2204544 (Refugee)
[2025] ARTA 1155
•21 March 2025
2204544 (REFUGEE) [2025] ARTA 1155 (21 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr James Wardlaw
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2204544
Tribunal:General Member S Waring
Date:21 March 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – protection visa – Thailand – consent to decision without hearing – application for partner visa in progress – bridging visa with restrictions held – husband and child dual citizens of Australia and another country – hardship for applicant and child – crime and police inaction – child’s language and education – applicant’s multiple returns despite claim of sexual harassment by cousin – request for referral for ministerial consideration – wish to visit parents despite protection claims – migration pathway through partner visa not within scope for referral – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 65, 348A(1), 351
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(a), (b)(ii), (c)
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chan Yee Kin v MIEA (1989) 169 CLR 379
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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Thailand, applied for the visa on 14 January 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 29 March 2022 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT). The applicant provided a copy of the delegate’s refusal decision as part of the review application.
On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it will be continued in the Tribunal in a manner that is efficient and fair. This decision and statement of reasons is made by the Tribunal.
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
As a preliminary matter the Tribunal must consider whether the Tribunal should proceed to determine the review application without holding a hearing.
Decision without a hearing
For the reasons outlined below, I have decided to make a decision in relation to the application for review without holding a hearing.
On 8 December 2023 the Tribunal was notified that Mr Wardlaw was appointed as the applicant’s representative however, this role was taken over for a period by [Mr A] (the applicant’s husband). In response to a pre-hearing information form being sent to the applicant on 22 January 2025, Mr Wardlaw was restored as representative.
Mr Wardlaw wrote to the Tribunal on 31 January 2025 (the intervention request) setting out the circumstances in which the review by the Tribunal takes place. He advised as follows:
“The Applicant concedes she does not meet the criteria in Schedule 2 of the Migration Regulations 1994 for the grant of a Protection (subclass 866) visa. The Applicant is also content to waive her right to a hearing should the Member form the view that a referral to the Minister pursuant to Section 351 of the Migration Act 1958 is warranted based on the written material alone.”
The Tribunal construed this communication as indicating the applicant’s conditional agreement to a decision in the review being made ‘on the papers’. It appeared to the Tribunal that the applicant expressed a willingness to have a decision made ‘on the papers’ in the event the member proceeded to form the view that the matter should be referred to the Minister for intervention.
Having regard to the limited circumstances in which the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) allows for review decisions to be made without holding a hearing, the Tribunal sought clarification of the applicant’s intentions by sending a hearing notice to her representative on 13 February 2025.
The Notice of hearing invited the applicant to a hearing on 28 February 2025 to give evidence and present arguments. The hearing notice stated that if the applicant requests the Tribunal to make a decision without a hearing, and the Tribunal proceeded to make a decision because it considers the issues can be determined in her absence, this does not guarantee that she will receive a favourable decision. The Notice of hearing invited the applicant, if she had not already done so, to provide all documents to be relied on to support her case by 21 February 2025.
On 13 February 2025 Mr Wardlaw forwarded the applicant’s response form to the Tribunal by email. The applicant’s representative had signed the response form and marked the box stating, “No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing.”
The accompanying email from Mr Wardlaw stated “Please see attached response to hearing form requesting the hearing to be vacated and the member to proceed to a decision based on the written material available.”
The Tribunal is satisfied that, by correspondence dated 13 February 2025, the applicant is agreeing to a decision ‘on the papers’ without any condition upon the member forming a view that the matter should be referred to the Minister for intervention.
The Tribunal is satisfied that the method employed by the applicant to decline the hearing invitation meets the requirements of s 106(3)(b)(ii) of the ART Act and, subject to other criteria, enlivens the Tribunal’s discretion to consider a determination of this application according to s 106 of the ART Act.
In s 106(3), the ART Act outlines some circumstances in which the Tribunal may reach a decision without a hearing. The first requirement is that (as in this case[1]) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding [s 106(3)(a)] .
[1] Section 348A(1) of the Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act
As set out above, the Tribunal is satisfied that the requirements of s 106(3)(a) and s 106(3)(b)(ii) of the ART Act have been met.
Additionally, s 106(3)(c) of the ART Act requires that it must appear to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The term ‘adequately determined’ is not defined in the ART Act.
The intervention request sets out an understandably frustrating history of the applicant’s partner visa however, the decision under review is the refusal of an application for a protection visa. As mentioned above, the issue for the Tribunal to consider in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion set out in the Act.
Having examined the materials submitted for consideration, and the intervention request, the Tribunal is satisfied that this application for review does not give rise to any novel questions of fact or law.
The Tribunal is satisfied that in the particular circumstances of this case, the issue which requires consideration can be adequately determined in the absence of the parties. This matter has therefore been determined on the evidence available to the Tribunal.
BACKGROUND
The applicant, a [Age]-year-old female is a national of Thailand who first entered Australia [in] November 2012. The applicant married [Mr A] [in] February 2013 and their son [Master B] was born on [Date]. Both [Mr A] and [Master B] are now citizens of Australia.
The applicant has travelled to and from Australia numerous times. Initially the applicant entered Australia on tourist or visitor visas. A partner visa was granted on 7 January 2014 and the applicant returned to Thailand each year thereafter until the partner visa was replaced by a bridging visa (granted on 29 October 2019). A further bridging visa was granted on 23 January 2020 with work, study and travel restrictions attaching to it.
The travel restrictions of her current visa are impacting the applicant (and her family) adversely because she has been unable to visit her aged parents since February 2019. The applicant had previously made regular trips to her hometown and she now misses her family deeply.
Evidence before the Department and the Tribunal
The protection visa application sets out the applicant’s claims and supporting identification documents. These documents were before the Department when the ‘refusal of protection’ decision was made by the delegate.
In addition to the above documents, a movement record of the applicant’s overseas travel is before the Tribunal.
A number of [Mr A]’s communications with the Tribunal (seeking expedition of the matter) contain factual information.
Also before the Tribunal is a submission made by the applicant in a pre-hearing form.
The intervention request dated 31 January 2025 contained detailed witness statements regarding the applicant’s circumstances and was supported by 36 pages of materials including:
·Statutory declarations sworn by the applicant and [Mr A] on 31 January 2025.
·A letter from the Australian embassy in Bangkok acknowledging the applicant’s partner visa submission on 14 March 2013.
·The partner visa grant notice dated 25 March 2013.
·An email from the Australian embassy in Bangkok dated 15 May 2013 citing the applicant’s partner visa in the subject line.
·Departmental notification of the grant of partner visa (subclass 309) to the applicant dated 9 January 2014.
·Decision record and departmental notification that the applicant’s request for a partner visa (subclass 100) had been refused (dated 10 September 2019).
·Copies of biodata pages in the [Country] passports of [Mr A] and [Master B]
·Certificate of Marriage (applicant and husband) dated [February] 2013.
The totality of evidence before the Tribunal is discussed and examined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided a copy of the biodata page of her Thailand passport to the Department as part of her protection visa application. The delegate accepted that the applicant is a citizen of Thailand and there is no information before me to the contrary. I find that the applicant is a citizen of Thailand, and that Thailand is her receiving country for the purposes of assessing her claims for protection.
Assessment of claims
The protection visa application sets out the applicant’s claims summarised as follows:
·She has a young son and would experience significant hardship raising hm in Thailand without her husband.
·She is afraid for herself and her son’s safety due to the high crime rate in Thailand.
·Thai police would not protect her and her son.
·Due to police corruption and the crime rate nationally, she would not gain protection from the authorities if she moved to another part of Thailand.
In the pre-hearing form submitted on 8 May 2024 the applicant states (verbatim):
“I have been Australia for many years, the reason that I can’t go back to my country as the situation now is still not clear, if I go back than could force to to face a brutal time. Besides, I am integrate into society here. I will try to collect all the evidence on hearing date, please reconsider my case.”
In the applicant’s statutory declaration (31 January 2025) she acknowledges that she does not meet the requirements for a Protection (subclass 866) visa.[2] She states that the purpose of this review application is to ultimately seek Ministerial Intervention[3]. IThe statement evidence of the applicant and [Mr A] have a particular focus on a permanent partner visa being granted to the applicant.
[2] Para 3
[3] Para 6
For the purposes of discharging the Tribunal’s review function in this matter it is necessary to confine considerations to the applicant’s eligibility for a protection visa.
Fear of harm
In her statement, the applicant expresses her fears (for herself and her immediate family) if she is returned to Thailand:
“If I had to leave the country, [Mr A] would be a single dad. He wouldn’t be able to move to Thailand with me. Our son, [Master B], cannot speak Thai, and he would not be able to adapt to the school system there. Our marriage would struggle, and it would only be a matter of time before it broke down. [Mr A] has no work rights in Thailand, and we have nothing there - no home, no support. I cannot live away from my family, especially from my son, [Master B]. He is [Age] years old, which is a crucial stage in his life. He needs me every day in his daily life. My husband is fully occupied with his business and won't be able to dedicate extra time to support home duties and look after our son.”
“While my home country is a great place to visit, it does not offer the same level of education and lifestyle for children as Australia does. My hometown is in a rural area, and it lacks the resources and opportunities that [Master B] has access to here in Australia. He would miss out on all the opportunities he currently enjoys.”
The applicant has provided a citizenship certificate for her son [Master B] dated [June] 2024 and the Tribunal accepts that he is an Australian citizen.
The applicant’s statement also declares:
“I am afraid of returning to my hometown because I experienced sexual harassment by my cousin when I was living there. Meeting [Mr A] and coming to Australia was my way of escaping my cousin and the painful memories.”
In a statement from [Mr A] (31 January 2025) submitted to the Tribunal he states:
“It is not safe for [the applicant] to return to Thailand. As stated in my previous statement, she experienced sexual harassment by her cousin. I do not feel safe for her to return to her hometown on her own.”
Based on the movement record before the Tribunal, the Tribunal is satisfied and finds that the applicant returned to Thailand on numerous occasions between 2013 and 2019.
There is no evidence before the Tribunal to establish the current whereabouts of the applicant’s cousin or whether he was located in the applicant’s hometown when she visited there between 2013 and 2019.
There is no evidence before the Tribunal regarding harm being inflicted upon the applicant by her cousin. On this basis, the Tribunal has not accepted that the applicant suffered harassment in her childhood (as claimed).
The applicant states that when she was accompanied by [Mr A] she “felt safe returning to [her] hometown.” She hopes that her “visa situation is resolved as soon as possible so [that she] can reunite with family [as her parents’] time is running out.”
The Tribunal accepts that the applicant has not avoided trips to Thailand. The Tribunal finds that the applicant has (at times) felt safe when returning to her hometown and wishes to return to there as soon as possible.
The protection visa application discloses Buri Ram as the applicant’s birthplace and her parents currently reside there. The applicant’s mother is [Age] years old and her father is [Age] years old.
On the available evidence, the Tribunal does not find that the applicant would be without support or protection when staying with her parents in her hometown.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Well Founded Fear
The applicant’s claims (in her protection application, prehearing submission, sworn statement and the intervention request) disclose her fears of the general crime rate in Thailand, lack of police protection and confronting distressing memories of childhood harassment.
To meet the refugee criterion, a person must have a well-founded fear of persecution for one
or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality,
membership of a particular social group or political opinion.The applicant has not asserted that she fears persecution by reason of her race, religion, nationality, membership of a particular social group or political opinion.
As regards applicant’s fear of returning to Thailand the Tribunal has accepted that she:
· has not avoided trips to her hometown in Thailand.
· made regular trips from Australia to Thailand between 2013 and 2019.
· has (at times) felt safe when returning to her hometown.
· wishes to return to her hometown in Thailand as soon as possible.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Having regard to the findings explained above, the Tribunal does not accept that the applicant fears persecution by reason of concerns around the general crime rate in Thailand or the absence of police protection there.
As the Tribunal has not accepted (based on available evidence) that the applicant suffered sexual harassment in her childhood, the Tribunal does not accept that the applicant fears persecution by reason of concerns that she may confront distressing memories of childhood harassment if she returns to Thailand.
Persecution/Serious Harm
The applicant has claimed that she would experience significant hardship raising [Master B] without her husband’s assistance if she returned to Thailand. The Tribunal accepts that the applicant’s concerns for the welfare and advancement of her son are deeply felt.
Having regard to s 5J(5) of the Act, the Tribunal is guided by instances of harm that would be considered to be ‘serious harm’. These would include, for example, a threat to a person’s life or liberty, a significant physical harassment or a significant physical ill-treatment of the person, or circumstances that threaten the person’s capacity to subsist.
The Tribunal accepts that the applicant seeks to avoid separation from family and the experience of re-adjusting to life in her home country – especially because she has become integrated into Australian society.
The Tribunal finds however, that the hardships the applicant would encounter in raising [Master B] in Thailand, as challenging as those may be, are not such severe forms of harm that they fall within the kinds of conduct covered by s 5J(5).
For the reasons given above, and having considered the applicant’s claims individually and
cumulatively, the Tribunal is not satisfied that if the applicant returned to Thailand she would face a real chance of persecution (involving serious harm) for any reason set out in s 5J(1)(a) of the Act, or for any other reason.Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. The applicant is therefore not a refugee as defined in s 5H(1) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
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).
Country Information
As mentioned above, Country information assessments are to be taken into account by the Tribunal. It is observed in the February 2023 report on Thailand prepared by the Department of Foreign Affairs and Trade (DFAT):
“Petty crime, scams and fraud are all common. Thailand has a high rate of gun ownership, and seemingly minor interpersonal disputes can sometimes escalate into violence.” [4]
“Transparency International found that a quarter of Thais had paid a bribe to access public services in the previous year, and 40 per cent of Thais thought the police were mostly, or all, corrupt.” [5]
[4] Para 2.35 DFAT report 18 December 2023
[5] Para 2.27 DFAT report 18 December 2023
The Overseas Security Advisory Council reported in February 2020:
“Most criminal activity is limited to nonconfrontational street crime and crime of opportunity, including purse snatching, pickpocketing, petty theft, jewellery schemes, and tourism fraud[6].”
[6] Thailand 2020 Crime &Safety Report: Bangkok
The applicant has stated that her family lives in a rural area. She has not asserted that she would be subject to a greater (than the generally prevailing) risk of harm from crime than others in Thailand. Whilst I accept that Thailand suffers from social problems such as crime, I do not accept that there is a real risk that the applicant will be the victim of crime if she returns to Thailand.
For the purposes of the complementary protection criterion, I find that the harm feared by the applicant due to general conditions relating to crime and law enforcement in Thailand to not amount to any of the types of significant harm defined in s 36(2A). There is no evidence to suggest a real risk of the applicant being arbitrarily deprived of her life, facing the death penalty, being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal concludes based on the country information and evidence before it, that there are no substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand.
Protection Conclusions
I have found above that the applicant does not have a well-founded fear of persecution for any of the reasons claimed and is therefore not a refugee as defined in s 5H(1) of the Act. I have also found that there is not a real risk that she would suffer significant harm as a consequence of returning to Thailand for any of the reasons claimed and therefore does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act. I am satisfied that no other protection claims arise on the accepted facts.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Referral for Ministerial intervention
I have considered the applicant’s request for the Tribunal to refer her case to the Minister. Under s.351 of the Act, the Minister can substitute, for a decision of a review tribunal, a decision that is more favourable to a person, if he or she thinks it is in the public interest to do so.
The Tribunal acknowledges that the circumstances set out in the intervention request and supporting statements have caused the applicant (and her family) a significant amount of stress and led to her immigration status being unresolved for a number of years. She has been prevented from working in Australia and travelling to Thailand to visit her family.
One of the compelling reasons for ministerial intervention advanced by the applicant is her wish to return to Thailand to visit her parents. This gives rise to the anomalous situation in which ministerial intervention (in respect of the ‘refusal of protection’ decision) is sought largely because the applicant wishes to visit the country she seeks protection from in the application before me.
As this wish is rarely held by protected persons, protection visas have onerous travel restrictions attached to them in respect of the country of origin. A protected person could not travel to the country (from which they claimed asylum) without approval from the Minister (or delegate).
[Mr A] has stated that he “is now able to be a sponsor and…believes we meet all the requirements for a Partner visa”.
The Minister has reiterated (in Ministerial Intervention principles re-published on 1 January 2025) that “if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me to intervene.” [7]
[7] Minister’s guidelines on ministerial powers (s351, s417 and s501) para 3
The Ministerial Intervention principles describe ‘unique or exceptional circumstances’ which would support referral. While taking into account the very regrettable history of the applicant’s partner visa, the Tribunal considers that only the following example of circumstances is enlivened in this case:
“…strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.”
[Mr A]’s statement submits reasons why he and the applicant “cannot submit a further partner visa application offshore.” The Tribunal acknowledges that if the applicant returns to Thailand, [Mr A] and [Master B] would face difficulties if they chose to remain in Australia and live without her. It is however speculative to estimate a waiting period for the further visa as processing times vary considerably. [Mr A] outlines options in his statement to enable the family to remain connected during the waiting period - including his relocation to Thailand. In view of [Mr A]’s citizenship (and the longstanding nature of the marriage) it is clear that the refusal of a protection visa to the applicant does not obstruct her other migration pathways.
The applicant is clearly very attached to her parents (whom she misses deeply) and the Tribunal accepts that the applicant has close family to offer support to herself, [Master B] and [Mr A] when they are in Thailand. The Tribunal accepts that [Master B] and [Mr A] would be impacted by the applicant’s return to Thailand however, the Tribunal does not form the view that during (or beyond) the partner visa waiting period, the applicant’s family unit (or its individual members) would suffer serious, ongoing and irreversible harm and continuing hardship.
The Tribunal has examined the totality of the evidence presented by the applicant and (being bound to follow the Ministerial Intervention principles outlined above) determines that the ‘refusal of protection’ decision does not fall within the scope of appropriate cases for referral to the Minister pursuant to s351.
The Tribunal will not proceed to refer this case to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
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36 Protection visas – criteria provided for by this Act
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(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.
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