2307192 (Refugee) - [2025] ARTA 834

2307192 (REFUGEE) [2025] ARTA 834 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2307192

Tribunal:General Member A Stratigos
Date:12 March 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 12 March 2025 at 3:50pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – rallies and protests – death threats – marital difficulties – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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 12 May 2023 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 1 December 2022. The delegate refused to grant the visa on the basis that they were not satisfied that that there is a real chance that the applicant would face serious harm because of their political opinion if returned to Thailand. The delegate further found that they were not satisfied that there is a real risk that the applicant would face significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand.
The applicant appeared before the Tribunal on 12 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
BACKGROUND
The applicant is [an age]-year-old woman from Thailand. She arrived in Australia from Thailand in October 2022 and submitted her application for a protection visa in December 2022.
Evidence before the Department
In support of her application for protection the applicant submitted to the Department of Home Affairs (the Department):
·A completed protection visa application form
·Passport
·Thai drivers licence
·Thai National Identity Card
·Country information
The applicant claims to be from Si Sa Ket in Thailand. She claims to have two living parents and [number] siblings.
The applicant claims to have been married in 2016. Her husband lives in [City 1], Thailand.
The applicant did not provide any prior travel history in her application, however her passport shows travel of about one week to [Country 1] in 2022.
The applicant provided her work history in Thailand, she claims to have worked in administrative role for a [service 1] company [between specified years] and in a management role for a [product 1] company from 2012-2018. From 2018 until she travelled to Australia she claimed to be a housewife and was supported by her husband.
The applicant has a [Qualification 1] from a university in Thailand where she studied [between specified years].
The applicant claimed to have been living in Si Sa Ket at the time of her departure from Thailand to Australia.
The applicant claimed that she departed Thailand and fears returning due to her political views, attendance at rallies and protests and signing of petitions. She claims she received death threats from NCPO enforcers. The applicant provided details on the political history of Thailand from 2014 to 2020.
The Tribunal also has before it a copy of the delegate’s decision which indicates that the applicant was not invited to attend an interview.
Evidence before the Tribunal
The applicant did not provide any further documents, submissions or evidence in support of her claims for protection prior to hearing.
The applicant’s claims for protection presented at hearing were entirely different to those contained in the protection visa application submitted to the Department.
The applicant claims to have two living parents and [same number] siblings. Her parents still live in Si Sa Ket Province in the same town that the applicant was born in and that is where they have lived since they were born. The applicant’s siblings all have their own families and are spread across various parts of Thailand.
The applicant claims to have a [Qualification 1] from a university in Bangkok and worked for two years as [an occupation 1]. The applicant also lived and worked in Bangkok during her studies.
In addition to her work as [an occupation 1], the applicant also claims that she worked for a [service 1] company, and later as a manager of a [product 1] company. The applicant also worked in [Country 2] where she travelled to on three occasions between 2016 and early 2022. The applicant claims to have been engaging in farm work in Australia.
The applicant claims that she has travelled to [named countries] and [Country 1] for holiday. The travel to [these countries] and [Country 2] was undertaken on prior passport to the one she used to travel to Australia.
The applicant was married in 2016, she claims that her and her husband have not had any children and the applicant claims she is not able to have children.
The applicant claims that she keeps in regular, almost daily, contact with her husband but they are separated. The applicant claims that as she cannot have children she thought that he husband might like to find someone else, however he hasn’t.
The applicant claims she couldn’t live with her husband any more as her mother-in-law was unhappy that the applicant couldn’t have children. The applicant was then living with her own parents, separately from her husband, and as she had nothing to do there she decided to come to Australia.
The applicant claims that she did not face any harm in Thailand, she just didn’t feel comfortable living there. She claims that if she stays with her mother people will ask her questions about where her husband is and that doesn’t make her feel comfortable.
The Tribunal noted to the applicant that she has a bachelors degree and has worked in various different jobs and the Tribunal suggested that she could live separately to her parents. The applicant claims that she could live elsewhere however the only difficulty is that she doesn’t want people to look at her and her husband that think that they are not a good couple.
The applicant claims that she doesn’t want people asking her when she will get married again or asking her where her husband is.
The applicant claims that she feels sorry for herself and her family because of her marital circumstances. The applicant claims she wants to stay in Australia until everything settles down and she feels better and could then go home.
The Tribunal asked the applicant about her initial protection visa application and noted that the reasons given at the hearing were different to those in the application. The applicant confirmed that the reason for her departure from Thailand and why she didn’t want to return where the reasons discussed at the hearing, being her marital difficulties. The applicant claims that her friend assisted with the application and she doesn’t remember what was in the application.
The applicant stated at hearing that her reasons for departure and for why she cannot return do not relate to political involvement or participation in protests or rallies. The Tribunal also asked the applicant about the country information provided alongside her protection visa application and the applicant indicate that that information was not relevant to the reasons why she departed Thailand or why she doesn’t want to return.
The Tribunal informed the applicant that the Tribunal was having difficulty accepting how the applicant’s claims might give rise to protection obligation as a refugee or under the complementary protection criterion, and the Tribunal again discussed the criteria with the applicant as had already been outlined at the commencement of the hearing. When the Tribunal asked the applicant if she wanted to make any comments about this the applicant indicated that none of that criteria applied and that it is just her feelings as to why she wants to remain in Australia.
The Tribunal again asked if the applicant had anything further that she wished to tell the Tribunal about why she left or why she couldn’t return, the applicant did not have anything further to add.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 is owed protection as a refugee or under the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and Identity
The applicant has provided a copy of her passport and Thai Identity Card and on the basis of this information and with no other information to the contrary the Tribunal is satisfied that the applicant is a citizen of Thailand and that her identity is that which is stated in her passport. The Tribunal is therefore satisfied that the country of reference is Thailand.
The Tribunal accepts that the applicant departed Thailand on a valid passport in October 2022 and entered Australia lawfully.
Assessment of claims
The applicant made claims in her initial protection visa application that related to political views and involvement, however during the hearing the applicant entirely abandoned those claims.
At the beginning of the hearing the applicant claimed that she completed the application herself, that everything was true and correct and that she didn’t have any other claims to discuss with the Tribunal other than those in the initial application. During the hearing the applicant began to discuss claims that were entirely different to those in the protection visa application. Later in the hearing the applicant was asked about the initial claims, and she indicated that it was only what she had said at the hearing that was the truth. The applicant then stated that she didn’t remember what was written in her application and that she received some assistance from friends. When the Tribunal asked the applicant directly about the claims regarding political views and involvement in protests and rallies the applicant indicated that she did not depart Thailand or have fears of returning to Thailand as a result of any political views or involvement in protests or rallies. The applicant further indicated that the country information that was provided was of no relevance to why she departed or was seeking to remain in Australia.
On this basis the Tribunal finds that the claims articulated in the initial protection visa application have been abandoned and that the applicant did not wish to make those claims. The Tribunal finds that the applicant did not have knowledge of the contents of the claims and that the claims were completed by the applicant’s friend. The Tribunal finds that the applicant was not a political activist, did not receive death threats and does not fear harm as a result of her political views and/or activities.
The claims made and maintained by the applicant at hearing related to her marriage breakdown. The applicant claims that she doesn’t want to face questions from the community about her marriage and marital status, and that she doesn’t want her family to be questioned about her marriage or marital status either. The applicant feels uncomfortable having to deal with the questions about her marriage and lack of children and wants to remain in Australia until she feels better about returning.
The applicant claims that she is not at risk of harm if returned to Thailand and that she hasn’t faced any harm in Thailand in the past for any reason.
Section 5AA of the Act provides that it is the responsibility of the applicant to “specify all particulars of his or her claim to be such a person to provide sufficient evidence to establish the claim.” This section also provides that the Tribunal “does not have any responsibility or obligation to: (a) specify, or assist in specifying, any particulars of the [applicant’s] claim or (b) establish, or assist in establishing, the claim.” The Tribunal has applied s 5AAA when considering the applicant’s claims and evidence and considers the applicant to have been given sufficient opportunities to specify the particulars of his claims and provide sufficient evidence and the Tribunal finds that the applicant has no further claims or particulars to provide.
The Tribunal accepts that the applicant is married and has no children. DFAT reports that divorce is lawful however “family breakups were frowned upon”[1]. On the basis of this information the Tribunal accepts that the applicant may experience some discomfort due to her relationship breakdown, marital status and/or inability to have children however the tribunal finds that this does not amount to serious harm or significant harm.
[1] DFAT Country Information Report Thailand, December 2023
In order for the applicant to be owed protection as a refugee they much as a well-founded fear of persecution, s 5J(4) stipulates that the persecution must involve serious harm. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. The Tribunal acknowledges that the list in s 5J(5) is non-exhaustive, however having considered the applicant’s claims individually and cumulatively the Tribunal finds that discomfort, embarrassment and/or gossip that the applicant, her husband and/or her family may face due her marital status, marriage and/or inability to have children does not amount to serious harm. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution if she returns to Thailand now or in the reasonably foreseeable future. It follows that the Tribunal finds that the applicant does not meet the refugee criterion in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa), this criteria requires that the applicant face a real risk of significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). 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. The Tribunal has considered the applicant’s claims individually and cumulatively and finds that discomfort, embarrassment or gossip that the applicant, her husband and/or her family may face due her marital status, marriage and/or inability to have children does not amount to significant harm. Accordingly, the Tribunal finds that the applicant does not face a real risk of significant harm as necessary and foreseeable consequence of being removed from Australia to Thailand.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of Hearing: 12 March 2025
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.
…