the applicant’s country of origin being Thailand. The Tribunal explained that there must be a real chance the applicant will face serious harm if returned to Thailand, and which harm must be directed at the applicant for reason of her race, religion, nationality, membership of a particular social group and/or her political opinion.
The applicant confirmed that her claim of well-founded fear was based on her political opinion and not for any other reason.
The applicant was asked why she came to Australia. She explained that she had separated from her husband “10 years ago” (2011) and when she came to Australia in 2015, to study, her husband wanted to look after the children. She said when she returns to Thailand, she lives with her father and her [other family members] and the children in her village. She said the village comprises two or three hundred people, and she has returned regularly to her home since coming to Australia as a student.
The Tribunal asked if the applicant had ever been harmed in Thailand. The applicant referred to a visit by “police and soldiers” to her home in the village in 2017, 2018 and 2019. The Tribunal sought an explanation as to what happened, firstly in 2017. The applicant said she had been talking to a friend, and it was when she had returned to Thailand for a visit. She said, “the police” came and told her “don’t talk”, and this happened about a week after her arrival and just before her child’s birthday. She was asked if she remembered what was actually said and she replied that it was one police who came and the policeman told her not to make a comment on politics or something would happen to her and she might disappear. When asked by the Tribunal, she said it was only one person in plainclothes who had come to her home. She said he was a local policeman and everybody knew him in the village, and she thought he had been sent to see her by his boss. She was asked to describe the policeman and explained he was not wearing the uniform but he was medium sized and known to all the village. She was asked if he spoke to anyone else and the applicant said he spoke to anyone who spoke about politics and would give a warning to anyone who speaks out. She said he came to warn her because she spoke to her friend.
She was asked about the friend but said she could not remember who she spoke to about politics. She said she attended several parties and cannot remember exactly who she spoke to. She said police came to warn everybody not to speak out, which regularly happens in Thailand. She said she could not remember the precise details or who may have warned police about her. She said she had been to a restaurant and think someone may have overheard her conversation, which was not just about politics but about “many things”. She said she goes to the restaurant to meet friends and “to talk about things”.
The Tribunal indicated at this point whether it had understood her correctly following the applicant’s explanation, which had started with the visit to her house, to a policeman having first seen her at a restaurant with friends, and who then turned up at her house one night and told her to stop talking. She responded that she had said to people, probably at the restaurant, that she did not agree with the coup d’état and someone must have overheard it. She said after a warning in 2017, she tried to “minimise my talking”.
The Tribunal asked what happened in 2018 and 2019. The applicant said every time she returned to Thailand, to the village, the same policeman would come to my home and give me a warning not to talk about politics. She agreed she knew he would come each time and was careful not to speak out. She said she stopped talking about anything with people because she thought the police might turn up at any time. She said however that sometimes she had to say something but could not be specific or remember what or where or when. The applicant’s comments were very generalised and vague other than that after the initial warning, she did not speak out, except perhaps “sometimes”. The applicant said she was afraid each time she returned to Thailand that she would not know what might happen to her and that if she returned permanently, she would continue to be fearful. She agreed she had returned many times since 2015 to the same village and had seen the same policeman on those occasions. The Tribunal suggested that the policeman might have simply been giving a warning as he does to all people in the village from time to time and to her in particular because she was returning from overseas and had been away. The applicant did not comment other than to say she remained fearful.
The applicant was asked about the last time she had been back to Thailand in August 2019. She was asked if it was before or during the elections at that time. The applicant said she did not know when those elections had occurred, and the Tribunal reminded her that the election was in March 2019 before she had returned that year. The applicant said she was not interested in the elections in 2019. She said she has made a conscious effort “not to be interested in it”, meaning politics in Thailand. The Tribunal found this to be a contradictory comment for someone who was afraid for having a political opinion, and when asked the applicant explained by saying she was trying to keep a low profile and not be seen to have spoken out. The applicant said she had never attended any protest or demonstrations or rallies in Thailand and was not a member nor had ever joined any political organisation in Thailand. She said she had not joined any Thai political group since coming to Australia. She said she had not posted any comments on the Internet concerning the Thai government or the monarchy. She then thought and amended her comment by saying she had expressed some comments on social media, although could not remember those comments or when she had done so on Facebook. She also qualified the statement by saying she did not make the comments herself, but shared comments from others. Nothing was produced or provided by the applicant to illustrate what she may have said or posted using social media.

The Tribunal asked if the applicant had ever used social media to criticise the Thai government. She answered that she had never posted directly as she did not want her opinion reported and to harm her family in Thailand due to her political opinion. She agreed her family had not been approached or harmed. She said she made sure when she returns home to Thailand for a visit to see her children that she keeps a low profile and lives with them quietly. The tribunal asked why in those circumstances the applicant was still afraid. The applicant responded that “I don’t understand myself” and referred to the general feeling in Thailand of all people that they were not free to express their opinions, that the economy is going downhill and that everything “is down”. She also continues in the back of her mind to remember the policeman will come and visit her in the village, for which she is also fearful. The Tribunal pointed out that nothing had come from the police or any authority from any visits, she had not been harassed or arrested and did not seem to be persecuted within the meaning of that term, namely that she had not been threatened with death or subjected to torture or any cruel or inhuman treatment or punishment and had not been shown degraded treatment or punishment. She agreed that was the case but was still afraid.
The Tribunal asked about her experience as a student in Australia and told the applicant it was aware her student visa application had been refused in December 2019. The protection visa application the subject of these proceedings was lodged shortly afterwards, and the applicant was asked why her concerns about protection and fear returning to Thailand had not been raised before the Tribunal in its review of the student refusal visa, and that she had not appealed that decision to the courts. She responded that she had appealed, meaning to the Tribunal, and that in those proceedings[5], she did not have an opportunity to speak and had been told only to answer “yes, or no”. She said after that application for review had failed, she found out about protection visas through social media and sought assistance from the “friend of a friend” through her workplace to make an application.
[5] Tribunal case 1804264
The Tribunal asked the applicant if she could explain her fear, given her description of life in Thailand where she seemed to be no different to the general population in the way in which she lives with her children, taking a low profile and no open or displayed interest in politics. The applicant repeated a number of times that she could not explain why she was afraid, except that she was in fact fearful and mostly because the policeman visited her each time she came home which she does not understand. She said she has no profile which might raise any interest. The Tribunal suggested it might be simply a usual warning the policeman gives to everyone in the small village population. The applicant disagreed and said I am still afraid and “I’m afraid I will just disappear”. The applicant was asked if she could think of any other reason she might be fearful, or might be of interest to authorities, and she responded that she believes it is because of the “bad” conditions in Thailand generally and that she would prefer to live in a country like Australia where she can live without fear and express her opinion. The applicant said she would like to live in Australia where “everything is good” and the quality of life is better. She was asked how she would live without her [children] and she said she can support them better and financially by living in Australia and that “my life here is safe”. She said that her family in Thailand is “okay, as I am being their supporter”.
The applicant was asked about her income in Australia where she said she works in [a business] at [Suburb 2]. She said she earns $500- $600 per week and shares accommodation where she pays $120 per week rent. She said she sends home about $800 per month to her [children]. She said she used to have a business in Thailand selling [product 1] across the border to [Country 1]. She said however that border tariffs have been removed and that [residents of Country 1] can now travel and buy [product 1] freely within Thailand and that her business has ended as she cannot sell to [Country 1] anymore. She said if she returns to Thailand she might be unemployed as the economy is bad and people have no work. She said her only asset in Thailand is her house and her car, and the house is subject to a loan from the bank. The applicant agreed that the reason she wanted to stay in Australia was to have a good income and be able to continue to support her family. She said she did not have any criminal issues in Thailand or problems with debt collectors or moneylenders, only the bank with a loan she had to repay. She said she wanted the opportunity to remain in Australia to continue to earn her income and that if she was to return to Thailand, she would not be safe. The Tribunal suggested that as she had obtained a [qualification] in November 2019 from [a named] College in Sydney, that might assist her being employed in Thailand. The applicant disagreed saying things in Thailand were getting worse and the economy was very bad. She said the country is “in bad shape and people can’t find jobs, so how could I find a job.”
The Tribunal put some particulars of information to the applicant under section 424AA of the Act arising from the hearing and invited the applicant to comment or respond. The applicant did not seek any additional time to provide further information and did respond when requested.
The Tribunal put to her that the Tribunal had difficulty understanding how her stated fear because of her political opinion, which she chose not to express openly or in any manner which might raise her profile or bring her to the attention of authorities, might be regarded as well-founded, and give rise to a real chance of persecution and the likelihood of suffering significant harm. The Tribunal put to the applicant that although it might be her personal fear and belief, it was not more than the concern expressed or raised by a very large number of Thai people in general, and a consequence of living in Thailand with the current government situation. The Tribunal put to the applicant that the claim she had a political opinion or position giving rise to her fear did not appear genuine, from what the applicant has said. The applicant could not offer any additional information but responded saying that although she did not understand herself why she was fearful, because she was not politically active or had any high profile at all, it was most likely because of the visit from the policeman when she returns to the village. She agreed nothing had ever happened to her in that regard even though visits had occurred several times (2017, 2018 and 2019), and not every time she had returned (on 7 occasions), and she felt uncertain as to the future even though it might be unlikely that anything serious would happen.
She said that if she returns to Thailand she may not be able to control herself and may express an opinion against the government once she lives there permanently. The Tribunal put to her that would be unlikely given her stated commitment to keeping a low profile and not endangering her family and having kept no interest in politics. She said however that if she lives there permanently her discontent is likely to increase as she becomes more aware of the government and what is happening. She said that she wishes to be free “to express my opinion” and that it would be difficult in a small village where the people are all connected. She said everything in Thailand is connected and it would not assist her to move to a larger town or city. In any event, she said she would not choose to do so as “this is my home town and I do not have money to move my family”. She did not comment that other places would be safer or make her feel less afraid other than to say that anywhere in Thailand “it does not feel safe”. The Tribunal suggested she might be in no different position to all other Thai people living in the same circumstances in the country and that the real reason the applicant sought to claim she was fearful was because she wanted to remain in Australia where she could earn an income to support her family and felt safe. The applicant responded that “I don’t agree with you, I have to look after [my children] on my own and the economy is really bad”.
The Tribunal asked if the applicant required any more time or wanted to add anything further. The applicant said she had nothing further to add other than to ask that “you give me an opportunity to be able to live in Australia”. She confirmed that she had understood the interpreter and the Tribunal process and had no other questions or issues arising for her part.
Country information
The Tribunal put to the applicant that information available to the Tribunal from Australian government sources indicates that people with a very low profile living in Thailand and who are not actively protesting or demonstrating or arranging protests or demonstrations are at a very low risk of persecution. The Tribunal accepts that the applicant may personally hold the view that it might be dangerous for her living in Thailand under the current regime. The Tribunal has considered the applicant’s view by reference to the available Department information[6] concerning the expression of political opinions (actual or imputed) in Thailand. The applicant responded that although she was unaware of what the Australian government says, that “people who disappear (in Thailand) are not reported. If I have no profile, why do police come to see me?”
[6] DFAT Country Information Report Thailand 10 July 2020
The report relevantly notes the following at 3.20 – 3.27(partly extracted):
Article 34 of the Constitution guarantees the right to express opinions, make speeches, write, print, publicise and express by other means, but allows for this right to be restricted by law for the purpose of maintaining state security, public safety, public order or good morals, or for protecting the health of the people. Article 44 guarantees the right to assemble peacefully but allows for this right to be restricted by law for the purpose of maintaining state security, public safety, public order or good morals, or for protecting the rights or liberties of other persons.
In the years following the 2014 coup, a range of laws and decrees has collectively served to limit significantly the freedoms of expression and assembly. Human rights observers have criticised these laws for being overly broad and vaguely worded and have expressed concern about the broad scope of their application. The key laws and decrees are listed in the following paragraphs.
DFAT assesses that, notwithstanding the existence of constitutional protections guaranteeing the freedoms of expression, opinion and assembly, the ability of Thai citizens to criticise the government and express dissent publicly (either individually or collectively) is circumscribed in practice. Authorities have demonstrated a willingness to use broad interpretations of national security legislation, or the threat of prosecution under such legislation, to prevent political demonstrations from occurring or to discourage the expression of matters of public interest online. The criminalisation of defamation and placing of the burden of proof upon the defendant, also acts as a significant deterrent to those wishing to exercise their freedom of expression.
The report notes groups of interest which include those criticising the Monarchy[7].
The existence of the institution of monarchy in Thailand goes back to the 13^th century. Although Thailand officially ceased to be an absolute monarchy in December 1932 (see Recent history), the monarchy has continued to be a prominent national institution and one held in high esteem by most Thais. This reverence has been enshrined in all of Thailand’s recent constitutions: the current (2017) constitution recognises the King’s authority to be final arbiter in a political crisis (a traditional royal prerogative), including through installing an interim or unity government to defuse political conflict, while Section 6 states that the King shall be enthroned in a position of revered worship and shall not be violated, and that no person shall expose the King to any sort of accusation or action. DFAT understands that Thai authorities maintain a list of academics from foreign countries who have spoken against the Thai Government or Royals, and that individuals on this list are targeted for interviews on entry and exit to Thailand.
In-country sources report that a number of symbolic and practical actions undertaken since King Vajiralongkorn ascended to the throne have strengthened and centralised the monarchy’s role in relation to the country’s economy, politics, and military. In June 2017, the government amended a 1936 law to give the King full control of the Crown Property Bureau (CPB) (formerly managed by the Finance Ministry) and transfer CPB-managed assets into the King’s name. The CPB manages land holdings estimated to be worth more than USD30 billion, including much of Bangkok’s prime real estate, meaning that big businesses with property interests are required to court favour with the palace. Whereas King Bhumibol generally exercised political influence from behind the scenes, King Vajiralongkorn has been more forthright, particularly through issuing several direct statements ahead of The 2019 General Election. There has also been a notable strengthening of the monarchy’s influence over the Military (for example, in October 2019, King Rama X issued a royal decree transferring command of two army units from the military chain-of-command to the Royal Security Command) and a number of symbolic actions taken to de-emphasise Thailand’s revolutionary and democratic history in public spaces, including the replacement of a historic plaque commemorating the 1932 revolution with one paying deference to the monarchy, and the demolition of a monument celebrating the revolutionary government’s victory over royalist counter-revolutionaries.
Section 112 of the Criminal Code (widely known as the ‘lèse-majesté law’) provides for a penalty of up to 15 years’ imprisonment for anyone who ‘defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent’. The law does not provide a definition as to what constitutes an insult to the monarchy, which has given authorities leeway to interpret it in a very broad way. The law permits citizens to file lèse-majesté complaints against each other. Courts have rarely granted bail in Section 112 cases, meaning defendants have been detained during the entire pre-trial and trial period, although there are indications this is being relaxed, with bail granted in some cases. The imprisonment penalty for breaches of Section 112 applies to each individual charge, meaning those charged with multiple offences have faced extremely long prison terms. In June 2017, for example, an activist was sentenced to 70 years’ imprisonment in the heaviest sentence ever handed down (although his sentence was later halved when he confessed to the crime). The activist had posted photographs and videos of the royal family on a Facebook account that purported to be from a different user. The combination of long pre-trial detention, lengthy prison terms, low rate of acquittals and substantial sentence reductions for confessions results in defendants facing heavy pressure to confess rather than trying to contest the charges at trial.
In the years following the 2014 coup, Thai authorities applied Section 112 broadly and prosecuted cases aggressively. In a media interview in December 2015, for example, the chief of the NCPO’s Legal Office said that commenting, sharing, or pressing ‘Like’ on Facebook content that authorities considered offensive to the monarchy would be prosecuted under Section 112. According to human rights advocates, at least 169 persons were prosecuted under Section 112 between May 2014 and May 2019. In one notable case in August 2017, a political activist was sentenced to five years’ imprisonment (later reduced to two and a half years after he pleaded guilty) for posting on his Facebook page a BBC Thai language profile of King Vajiralongkorn. In some cases, the accused committed the alleged offence prior to the 2014 coup but authorities only filed charges afterwards. In one such case, an eminent 85-year-old historian was summoned in October 2017 to face charges based on classroom comments he made in a 2014 lecture about the historical accuracy of a 16^th century elephant battle involving a Thai king (a battle commemorated annually as Thai Armed Forces Day). The historian, who had been charged under Section 112 on four previous occasions, was cleared of the charges in December 2017 following an audience with the King.
According to the Department of Corrections, as of August 2018, 65 persons were awaiting trial or imprisoned on Section 112 charges, including a number of persons convicted for corruption-related offences for misuse of royal title to further business interests. Despite a September 2016 order that ended the practice of trying violations of Section 112 in military courts, human rights observers report that such trials continued to occur after this date. Many Section 112 cases were reportedly conducted in secret, with authorities prohibiting public disclosure of the content of the alleged offences. Sentences for Section 112 offences also increased: before the coup, sentences were generally five years per count, but post-coup military courts instead generally imposed sentences of ten years per count unless the defendant pleaded guilty.
In a February 2018 directive, the Attorney-General instructed all public prosecutors to review all pending prosecutions under Section 112. Under the new guidelines, only the Office of the Attorney-General can make a final determination on whether or not to prosecute a Section 112 case, which previously had also been within the power of public prosecutors. While authorities subsequently dropped a number of Section 112 prosecutions, many of those already prosecuted under the law remain imprisoned serving long sentences.
While there have been no new charges brought under Section 112 since the issuing of the February 2018 directive, the law remains unchanged and available for future use. Human rights groups have also expressed concern that authorities have continued to target perceived opponents of the monarchy through utilising other serious charges, particularly the Computer-Related Crimes Act and Section 116 of the Criminal Code, and criminal defamation (see also Political Opinion (Actual or Imputed)). In some cases, authorities have brought new charges against individuals who have already been acquitted or have had earlier Section 112 charges dismissed. In one such case in March 2018, after a one-day trial the Bangkok Criminal Court sentenced a 23-year-old woman to two years’ imprisonment for breaching the Computer-Related Crimes Act for sharing on her Facebook page audio clips deemed defamatory to the monarchy. The woman had earlier successfully appealed a conviction and prison sentence handed down by the Yala Provincial Court under Article 112 for the same offence.
[7] Ibid at 3.28-3.34
In relation to likely personal attacks or harm or risk of official harassment the report notes[8]:
In-country sources report an increase in violent attacks targeting civil society activists since the return to civilian government. In one particularly notorious case in July 2019, four unidentified assailants beat a prominent political activist with metal truncheons, resulting in him being hospitalised while unconscious. The victim, who has 13 outstanding charges in relation to his activism, had been separately hospitalised three weeks earlier following a similar beating outside of his home. Despite good CCTV coverage of the assault locations, police have not made any arrests in relation to the two beatings and in February 2020 announced they had closed their investigations without identifying the assailants. Other activists have reported similar attacks. Following the increase in violence, security officials have reportedly offered activists ‘protection’ in return for explicit commitments to refrain from comment on, or criticism of, the government – effectively demanding that they give up their activism.
DFAT assesses that civil society activists attempting to work on the ‘red line’ issues outlined in 3.55 face a high risk of official harassment in the form of denial of administrative permissions, harassment, verbal threats, physical attack, arrest, and/or judicial harassment. They may also face societal harassment in the form of legal challenges and/or physical threats and attacks from groups and individuals opposed to their activities, although this may vary according to geographic location. DFAT assesses that civil society activists attempting to work on environmental and land use issues in rural areas are most at risk in this regard.
[8] Ibid at 3.59 and 3.60

In October 2020, Freedom Press commenting on the political status of Thailand notes:
Following five years of military dictatorship, Thailand transitioned to a military-dominated, semi-elected government in 2019. In 2020, the combination of democratic deterioration and frustrations over the role of the monarchy provoked the country’s largest antigovernment demonstrations in a decade. In response to these youth-led protests, the regime resorted to familiar authoritarian tactics, including arbitrary arrests, intimidation lese-majesté charges, and harassment of activists. Freedom of the press is constrained, due process is not guaranteed, and there is impunity for crimes committed against activists.
…………………
Despite Thailand’s transition from military rule to semicivilian control in 2019, anyone perceived as a critic of the military or the monarchy remains at high risk of surveillance, arrest, imprisonment, harassment, and physical attack. Thailand’s post-junta government retained 140 NCPO laws, including laws that restrict freedom of expression. The government also retained the junta’s 2016 Computer Crime Act, which gives authorities broad powers to restrict online expression, impose censorship, and enforce surveillance, and extends enforcement of lѐse-majesté provisions online. Employment of lèse-majesté laws under the criminal code’s Section 112 decreased in the final years of direct military rule, but it returned as a tool of repression in late 2020, with 37 activists facing new prosecutions for having insulted or threatened the monarchy.
………………………………………
Following the 2019 elections, physical attacks on democracy activists by masked assailants widely assumed to be tied to the government increased, with no credible investigations by Thai authorities into any of these assaults.
Extraterritorial executions and disappearances of Thai dissidents-in-exile have also increased in recent years. In December 2018, the bodies of two prominent Thai dissidents in exile in Laos were found stuffed with concrete on the banks of the Mekong River along the Lao-Thai border. In June 2020, Wanchalerm Satsaksit, an exiled Thai activist living in Cambodia, was disappeared off a street in Phnom Penh, presumably by agents connected to the Thai state, and remained missing at year’s end.
The Tribunal noted that the available information on persecution against individuals in Thailand stresses their connection with being activists and openly critical of government and the monarchy, and those who are not simply ordinary citizens or low profile in the expression of any political opinion. The applicant maintained throughout her submissions that she was fearful regardless, that people disappear and can be threatened and that she has no reason to understand why she might be in the category of persons about whom the government or authorities such as police or the military may have some concerns, but her fears continue, particularly were she to return to live in the country.
Assessment of claims
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal has taken into account that the applicant was not represented by a registered migration agent before the Department and Tribunal and that she may have been nervous appearing before the Tribunal. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[9] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]
[9] MIMA v Rajalingam (1999) 93 FCR 220
[10] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
With respect to the evidence about the applicant’s experiences, the Tribunal finds that the applicant’s own evidence does not indicate that she was of any adverse interest to the Thai authorities or to any other person or group at the time she left Thailand and travelled to Australia as a student. The applicant travelled to Australia on her own passport and she does not claim to have had any difficulty doing so. The applicant departed Thailand in July 2015, sometime after she was granted a student visa and this indicates to the Tribunal that she was not fleeing Thailand to escape persecution.
The Tribunal has considered the applicant’s claims very carefully bearing in mind that the independent information reveals that peaceful political dissent, whether through public speech or protest or online posts, may be repressed by the military regime. However, for all the reasons that follow the Tribunal has significant concerns about the credibility of the applicant’s claims to fear harm because of her political opinion. The applicant’s written claims do not indicate that she expressed her political opinion before she departed Thailand, or while she has been living in Australia. As discussed with the applicant, the Tribunal is troubled by the fact that she did not claim to be involved in any protests or demonstrations in Thailand and on her evidence has little interest in politics or any political involvement at all, even though she had the opportunity to say or illustrate otherwise in her protection visa application.
The application itself was not prepared by the applicant and some of the answers were simply incorrect, such as the answer “no” that she did not fear harm in Thailand. The lack of care in presentation and the content does not reflect well on the applicant’s credit. The Tribunal’s concerns about the credibility of the applicant’s testimony were deepened by her evidence about her political activity in Thailand, which the Tribunal found to be limited to generalities and lacking in persuasive detail and which were vague and generalised. The applicant when asked did not know about the March 2019 elections or the outcome and expressed no interest. Overall, the applicant displayed very limited knowledge about Thai politics, and repeated only what is easily read in the press about the country’s current military crackdowns on activists and dissidents and its economic pressures, high unemployment and quality of life.[11]
[11] E.g., Freedom Press October 2020 on Thailand’s freedom status
The applicant on her own evidence is not a member of any political organisation and has never joined one either in Thailand or any group with such interest in Australia. The applicant did not participate in any anti-government movement or sentiment when in Thailand prior to 2015 when she came to Australia. The applicant has not published any anti-government information or opinion. Her only limited involvement appears to be the applicant talking to friends in a restaurant in the village and sharing information on other occasions which she could not recall, nor the detail of those conversations. The applicant repeated her fear of being “disappeared”, because a policeman had come to her house every time she comes home in her village and warned her not to say anything or make a comment. There is no evidence the police have taken any other action, or the military, or threatened the applicant or her family. The applicant on her own evidence said she has no interest in politics and limits her expression of any comment so as not to be reported and put her family at risk. There is no evidence to support a finding that the applicant would change her position upon returning to Thailand because as she said in evidence she might “not be able to control my opinion against the government”, and the Tribunal rejects that claim.
The Tribunal is also troubled by the applicant’s delay in bringing an application for a protection visa. The Tribunal can accept the applicant may have not herself been aware of process, but she had access to information in Australia through her friends and workplace and social media. Prior to the failure of her student application, the applicant had sought only to be able to remain in Australia, and when that avenue closed, it was the suggestion of a “friend of a friend” which led her to pursue the application for a protection visa. Again, these are matters which reflect poorly on the applicant’s credit. The Tribunal does not accept that the applicant has adequately explained her lengthy delay in applying for protection. The Tribunal considers her delay in applying for a protection visa, when considered together with the significant concerns about the credibility of her claims (set out above), supports the conclusion that she has fabricated her claim to fear persecution if she returns, and for a reason which she herself cannot fully explain.
On the evidence before it, the Tribunal does not accept that the applicant has been involved in any political activity in Australia that would attract the interest of the Thai authorities or any other persons or group in Thailand. As the Tribunal put to the applicant, she has presented very little evidence of any political activity in Australia. Even if it were to be accepted that the applicant might very occasionally share news items about political matters on Facebook or express her views about political matters in conversations with friends and associates, the Tribunal finds that the applicant’s engagement with political issues is at such a low and infrequent level, that there is no real chance she will be persecuted and attract adverse attention of Thai authorities or any other person or group on her return to Thailand. The applicant has not presented any other evidence of online political activity in Australia or that she personally has criticised the monarchy online or elsewhere. The Tribunal finds that the applicant has no political profile and, for the avoidance of doubt, the Tribunal does not accept that the applicant has engaged in any conduct in Australia that would expose her to a real chance of serious harm or significant harm in Thailand.
The Tribunal does not accept the applicant generally posts or shares politically controversial material or material that is critical of the Thai monarchy on Facebook. Nor does the Tribunal accept that the applicant is motivated to criticise the monarchy, whether in conversation, online or elsewhere. Even if it were accepted that the applicant has an interest in political matters, occasionally engages in conversation with friends about political issues, and very occasionally, shares news items about political events or issues in Thailand on her Facebook page, the Tribunal is not satisfied that, if the applicant continues this very low level of engagement with political news and opinion on her return to Thailand, that such conduct would give rise to a real chance (as opposed to a chance that was remote or far-fetched) that she would face serious harm or significant harm in Thailand. After considering the applicant’s evidence, the Tribunal is not satisfied that she is involved in any political activity that would give rise to a real chance that she would attract the adverse attention of the Thai authorities or any other person or group in Thailand.
The Tribunal finds that the applicant will not involve herself in political activity, not because she is afraid of the consequences of doing so, but because she has no genuine commitment to doing so. After considering all of the evidence before it, the Tribunal is not satisfied that the applicant will engage in any political activity in Thailand (whether online, in conversation or elsewhere) that would give rise to a real chance that she will attract the adverse attention of the Thai authorities or any other person or group and which will result in any real chance of her being persecuted.
Further, because the Tribunal does not accept that the applicant will be motivated to criticise the monarchy (including by posting or sharing critical material online) or about any other political issues if she were to return to Thailand now or in the reasonably foreseeable future, the Tribunal finds there is no likelihood that the applicant will be subject to charges under article 112 of the Criminal Code or otherwise suffer serious harm for this reason.
For the reasons given above, the Tribunal does not accept that the applicant is now or was in the past a political activist of any type. The Tribunal rejects, in their entirety, her claims that, if she were to return to Thailand, she would attract the adverse attention of Thai authorities or any other person or group because of her actual or imputed political opinion, will suffer serious harm, and in her words and will “disappear”.
When expressing her fear of persecution, the applicant relies almost entirely upon her past experiences from living in Thailand and her recent experiences when returning to the country. The Tribunal is able to rely upon those experiences when considering the chance of something occurring in the future.
The High Court in MIEA v Guo said:
The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. [12]
[12] MIEA v Guo (1997) 191 CLR 559 at 574-5.
The Tribunal has found that based on the evidence as presented to it by the applicant, there is very little probable chance that the applicant will be persecuted and suffer serious harm, examples of which include possibly loss of life or liberty, significant physical harassment or ill-treatment, significant economic hardship, denial of access to basic services or denial of capacity to earn a livelihood of any kind, or any other form of serious harm.
Accordingly, the Tribunal finds that the applicant does not face a real chance of persecution now or in the reasonably foreseeable future on account of her political opinion or for any other reason. The Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of her actual or imputed political opinion or for any other reason set out in s.5J(1)(a) of the Act if she returns to Thailand now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. The Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons expressed above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa), as there is no real risk that as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, that the applicant will suffer significant harm.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alan McMurran
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 547

14 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction