2014355 (Refugee)

2014355 (Refugee) [2022] AATA 2512 (8 June 2022)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  2014355
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Gabrielle Cullen
DATE OF DECISION:  8 June 2022
DATE CORRIGENDUM
SIGNED:2 August 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The date ‘1 February 2017’ at paragraph 6 should be replaced with ’23 September 2020’.
Gabrielle Cullen
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2014355
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Gabrielle Cullen
DATE:8 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 08 June 2022 at 10:50am
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – social and human rights activists and supporters of opposition political party – detained and beaten – fear of blacklisting and imprisonment – credibility – vague and inconsistent claims and evidence – limited knowledge of political parties, issues and events and activity in Australia – voluntary returns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), (2A), 65, 424A, 424AA
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are citizens of Thailand, claim to fear return as they are social activists who have been involved in fighting for freedom of human rights in Thailand. In their applications they make identical claims and claim to have been sentenced to custody for protesting against the Government. They claim to have been victimised and harassed for not agreeing with Government policies. They believe hey have been blacklisted and will be sentenced to jail if they return to Thailand.
The applicants arrived in Australia [in] March 2015 on Subclass 573 visas valid to 15 March 2017 and held further student visas to 15 March 2021. They departed Australia from [March] 2017 to [May] 2017 and [February] 2019 to [April] 2019.[1] They applied for the visas to which this decision relates on 19 October 2019.
[1] At hearing they confirmed that they visited Thailand on these dates.
On 28 July 2020 the Department wrote to the applicants requesting further information as to their claims.[2] The applicants did not respond.
[2] As outlined in the Department decision attached to the Application for Review.
The delegate refused to grant the visas on 11 September 2020 on the basis that the applicants’ claims lacked detailed information and despite being given the opportunity to provide further information, had not. On the basis of the limited information the delegate was not satisfied that the applicants face harm in Thailand for the reasons they claim.
The applicants applied to the Tribunal on 1 February 2017 and attached the decision of the Department.
The applicants appeared before the Tribunal by video (MS Teams) on 7 March 2022 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicants were assisted by an interpreter in the Thai and English languages. The applicants elected for the second named applicant to provide evidence on their behalf. They agreed that concerns with evidence could be raised with both of them at the same time and they would rely on each other’s responses. Throughout the hearing the Tribunal asked the first named applicant whether he had anything to add or information to provide and he repeatedly answered in the negative or did not provide a substantive response.
The applicants were given to close of business on 14 March 2022 to provide further responses to concerns raised, including the s 424AA matter raised.
On 9 March 2022 the Tribunal also sent the first named applicant a s 424A letter outlining concerns already raised at hearing based on evidence given by the second named applicant at hearing.
The applicant provided a response dated 23 March 2022.
The issues to be considered in this case are as follows:
·Are the applicants credible as to their claims?
·Do the applicants have a well-founded fear of persecution in relation to Thailand and meet the refugee protection provisions of the Act?
·Do they meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicants’ protection visa applications dated 19 October 2019, identity documents and claims outlined in their application.
·Oral evidence of the applicants provided at the Tribunal hearing held on 7 March 2022.
·Section 424A letter dated 9 March 2022 and the applicant’s response dated 23 March 2022.
·Department of Foreign Affairs and Trade (DFAT), Country Information Report Thailand, 10 July 2020.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
In their protection visa applications dated 19 October 2019, the applicants make the following identical set of claims. They claim they departed Thailand as they are social activists who were involved in several activities due to no human rights and no press freedom or free speech in Thailand. As to whether they experienced harm, they claim they were sentenced to custody for protesting and were beaten by police officers who warned them not to create chaos. They claim to be fighting for freedom and human rights in Thailand. They did not seek help in Thailand as they would have been placed straight into custody due to being blacklisted. They claim to have no idea of further actions they can take because they do not think they will be treated fairly. They claim that the local authorities only take orders from the Government and they do not dare to go against their higher authority. They did not try to move as they claim the Government will do anything to catch the protestors. They claim some of the protestors are prosecuted and some sentenced to jail without trial. They claim they protested against the Government to create awareness however they were victimised and harassed as they did not agree to their policies. On return the applicants claim they will be sentenced to jail as those who are against the Government’s policies disappear, are put in jail or/and are under custody. They claim their life is under threat if they return. As to harm faced in the past, they claim they were beaten up while in custody and warned by some officials from the Government. They claim the Government and authorities will do anything to stop whoever is against their policies and they worry about their safety in Thailand. They claim the authorities cannot help as they are blacklisted and soon they will put a charge on them and sentence them to jail. They claim the local authority take orders from the Government. They claim they cannot relocate as they are blacklisted, and they will be placed in custody. They claim they will not be treated fairly, and the local authorities will take orders from the Government.
At the Tribunal hearing held on the 7 March 2022 the applicants indicated and confirmed that they wished for the second named applicant to speak on their behalf. Despite this the Tribunal on numerous occasions asked the first named applicant whether he had further comment or anything to add to the evidence of the second named applicant but he did not add anything of substance. The applicants also agreed to concerns being raised to them together. The first named applicant indicated he was happy for the second named applicant to answer concerns on his behalf.
The second named applicant indicated that the applicants departed Thailand in 2015 for the purpose of studying in Australia. She said they returned to Thailand on 2 occasions in 2017 and 2019, as per the dates outlined above. She said they returned to Thailand to visit their family. When asked if they lived the whole time with their families in Khon Kaen on return, she said yes, except when going on trips to visit temples. When asked if they had any difficulty entering or exiting Thailand on these trips, she answered in the negative but said on the second trip in 2019 the first named applicant’s luggage was checked as he had not declared goods in the bag.
As to why they fear return, the second named applicant indicated that it arose on their second trip back to Thailand in 2019. She said when they returned to Thailand in 2019 the election was held, they cast their votes but as there was much cheating by the Government they protested with a group against the Government for better democracy. She said they took part in a rally and violence was used by the authorities to stop the rally. She said their friend who was one of the leaders was arrested and harmed. She said they thought it was not fair and thought they would be blacklisted for attending the rally. Later in the hearing she confirmed that they voted in the election and when the results were released which showed fraud and cheating, they attended the protest.
She said they were never arrested before they departed, they were not questioned about their attendance at the rally or political activities and they were not stopped at the airport except to have their luggage checked.
As to the rally or protest they attended, the second named applicant indicated it was approximately 2 weeks before their departure. When the Tribunal queried that despite attending the protest nothing happened when they returned to their home in Thailand; she said no because after the rally they went and stayed with a cousin up north. The Tribunal questioned the inconsistency in this evidence with evidence previously given as to where they had lived when in Thailand and that they had travelled from their home area to the airport. She said they stayed with the cousin for one week then returned home, then travelled to Australia. She said nothing happened to them in Thailand.
The Tribunal asked when the election was held in 2019; she said she could not remember. The Tribunal asked when results were released; she said she could not remember. She said they voted for Anakhot Mai Party or the Future Forward Party whose leader is Thanathorn Juangroongruangkit. She also said they supported the Pheu Thai Party later in the hearing when concerns were raised.
She confirmed they voted in the election, results were released and because they believed the results were not truthful, they went to a protest. She said the protest was at the [Location] in Khon Kaen, their home area.
The Tribunal asked how many seats the Fast Forward Party won in the election; she said she could not recall. The first named applicant was asked the same question and he said he could not recall either.
As to their involvement in politics in Australia, the second named applicant indicated they read the news and talk to friends.
The Tribunal asked whether they were members of any party, she said they just voted for the Anakhot Mai Party or Fast Forward Party. She said they are supporters. She confirmed they express their support in Australia by reading news on the internet and talking to friends. The Tribunal asked what the policies of this party were and what it stood for and she initially said a new future and when asked for further comments she said she could not remember. The first named applicant was also asked to comment about the policies, and he said he had nothing to add.
Both applicants were asked if they had anything further to add and they answered in the negative.
The Tribunal raised a number of other concerns as to the credibility of the applicants’ claims and where relevant these have been outlined below. It questioned whether they held any political opinion, had been involved in any political activities and fear return for the reasons they claim. Where relevant these concerns have been outlined below.
The Tribunal also raised via the process outlined in s 424AA information about Thanathorn Juangroongruangkit.
Following the hearing, the Tribunal sent a s 424A letter to the applicant as it was concerned that inconsistences and concerns raised with both applicants at hearing were based on evidence of the second named applicant and had not been raised via s 424AA at hearing.
The applicant responded as follows:
Thank you very much for your email to invite me to make a comment on or to information, I have made an application for a Protection (Class XA) subclass 866 (Protection) visa. At the time I made this application I were eligible for this visa. I believed and expected to be granted a protection visa as I have harm experience in our home country.
The reasons to provide of my comment is when I was in Thailand I have supported and has always been involved in activities with the policies of Future Forward Party.
While the purpose of our protest was to create awareness, we were victimised and harassed for not agreeing with the Government’s policies and believe we are blacklisted and that they will be sentenced to jail if returned to Thailand.
In the details of my partner was provided to The Tribunal on the time that hearing day, some detail was incorrect and I am also cannot remember the accurate information.
Under any future decisions made by The Tribunal, I respect and abide by the decisions that will be made. However, I would like to ask for your kind assistance to give us a chance to stay our life safe in a country embraced by humanity. If you need more of my information or documents, please contact me via my email address.
Are the applicants credible as to their claims?
Having sighted a copy of the applicants’ identity documents, and on the basis of the evidence at hearing, the Tribunal accepts that the applicants are nationals of Thailand for the purposes of s 36(2)(a) of the Act. For the purposes of s 36(2)(aa) the Tribunal accepts that Thailand is the receiving country.
For the reasons that follow the Tribunal does not accept that the applicants are credible witnesses as to fearing return for the reasons they claim. It follows that the Tribunal does not accept that the applicants are credible witnesses as to holding the political opinions they claim which led them to leave Thailand and that they have ever been involved in any political activities in opposition to any government, the military or anyone else in Thailand and faced any of the difficulties they claim. It finds their testimony to be vague, lacking in detail and inconsistent as to these claims and is of the view that they have fabricated claims and concocted evidence to achieve an immigration outcome.
Inconsistencies with claims outlined in the protection visa application
The Tribunal found the evidence as to their political activities and the difficulties they faced to be inconsistent between the hearing and with that provided in their application for the visa. In this regard the Tribunal notes that the applicant agreed that the second named applicant would provide evidence on their behalf. It also notes that despite also being asked on a number of occasions whether the applicant wished to add anything to the evidence of the second named applicant nothing substantive was added, including when inconsistencies were raised. The Tribunal also notes these inconsistencies were raised with the applicant at hearing and via a s 424A letter after the hearing.
In this regard, when asked as to the applicants’ political involvement and attendance the second named applicant claimed at the Tribunal hearing that both of the applicants voted for the Anakhot Mai Party or the Future Forward Party and attended one protest or rally after the election in 2019. She claimed that they both fear return because of their involvement in this rally and support for this party. She claimed that they both fear being backlisted and harmed on return because of their political activities and beliefs. The second named applicant said that following attendance at this rally neither of the applicants were detained, arrested or questioned about their attendance at the rally or protest. She said neither of the applicants were stopped at the airport when they departed Thailand in April 2019 as they attended this rally, although the applicant’s luggage was checked. She said nothing happened to either of the applicants in Thailand following their attendance at the protest.
However, in contrast they both claimed in their protection visa application submitted to the Department the following:
·They are social activists who were involved in several activities due to no human rights and no press freedom or free speech in Thailand.
·They were sentenced to custody for protesting and were beaten up by police officers who warned the applicants not to create chaos.
·After they protested against the Government they were victimised and harassed.
·They were beaten up while in custody and warned by some officials from the Government.
·They were blacklisted and soon a charge will be placed on them and they will be sentenced to jail.
When the inconsistencies were raised with both of them at hearing and also via s 424A to the applicant, the following explanations or responses were provided.
·Their friend who was a leader and involved in the protest was beaten.
·They believe they have been blacklisted.
·They have supported and have always been involved in activities with the policies of the Future Forward Party. They were victimised and harassed for not agreeing with the Government’s policies and believe they are blacklisted and that they will be sentenced to jail if returned to Thailand.
·The applicant in a written reply said some detail provided by the second named applicant was incorrect and he also cannot remember the accurate information.
The Tribunal does not accept their responses as explaining the inconsistencies. It is of the view that if they were politically active as they claim they would be consistent as to how many rallies they attended, whether they or their friend who is a leader were beaten for political activities, whether they had been sentenced to custody, victimised and harassed and beaten between the Department and Tribunal. It does not accept that they would not be able to recall consistently evidence as to these significant matters between evidence in their application and evidence provided at hearing. These inconsistencies add to the finding they did not face any of the difficulties they claim due to any involvement in political activities or protests and were not of any interest to the Government or military for their political beliefs and activities. It adds to the finding they are not credible witnesses.
Knowledge of political events and Anakhot Mai or Future Forward Party
The Tribunal found the applicants’ evidence, particularly the second named applicant’s evidence relied on by the applicant, as to their political opinion and activities to be vague and lacking in detail and inconsistent with independent information.

The second named applicant claimed at hearing both the applicants voted for the Anakhot Mai Party or Future Forward Party when they returned to Thailand for a visit in 2019 and attended a protest or rally after the election in 2019 in support of this party and its leader as the released results were not truthful. She also said they supported the Pheu Thai Party later in the hearing when concerns were raised. She claimed that the applicants both feared return because of their involvement in this rally and their political support for Anakhot Mai party or Future Forward party headed by Thanathorn Juangroongruangkit.
However, despite claiming their involvement in this party and that they fear return because of their political opinion being associated with this party, the applicants did not know the following:
·how many seats were won by the Anakhot Mai Party in the 2019 election. The applicant also said he could not remember when asked at hearing.
·any of the policies of this party except that they stood for a new future. The applicant when asked at hearing said he had nothing to add to this evidence.
·The second named applicant indicated that neither of the applicants had been involved in any activities promoting this party on their return to Australia, except for reading on the internet and talking with friends.
·They are not involved as members of this party.
The information indicates the Anakhot Mai Party won 81 seats in the election held on 24 March 2019. The information indicates the Anakhot Mai Party or Future Forward Party campaigned on an anti-military agenda with policies of cutting military spending and amending the military drafted constitution.[3]
[3] ‘Thailand’s Stolen Election’, The Diplomat, 1 June 2019 20190604102808.
When the concerns were raised the applicants provided no reasons at hearing that explains why their information is lacking in detail as to their political opinion. It does not accept the applicant’s response in the reply to the s 424A letter that they were involved in this party and that some detail provided by the second named applicant was incorrect and the applicant also cannot remember the accurate information.
The Tribunal is of the view that if the applicants held a political opinion which led them to attend the rally and to read and talk to friends about the party and their political opinion, they would be able to provide more detail as to their opinion at hearing including the policies of the party they claim to support, as well as information which led them to protest, including the number of seats their party were told they won as they indicated that the reasons for protesting were that the results were incorrect. While the second named applicant was correctly able to name the leader of the party as Thanathorn Juangroongruangkit, notwithstanding the Tribunal finds the evidence at hearing to be vague and lacking in detail. Their lack of membership of any political party and lack of engagement in Australia where it is safe to do so, except for talking with friends and following it on the internet while not solely determinative undermines their claim as to holding a political opinion or fear of expressing it on return. This adds to the finding the applicants are not witnesses of truth as to holding any political opinion. It adds to the finding the applicants are not credible witnesses.
Political activities in Thailand and inconsistency with independent information
At the hearing, the second named applicant claimed the applicants both voted for the Anakhot Mai Party when they visited Thailand and attended a protest or rally after the election in 2019, 2 weeks before they departed Thailand, which was [in] April 2019. She said and confirmed that the applicants attended the rally or protest as after the election the results were released and they both realised there was much cheating going on. The applicant indicated he relied on the evidence of the second named applicant. The evidence indicates the applicants visited Thailand from [February] 2019 to [April] 2019.
However, independent information indicates that the Thai election was held on 24 March 2019, and while some preliminary results were released earlier the Election Commission did not release formal results for the election until early May 2019.[4]
[4] DFAT Country Information Report Thailand (10 July 2020).
When the concern was raised as to how they attended a rally 2 weeks before they departed [in] April 2019, when the election was only held about 10 days before they departed and results were not formally released until May 2019, the second named applicant changed her evidence and said they knew the results would have been in their favour but the authorities altered the law and because the leader of their party Thanathorn Juangroongruangkit was targeted by the law. She also said it was because they supported the Pheu Thai Party.
The Tribunal does not accept that this response explains the inconsistency, especially as the applicant said and confirmed her initial evidence as to why they attended the rally, rather it adds to the second named applicant’s confusing evidence. The applicant’s reply in the

s 424AA letter also does not explain the inconsistency. The Tribunal therefore does not accept their explanation and is of the view this inconsistency leads the Tribunal to find they did not attend a protest or rally in Thailand for the reasons they claim prior to their departure on 3 April 2019. It adds to the finding they are not credible witnesses.
Credibility summary
For all the above reasons, considered cumulatively the Tribunal does not find the applicants to be credible, truthful or reliable witnesses. The Tribunal is of the view that the applicants have fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicants are credible witnesses and cannot be satisfied on the evidence before it that the applicants are truthful witnesses as to their claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicants are not reliable witnesses as to these claims.
In making this finding the Tribunal accepts that some information has been consistent over time, such as the applicants’ fear of return on account of their political opinion and that they protested against the Government. It also accepts they knew the leader of the Fast Forward Party as Thanathorn Juangroongruangkit. However, the Tribunal considers that these matters are relatively easy matters to recall and their consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicants are not credible witnesses.
As the Tribunal has found on the basis of the cumulative evidence before it that the applicants are not witnesses of truth, it follows it does not accept that the applicants ever held a political opinion in the manner claimed, have ever been involved in expressing, stating or protesting their claimed political opinion, have ever been involved as supporters or members of any political group, and have attended any political rallies or group activities in Thailand.
It follows it does not accept that they are or were ever supporters of the Anakhot Mai Party also known as the Fast Forward Party or the Pheu Thai Party or were or are involved in fighting for freedom, democracy and human rights or against the cheating in the 2019 election. It follows it does not accept they were involved in any political activities in Thailand or Australia opposing the Thai Government or authorities including attending rallies or protests, speaking to friends and following news of this party, or having a friend who was a political leader who was arrested. It follows it does not accept they were ever victimised and harassed, beaten, backlisted, sentenced and/or placed in custody or jail. It follows it does not accept when they returned to Thailand in 2019 they voted, attended a local protest in support of Anakhot, fled to their cousin’s for one week and fear return on this basis or because of any other political activities or associations they claim to have attended or made.
It follows it does not accept were they to return they would seek to be involved in any political movement, attend any protest or rally or activity because of their political opinion or to say anything critical of the Government or military.
It follows it does not accept their claim they departed Thailand in April 2019 or at any time due to any fear associated with their political beliefs or the political situation in Thailand or a willingness to be able to express their beliefs. It follows it does not accept that they were of any interest to or held any profile with the police, the military, the authorities or anyone else in the Government or elsewhere due to any political involvement or belief at the time they departed in April 2019 or at any time.
The Tribunal rejects the applicants’ claims in their entirety as being supporters or followers or associated with any political group and holding any of the political opinions they claim.
Do the applicants have a well-founded fear of persecution in relation to Thailand and meet the refugee protection provisions of the Act and meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the credibility findings above as to the applicants’ lack of any political opinion and involvement and that they hold any profile with the military, police, authorities or Government as being opposed to the Government, it follows the Tribunal does not accept were the applicants to return to Thailand now or in the reasonably foreseeable future they will face any of the difficulties they claim for the reasons they claim at the hands of the police, authorities, military, or anyone else. It follows it does not accept the applicants will be imprisoned, charged, arrested, fined, sentenced, assaulted, threatened, victimised and harassed, placed in custody, warned, physically or verbally harmed, placed on a backlist or face any of the difficulties they claim in any manner whatsoever for the reasons they claim.
As the Tribunal has found that the applicants were never involved with any political movement or hold any political opinion opposed to the Government or military or anyone else, it follows that the Tribunal is not satisfied that the applicants will participate in any political activities or advocate against the Government or military or anyone else or will suffer persecution by being prevented from being involved. It does not accept as they have not been involved in the past that they will continue to hold any political opinion or advocate against the Government or military or anyone else wherever they live in Thailand which would place the applicants at any risk of harm.
As a result the Tribunal does not accept that the applicants face a real chance of persecution involving serious harm were they to return to Thailand in the reasonably foreseeable future at the hands of the police, authorities, military, Government officials, or anyone acting on their behalf or anyone else, as they are supporters of opposition parties Anakhot Mai (Fast Forward Party) or Pheu Thai or Thanathorn Juangroongruangkit or as they protested against the Government, advocated for democracy, human rights and freedom, opposed the results of the election and are imputed to be opposed to the Government or military or anyone else on account of any political opinion they hold or for any of the reasons they claim.
Similarly, based on the findings above and on the basis of the evidence before it, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm on their return to Thailand at the hands of the police, authorities, military, Government officials, or anyone acting on their behalf or anyone else, as they are supporters of opposition parties Anakhot Mai (Fast Forward Party) or Pheu Thai or Thanathorn Juangroongruangkit or as they protested against the Government, advocate for democracy, human rights and freedom, opposed the results of the election and are imputed to be opposed to the Government or military or anyone else on account of any political opinion they hold or for any of the reasons they claim.
Summary
The Tribunal has considered whether the combination of each of the individual claims raised by the applicants would together create a real chance of either of them being subjected to serious harm in Thailand in the reasonably foreseeable future. As the Tribunal has rejected the applicants’ claims in their entirety, the Tribunal does not accept that there is a real chance either of the applicants would face serious harm for these reasons if either of them returns in the reasonably foreseeable future.
For the reasons given above, the Tribunal therefore is not satisfied that either of the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal has also considered whether either of the applicants is eligible for complementary protection. The Tribunal has above rejected the credibility of the applicants’ claims in their entirety. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of either of the applicants being removed from Australia to Thailand, there is a real risk that either of them will suffer significant harm as defined in subsection 36(2A).
The Tribunal is not satisfied that either of the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal therefore does not also accept that either of the applicants 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 applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Gabrielle Cullen
Member

ATTACHMENT - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2512

8 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction