2016362 (Refugee)

2016362 (Refugee) [2022] AATA 1203 (2 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2016362
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Christine Cody
DATE:2 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 2 March 2022 at 2:32pm

CATCHWORDS
REFUGEE – Protection Visa – Thailand – political opinion – military coup – applicant’s online campaigning – non-attendance at hearing – cancellation of student visa – delay in protection application – claims not made out – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425, 426A, 441A(5), 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Migration history[1]
[1] Sourced from the applicant’s application form, passport and the delegate’s decision record that he provided to the Tribunal.

The applicant claims to be a citizen of Thailand. He departed Thailand legally [in] July 2014 and arrived the same day in Australia as the holder of a student visa.
He returned to Thailand [in] June 2016 for a family visit.
His last arrival in Australia was [in] June 2016 as the holder of a student visa.
He applied for a protection (Subclass 866) visa on 2 October 2019.
On 12 October 2020 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision. The relevant law is set out in Annexure A.
The Departmental file
The applicant submitted a protection visa application form, a copy of his passports issued [in] 2013 and [2019], his birth certificate, and ID card issued [March] 2016.
Application form
According to his application form:
·     The applicant is aged [age] years. He was born in Chiang Mai, Thailand. His religion is Buddhism. He can speak, read and write Thai and English. His name at birth was [name] (he did not offer an explanation for his change in name).
·     He has never been married.
·     He resided at 2 addresses, both in Chiang Mai, while in Thailand.
·     The applicant claimed to have completed 2 degrees at university in Thailand: [details deleted].
·     The applicant provided no information about his employment from 2011 until he came to Australia in 2014. He did not claim to have worked in Thailand.
·     In Australia he claimed to have studied a 2-year Diploma at Australia College/Tafe ([deleted]) and then from 2017 he claimed to have studied a Bachelor [degree], from which he said he withdrew [in] April 2018.
·     He has worked in Australia in various positions relating to [an industry].
·     He has parents and a sister (born [year]) in Thailand; he is in contact with his parents by phone weekly from Thailand.
The reason he left for Australia was as follows:
I came to Australia to study, then there was a military coup in Thailand. I was heavily campaigning online against the military coup. Even though, this year there was a general election in Thailand. The election was full of corruption. The military party very much still in power.
He did not experience harm in Thailand.
He did not, and cannot try to, relocate because:
the whole country is now governed by the military-backed party. It doesn't which part of the country I go to. It will still be the same
He believes that he will experience harm because:
I will be mistreated because I am heavily campaigning against the last general election in Thailand. The military-backed government wants to silence anyone that opposes or against them.
He cannot seek protection because:
The authority is working for the military-backed government.
Departmental letter
In August 2020 the Department sent a letter to the applicant expressing concerns, and giving him an opportunity to provide further information in support of his claims:
Claims lacking detail
In order to be satisfied that your claims for protection are genuine, I require further information. I have concerns that your claim of fearing harm from the government because you have participated heavily in online campaign against the military coup as well as the last election may not be credible because they lack substantiating personal details. I require further information on why you fear harm in Thailand, including the following:
● You have not provided any detailed information on the online campaign you claim to have participated in. Please provide detailed information in this regard including on which website or through which network you participated in the campaign, what the campaign was about, what your involvement was and on what date you have participated in the campaign. Please also explain how the Thai government would be aware of your involvement in the online campaign. Please provide evidence of your involvement in the online campaign.
● You stated in your written claims that you will be mistreated if you returned to Thailand. Please provide detailed information in this regard including who would mistreat you, why they would do that to you and how you know that they would mistreat you. In addition, please specify what mistreatment you believe you would be subjected to. Please provide evidence in this regard.
Engagement with the Thai authorities
You declared in your application form that your current passport was issued [in] 2019 by the Ministry of Foreign Affairs. Your engagement with the Thai authorities in obtaining your passport may suggest that not only that you do not fear harm from the Thai authorities but also that you are not of interest to the Thai authorities, undermining the credibility of your claims. Do you have any comments or further information to provide?
Immigration history
According to the information you have declared in your Protection visa application, you have been residing in Australia since your last arrival [in] June 2016 on a Student visa. Information on your application also indicates that you have been working and studying during your more than 4 years of stay in Australia. This may suggest that you wish to stay in Australia for reasons other than for the reason of fear of harm in Thailand. Do you have any comments or further information to provide?
Delay in lodgement
According to the information you declared in your Protection visa application form, you last arrived in Australia [in] June 2016. However, you did not lodge your protection visa application until 02 October 2019 which is almost 3 years 4 months later and 1 year and 10 months after holding a visa. The length of time that has passed between your arrival in Australia and lodging the Protection visa application is a matter I am taking into account in assessing the genuineness of your protection claims. Please provide any comments or further information about why this much time passed before lodging your Protection visa application.[2]
The delegate’s decision
[2] These concerns and questions were repeated in the delegate’s decision record provided to the Tribunal by the applicant.
The delegate noted that the applicant had been provided with a number of opportunities to provide substantiation of his claims, but he had not done so. The delegate considered that the applicant had failed to provide his comments on the concerns put to him in relation to his engagement with the Thai authorities, immigration history and delay in lodging a protection visa. The delegate was not satisfied that his claim to fear harm is credible.
There are no non-disclosure certificates on file.
The Tribunal
On 7 November 2020 the applicant applied to the Tribunal for review, providing a copy of the delegate’s decision record, notification letter and identity page from his passport.
On 9 November 2020 the Tribunal sent him an acknowledgement letter, confirming that it is important that he keep the Tribunal informed of any change in his contact details, and he was requested to provide any relevant documents or information to the Tribunal as soon as possible. No documents were provided.
During the COVID-19 pandemic the Tribunal determined it was reasonable in the circumstances to hold a hearing by video/telephone. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video/telephone. On 14 October 2021 the Tribunal wrote to the applicant informing him that a hearing in his matter was likely to proceed via video using Microsoft Teams. The letter asked the applicant to respond within 7 days if he had any concerns about the hearing proceeding in this manner. On 19 October 2021 the applicant responded that ‘MS Teams’ is fine.
By way of letter dated 8 February 2022 the applicant was invited under s 425 of the Act to appear before the Tribunal by video (or audio) using Microsoft Teams on 1 March 2022 at 2:00PM. To attend the hearing by video, the applicant was invited to click on a link in the hearing invitation at the specified time. Detailed instructions on how to attend the hearing were included in the invitation. The hearing invitation also gave the applicant an option to join the hearing by audio only by calling, at the specified time, the telephone number and unique conference ID specified in the hearing invitation.
The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The invitation also stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice.
The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and 1 business day before the scheduled hearing to the last mobile phone number provided by the applicant to the Tribunal in connection with the review.
The applicant did not respond to the hearing invitation and has not engaged with the Tribunal since the hearing invitation was sent to him.
The applicant did not appear before the Tribunal on the day and at the scheduled time and place. There is no evidence before the Tribunal that the applicant joined the hearing by clicking on the video link in the hearing invitation at the scheduled time, or that he called the telephone number in the hearing invitation and used the unique conference ID at the scheduled time, as instructed to do in the hearing invitation. There is also no record of the applicant contacting the Tribunal by any other means at the scheduled time to explain why he had not used the link, or telephone number and unique conference ID, to attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) and that the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. No satisfactory reason for the non-appearance has been given.
The applicant had not provided any change of contact details to the Tribunal despite having been requested to do so on a number of occasions, from the time he lodged his application for review.
The Tribunal is satisfied that the applicant was invited to a hearing but that he did not attend. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
CONSIDERATION OF CLAIMS
Country of reference
The applicant produced his passport issued by the Thai authorities to the Department and the Department accepted that he was a citizen and national of Thailand, and assessed his claims against Thailand. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Thailand, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Thailand.
Credibility of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.)
In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if he returns to Thailand.
The applicant provided written claims to the Department. The delegate refused his claims on the basis of insufficient information and a lack of explanation of concerns relating to his claims and circumstances. While the applicant provided to the Tribunal a copy of the delegate’s decision record where the delegate outlined these concerns, the applicant did not provide any explanation as to why he had not responded to the delegate’s concerns, nor did he provide any information about these matters to the Tribunal, either in writing before the hearing, nor by attending a hearing to give oral evidence. He had been advised by the Tribunal that it had insufficient information before it to make a favourable decision on his behalf. He had been offered the opportunity by the Tribunal on a number of occasions to provide anything further to the Tribunal for consideration, but he did not do so. The Tribunal accepts that the applicant is not required to provide any documents to support his case. However, he also did not attend the hearing where he would have had the opportunity to provide necessary details of his claims. In these circumstances, a number of relevant questions about his claims remain unanswered, including as set out below.
The applicant claimed that the reason why he left Thailand (in 2014) was to study, then there was a military coup and he ‘heavily campaigned online’. The DFAT report notes that
The military staged a bloodless coup in May 2014, bringing to power a military junta known as the National Council for Peace and Order (NCPO) headed by General Prayut Chan-ocha.
This occurred a few months before the applicant left Thailand. He did not state whether he campaigned heavily online before he left Thailand (noting he said he experienced no harm in Thailand) or after he left. He also claimed to have returned to Thailand in 2016, which would appear to be after he had ‘heavily campaigned’, yet he did not suggest that he experienced any difficulty or adverse attention in Thailand when he returned in 2016.
He also stated that he had undertaken ‘heavy campaigning’ as a result of the general election in 2019. The applicant has not provided any details of any of his campaigning although the delegate asked him to provide information about this. He has not indicated what activities he carried out, the dates, where he campaigned, and why he would expect that his particular activities would have come or would come in the future to the adverse attention of the authorities, to the extent that he would face a real chance of serious harm or a real risk of significant harm.
The Tribunal also had concerns with the applicant’s delay in lodging a protection visa application. It notes that he had a student visa, but he only claims to have studied until 30 April 2018. The claim that he was studying until 30 April 2018 was inconsistent with the documents that he had produced to the Department with his application for a protection visa which related to the cancellation of his student visa and his application for review of that decision lodged with the Tribunal. The documents included a letter from the Department notifying that his student visa, granted 1 July 2014, was cancelled on 4 December 2017, as he had not complied with condition 8202 which requires that he be enrolled in a registered course of study, but he had not been so enrolled since 24 April 2017. He had lodged an application for review of this decision to the Tribunal (differently constituted) and he had been invited to attend a hearing in October 2019.
Even if the applicant had studied until 30 April 2018 as he claimed, he has not offered any explanation for the delay in lodging his protection visa application thereafter until October 2019, given that his claims indicate a fear arising from his campaigning after the 2014 coup.
The applicant has also not provided any explanation as to how he was able to obtain a new passport given he claims to be wanted by the authorities.
As set out above, the Tribunal must reach a state of satisfaction that the applicant is a person to whom protection obligations are owed. The Tribunal considers that he has not provided sufficient detail to make out his claims and it does not accept the applicant’s assertions.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, other than those claims accepted above. The Tribunal rejects all the various claims made and it is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in the reasonably foreseeable future in Thailand. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Thailand, there is a real risk that the applicant will suffer significant harm.
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member
ANNEXURE A – 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–5LA, which are extracted below.
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 below.
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 1203

2 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction