2103931 (Refugee)

[2021] AATA 3247

2103931 (Refugee) [2021] AATA 3247 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2103931

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Jane Marquard

DATE:23 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 June 2021 at 12:22pm

CATCHWORDS

REFUGEE – protection visa – Thailand – political opinion – anti-monarchy comments – particular social group – people with drug addictions – request to courier drugs – physical assault – fear of arrest – support for drug addicts – return visits to Thailand – child remaining in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423A, 423C, 501C
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
EJC18 v MICMSMA [2020] FCCA 3171
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MZAAJ v MIBP [2015] FCCA
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559 at 596
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZSPT v MIBP [2014] FCA 1254

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

OVERVIEW

1. The applicant is [an age]-year-old man from Bangkok, Thailand.

2. He first arrived in Australia [in] November 1998 at the age of [age] on a [Tourist visa]. After this visa expired, he was granted a number of [Student visas]. On 22 August 2001 he was granted a [Student visa] and on 21 January 2002 a [further Student] visa. On 24 February 2003 he was granted a [Skilled visa] (. He departed and returned to Australia on numerous occasions. The last time he left Australia was in June 2017, returning in July 2017.

3. The last visa the applicant held was a Resident Return visa (Subclass BN 155) which he was granted on 20 June 2017. This visa was cancelled on 2 February 2019 under s 501C(4) of the Act, and the applicant has not held a visa since that date. The applicant was convicted of drug supply offences [in] 2007, [2011], [2013] and [2017]. This Tribunal, differently constituted, affirmed the decision of the Department of Home Affairs (the Department) not to revoke the cancellation decision on 24 August 2020. The Federal Circuit Court dismissed his appeal on the matter [in] November 2020.

4. The applicant is currently in [a named] Detention Centre.

5. On 26 February 2021 the applicant applied for a protection visa under s 65 of the Migration Act 1958 (the Act). On 24 March 2021 a delegate of the Minister for Home Affairs refused to grant that visa.

6. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

7. In summary the applicant claims to fear persecution from drug dealers in Thailand and lack of support for drug addiction. He particularly fears harm from one drug dealer, as he claims that he agreed to courier drugs to Australia for this dealer and did not do so. The applicant also claims to fear persecution on the basis that his uncle in Australia made an anti-monarchy comment on social media about the Thai king.

8. The Tribunal notes that returning to Thailand will be very difficult for the applicant who has not lived there since 1998. Family members in Australia have provided evidence to this Tribunal that they would support him if he remained in Australia. He will leave behind a daughter, aged [age] years old. Evidence has been provided to this Tribunal of their close relationship and his departure to Thailand will no doubt have significant implications for her.  The circumstances of the cancellation of the visa and the merits of that decision are not the subject of this review. The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership or a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm. More details of the criteria and other relevant legal principles are set out below.

9. The Tribunal has decided to affirm the decision under review, for reasons set out below.

   RELEVANT LAW AND PRINCIPLES OF REVIEW

10. 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) of the Act. 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.

    Refugee criterion

11. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

12. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a) of the Act.

13. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 of the Act, which are extracted in the attachment to this decision.

    Complementary protection criterion

14. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act. 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) of the Act, which are extracted in the attachment to this decision.

    Mandatory considerations

15. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

    Summary of evidence before the Department

16. The applicant made claims in his application forms and supporting documents but was not interviewed by the Department. A summary of his evidence follows.

17. The applicant was born in Bangkok and is a Buddhist. His parents are still residing in Thailand. He has [specified relatives] living in Australia. He also has a daughter in Australia, aged [age]. He was in a relationship with her mother from 2009 until 2016, when they separated.

18. The applicant arrived in Australia at the age of [age]. He completed [Course 1] at [College 1] from January 2000 to December 2002. From January 2003 to December 2005 he was enrolled in [Course 2] at [University 1], but he withdrew from this course.

19. From June 2001 to October 2006 the applicant was [an Occupation 1] at [Business 1] in [location]. From August 2016 to December 2016 he worked as a labourer in [Industry 1] in [another location]. He is currently unemployed.

20. The applicant claimed that he left Thailand to get away from drugs as he had been ‘caught up in the whole lot.’ He said that he was addicted to drugs and his family stepped in to help him. The only way they could help was by sending him to Australia. The applicant claims he was ‘stuck in the lifestyle. I had drug dealers who were my opposition trying to find me and my family to take me out’. The applicant claims the Thai community is very strict. He said that his uncle made a remark on media ‘which was not pleasant has marked my family name to be dealt with and thrown to gaol if ever stood a foot back on Thailand soil’. The applicant fears relapsing on drugs or being thrown into gaol.

21. The applicant states he may be shot on sight should he return. He is also worried about relapsing. The applicant claims the Thai government is very strict so would ‘shoot first and ask questions later’.

    Summary of evidence before the Tribunal

    Applicant’s evidence at the first Tribunal hearing

22. The applicant appeared before the Tribunal on 19 May 2021 to give evidence. The applicant was unrepresented.

23. The applicant confirmed that he was born in Bangkok. His parents, who are separated, are still residing in Thailand. His mother does not work, and his father works in retail. His grandparents have passed away and he has no contact with other extended family in Thailand.

24. He has [specified siblings] living in Australia. [One relative] has permanent residence and his brother is on a bridging visa. Both work in [the same industry], and his brother is [an occupation]. His uncle is also living in Australia. He owns [Business 1].

25. He has a daughter in Australia, aged [age]. He was in a relationship with her mother from 2009 until about 2015 and they are now ‘good friends’. He telephones his daughter ‘all the time’. In [his detention centre] there are limited permitted visits because of the COVID-19 pandemic.

26. He attended primary school in Bangkok.  He went to high school in [Country 1], finished year 12 in Thailand then studied at [College 1] in Australia.

27. He first used drugs when he was in year 12 in Thailand. A friend gave him amphetamines. He used a few days a week and then it ‘became regular’. He asked his father to send him to Australia to get away from the drugs.

28. He arrived in Australia to study at the age of [age] in 1998. He lived with his uncle. He completed a [Course 1] at [College 1] from January 2000 to December 2002. From January 2003 to December 2005 he was enrolled in [Course 2] at [University 1] but he withdrew from this course. He dropped out in his final year because he ‘made bad choices’. He met a Thai friend and they started using drugs. He was living with his girlfriend at the time, but they broke up over his drug use. He had not used drugs while he was at [college] or university prior to this. He started using ice in Australia. He slowly became addicted.

29. The applicant said that after he moved out, he ‘felt lost’, and stayed with his friend who was dealing. This led him to gaol for [term] on a conviction of drug supply. After he went to gaol, he met ‘a lot of people who were drug dealers’ and then he ‘dealt with them’. After being released from gaol, he stayed with his uncle at first but then ‘got back with my drug dealing friends’. He was convicted again for drug offences and spent [longer term] in gaol. Then he was released and lived in the community for three months and then got convicted again for [term] for drug supply. He was out of gaol for one year, and then was convicted again for drug supply (ice) for [longer term]. His sentence finished in August 2020 and he has been in immigration detention since.

30. He said that he has completed all the drug rehabilitation programs in gaol. He has some work experience as [an Occupation 1] in his uncle’s [Business 1] and also at a friend’s [business] in the city. He has also worked in [Industry 1].

31. He was asked why he fears returning to Thailand. He said that ‘it is not like here. There is no support for all this, they have nothing. Here they have a lot of support for addicts like me. In Thailand if you get involved in drugs you will get put in gaol.’ He said that when he was in Thailand in 2005/6 a man asked him to be a drug courier and he agreed, but then ignored his telephone calls. He fears this man.  He was asked why he fears him if this happened in 2005/6. He said that he is ‘not one hundred percent sure’ that something would not happen to him. He said that he also needs support with his addiction.

32. The Tribunal asked him why he has returned to drugs in Australia so many times despite the rehabilitation programs he has undergone. He said that the rehabilitation was working in [a named prison], but then he was taken to [the detention centre], only for four months, and was then released without finishing the program. He felt that he could have succeeded. He is getting older and feels like he could change. He said that he is concerned that they would not have services for him in Thailand. He said that there ‘are a lot of drugs’ in Thailand.

33. He said that his uncle in Australia made a negative remark on [social media] about the King of Thailand four years ago. He cannot remember exactly what he said but his uncle got a ‘lot of feedback’. His uncle made the comment because he does not like the Thai royals. Asked how this comment impacted on the applicant, he said that he is ‘of the same family’. He said that other family members have not been subject to any negative repercussions as a result of this remark. The applicant said that he has not been involved in any political groups or activity.

34. The applicant was asked if he could be safe in Thailand if he remained outside the drug culture. He said that he does not know, but is ‘not certain about the drug dealer who asked him to bring drugs to Australia’. This drug dealer knew his address and may be angry as the applicant did not bring the drugs to Australia. He was in contact with this dealer through a friend, with whom he is still in touch with his friend on social media to ‘say hello’.

35. The Tribunal put to the applicant that his Departmental records indicate that he has returned to Thailand on numerous occasions since he has been in Australia. The first time was in 2000, two years after he had arrived in Australia. He also departed on numerous occasions thereafter. The Tribunal put to him that this suggests strongly that he was not afraid of returning and does not have a genuine fear of harm on returning. He said that it was only in the last five years that he has feared returning. He said that the incident with the drug dealer took place in the last year he was there.

36. He said that he would like to stay in Australia for his daughter and if he did not have kids it ‘would be a different story’.

37. He said that he has a good relationship with his uncle, but they often argue as his uncle is a ‘difficult man’. His uncle has supported him in prison and detention. His [other relatives] also support him but have been busy as they work full time. His siblings have been back to Thailand to visit, but he does not know when this was. His uncle has also visited Thailand, but this was a long time ago.

38. He does not speak to his parents often. The last few months his father ‘called him a lot’. Before this it was once or twice a year. 

    Applicant’s evidence at the second Tribunal hearing on 15 June 2021

39. The applicant requested a second hearing in order that he obtain legal representation. He said that he was unable to obtain representation but wanted to provide further evidence. He provided letters from his former partner, his uncle, brother and sister. The Tribunal asked him if he wished to say anything about these letters. He said that he did not.

40. The Tribunal discussed with the applicant his new evidence about the drug dealer in Thailand who asked him to courier drugs. This evidence is discussed later in the decision.

41. The applicant said that he had no further comments to make.

    Evidence of [Ms A]

42. [Ms A] confirmed that she had been in a relationship with the applicant for two years. She said that the relationship broke down over drug use.

43. She said that their daughter is [age] years old. Her daughter is in contact with the applicant in detention and ‘misses him terribly’.

44. [Ms A] said that the applicant is very scared to return to Thailand as he has lived in Australia since the age of [age]. She said that ‘given his issues I do not feel he would get the support he needs’. She said that he has ongoing problems with drugs and he fears for his safety.

45. Asked if he had any other concerns about returning to Thailand, she said that there was some backlash about a political statement made by the applicant’s uncle. She said that she did not get involved. She said that he is ‘not in a good position for returning to Thailand’. She believes this statement may have impacted the family as a whole.

46. She said that she and the applicant have an amicable relationship in terms of parenting their child. They have ‘been able to overcome their differences’. She said that it has been difficult as her daughter has not been able to visit him because of the COVID-19 pandemic. She would like to see her father.

47. After the hearing she provided a written statement. She said that she is Australian born and has known the applicant since 2008. She said that their daughter was born on [date] and the applicant was present at the birth. She said that her daughter had maintained a healthy and loving connection and relationship with her father. She said that her daughter adored her father and they had an ‘incredibly strong bond’. She said that sadly her daughter cried at night as she misses her father. She requested restitution of her daughter with her father, so that they could have a meaningful relationship in the future. She said that she understood the applicant’s life was in danger in Thailand and she would assist him in getting rehabilitation so that he could be the father that her daughter needs, and so that he could contribute to the community.

48. She provided a photograph of the applicant and his daughter.

    Statement of [Uncle A], 8 June 2021

49. [Uncle A] said that he arrived in Australia in 1985 and has worked since then in his business, [named]. He said that he is the applicant’s uncle. He said that the applicant had lived with him since he was [age] years old. He said that the applicant studied and went to university and worked part time at [Business 1]. He said that the applicant was very happy to be a father. He said that he had seen the applicant with his daughter and they are very happy together and should be together. He said that he would support the applicant to take over his business. He claimed that his grandniece would have a better, brighter future with her daughter in Australia.

    Statement of [Sister A]

1. [Name] said that she is the applicant’s sister. She arrived in Australia in 2014 as a student and got permanent residency in 2017. She said that she works full time for a prominent company and has a stable income and a decent life. She said that she was willing to be guarantor for her brother and would give him all the support he needs until he could stand on his own feet again.

   Statement of [the applicant’s brother] dated 15 June 2021

2. [Name] said that he is the applicant’s brother and he supported his application for protection to stay in Australia. He said that he has lived in Australia since 2006. He said that they are planning to bring their mother to Australia to live as a family and he misses his brother. He said that they have supported him from time to time. He said that he feels bad that the applicant’s daughter cannot spend time with her father. He said that there was nothing for the applicant in Thailand and all his close family is in Australia. He said that he was willing to assist him in getting rehabilitation so that he could be a good citizen and stay close to his family and daughter.

   DECISION OF THE DEPARTMENT

3. The delegate was not satisfied that the applicant had a personal political profile in Thailand or that there was a real chance of serious harm or a real risk of significant harm on the basis of the comment by his uncle on social media.

4. In respect of his fears of the drug dealers, the delegate found that the applicant could access state protection. The delegate was satisfied that the applicant would not be re-prosecuted for drug offences committed in Australia.

5. The delegate was not satisfied that the applicant met the refugee criteria or complementary protection criteria.

   FINDINGS AND REASONS

   The applicant must satisfy the statutory elements

6. 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’.    Although it is well-established that the role of the Tribunal is inquisitorial, it is 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’s inquisitorial role does not extend to requiring the Tribunal to seek out evidence to support an applicant’s claim, even though the Tribunal is entitled to do so (ABT16 v Minister for Home Affairs [2019] FCA 836). 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 of the Act. 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, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70).

7. The applicant in this case was unrepresented. As requested, the Tribunal provided the applicant with a second hearing so that he had an opportunity to obtain legal representation. The applicant told the Tribunal that he could not obtain representation. The Tribunal provided the applicant with a second hearing nonetheless so that he could provide further evidence and arguments, and also summarised for him the relevant criteria of the visa.

8. In assessment of his evidence, notwithstanding s 5AAA of the Act and the cases referred to above, the Tribunal has taken into consideration the fact that an unrepresented applicant may have more difficulty in presenting his case to satisfy the statutory elements and has given him some leeway in this regard. 

   Nationality/receiving country

9. The applicant provided a copy of his Thai passport issued in 2013 (which expired in 2018) and gave evidence that he was a citizen of and born in Thailand. The Tribunal is satisfied on this evidence that the applicant is a citizen of Thailand, and that Thailand is the receiving country for the purposes of the legislation.

   Findings of fact

   The reasonable approach to fact-finding

10. When assessing claims the Tribunal must make findings of fact in relation to the claims. This may involve an assessment of an applicant’s credibility, in this case whether the incidents in Thailand and Australia took place as claimed. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth,[1] and as such is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[2]  In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [1] Fox v Percy (2003) 214 CLR 118.

    [2] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

11. This approach is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

12. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

13. The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. A person may forget dates, locations, distances, events and personal experiences. This applicant has had problems with drug addiction and is currently in detention, separated from his daughter and family, undeniably a stressful environment. His former partner has testified as to the close relationship between her [age]-year-old daughter and the applicant and there is no doubt that he misses her greatly. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[3] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [3] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >

    The Tribunal is satisfied that part of the reason the applicant initially travelled to Australia in 1998 was to escape addiction to drugs. This evidence was provided in his application form for this visa, where he stated that he was ‘caught up in the whole lot’ and was ‘fully addicted’.  and was consistent with evidence at the Tribunal hearing. His evidence at the Tribunal hearing that he regularly used amphetamines when he was in year 12 in Thailand and that he asked his father to send him to Australia to get away from the drugs, was persuasive.

14. The Tribunal is not satisfied that there were ‘drug dealers who were my opposition to try to find me and my family to take me out’ as claimed in his application. The applicant returned to Thailand on numerous occasions after he first arrived in Australia in 1998, which indicates that he did not fear drug dealers. The first occasion he returned was in 2000, only two years after departing, which does suggest that he did not fear drug dealers in Thailand. There is also no suggestion that these drug dealers harmed his family at any time.

15. The Tribunal is also not satisfied that the applicant’s uncle made an anti-monarchy comment in Australia on social media. No documentary evidence was provided of this comment, or of alleged repercussions from others after the comment was made despite saying there was a ‘lot of feedback’. The applicant’s uncle did not provide evidence to support this contention although he did provide a character reference for the applicant. The Tribunal put to the applicant that it was difficult to accept that his uncle made the remark on social media and that there was negative feedback, without corroborative evidence from his uncle or documentary evidence. The Tribunal noted also that the applicant had not claimed that other family members had suffered repercussions on the basis of the social media comment. The applicant said that you cannot make comments about the King at all in Thailand and that is why he would be harmed. The applicant also could not remember exactly what was said. The Tribunal acknowledges that anti-monarchy communication is suppressed in Thailand but does not accept that the applicant’s uncle made these comments, given the lack of detail about them. While his former partner knew something about some ‘backlash’ she also did not provide details of the comment or the backlash itself. The Tribunal is of the view that if this remark had caused significant consternation as claimed, that he would recall what was said, or would have obtained evidence from his uncle about it.

16. The Tribunal is also not satisfied that a particular dealer asked him to courier drugs to Australia while he was on his last visit to Thailand in 2004 (which he thought was 2005/6) and that he agreed to courier the drugs, then ignored the man’s calls, which made the man angry. This claim was not included in his protection visa application although it is a claim which reasonably could be regarded as important to his fears for return. Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, s 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence.

17. In this case, new evidence was put before the Tribunal that a man in Thailand asked the applicant to courier drugs, and while the applicant initially agreed, he did not do so which made the man angry. When asked why this key claim was not included in his protection visa application, he said that he did not include the information because he did not know how to find out information about this person. This does not provide adequate explanation as to why he did not mention the claim if it was central to his fears, as claimed.

18. The Tribunal asked the applicant when this incident took place and he said that it was around 2005/6. The Tribunal asked him if it could have been in December 2004 as this was the last time he departed Australia for Thailand. He said that it could have been, if this is what it shows on his records and he stayed for a month with both his parents who were living together then. The Tribunal said that the records indicate that he was out of Australia [between specified dates in] December 2004. The applicant said that he was visiting [Country 2] at that time and it may have been the visit prior to that, which was [between] January 2004 [and] March 2004. He said that a couple of weeks after arriving in Thailand in 2004 he went to a party. His friend introduced him to a man he did not know, as his friend knew that this man was looking for Thai students studying overseas to courier drugs. This man asked him where he was studying, and when he was going back. They exchanged telephone numbers. He said that the man then ‘gave him the product’. He said that at first he ‘did not want to turn it down’, so he took it, then he ‘turned it down’, and changed his number. He said that he ‘chucked it away’ and is now worried about this. Asked to elaborate, the applicant said that he was given around [quantity] of ice, which was worth under [amount] in Australia. The man said he would telephone the applicant later to tell him how to put it in his suitcase.

19. Asked why the dealer would give him the drugs if he did not know him, he said that his friend had been to primary school with the dealer. He was asked why he agreed to take the drugs to Australia. He said that he did not turn it down, he just took it without thinking. He said that he does not like confrontation. Asked if he was afraid to bring drugs through customs in Australia, he said that he was. He was asked where he disposed of the drugs and said he chucked them away. The Tribunal asked him if he threw them in a bin, and he said that he did not, he threw them in a toilet. The Tribunal asked him why he did not tell the Tribunal at his first Tribunal hearing that he was actually given drugs to take away. He said he did get drugs from him. Asked what the agreement was for payment, he said that they would pay him [amount] when he left, and [amount] when he got to Australia. In Australia he would give the drugs to the dealer’s friend.

20. He said that after the party he did not speak to the dealer or his friend again as he changed his telephone number. The friend tried to ring him, but he had changed his number. Since being in Australia he has not been in contact with the friend or dealer or the dealer’s contact in Australia. Asked why his friend had not tried to find him, he said he had changed his number. He said that his friend in Thailand has his address so they would look for him if he returned. He said that ice is more expensive in Thailand than it is in Australia. He was asked why they would want to send the ice to Australia from Thailand if it was cheaper in Australia. He said that at the time there was not much ice in Australia.

21. The Tribunal is not satisfied that there is a reasonable explanation as to why the evidence was not included in his protection application, as the information could have been provided at the Department level as it was key to his claims,[4] even if he did not have much information about the dealer as claimed. The Tribunal has thus drawn an adverse inference as to this evidence. In reaching this conclusion the Tribunal has taken into consideration that psychological research on memory of trauma[5] indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. Further, the Tribunal notes that psychological research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[6] The Tribunal is also conscious that there may be factors that consciously or otherwise influence decisions.[7] The Tribunal has taken into consideration research which indicates Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[8] Notwithstanding the possibility of trauma or unconscious influences on decision-making, the Tribunal is not satisfied that the applicant was approached to courier drugs from Thailand to Australia in 2004 as this information would have been included in some form in his application for protection if in fact it did happen as it is such an important claim. Furthermore, the Tribunal has considered carefully the overall internal and external consistency and coherency of the applicant’s account,[9] as truthful witnesses often present coherent, consistent and detailed accounts of events, however in regard to the applicant’s account of the drug dealer in 2004 the account was inconsistent and incoherent, even between the two Tribunal hearings. The Tribunal is of the view that the information about the request to courier drugs in 2004 was added to his evidence to bolster his refugee claim during the Tribunal review.

    [4] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

    [5] M Conway, ‘Episodic Memories’ (2009), 47 Neuropsychologia 2305; J Herlihy, L Jobson, and S Turner, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, (2012) 26 Applied Cognitive Psychology 661; C Brewin, The nature and significance of memory disturbance in posttraumatic stress disorder, (2011), 7 Annual Review of Clinical Psychology 203

    [6] H E Cameron, Refugee Status Determinations and the Limits of Memory (2010), International Journal of Refugee Law 469

    [7] H Bennett, H and G Broe, The neurobiology of achieving a comfortable satisfaction (2014) 26 Judicial Officer, Bulletin 8, 65–9

    [8] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal (2018) International Journal of Refugee Law, 30(1),71–103

    [9] AAT, Guidelines on the Assessment of Credibility, July 2015, available on the AAT Website, >

    The Tribunal is satisfied on the basis of the character references that the applicant has significant family support in Australia and that his daughter is very fond of him and misses him greatly while he is in detention.

    Does the applicant have a well-founded fear of persecution?

22. Under s 5H(1) of the Act, a person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.

23. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

24. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·     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 above; and

    ·     the real chance of persecution relates to all areas of a receiving country.

    Does the applicant fear being persecuted for one of the stated reasons?

25. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons.  This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

1. The Tribunal is not satisfied that the applicant has a genuine fear of serious harm for one of the stated reasons. Since the applicant left Thailand in 1998, he travelled back to Thailand on numerous occasions, which indicates that he did not have a genuine fear of harm on those occasions. At the Tribunal hearing the applicant claimed that his fear has arisen in the last five years due to the fact that on the last occasion when he visited Thailand he angered a dealer because he said he would courier drugs to Australia and then did not do so. The Tribunal has not accepted this evidence, for reasons set out earlier in the decision.

   Is there a real chance of persecution from drug dealers?

2. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

3. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J.

4. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation’.

5. The Tribunal is not satisfied that there is a real chance of persecution from drug dealers in Thailand, as the applicant returned to Thailand on numerous occasions after he left in 1998 without repercussion. He has been out of the country for a significant period now such that he would have minimal relationships with dealers now. The Tribunal has not accepted his evidence that he angered a particular drug dealer in 2004 and that this applicant would harm him on return. The Tribunal is not satisfied therefore that there is a real chance, in the sense of a substantial or non-remote chance[10] of serious harm from drug dealers.

   Is there a real chance of serious harm on the basis of the alleged comment by his uncle?

   [10] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559

6. The Tribunal is not satisfied that there is a real chance of serious harm on the basis of the social media comment by his uncle, as, for reasons set out earlier, the Tribunal does not accept that this comment was made or that the applicant’s uncle received negative feedback from it. The applicant submitted that if people make comments about the King, they will be thrown in gaol. The Tribunal is not satisfied that the applicant would make anti-monarchy comments on his return to Thailand, given that there is no suggestion that he has done so in the past, or would do so in the future, and he has not been involved in political groups or activity.

7. However, even if the Tribunal is wrong about this and the applicant’s uncle did make a comment on social media, the Tribunal is not satisfied that there is a real chance of serious harm based on the comment. Although country sources indicate that the government of Thailand does monitor social media[11] the applicant has said that his siblings have returned to Thailand to visit and there is no suggestion that they suffered any negative impacts. There is also no suggestion that his parents who live in Thailand have suffered any negative repercussion from the uncle’s comment. The applicant has confirmed that he has not been involved in any political activity or groups which would draw adverse attention to him from the authorities, and the Tribunal does not accept that there would be any negative repercussions from him from one comment made by his uncle in Australia. The Tribunal is not satisfied that there is a real chance of serious harm from the authorities due to his uncle’s comment on social media.

   Is there a real chance of serious harm on the basis of re-prosecution of his crimes in Australia?

   [11] Freedom House, Freedom on the net-Thailand Country Report 2020, 21 October 2020

8. The applicant raised concerns in his application that he would be gaoled or shot on sight if he returned, although at the Tribunal hearing he said this referred to fears in relation to retaliation for his uncle’s political comment. The Tribunal has considered nonetheless whether there is a real chance of serious harm on the basis of the Thai government arresting or charging him for offences committed in Australia. The Tribunal is not satisfied that there is a real chance that authorities would take this course of action or would arrest him or ‘shoot him’ on the basis of his drug convictions in Australia. The Department of Foreign Affairs and Trade Report states that the criminal law prohibits double jeopardy if there has been a judgment of a court in a foreign country.[12] No information was located which indicates that authorities in Thailand re-prosecute individuals for drug supply convictions in other countries.[13] The Tribunal is not satisfied that there is a real chance of serious harm in the form of re-prosecution of offences committed in Australia.

   Is there a real chance of serious harm for one of the reasons set out in the legislation, due to lack of support for drug addicts?

   [12] Section 10 of the Criminal Code, Thailand, quoted in Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, 9 July 2020

   [13] Sources searched include Google, news websites, DFAT Country Information Report Thailand, 9 July 2020 and United States Department of State, Country Report on Human Rights Practices Thailand, 11 March 2020

9. The applicant said in his application that he worries about relapsing to drug addiction if he returns to Thailand. [Ms A] also submitted that she is concerned he would not get the support he needs for drug addiction.

10. The persecution feared must be for one or more of the reasons mentioned in s 5J(1)(a) which are race, religion, nationality, membership of a particular social group or political opinion. That reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. In Applicant A v MIEA (1997) 190 CLR 225, Gummow J stated that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. 

11. If the applicant were to suffer harm through drug addiction, the impact of the drugs on him would not amount to persecution, as persecution must involve infliction of harm by another, with a motivation to harm.[14] The harm which may arise from lack of support from the health or justice system for addicts, is not harm ‘for one of the reasons’ set out in the legislation. The DFAT Report states that in recent years government organisations, non-government organisations and health activists have worked to develop community-based policies and strategies for the prevention of substance abuse. Screening, information, advice, intervention, treatment, rehabilitation and relapse prevention services are available at hospitals and other locations.[15] Any harm suffered from addiction and lack of services, would be for reasons of lack of resources or laws of general application[16] applicable to drug offences.

    [14] Applicant A v MIEA (1997) 190 CLR 225

    [15] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, 9 July 2020

    [16] Applicant A v MIEA (1997) 190 CLR 225

12. The Tribunal is not satisfied therefore that there is a real chance of serious harm on the basis of drug addiction or lack of support for drug addicts.

    Findings on refugee criteria

13. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.

    Does the applicant meet the complementary protection criteria?

14. If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: (‘the complementary protection criterion’).

15. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

16. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

17. The Tribunal has not accepted that there is a real chance of serious harm from drug dealers or by way of re-prosecution, for reasons set out earlier in this decision. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation from drug dealers of from authorities re-prosecuting offences committed in Australia.

18. The Tribunal has not accepted that the applicant’s uncle made an anti-monarchy comment on social media, for reasons set out earlier in this decision. The Tribunal also found earlier, that if it was wrong about this, it was not satisfied that there is a real chance of serious harm from the authorities based on this comment. Reasons for this are set out earlier in this decision. On the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is also not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation on the basis of this alleged comment.

19. The Tribunal turns now to the question of whether there is a real risk of significant harm through the applicant becoming addicted to drugs, and because of lack of support for drug addicts.

20. The Tribunal accepts that it would be very difficult for the applicant to return to Thailand after living in Australia since 1998, particularly as his daughter is living in Australia. This may make him feel particularly vulnerable, even though his parents are living in Thailand. The Tribunal acknowledges that he may use drugs as he has said that there is an active drug culture in Thailand, and he has used drugs frequently in Australia. However, the Tribunal is not satisfied that harm caused by drug use would amount to any of the categories of significant harm set out in the legislation. The most relevant categories, ‘cruel or inhuman treatment or punishment’, and ‘degrading treatment or punishment’ require treatment or punishment that is ‘intentionally inflicted’.[17] Taking drugs would be a voluntary action and there would be no intentional infliction of harm. The word ‘deprived’ in regard to ‘arbitrary deprivation of life’, imports an element of deliberateness, which would be missing where the applicant chose to take drugs.

    [17] S 5(1) of the Act

21. The applicant claims that he is ‘pretty sure’ rehabilitation services are not available in Thailand, and if they say that they are, it is ‘just for tourism’.  The Tribunal is not satisfied that any harm the applicant may suffer through inadequate provision of drug rehabilitation services would amount to significant harm. The Tribunal acknowledges that his former partner, uncle, brother and sister in Australia have all stated that they would support the applicant in rehabilitation and finding a job in Australia, such that he would have significant support in Australia. However, the task of this Tribunal is to ascertain if there is a real risk of significant harm in Thailand, not whether the prospects for the applicant would be better in Australia. While the standards of health and drug rehabilitation services may not be as high as in Australia, drug rehabilitation programs are available. Thailand has universal health care (Universal Health-care Coverage Scheme, or UCS) with comprehensive services available including rehabilitation services.[18] In recent years, the government has implemented community based policies and strategies for the prevention of substance abuse, including treatment, rehabilitation and relapse prevention.[19] While there may be problems with underfunding, given that sources indicate that there are programs available, the Tribunal is not satisfied that there is any intentional infliction of harm amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment through denial of access to services. Given that services are available, the Tribunal is also not satisfied that inadequacy in funding of programs would result in arbitrary deprivation of life or even if it did, that there would be any ‘deprivation’ in the sense of a positive act towards the applicant, which would result in death. The Complementary Protection Guidelines refer to arbitrary deprivation of life as also involving elements of injustice, lack of predictability, or lack of proportionality.[20]  The Guidelines suggest that in order to establish a risk of arbitrary deprivation of life from a non-state actor, there must be extremely widespread conditions of violence and systemic breakdown of law enforcement, coupled with a particular risk to the individual. Judicial comments have suggested that this kind of harm involves such matters as extrajudicial killing, excessive use of force rather than the consequences of scarce medical resources, MZAAJ v MIBP [2015] FCCA (Judge Riley, 4 February 2015). The Tribunal is not satisfied therefore that there is a real risk of significant harm because of inadequate drug rehabilitation services.

    [18] World Health Organisation, Universal health coverage and primary health care, Thailand, 1 April 2019

    [19] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, 9 July 2020

    [20] Department of Home Affairs, PAM 3, Refugee and humanitarian – complementary protection guidelines, re-issued 21 May 2015

22. The Tribunal is not satisfied that if the applicant were gaoled for drug offences in Thailand that this would amount to significant harm. If the applicant were gaoled for drug offences, he would be subject to laws of general application. Section 36(2B) provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’: s 36(2B)(c). The language of the qualification and its meaning is not explained in the Explanatory Memorandum to the Bill that introduced the provision, nor in the associated Second Reading Speech.  However, it has been the subject of some judicial consideration. The Federal Court has held that the natural and ordinary meaning of s 36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.  In SZSPT v MIBP [2014] FCA 1254 the Court held that, while every citizen who broke a law of general application would necessarily face a risk of punishment personally, s 36(2B)(c) applied because it was no different from the risk faced by the population generally. The Tribunal is satisfied that the risk faced would be one faced by the population generally, and not the applicant personally.

23. Furthermore, if the applicant were to choose to embrace the drug culture, it is arguable that this would not be a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, given that taking drugs is not intrinsic to him and could not be said to be a natural consequence of his return to Thailand (see EJC18 v MICMSMA [2020] FCCA 3171).

    Findings on complementary protection criteria

100.   The Tribunal is not satisfied 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 of significant harm.

CONCLUDING PARAGRAPHS

101.   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).

102.   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).

1. 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

104.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Jane Marquard
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…