2203126 (Refugee)
[2025] ARTA 1589
•1 July 2025
2203126 (Refugee) [2025] ARTA 1589 (1 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2203126
Tribunal:General Member R.Germov
Date:1 July 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 01 July 2025 at 4:53pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – opposition to the government – economic conditions – employment – insults to the monarchy – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 34J
Administrative Review Tribunal Act 2024 (Cth), ss 55, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 412, 499
Migration Regulations 1994, Schedule 2
CASES
ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11
Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510
BXFHJ v Minister for Immigration and Multicultural Affairs [2025] ARTA 550
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159
Luu v Renevier (1989) 91 ALR 39
Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) FCR 505
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 43
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (as the responsible Minister was then named) on 3 March 2022 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant is a male national of Thailand now aged [age] years. He applied for the visa on 8 September 2019. The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations.
3. The applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (“the AAT”) on 6 March 2022 within prescribed time limits.[1] On 14 October 2024, the AAT was abolished and became the Administrative Review Tribunal (“the Tribunal”). Under the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”), review applications before the AAT that were not finalised before 14 October 2024 are deemed to be applications for review to the Tribunal. The Transitional Act gives the Tribunal authority to continue and finalise any aspect of the review not already completed by the AAT.
[1] Section 412(1)(b) of the Act and Regulation 4.31 of the Migration Regulations 1994 as these provisions existed before 14 October 2024
4. The Tribunal is satisfied that the review application was validly made and that it has jurisdiction to determine the review.[2]
[2] Sections 412(1)-(3) of the Act as they existed before 14 October 2024
5. The Department of Home Affairs (“the Department”) movement records indicate that the applicant arrived in Australia [in] June 2019 with a subclass 600 visitor visa authorising him to remain until [September] 2019 and that he has not departed Australia since his initial arrival. On 20 May 2025, the Tribunal emailed a hearing invitation to the applicant. The applicant emailed the Tribunal on 29 May 2025 to advise that he did not wish to attend a hearing and that he wanted the Tribunal to consider the documents appended to his email.
6. Section 106(3) of the Administrative Review Tribunal Act 2024 (“the ARTA”) applies to proceedings where the only parties are the applicant and a non-participating party. The Tribunal may make a decision without a hearing if it is wholly in favour of the applicant: section 106(3)(b)(i), or if the applicant requests that the decision be made without a hearing: section 106(3)(b)(ii) and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding: section 106(3)(c). It is necessarily implicit in section 106(b)(ii) of the ARTA that the decision does not have to be favourable to the applicant otherwise section 106(b)(i) would be otiose.[3]
[3] BXFHJ v Minister for Immigration and Multicultural Affairs [2025] ARTA 550 at [60].
7. Section 106 of the ART Act has not yet been the subject of judicial consideration but a similar provision, section 34J of the Administrative Appeals Tribunal Act 1975, was considered by Judge Kirton in EIZ20 v Child Support Registrar [2023] FedCFamC2G 637. Judge Kirton held that in circumstances where the parties have requested a decision without a hearing and the Tribunal had given the parties the opportunity to submit any further information it “was open and reasonable for the Tribunal to conclude that [the parties] had provided all the information they considered important and relevant, and that it could properly review [the matter] with the information before it”: at [59]. It is for the Tribunal to make an assessment as to whether it can proceed with a decision without a hearing and there is no obligation to seek further information or hold a hearing: at [60].
8. Her Honour referred to the High Court’s judgment in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 in which the Court held that at [49] that the Tribunal is not obliged to conduct an enquiry to discover whether a party could have been able to put their case better or support it with other evidence: at [66].
9. Judge Kirton’s approach was discussed in the recent decision made by the Tribunal’s President, Justice Kyrou and Deputy Presidents Burford and Dordevic in BXFHJ v Minister for Immigration and Multicultural Affairs [2025] ARTA 550 (“BXFHJ”). The Tribunal noted that the phrase “it appears to the Tribunal” was chosen by Parliament instead of “the Tribunal is satisfied” in section 106(3)(c) of the ART Act as demonstrating an intention that the Tribunal’s view regarding determination of the issues in the proceeding without a hearing may fall short of definitive conclusion: at [40].
10. It was observed in BXFHJ supra that “in circumstances where an applicant has expressly requested that a decision be made without holding a hearing…it is difficult to envisage a situation where it would be a proper exercise of the discretion to refuse to decide the proceeding without holding a hearing and, instead insist that the applicant attend a hearing. The Tribunal is entitled to rely on an applicant’s exercise of their choice to waive their right to a hearing and have their application for review determined on the papers”: at [65].
11. In light of the above, the Tribunal finds that it can adequately determine the application in the absence of a hearing in accordance with the applicant’s wishes.
12. For the following reasons, the Tribunal considers the decision under review should be affirmed.
Evidence before the Department
13. In his protection visa application, it was stated that the applicant was married, had completed secondary school education and had been employed as [an occupation 1] in Thailand before coming to Australia. The applicant’s wife was included in the application. The Department assessed the applicant’s wife as having dual [Country 1] and Thai nationality. As a consequence of the legislative provisions in force at the time the applicant’s wife was precluded from making a valid protection visa application. This review application only pertains to the male applicant.
14. It was stated in the protection visa that nothing would happen to the applicant but he wanted to learn more languages to advance his career. He stated he could not afford the costs associated with a student visa and applying for protection would enable him to save money as he would have the right to work and study legally in Australia. The applicant also mentioned that the environment in Thailand was unfavourable.
15. In the protection visa application, the applicant stated that he left Thailand legally and that he was unemployed from [specified year] to [March] 2016. During that time, he lived in Chang Mai with his family. The application form stated that the applicant was employed as [an occupation 1] in Phuket from [March] until [July] 2019 and lived in [an area in] Phuket during that time. He was unemployed from [July] 2019 until his departure for Australia.
16. The applicant was not interviewed by the delegate. The delegate found that the harm the applicant appeared to fear was economic hardship. The delegate concluded the applicant’s claims did not raise any of the reasons specified in section 5J(1)(a) and 5H of the Act. In relation to complementary protection, the delegate assessed the claims on the basis that they appeared to imply that the applicant would improve his employability and standard of living by improving his English language skills. The delegate concluded that the applicant had a valid resident work visa in [Country 1] from [April] 2014 to [March] 2016 and that he had experience working as [an occupation 1] in [Country 1] from [March] 2016 to 16 July 2019. The country information showed that Thailand had experienced significant economic growth and that the unemployment rate was relatively low.
17. The delegate acknowledged that COVID negatively affected the Thai economy but that this impacted on all Thai citizens generally and there was no evidence to suggest that such economic conditions would be inflicted on the applicant intentionally by the authorities or any other perpetrator. The delegate found that the applicant had not provided sufficient detail to be satisfied that the applicant’s particular circumstances would lead him to be at real risk of significant harm in Thailand because of economic hardship.
18. The delegate found that the country information demonstrated that the applicant could access social welfare benefits and universal health care in Thailand. There was nothing before the delegate to suggest that the applicant would be denied the capacity to subsist.
Evidence before the Tribunal
19. The applicant did not comment on the delegate’s findings when he lodged his review application. The Tribunal emailed the applicant on 19 August 2024 requesting him to complete a pre-hearing information form. This form enabled an applicant to confirm or update their contact details as well as provide further information concerning their protection claims. The applicant emailed their completed pre-hearing information form on 20 August 2024 with no further information or changes to contact details. His wife was mentioned in the form even though she was not a review applicant.
20. On 20 May 2025, the Tribunal forwarded a hearing invitation to the applicant. The applicant emailed his response to the hearing invitation to the Tribunal on 29 May 2025 declining a hearing and requesting the Tribunal to consider the information in the statement attached to his email. The applicant’s statement is summarised as follows.
21. The applicant declined the hearing as “all important facts and reasons” for his protection visa application had been shared with the Department and the Tribunal. He was not emotionally or mentally strong enough to face a hearing as it recalled the events and danger he faced in Thailand. He then went to “explain again” why he was applying for protection and why he was so afraid of returning to Thailand. He referred to Article 112 of the Thai Criminal Code which forbids insults to the monarchy. The applicant asserted that this law was used to punish people from speaking out or showing disagreement with the government or the royal family. The applicant stated that his family supported the government and the monarchy whereas he did not.
22. The applicant felt he could not be free to express his political opinion and he feared both the government and his own family. His family did not wish him to live with them anymore and his father told him that he would be better off dead than speak badly about the monarchy. The applicant maintained that his family was fearful of being harmed by being associated with him. He stated he was part of a group of people who did not support the Thai government and that he shared opinions online and in conversations with friends that the Thai government is corrupt and unfair.
23. The applicant was afraid to return without having any support in Thailand and that once someone was known to be opposed to the Thai government, one will always be under surveillance. The applicant stated that he was suffering from stress, anxiety and depression from being rejected by his family and having to hide his true opinions for many years. The applicant stated he felt very nervous about appearing before the Tribunal and that he wanted to live a free and peaceful life in Australia.
24. The documents appended to the statement included one extract from Facebook in English concerning the arrest of an American scholar named Phil Chambers on 4 April 2025 on charges of royal defamation. The rest of the documents were also Facebook extracts in Thai which contained links to other social media.
25. On 10 June 2025, the Tribunal emailed the applicant inviting him to comment on his new claims. The applicant was informed that section 367A of the Migration Act 1958 (Cth) required the Tribunal to draw an adverse inference against the credibility of the claim unless it is satisfied that the applicant has a reasonable explanation for why the claim or evidence was not raised before the primary decision was made. It was also pointed out that the social media posts he provided were not in English and that the Tribunal was not required to take into account untranslated documents. The source and date of the posts was also not identified.
26. The Tribunal’s invitation to comment also drew the applicant’s attention to section 5AAA of the Act that made it the responsibility of the applicant to specify all particulars of their claims and provide evidence in support thereof. The applicant was given until 24 June 2025 to respond. There has been no response from the applicant.
PROTECTION VISA CRITERIA
27. The criteria for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in sections 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.
28. 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: section 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: section 5H(1)(b).
29. Under section 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. A real chance is one that is not remote, insubstantial or far-fetched: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279 at p.389 per Mason CJ; at p. 398 per Dawson J; at p.407 per Toohey j and at p. 429 per McHugh J. A fear can be well founded even if the possibility of persecution or serious harm occurring is less than 50%: at p. 398 per Dawson J.
30. The concept of well-founded fear has subjective and objective elements. “Fear” refers to the applicant’s feelings and “well-founded” connotes that the fear has a rational basis that is supported by independently verifiable objective facts concerning the situation in the applicant’s home country.[4]
[4] Refugee Law Guidelines at paragraph 3.4.2
31. Persecution must involve serious harm to the person and systematic and discriminatory conduct. Serious harm includes threats to a person’s life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where that denial threatens the person’s capacity to subsist and denial of the capacity to earn any kind of livelihood where that denial threatens the person’s capacity to subsist: section 5J(5). Any of the aforementioned reasons must be an essential and significant reason for the serious harm being inflicted: section 5J(4). 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 sections 5J(2)-(6) and sections 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in section 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: section 36(2)(aa) (‘the complementary protection criterion”). The Full Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) FCR 505 at [246] held that the real risk test was the same as the real chance test.
33. The meaning of significant harm is exhaustively defined in section 36(2A) of the Act, meaning that the person will be arbitrarily deprived of their life, be subjected to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The terms cruel and inhuman treatment and punishment or degrading treatment or punishment are further defined in section 5(1) of the Act and the definitions are included in the legislative extracts appended to this decision as attachment A.
34. Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that they could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [36]-[40].
35. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11 at [60]–[61].
MANDATORY CONSIDERATIONS
36. In accordance with Ministerial Direction No.84, made under section 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 (“the DFAT Report”), to the extent that they are relevant to the decision under consideration.
37. The most recent report from DFAT is the Country Information Report for Thailand dated 18 December 2023 (“the DFAT Report”) together with the country information referred to in this decision.
38. The Refugee and Complementary Guidelines prepared by the Department contain legal analysis and provide examples of how the relevant law has been applied in different jurisdictions. They also provide guidance as to how the law is to be applied.
Reasons and Findings
39. The Tribunal is required to make findings of fact on relevant matters in determining whether an applicant is owed protection obligations. This will often involve an assessment of an applicant’s credibility. The Australian courts have made a number of observations concerning credibility assessment in the protection visa application context and the Tribunal is mindful of the difficulties faced by applicants in a foreign legal system and culture. Such difficulties can be compounded by an applicant’s experiences of trauma, their level of education and state of physical and mental health.[5] However, this does not mean that the Tribunal is obliged to accept what an applicant says uncritically.[6]
[5] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30]; Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45 at [30] and [34] per curiam; Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 per Gray J
[6] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J
40. Section 5AAA of the Act makes it the applicant’s responsibility to specify all the particulars of a claim and provide sufficient evidence to substantiate any claim that enlivens Australia’s protection obligations. The Tribunal does not have any responsibility or obligation to specify or assist an applicant in specifying or establishing any particulars of their claims. This reflects the long-established legal principle in Australia for that it is up to the applicant to make out their own case[7] and that the Tribunal is not in the position of contradictor or cross-examiner. It is not required to have evidence rebutting an applicant’s assertion in order to find that an applicant’s assertion is not made out.[8]
[7] Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 per Gleeson CJ, Gummow, Callinan and Heydon JJ at [57]; Luu v Renevier (1989) 91 ALR 39 at p. 45 per coram; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p. 170 per Wilcox J
[8] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437at [57] per Gummow and Heydon JJ; Gleeson CJ agreeing and [85] per Kirby J; Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576[187] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [18] per curiam.
41. Section 367A of the Act requires the Tribunal to draw an adverse inference to the credibility of an applicant’s claim or evidence if that claim or evidence was not placed before the primary decision was made if the Tribunal is satisfied the applicant does not have a reasonable explanation for why that claim or evidence was not provided earlier.
42. The Tribunal accepts that Thailand is the receiving country for the purpose of assessing Australia’s protection obligations based on the applicant’s Thai passport and national identity card. There is nothing before the Tribunal to cast doubt on the authenticity of those documents. There is no evidence to suggest that the applicant is a citizen of any other country apart from Thailand and that he has the right to enter or reside in any other country. Consequently, section 36(3) does not apply.
Does the applicant satisfy the refugee criterion in section 36(2)(a)
43. In his protection visa application, the applicant raised no claims to be entitled to protection on a refugee or complementary protection basis. The application was expressed to be made for the applicant’s convenience to acquire work and study rights in Australia to improve his career prospects. The Tribunal does not concur with the delegate’s assessment of the nature of the claims to be fear of harm due to economic hardship, which the delegate acknowledged were implied rather than expressly stated.
44. The Tribunal is aware that protection visa applicants often rely on another person to prepare and assist with their protection visa applications because the applicants lack the knowledge and English language skills. Lack of proficiency in English also makes it difficult if not impossible to check the accuracy of the information and claims put into the application. An applicant may not realise mistakes or inaccuracies until after the primary decision is made, especially when they are not interviewed by the delegate.
45. In the present case, the applicant has not stated that they were assisted by another person and did not know what was in their application. The applicant has not disavowed the original claims but has adopted them. In the third paragraph of his statement, there is a reference to the applicant explaining again (emphasis added) why he is applying for protection. Adopting as beneficial an approach as possible in the circumstances, that statement raises the possibility that the applicant may have believed that the claims made in his statement on 29 May 2025 were included in his initial application and that the applicant did not understand the reason his application was refused.
46. However, the Tribunal’s invitation to comment made it very clear what was claimed in the initial application and that the 29 May 2025 statement raised claims that bore no semblance to those initial claims. The applicant’s claims before the Tribunal raise the ground of political opinion. The applicant was asked to explain why he had not raised these claims before the primary decision was made. He offered no explanation despite being given the opportunity to do so.
47. The nature of the claims made by the applicant on 29 May 2025 could have been raised at initial application. Apart from the Facebook extract in English dated 4 April 2025, which post-dated the primary decision, it was not possible to ascertain whether the other extracts pre- or post-dated the primary decision as they were all in Thai apart from one with the date in English of 11 June 2021. The Tribunal is not required to consider untranslated documents.[9] It is not evident how the arrest of an American scholar relates to the applicant as he did not provide any details or evidence of his political activity in or outside Thailand.
[9] Part 6.2(c) – Administrative Review Tribunal (Common Procedures) Practice Direction 2024 – 16 April 2025
48. The Tribunal acknowledges that protection visa applicants may be very traumatised by their past experiences which makes it difficult to discuss those experiences. The applicant forwarded no evidence from a medical or mental health practitioner in support of his assertion that he suffered from depression, stress and anxiety which prevented him from attending a hearing to discuss his new claims.
49. The Tribunal is required to conduct reviews in manner that fulfils the statutory objectives set out in section 9 of the Administrative Review Tribunal Act 2024 (Cth) (“the ART Act”). These objectives include providing an independent review that is fair and just[10] and ensuring that review applications are resolved as quickly and with as little formality and expense as a proper consideration of the matters before the Tribunal permits.[11] The applicant has been given a reasonable opportunity to present his case as required by section 55 of the ART Act.
[10] Section 9(a)
[11] Section 9(b)
50. As the applicant had not provided an explanation for why the new claim of political opinion was not raised before the primary decision was made, the Tribunal is required to draw an adverse inference against the credibility of the claims pursuant to section 367A of the Act and it has done so in the present case.
51. The Tribunal is not satisfied that the applicant has a genuine fear of serious harm or a real chance of facing serious harm for any reason specified in section 5J(1)(a) of the Act and hence he does not meet the refugee criterion in section 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion in section 36(2)(aa)?
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).
53. In light of the matters discussed above, the Tribunal concludes that there is no real risk the applicant will be subjected to any form of harm that would be the result of any act or omission by which severe pain or suffering, whether physical or mental, would be intentionally inflicted on him such as to fall within the definitions or torture, cruel or inhuman punishment or degrading treatment or punishment.
54. Accordingly, 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 that he will suffer significant harm as defined for the purposes of complementary protection.
55. There is no other evidence before the Tribunal to suggest that there is a real risk that the applicant will be arbitrarily deprived of his life, subject to the death penalty being carried or be subjected to cruel or inhuman treatment or to degrading treatment or punished as further defined in section 5(1) of the Act.
Conclusion
56. Section 65(1)(a)(ii) of the Act requires the Tribunal to be affirmatively satisfied that the criteria for the visa are met. This does not require the Tribunal to reach a decision only if a particular matter is established.[12] The criteria are set out in sections 36(2)(a) and 36(2)(aa) of the Act. 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 section 36(2)(a) or section 36(2)(aa) of the Act.
[12] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [17].
There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies sections 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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