2308891 (Refugee)

2308891 (Refugee) [2023] AATA 3711 (14 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2308891
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Tania Flood
DATE:14 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 August 2023 at 11:12am
CATCHWORDS
REFUGEE – protection visa – Thailand – past gender-based violence – domestic violence perpetrated by former boyfriend – delay in seeking protection – future gender-based violence – relationship ended fifteen years ago – effective state protection – personal support and employment in Thailand – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 189
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the Department’) on 13 June 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 citizen of Thailand, applied for the visa on 24 May 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 11 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department and the Tribunal files.
Applicant’s background
The applicant provided the following information in her 11 April 2023 application for a Protection visa.
The applicant was born in Chainat, Thailand. She is fluent in the Thai language, is of Thai ethnicity, and identifies with the Buddhist faith. She completed high school in Thailand and commenced tertiary studies but withdrew before completion. She declared she was a student and is single. Her mother and aunt reside in Thailand. She declared having an aunt residing in Australia (NSW) with whom she declared having resided from 2008 to 2010. She declared having supplied a prohibited drug in Australia [in] August 2021. She is currently being held at [an] Immigration Detention Centre.
Migration and criminal history
Departmental records indicate that the applicant first arrived in Australia [in] September 2008 as the holder of a Student (class TU) (subclass 570) visa (‘Student visa’). This visa permitted the applicant to remain onshore until 3 May 2009.
On 30 April 2009, the applicant lodged an application for a further Student visa. On 22 May 2009, the applicant was granted a further Student visa, permitting her to remain onshore until 12 October 2011. The applicant remained onshore after this time as an unlawful non-citizen.
[In] August 2021, while onshore as an unlawful non-citizen, the applicant was charged with six indictable offences and was granted conditional bail. [In] May 2022, the applicant was charged with breaching her bail conditions. [In] June 2022, the applicant appeared in court in relation to the bail charge. A breach of bail was established; however, the applicant was once more released on bail.
[In] June 2022, the applicant was located by Australian Border Force (‘AFP’) officers and detained according to s 189 of the Act (detained as an unlawful citizen). The applicant was subsequently transferred to [an Immigration Detention Centre].
[In] October 2022, the applicant’s charges were varied and she was found guilty of two indictable offences. [In] October 2022, the applicant was sentenced to an aggregate term of imprisonment of 14 months, with a non-parole period of 7 months, and transferred from immigration detention [to] criminal custody as a result of the above revised convictions.
On 7 November 2022, while in criminal detention, the applicant was granted a Bridging visa E (‘BVE’) on criminal detention grounds. On 16 January 2023, the applicant lodged an application for a Permanent Protection (subclass 866) visa (‘Protection visa’). On 1 February 2023, this application was deemed invalid as the application fee was unpaid. The applicant’s BVE ceased on 15 February 2023 and the applicant became an unlawful non-citizen then.
[In] February 2023, the applicant was released from criminal custody but detained according to s 189 of the Act and transferred to [immigration detention].
The applicant lodged a further Protection visa application on 24 May 2023 while in detention. This is a review of the delegate’s refusal to grant the applicant a Protection visa lodged on 24 May 2023.
Interview with the Department in relation to the BVE application
On 29 May 2023, the applicant was interviewed remotely from [immigration detention] in relation to her BVE application, associated with her Protection visa application. Notes of the interview are included on the Department file in respect of her Protection visa application. These notes indicate:
The applicant acknowledged her last substantive Australian visa expired in 2011, and that she did not engage on time or at a later stage with the Department in order to regularise her migration situation in Australia. She said she had no money then.
She said she planned to apply with the Department for a Partner visa in or around 2010. However, the relationship she was in with her former partner ended and the plans did not eventuate. She acknowledged to the interviewing officer that she knew of her unlawful status and did not make any attempts to become lawful.
She stated that she is currently in a relationship with [Mr A] who is willing to support her financially when she is released from detention.
Regarding her financial means, the applicant could not offer to the interviewing officer details of her partner’s financial situation. She stated that she intended to seek work rights with the Department.
Regarding her criminal records, she acknowledged she was convicted of drugs charges in 2022 and was ordered to spend 14 months in prison. That she was released after serving her 7 months' non-parole period. That later she sold $14,000 worth of drugs to one person which is why she was arrested. She stated she has not taken drugs in over a year and will not take drugs again.
The delegate’s decision relating to the BVE application
The BVE visa was refused because the delegate was not satisfied that the applicant would comply with the conditions imposed on the visa.
Applicant’s claims for protection
In her application for a Protection visa dated 11 April 2023, the applicant submitted the following claims:
She claimed that she was previously in a relationship, for six years, in Thailand, where her boyfriend hurt her all the time. She claimed that she ran away from him many times. That she moved north and south but was unable to hide from him. That her boyfriend was able to locate her, and she was unable to feel safe.
She claimed that her boyfriend would get very drunk and force her to have sex with him. He would hit her on the head with a hammer. She had black eyes and one time the white part of her eye was “full of blood”. She claimed that he would abuse her mentally, physically, verbally and sexually.
The applicant claimed that the Thai police would not get involved in “family matters”. The applicant claimed that this is the reason why she did not seek help from the police.
The applicant claimed that if she went back to her country, her boyfriend would kill her. She claimed that he previously told her if she ran away and came back he would kill her.
Evidence submitted to the Department
In a letter from the applicant dated 5 June 2023 she states she met a former boyfriend while she was studying in Australia and holding her second Student visa. He disappeared from her life and so did her opportunity to apply for a Partner visa. She states she didn’t have any work, money or support and didn’t know what to do. She couldn’t tell her aunty about her visa situation or her former boyfriend. The applicant detailed that she met her current boyfriend while living with her aunt. She stated she regretted her past actions and plans on not making the same mistake again.
In a letter dated 8 June 2023, the applicant detailed that she is an only child. She stated that she was in a relationship with [Mr B] in Ratchaburi, Thailand. She claims they attended high school and university together. She does not have any evidence of her relationship because it has been a long time and she lost everything when she came to Australia. She stated her then boyfriend abused her physically whether under the influence of alcohol or not, but she has no medical evidence of injuries or treatment because it had been a long time ago. She stated that one day after a big fight she ran away and ended up having a car accident in which she broke her shoulder and had to go to hospital. She stated that when she didn’t go back to him he threatened to kill her and because she was scared she returned. She stated that the violence continued. She stated that he took her bank card and her money. She stated that she could not report him to the police because he threatened to kill her. She stated that she lived in Bangkok, Phuket, Chanthaburi and Chainat in efforts to hide from her then boyfriend but she was always found. She stated that she came to Australia to escape harm and is truly sorry for her mistakes.
A letter from [Mr A] dated 26 May 2023 indicates his willingness and ability to offer employment to the applicant should she be allowed to remain in Australia. [Mr A] stated he has known the applicant since November 2013 and has remained in touch on a personal level.
On 9 June 2023, the Department received a further letter from the applicant stating that [Mr A] is her boyfriend who she claimed was willing to support her upon her release from [immigration detention].
The delegate’s decision relating to the Protection visa application
On 13 June 2023, the delegate refused to grant the applicant a Protection visa. The delegate was not satisfied her claims are genuine and did not accept she would suffer domestic violence perpetrated by her former boyfriend if she returned to Thailand.
Tribunal proceedings
On 7 August 2023, the applicant submitted the following evidence to the Tribunal.
a.Letter from [Mr A] dated 5 June 2023. [Mr A] states that he has known the applicant since November 2013 and has had a personal relationship with her ever since. He states that he visits the applicant at the [immigration detention centre] regularly. He states his willingness to support the applicant financially and with accommodation.
b.Letter from [Mr A] dated 26 May 2023 (see above).
c.Letter from the applicant dated 5 June 2023 (see above).
d.Letter from [Ms C] dated 5 June 2023. The author states that she has known the applicant for 10 years and that she once spoke to her about the abuse she suffered in Thailand at the hands of her former boyfriend. That this was the reason she left Thailand for Australia and the reason the applicant fears harm if returned to Thailand.
e.A further letter from the applicant explaining the circumstances which led to her criminal conviction and expressing remorse and steps she has taken toward rehabilitation.
On 11 August 2023, the applicant appeared before the Tribunal remotely from the [immigration detention centre]. Discussions were held about the applicant’s background in Thailand, her claimed past harm at the hands of a former partner and her reasons for fearing a return to Thailand now. The relevant aspects of her testimony are summarised in the below findings and reasons.
COUNTRY INFORMATION
According to the Department of Foreign Affairs and Trade’s latest country information report for Thailand, domestic, family, and/or gender-based violence is a significant problem in Thailand. While it affects all sections of Thai society, it is reportedly particularly prevalent among ethnic minority groups. The number of reported cases of domestic violence have increased in recent years, although advocates attribute this as being due to an increasing willingness of survivors to report than was previously the case. The government operates shelters in each province for those who have experienced domestic violence, while all state-run hospitals include crisis centres that care for abused women and children. The Ministry of Public Health operates one-stop crisis centres nationwide that provide information and services, while the Ministry of Social Development and Human Security runs a community-based system that focuses on training community representatives on women’s rights and abuse prevention. According to government representatives, if a person who has experienced domestic violence asks to relocate, officials will try to facilitate their move to another province. Successfully doing so is more difficult for women with children.
The Family Institute Protection Act (2019) came into force in August 2019. The new law standardises definitions of family violence (which previously differed across different ministries), aims to improve coordination between relevant agencies, and generally includes stronger measures to protect victims and to make perpetrators accountable for their actions than the earlier Victims of Domestic Violence Protection Act (2007). The new law allows third parties to report cases of domestic violence (rather than just the victim), makes family violence a criminal offence and mandates prosecution, and allows officials of the Ministry of Social Development and Human Security to impose a 48-hour restraining order, even without a court order, against those who have allegedly committed domestic abuse against a spouse. In addition to making financial support and other assistance available for victims of violence, the new law gives victims a voice in whether to pursue a criminal justice or restorative justice path. It also covers the conduct of the perpetrator, including through providing services and provisions to help prevent recurrence. Where relevant, perpetrators may be required to undergo behavioural adjustment, such as substance abuse treatment. [1]
[1] DFAT Country Information Report Thailand, 10 July 2020
Notwithstanding that legal protections exist, NGOs report that victims underreport rapes and domestic assaults, in part due to a lack of understanding by authorities that impedes effective implementation of the law regarding violence against women. NGOs also report the government underfunds agencies tasked with addressing domestic violence, with victims often perceiving police incapable of bringing perpetrators to justice.[2]
FINDINGS AND REASONS
[2] 2022 Country Reports of Human Rights Practices: Thailand, US Department of State
Country of reference
Based on the information before it, and in the absence of any information to the contrary, the Tribunal accepts the applicant is a national of Thailand and has assessed her claims against Thailand.
Past Gender Based Violence
The Tribunal has considered the applicants written and oral evidence and the supporting documentation she has provided. For a number of reasons the Tribunal is concerned that her claims may not be entirely truthful. Her evidence in respect of her claimed partner and their shared life together in Thailand was vague in many respects. For instance, despite claiming a lengthy relationship of a minimum of six to seven years she could not recall his birth date and the information provided in respect of their joint places of residence in Ratchaburi and Bangkok was limited to naming the districts in which they lived. Furthermore, as discussed with her at hearing the lengthy delay between her arrival in Australia in 2008 and the lodgement of the application for a Protection Visa in 2023, only after being placed in immigration detention, is concerning and adds to the Tribunals doubts that she may not have departed Thailand for the reasons claimed and is not fearful of returning to Thailand for the essential reason claimed. However, she has consistently maintained that she endured past violence at the hands of her former partner in Thailand and she appeared to display genuine emotion when discussing those events during the hearing. While not without some doubts, the Tribunal has afforded the applicant the benefit of the doubt and is prepared to accept that she may have been physically and emotionally abused by her former partner over a number of years in Thailand. The Tribunal accepts she ultimately ended the relationship approximately two months prior to leaving Thailand and resided with her mother in those months prior to her departure to Australia.
Future Gender Based Violence

During the hearing the applicant was asked what contact she has had with her former partner in the fifteen years she has lived in Australia. She said that she received some emails from him in the first two or three months following her arrival in which he enquired about her wellbeing and asked her to come back to him. Thereafter, in the first year of her residency in Australia, she received less frequent communication from him and nothing at all thereafter. At no point in this discussion did the applicant indicate that her former partner in Thailand had threatened her in any of the communication she viewed during the first year she resided in Australia. The Tribunal has considered her testimony at hearing that she simply stopped checking her emails at a certain point and has since forgotten the password to that email account. However, in the absence of any threats made during the first year of their separation the Tribunal considers it unlikely that any further unread correspondence from him was of a threatening nature.
The Tribunal has considered the applicant’s oral testimony that her former partner lives in the same neighbourhood as her mother and that her mother has told her that she has seen him driving past their house. When discussing this further with her during the hearing she noted that he lives just a 5 minute drive from her mother and the Tribunal put it to her that it doesn’t seem surprising then that he may have been seen driving close to her house.
According to the applicant’s testimony her relationship with her former partner ended fifteen years ago and she has not claimed nor produced evidence of any threatening behaviour by him since she departed Thailand. Based on the available evidence the Tribunal considers his claimed presence near her mother’s house is nothing more than a coincidence and does not accept he is monitoring her mother’s house for her possible return to Thailand.
As noted during the hearing the applicant and her former partner were never married, have no children or joint assets, their relationship ended fifteen years ago and there has been no reported threatening behaviour from him in the years she has resided in Australia. Notably, when afforded an opportunity to respond to these observations during the hearing the applicant did not comment.
Despite that the applicant’s former partner may not have formed another relationship, as claimed by the applicant during the hearing, the Tribunal is not persuaded that there is any objective basis for concluding that he continues to retain an interest in reconciling their relationship and/or would be motivated to harm her should she return to Thailand. The Tribunal is satisfied that the chance of the applicant facing further harm at the hands of her former partner in Thailand now is remote.
In any event, section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Even if the Tribunal’s assessment of her former partner’s likely future behaviour is wrong, the above country information indicates that despite some shortcomings there nevertheless are adequate legislative and social protections in place in Thailand for victims of gender-based violence. As discussed with the applicant during the hearing these protections were reportedly further strengthened when the Family Institute Protection Act (2019) came into force in August 2019. Relevantly, the new law standardises definitions of family violence (which previously differed across different ministries), aims to improve coordination between relevant agencies, and generally includes stronger measures to protect victims and to make perpetrators accountable for their actions than the earlier Victims of Domestic Violence Protection Act (2007). When afforded an opportunity to comment on the effectiveness of state protection in Thailand during the hearing the applicant provided no comment.
Based on the abovementioned country information the Tribunal is satisfied that the applicant could avail herself of effective state protection in the very unlikely event that her former partner tried to harm her in future. Accordingly, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm from her former partner if she returns to Thailand now or in the reasonably foreseeable future.
During the hearing the applicant claimed that she has not maintained any friendships in Thailand and could only live with her mother for a short while if she had to return to Thailand. She said she has no money, did not complete her university degree and would not know how to look for a job in Thailand. The Tribunal accepts that the applicant will likely encounter some challenges re-establishing her life in Thailand after a lengthy time abroad. However, based on the available evidence the Tribunal is not persuaded that she would be unable to find employment and longer-term accommodation on return to Thailand. Based on her oral testimony she received two years of tertiary education in Thailand, studied English in Australia and has some previous work experience [in] Thailand. In Australia she has gained experience in [a] sector and also worked for a while in [another] industry. The Tribunal considers she is well placed to find employment in Thailand. Despite suggesting at hearing that her age could be an impediment to her finding work she has provided no evidence to persuade the Tribunal that at age [age] she will be unable to find meaningful employment in Thailand. As she attempts to re-establish herself the Tribunal also considers it likely that she will have some limited support from her mother and/or her Australian partner of some ten years standing. While she maintained at hearing that it remains unclear how her current partner will react if she is required to return to Thailand the written testimony he has provided indicates he is more than willing to support her financially in Australia and the Tribunal considers there is a good chance he would continue to do so, at least initially, if she was required to return to Thailand. Accordingly, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if she returns to Thailand for reason of having little personal support and being unable to find employment.
The applicant did not indicate that she fears returning to Thailand for any other reason.
CONCLUDING PARAGRAPHS
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). As noted above the Tribunal is not satisfied that the applicant’s former partner will seek to harm her if she returns to Thailand. In any event, the Tribunal notes that there is taken not to be a real risk of significant harm if a 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. Based on the abovementioned country information and findings the Tribunal is satisfied that the applicant could avail herself of protection from an authority of the country, such that there would not be a real risk she would suffer significant harm, in the unlikely event that her former partner tried to harm her in future. Furthermore, the Tribunal considers the applicant is well placed to find employment on return to Thailand and is not persuaded she would suffer significant harm for reason of being unemployed and without the means to subsist. Accordingly, the Tribunal is also 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.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3711

14 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice