2016505 (Refugee)

2016505 (Refugee) [2022] AATA 2624 (16 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2016505
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Gabrielle Cullen
DATE:16 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 June 2022 at 3:19pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – opposition to the military government – level of political participation – credibility concerns – lack of detailed evidence – inconsistent with independent information – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Thailand, claims to fear return as she is opposed to the military government and attended protests in Australia.
The applicant first arrived in Australia on a [student] visa [in] August 2005 and remained in Australia on student visas, followed by a [skilled] visa, valid to 3 September 2017. She departed Australia [from] April 2014 [to] April 2014 [and] August 2016 [to] September 2016. She was granted a further [skilled] visa to 21 November 2019 and applied for the visa to which this decision relates on 27 September 2019.
The delegate refused to grant the visa on 29 October 2020 on the basis she could not be satisfied on the evidence before her that the applicant is considered by the Thai authorities or government to be a high-level opponent, political activist or renowned human rights defender or that she has ever been involved in political activities against the Thai government which would cause her to be persecuted by the authorities on return. The delegate was not satisfied that the applicant would face a real chance of serious harm or real risk of significant harm on return to Thailand on account of her political opinion.
The applicant applied to the Tribunal on 11 November 2020.
The applicant appeared before the Tribunal by telephone via MS Teams on 17 March 2022 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicant was assisted by an interpreter in the Thai and English languages. She was offered an MS Teams video hearing but indicated she would prefer a telephone hearing.
The issues to be considered in this case are as follows:
·Is the applicant credible as to her claims?
·Does the applicant have a well-founded fear of persecution in relation to Thailand and meet the refugee protection provisions of the Act?
·Does she 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 applicant. 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 applicant’s protection visa application dated 27 September 2019, identity documents and claims outlined in the application.
·Three photographs attached to the application for the visa.
·Oral evidence of the applicant provided at the Tribunal hearing held on 17 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 her protection visa application dated 27 September 2019, the applicant claims that she is seeking protection in Australia as she is fearful for her safety as she is against the military government in Thailand.
As to why she departed Thailand, she claims the following:
Since the 2014 military coup d etat by military use force to kick ting-luck out of Thailand prime minister. Even now after election it's still controlled by military government it's was unfair elections the whole worlds are knew!! It's most selected by junta alliance that's why prime minister prayut Chan o-cha he's still won the elections and still become a prime minister. After the election of long on the 2nd of August 2019 it's was three bombs has exploded in Bangkok areas they believe it's just because of unfair elections most of peoples they don't like prayut-chan o cha to become a prime minister again. I hate this military government and military rulers the corruption. I’m strongly against military it's dictatorship government this government obtained force . This government will crack down any person who's criticizing or opposition I'm ordinary person who have the right the speech and have the right to select good prime minister as everyone in Thailand as well. Thailand is getting worse now bad economic, no investors who's want to do any business in Thailand just because of military rule and under military control.
As to what will happen to her on return, she claims that anyone who criticises the military is arrested and sent to jail and she claims that if she returns she will be detained and sent to jail and she does not know for how long; it could be for life. She claims that on return once she is arrested, she will be sent to jail and she will be subjected to torture as prisoners are bashed.
She claims everywhere in Thailand is dangerous for her as there is military rule and they do not have the right to assemble and the right to peaceful demonstration. She claims they control the whole country and Thailand is not safe for her. She claims there will be no protection from the authorities.
At the Tribunal hearing held on 17 March 2022 the applicant confirmed that she has been in Australia since her arrival on a student visa [in] August 2005 except for 2 short trips to Thailand [from] April 2014 [to] April 2014 [and] August 2016 [to] September 2016. Prior to her departure in 2005 she said she lived with her parents in [specified district] Bangkok and worked at a [specified] company. She said when she returned in 2014 and 2016, she went to Chang Mai as her mother lives there. She said she spent the whole time with her mother in Chang Mai on both occasions and travelled from her mother’s house to the airport to return to Australia. She said on both occasions she took a short trip as a holiday with her mother to North-East Thailand. She said she had no difficulties entering and exiting Thailand or difficulties while there.
As to the photos she submitted, she said they did not show her attending any rally but are general photos of rallies held.
She claimed that she fears the authorities and government on return as she used to take part in political rallies held in Australia to pursue democracy in Thailand. She said her safety and life is at risk. When asked for detail as to the rallies she attended she said she took part in rallies in Australia, protesting for democracy in Thailand. When asked when she attended these rallies, she said she could not remember but then said it was around the time of Yingluck. When asked for further information, she said she could not remember the year she attended these rallies but remembered that they were held in [Suburb 1]. She said she attended these rallies 2 to 3 times. She said the photos she has submitted are not of these rallies and they do not concern her but are an example of people protesting.
The Tribunal asked for more detail as to the protests she attended 2 or 3 times in Australia on a number of occasions and she said it was a democracy meeting and there was a phone call with Thaksin, the former PM. She referred to them being in [Suburb 1]. She said she signed as a member. She said because she signed as a member, she is not sure if her name is on the list. When asked what she signed and why; she responded that the government is a military government, she wants to get rid of them and was opposing them. She said she signed for the Red Shirt Group as a member in Australia. As to why she signed, she said because she likes Thaksin and likes democracy, with people being elected through an election. She said while in Office Thaksin was ousted by the military and she said that happened about 10 years ago.
She said the military government is still in power and while there was an election the military still control the government. As to when the last election was held, she said she did not know. As to when she last voted in this election and whether she voted from Australia, she said she could not remember. As to how many years ago she protested and attended the meetings; she said it was during the time of Yingluck, when she was Prime Minister. She said she had not been politically active or done anything political since that time.
As to whether she undertook any political activities while living in or visiting Thailand; she said she did not as she was afraid to get involved. The Tribunal noted her evidence she was involved in protesting at the time of Yingluck and asked why she had not been involved since and she said the situation made her afraid.
She confirmed her evidence that she fears return as she was involved in 2 or 3 protests held in Australia around the time of Yingluck’s leadership and since that time has not been involved either in Australia or when she returned to Thailand because she is in fear.
She was asked whether she had anything to add and she said the reason she applied for a protection visa is because she is afraid to return to Thailand.
She later said she was not a member of any political party.
She was asked when the last election was held, what happened and when she last voted and she said that was in Yingluck’s time.
The Tribunal raised a number of other concerns as to the credibility of the applicant’s claims, including via s 424AA and where relevant these have been outlined below. It questioned whether she held or holds any political opinion, had been involved in any political activities and fears return for the reasons she claims. Where relevant these concerns have been outlined below.
She said she is a supporter not an activist in response to concerns raised regarding her political opinion and involvement. The Tribunal then raised with the applicant independent information as to the treatment of those in opposition to the government who are not activists and questioned whether if it accepted she held the political opinion as claimed as a supporter she will face a real chance of serious harm and/or real risk of significant harm.
Is the applicant credible as to her claims?
Having sighted a copy of the applicant’s identity documents, and on the basis of her evidence at hearing, the Tribunal accepts that the applicant is a national 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 applicant is a credible witness as to fearing return for the reasons she claims. It follows that the Tribunal does not accept that the applicant is a credible witness as to holding any political opinion and that she has ever been involved in any political activities in opposition to any government, the military or anyone else in Thailand. It finds her testimony to be vague, lacking in detail and inconsistent as to these claims and is of the view that she has fabricated claims and concocted evidence to achieve an immigration outcome.
Firstly, the Tribunal finds her evidence as to her political activities she claims to have been involved in lacking in detail. At hearing she said she was afraid to return as she attended 2 or 3 political protests in Australia against the military government in Thailand as she is for democracy. However, when asked for more detail as to her political involvement she repeated that she attended protests in Australia for democracy in Thailand but did not add any detail. When the Tribunal asked when she attended these protests, she said she could not remember the year but it was at the time of Yingluck’s leadership. When asked again for more information about the protests she attended she referred to them being in [Suburb 1] and to general photos submitted, although she said they were not of her and the photos do not relate to any of the events she attended. When asked again, she then said it was a democracy meeting and they phoned Thaksin, the former prime minister. The Tribunal raised with her that her evidence appeared vague and lacking in detail as to the protests she had attended and asked for more detail and she referred to having to sign to be a member and it asked her what and why she signed and she said she is against the military government and she signed for democracy. She then said she signed for the Red Shirt group and she said she liked Thaksin as Prime Minister and while he was in Office there was a military coup. She said that happened about 10 years ago. She said she had not protested since the time of Yingluck and had not undertaken any activities in Thailand. When the Tribunal raised with her that her evidence appeared vague as to the protests, she claimed she had attended, she said she is afraid for her safety on return. The Tribunal is of the view if she had attended 2 or 3 political protests in Australia against the military government and protesting for democracy which is why she fears for her safety on return, she would be able to provide more detailed evidence as to these protests and meetings than she did. Her lack of detailed evidence as to these political protests she claims to have attended adds to the finding she did not attend these protests or meetings as claimed. It adds to the finding she is not a credible witness.
Further to the above, it finds her evidence as to why she protested and when, particularly her claim to have been protesting against the military government and for democracy in the time of Prime Minister Yingluck, to be inconsistent with independent information. At hearing she claims to fear return and that she would not be safe due to her involvement in protests at the time of Yingluck’s leadership of Thailand. She said she fears for her safety because of her involvement in 2 or 3 political rallies in [Suburb 1] against the military government protesting for democracy at the time of her leadership. She said there was a military coup d’état and then there was a general election where Yingluck was elected. She later said and confirmed Yingluck was elected after the coup d’état by the military. However, as raised with the applicant via s 424AA at hearing the independent evidence indicates the military coup occurred on 22 May 2014 whereas Yingluck was Prime Minister before the coup d’état from July 2011 until she was removed from Office on 7 May 2014 by the Constitutional Court, immediately prior to, not after the military coup. The evidence indicates she has not been Prime Minister since that time. The evidence indicates that the military coup in May 2014 ended a 6-year democratic period.[1] In response she said that she had previously said Yingluck was the Prime Minister and at that time she was involved but not involved anymore. The Tribunal has considered her explanation but is of the view it does not explain the inconsistency. She also referred to Thaksin being elected and then there being a military coup and then Yingluck being elected. While the Tribunal accepts there was a previous military coup in 2006 where the military held power to 2007 after Thaksin Shinawatra was Prime Minister from 2001 to 2006 when he was removed by a military coup,[2] it does not explain why she would protest in the time of Yingluck who was Prime Minister from 2011 to 2014 when there had been no coup or military government since 2006/7, 4 years prior to her becoming Prime Minister. Her inconsistent evidence adds to the finding she did not attend the protests she claims she attended and she is not a credible witness.
[1] Bertelsman Stiftung, 2016, BTI 2016: Thailand Country Report, 29 February p.7 2016: DFAT Country Information Report Thailand, 10 July 2020 at 2.3
Further, despite her claim she fears for her safety on return as she will be detained and sent to jail for protesting against the military government in the time of Yingluck she returned to Thailand and lived with her mother in 2016 after the military coup in May 2014. As raised with her via s 424AA the evidence indicates that Yingluck was in power from 2011 to 7 May 2014 and the applicant returned to Thailand [from] August 2016 [to] September 2016 after the military coup on 22 May 2014 and while the military were in power. In response she said whatever she has said is true and that she returned on 2 occasions to visit her mother who is old. She submitted that because nothing happened to her it does not mean she does not fear return or is not in danger. She said she did not have the evidence but she was involved. However, as the evidence indicates, the applicant has not protested since the time of Yingluck, and a military coup happened just after her leadership on 22 May 2014, it views her return to Thailand, particularly in 2016 as undermining her claim to fear return as she opposes the military government or as she attended protests or fears being arrested or sent to jail because of her political opinion or for any of the reasons she claims. It adds to the finding she is not a credible witness.
Further, it views her delay in applying for a protection visa just before her [skilled] visa ceased on 21 November 2019, more than 5 years after she claims she stopped protesting at the time of Yingluck’s leadership from 2011 to 2014 as undermining her claim she fears return for the reasons she claims as outlined above. This is particularly so as the military government, which she claims to fear came into power in May 2014 and remained in power until the general election in 2019. The Tribunal is of the view if her fear of return is or was genuine and she is credible as to her claims, she would have applied sooner than over 5 years after she protested in the time of Yingluck and more than 5 years after the military coup in May 2014. She said that she cannot remember when she protested and she never thought of applying for a protection visa before. She said she did not know it existed. She said whatever she has said is true. The Tribunal does not accept her explanation and is of the view if she feared harm on return as she claims she would have thought about applying and applied for protection sooner or done some research as to applying for protection. Her delay in applying leads the Tribunal to find she is not genuine as to her fear of returning and not genuine as to fearing return because she attended protests in Australia or is opposed to the military government or anyone in Thailand for the reasons she claims. It adds to the finding she is not a credible witness.

While not solely determinative, the Tribunal found the applicant’s knowledge of recent political events to be vague and lacking in detail. She was unable to provide evidence as to when the last general election was held and said she did not cast a vote. She said the last elections were held in the time of Yingluck however the evidence indicates that on 24 March 2019, Thailand held nation-wide elections for the first time since a military coup removed the previous democratically elected government in May 2014.[3] Her inconsistent evidence, lacking in detail as to this significant political event in Thailand adds to the finding she is not a credible witness as to holding the political opinion she claims. It adds to the finding she is not a credible witness.
[3] The New York Times, Thailand Junta Leader Named Prime Minister After Contentious Vote, June 2019, The Straits Times; Thai opposition says ‘not too late’ for parties to change minds as pro-junta talks stall after election, 29 May 2019
Further, the Tribunal views as undermining the applicant’s claim that she holds any political opinion and fears return why she has not been involved in expressing her claimed political opinion or taken part in activities to express her claimed political opinion since her claimed involvement in protesting in the time of the leadership of Yingluck, which was from 2011 to 2014 while living in Australia where it is safe to do so. When this concern was raised with the applicant, she said that she is fearful to do so. The Tribunal does not accept this explanation and is of the view if the applicant held a political opinion as claimed which she fears expressing in Thailand, when in Australia where it is safe to do so she would be more involved than she has been since around the time of Yingluck from 2011 to 2014, expressing her opinion and being involved in activities or seeking knowledge.
These reasons lead the Tribunal to find she has never held a political opinion nor fears return on account of any political opinion or involvement in any group or activities opposed to the military or government. It adds to the finding she is not a credible witness.
Credibility summary
For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has 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 applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to her 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 of 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 applicant is not a reliable witness as to these claims.
In making this finding the Tribunal accepts that some information has been consistent over time, such that the applicant fears return due to her political opinion and is a supporter of democracy and against a military government. However, the Tribunal considers that these matters are relatively easy matters to recall and her 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 applicant is not a credible witness.
In making this finding the Tribunal has also considered the photos submitted of people protesting. At hearing the applicant indicated that these were not photos of her protesting nor of events she attended but are general photos showing people protesting. While the Tribunal accepts that the photos are of people protesting for the reasons she claims, it places no weight on them as evidence of the applicant’s involvement at the political events she claims she has attended on the basis of her evidence that they are general photos of people protesting and not of her or the events she attended.
As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that the applicant has ever held a political opinion in the manner claimed, has ever been involved in expressing, stating or protesting her claimed political opinion, has ever been involved, supported or been a member of any political group, and has attended any political rallies, meetings or group activities in Australia. It follows it does not accept she is on any blacklist as she signed as a member. It follows it does not accept were she to return she would seek to speak or publish anything critical of the government or military or promoting democracy.
It follows it does not accept her claim she ever protested in Australia 2 or 3 times for democracy or against the military government in the time of the leadership of Yingluck from 2011 to 2014 or at all, or that she was or is a member of the Red Shirts or was at a meeting where Thaksin, the former Prime Minister, attended. It follows it does not accept she hates or is strongly against the military government and believes in democracy and free speech and has ever expressed in Australia or Thailand her claimed political opinion.
It follows it does not accept that she holds or held any profile with the police, the military or anyone else in the government or elsewhere due to any political involvement or belief or as she signed to be a member or is a member at the time she departed Thailand in 2014 or 2016 or at any time.
It follows it does not accept that she fears return because of her political belief against the current or past military government, her belief that the government must be democratically elected and fair and people must have freedom of speech and freedom to express their belief, freedom to assemble and demonstrate. It follows it does not accept her claim that she fears return as she is unable to express her political opinion as it is not safe to do so. It follows it does not accept she fears she will be harmed or mistreated on return due to her political opinion and political activities and that she will be arrested and sent to prison or face any of the difficulties she claims.
The Tribunal rejects the applicant’s claims in their entirety as being a supporter, follower or member of any political group and holding any of the political opinions she claims.
Does the applicant 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 applicant’s lack of any political opinion and that she holds any profile with the military or police or government as being opposed to the government or military, it follows the Tribunal does not accept were the applicant to return to Thailand now or in the reasonably foreseeable future she will face any of the difficulties she claims for the reasons she claims at the hands of the police, authorities, military, or anyone else. It follows it does not accept the applicant will be imprisoned, charged, arrested, assaulted, killed, threatened, warned, physically or verbally harmed, tortured, based or face any of the difficulties she claims in any manner whatsoever for the reasons she claims.
As the Tribunal has found that the applicant was never involved with any political movement or holds any political opinion or signed to be a member of any group opposed to the government or military including promoting democracy, promoting a change in government, advocating against the military government, promoting free speech and the right to assemble and demonstrate and it does not accept she has been involved while in Australia, it follows that the Tribunal is not satisfied that the applicant will participate in any political activities or advocate against the government or military or anyone else in any way on return or will suffer persecution by being prevented from being involved. It does not accept as she has not been involved in the past that she will continue to hold any political opinion or advocate against the government or military or anyone else wherever she lives in Thailand which would place the applicant at any risk of harm.
As a result, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were she 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 she is or is imputed to be opposed to the government or military, on account of any political opinion she claims to hold, any political activities she claims to have been involved in or as she has signed as a member of any organisation opposed to the military or government or for any of the reasons she claims.
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 she will suffer significant harm on her return to Thailand at the hands of the police, authorities, military, government officials, or anyone acting on their behalf or anyone else, as she is or is imputed to be opposed to the government or military, on account of any political opinion she claims to hold, any political activities she claims to have been involved in or as she has signed as a member of any organisation opposed to the military or government or for any of the reasons she claims.
Conclusions regarding the Refugees Convention
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of her being subjected to serious harm in Thailand in the reasonably foreseeable future. As the Tribunal has rejected the applicant’s claims in their entirety, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if she returns in the reasonably foreseeable future.
For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has above rejected the credibility of the applicant’s 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 the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm as defined in s 36(2A).
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member

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 (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.
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 2624

16 June 2022

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Immigration

Administrative Law

Statutory Interpretation

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Statutory Construction