2311461 (Refugee)

2311461 (Refugee) [2023] AATA 4776 (16 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Dushan Nikolic
CASE NUMBER:  2311461
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Nathan Goetz
DATE:16 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 November 2023 at 1:13pm
CATCHWORDS
REFUGEE – protection visa – Thailand – convicted of criminal offence and liable to term of imprisonment – official complaint that case was commenced in retaliation for earlier civil proceedings and decided corruptly – departure and return while trial pending not declared and suggests no official attention – no applications for protection in third countries – final departure unlawful – not immigration cleared and in immigration detention – married to Australian citizen – country information – judicial system and prison conditions – imprisonment not for convention reason – remote chance of significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 425(1)
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant was represented by an Australian legal practitioner in the review.
BACKGROUND
[In] May 2023 the applicant arrived in Australia by airplane. The applicant was not immigration cleared and is an unlawful non-citizen in Australia.
On 23 May 2023 the applicant applied for the protection visa. On 14 June 2023 the applicant participated in an interview with the delegate to discuss her protection claims. On 31 July 2023 the applicant applied to the Tribunal for review of the decision to refuse to grant her a protection visa.
On 23 August 2023 the Tribunal wrote to the applicant under s 425(1) of the Act and invited her to appear at a Tribunal hearing scheduled for 12 September 2023 so she could give evidence and present arguments. As the applicant was in an immigration detention centre, the Tribunal determined that an appearance by the applicant through MS Teams was appropriate.
On 4 September 2023 the representative wrote to the applicant and requested that the Tribunal hearing occur in person at the Melbourne registry. The Tribunal agreed to this request.
On 12 September 2023 the applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Thai languages. The representative attended the Tribunal hearing as did the applicant’s husband.
Following the conclusion of the Tribunal hearing, the representative requested that a decision be delayed so that further submissions could be submitted following to address some of the matters raised at the Tribunal hearing.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
CONSIDERATION AND FINDINGS
The Tribunal has considered all the material on the applicant’s protection visa application file, including the recording of what she told the delegate at interview. The Tribunal has considered all the material the material provided to the Tribunal in the course of the review, including what she told the Tribunal at the hearing.
The Tribunal considered the evidence and claims individually and cumulatively.
The issue in this review is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a person who is a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
If the Tribunal is satisfied that the applicant is either a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a person who is a member of the same family unit of such a person, then the correct or preferable decision is to set aside the decision of the delegate refusing to grant the applicant the protection visa and remit the visa application back to the delegate for reconsideration with a permissible direction.
If the Tribunal is not satisfied that the applicant is either a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a person who is a member of the same family unit of such a person, then the correct or preferable decision is to affirm the decision to refuse to grant the applicant the protection visa.
For the following reasons, the Tribunal has determined that the correct or preferable decision is to affirm the decision to refuse to grant the applicant the protection visa.
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 (DHA), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT Country Information Report for Thailand is dated 10 July 2020 and the Tribunal considered its contents.
Identity and country of reference
In the protection visa application form, the applicant identified that her name is [the applicant] and that she was born on [Date] in [Town], Thailand. She was previously known as [Previous name] but changed her name when she married. She identified her spouse as [Mr A], who is an Australian citizen.
In a submission to the delegate, it was claimed that the applicant was previously known as [Alias] and that she changed her name 15 years ago. The delegate also noted that some documents provided by the applicant suggested her name as being [Alias – alternative spelling], which the Tribunal understands to be a slight variation of the spelling.
The applicant declared that she was a citizen of Thailand from birth and that she does not hold citizenship of any other country. She also declared that she does not have the right to enter and reside in any other country.
In support of her identity, the applicant provided Kingdom of Thailand passports issued as follows:
· [2017] in the name of [Previous name] and valid until [2022].
· [2022] in the name of [the applicant] and vail until [2032].
Based on the applicant’s passports, and in the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is [the applicant], who has previously been known by other names, and that the applicant is a citizen of Thailand with no right to enter and reside in any third country.
Therefore, for the purpose of the protection visa assessment, the country of reference is Thailand.
Member of the same family unit
In the protection visa application form, the applicant was the only person included in the protection visa application. She detailed the identity of her husband, but he was not included in the protection visa application because he was an Australian citizen.
Based on this concession, and in the absence of any evidence to the contrary, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Protection claims
The applicant’s protection claims are contained in the protection visa application form, as well as in the various submissions and oral evidence of the applicant.
Where the Tribunal raised credibility concerns at the Tribunal hearing, and the applicant provided satisfactory responses to those concerns, those concerns have not been detailed in this decision record.
Documents relating to the applicant specifically (without repeating documents that are both in Thai and in English) in support of her protection claims. Those documents, where relevant to the Tribunal’s findings, are identified in addressing the applicant’s claims.
Claims related to the loss of her [property] and resulting civil and criminal proceedings
The applicant claimed that she was sentenced by [a] Provincial Court in Thailand [in] February 2020 (where she was a joint defendant with her company) to a period of 20 years imprisonment for [offences]. The offending related to [Details of offence]. The applicant provided an English translation of the Judgement of that Court.
The applicant claimed exculpatory evidence was not included in the court file or considered by that court, despite her lodging a document including all her evidence. She provided a copy of that petition in English dated [December] 2019.
The applicant complained about the conduct of the trial to the Thailand Office of the Judiciary [in] January 2020, which has the powers and duties regarding the administrative works of the court system, including judicial fairs and to ensure that trial and adjudication are carried out expediently, speedily and efficiently.[1] The applicant provided an English translation of this letter.
[1] Court of Justice Thailand website: >
The Thailand Office of the Judiciary dismissed her complaint by letter of [April] 2020, detailing that the court had ordered that the prosecution and the defence documents be kept separate. The applicant provided an English translation of this letter.
The applicant appealed against the judgment and sentence of the [Provincial Court to the Court of Appeal. [In] November 2020 the Court of Appeal amended the judgment of the [Provincial Court], dismissing some charges and resentencing the applicant to imprisonment for 4 years. The applicant provided an English translation of the Judgment of that Court.
The applicant claims that the Court of Appeal deliberately imposed a sentence of less than 5 years imprisonment to prohibit the applicant from seeking a dika appeal. The term ‘dika appeal’ means an appeal to the Supreme Court of Thailand.[2] The applicant provided a copy of the Thailand Criminal Code directing the Tribunal to s 218 of that Code which provides that in the case where the Appeal Court has confirmed the judgment of the lower court or modified it only on immaterial points, and sentenced the accused to imprisonment for a term not exceeding 5 years or to a fine, or to both fine and imprisonment for a term not exceeding 5 years, there shall be no right to dika appeal on questions of fact.
[2] Thailand Court of Appeal website: >
The applicant lodged some type of interlocutory petition in the Supreme Court on December 2020 during the time that the applicant was living in [Country 1], but this was not related to the criminal case but rather the proceedings connected with her [property]. The status of the proceeding remains unknown.
The applicant claims that the criminal case against her and her company, was commenced in retaliation for earlier civil proceedings that she commenced [in] April 2018 to recover a [property] that [Company 1] had purchased [in] August 2017 at a public auction. This property had been the subject of an acquisition of the preferential mortgage right from [Company 2]. The applicant sought to revoke the sale of the [property] because the sale was conducted without a warrant of execution by filing a petition in [a] Court [in] January 2017 but it was dismissed. The applicant then commenced proceedings [in] September 2018 to recover her [property].
It was claimed that as a result of the applicant filing a lawsuit concerning the sale of the [property], and as a result of a complaint the applicant made against [Mr B] of [a] Department who was responsible for the sale of the property, the applicant was charged with the criminal offences for which she ultimately received a sentence of imprisonment. The applicant claimed that the transfer of her [property] was done dishonestly.
The applicant provided a photograph of sale sign on her [property] and the evidence. The Tribunal accepts that the [property] was taken as part of civil proceedings and that the applicant has initiated proceedings in an attempt to recover the property.
The DFAT Country Information Report, which the applicant provided the Tribunal, makes the following assessments in relation to the judiciary in Thailand.
The Constitution provides the right to a fair and public trial and for the presumption of innocence. Defendants in ordinary criminal courts enjoy a broad range of legal rights, including accessing a lawyer of their choosing, prompt and detailed information on the charges, and the right to appeal, among others. In-country sources report that although Thais continue to hold the judiciary in high regard compared to other institutions, general confidence in the judicial system has fallen since the May 2014 coup with a belief that the judiciary has become politicized. The Report notes that there is evidence to suggest that authorities pressure judges to deliver the ‘right’ outcome in politically sensitive cases. DFAT’s assessment is that individuals involved in politically sensitive cases are less likely to receive a fair trial than those involved in ordinary criminal or civil matters.
Having considered the material, the Tribunal is satisfied that the applicant was charged with criminal offending and that as a result of that offending, she is liable to serve 4 years imprisonment per the Judgement of the Court of Appeal of [February] 2020. The Tribunal accepts the veracity of the documents provided about that fact.
The Tribunal has considered the applicant’s evidence concerning what she claims was a criminal prosecution in response to her making complaints against those responsible for the sale of her [property], but is not persuaded that the reason the applicant’s evidence was excluded or that she was found guilty by the [Provincial Court] and sentenced to imprisonment, or that the reason the Court of Appeal determined her appeal in the way that it did was due to an improper purpose. The Tribunal acknowledges that the applicant’s husband provided a written statement and told the Tribunal at the hearing about his belief the evidence at the [Provincial Court] was excluded for an improper purpose, but apart from both his and the applicant’s belief about this, there is no independent evidence to confirm that this is the case. Likewise, the sentence imposed by the Court of Appeal, which resulted in the applicant being resentenced to 4 years imprisonment instead of the 20 years, does not satisfy the Tribunal that the reason it was done was to deprive the applicant of a dika appeal right to the Supreme Court.
In the Tribunal’s assessment, the applicant and her husband are unhappy with the verdict of the [Provincial Court], as well as the result of the appeal to the Court of Appeal. They genuinely believe that the applicant is not guilty of the offences to which she has been ultimately sentenced. There would be many people sitting in Australian jails who feel the same way, and like the applicant and her husband, labour under a belief that the legal process must have been corrupted because they should not have been found guilty and sentenced to imprisonment. That does not establish the facts that there was corruption in the applicant’s criminal justice process. The judgement of the [Provincial Court] suggests that the applicant’s defence was taken into account by the judge but not accepted. The applicant has been unable to persuade the Tribunal that the argument was not accepted because of irrelevant considerations, or a conspiracy to target or harm the applicant.
The Tribunal is not satisfied that because the applicant wrote a letter of complaint to the Office of the Judiciary, or that because she initiated civil action in an attempt to recover her property, that the applicant is being targeted in a sense of being persecuted, or that she has been significantly harmed because of those actions.
In the Tribunal’s assessment, if the applicant was being deliberately by a criminal case being initiated against her, the Tribunal’s assessment is that she would not have been at liberty throughout those proceedings, nor would her appeal to the Court of Appeal been accepted. Although the Tribunal accepts that the applicant’s complaints are necessarily against agents of the state, being the [Provincial Court] and public servants concerning the loss of her [property], the Tribunal is not satisfied that this resulted in the applicant having any political profile or that her criminal cases is a ‘politically sensitive case’ that has resulted on her being less likely to receive a fair trial.

This finding is further reinforced by the fact that the applicant told the Tribunal at the Tribunal hearing that she departed Thailand [in] September 2019 (which was after she was charged with the criminal offending in November 2018) and returned to Thailand after three or four days. The Tribunal’s assessment is that if the applicant was being deliberately targeted by Thai authorities because of her complaints concerning the [property], she would not have been permitted to leave the country. The Tribunal also observes that this travel was not declared in her travel history, which may suggest that the applicant was prepared to withhold evidence that may undermine the basis of her protection claims. Given the direct question in the form, the Tribunal is not persuaded that the applicant did not declare that travel because she was not asked about it.
In any event, the Tribunal is satisfied that the applicant’s criminal cases, and appeal process, is demonstrative that the applicant is not being deliberately targeted by Thai authorities because of the civil action she initiated concerning her [property] or because of any other reason.
The Tribunal also observes that the applicant told the Tribunal that she had never been physically harmed in Thailand in connection with her cases. The Tribunal is not persuaded if the applicant was being targeted in the circumstances she claimed, no physical harm would have occurred.
The Tribunal is not satisfied that the applicant was persecuted because of her race, religion, nationality, membership of a particular social group or political opinion by being charged, tried, convicted and sentenced. The Tribunal is not satisfied that by the applicant being required to return to Thailand, she will be imprisoned because of system and discriminatory conduct towards her on the basis of her race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that the applicant being liable to imprisonment for criminal offending that she does not believe she has committed is significant harm as defined in the Act.
The Tribunal is also not satisfied that applicant’s loss of her [property] was done for nefarious reasons. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Thailand because she no longer owns that condominium and is not satisfied that the applicant no longer having her [property] in Thailand means that there is a real risk of significant harm to her as a person returning to Thailand whose property has been sold.
Claims relating to prison conditions
The Tribunal accepts that if the applicant returns to Thailand in the reasonably foreseeable future, she will be required to serve 4 years imprisonment for the offences that she has been found guilty.
In all likelihood, the applicant would be intercepted by Thai authorities at the airport and taken into criminal custody at entry, especially because the DFAT Country Information Report suggests that individuals would likely come to official attention on return to Thailand if they had committed an immigration offence while departing, such as leaving the country not by a designated checkpoint. The Tribunal is satisfied that the applicant is credible concerning her migration journey, namely that she left [Country 2] in February 2011 and did not return.
According to the DFAT Country Information Report, the Department of Corrections administers prisons in Thailand, which are the responsibility of the Ministry of Justice. That Report also notes that overcrowding is a significant issue, with prison and detention facility populations holding approximately 60 per cent more than designated capacity. In some prison and detention facilities, sleeping accommodations are insufficient, there are persistent reports of poor facility ventilation, and a lack of sufficient medical care is a significant problem. Prisons provide prisoners with few daily provisions, with prisoners being required to purchase their own personal hygiene items and food. There are apparently 144 established prisons nationwide in Thailand.
That being observed, the delegate decision record details that since 2015, the Thai Department of Corrections and Thailand Institute of Justice have been working together to implement the United Nations Rules for the Treatment of Women Prisoners in order to improve prison conditions (‘the Bangkok Rules’). The delegate decision record refers to a report ‘Dignity Behind Bars’ which reported that the female section of the prisons that have implemented the ‘Bangkok Rules’ regularly offers occupational workshops to its inhabitants, which include lessons on cooking, coffee-making, bakery, massage, beauty, handicraft-making and more.
The Tribunal’s assessment is that Thailand is taking steps to improve prison conditions, particularly for female prisoners. While the prison system in Thailand may not be comparable to that of Australia, the Tribunal is satisfied that the applicant will receive fair treatment in a custodial setting, and the Tribunal is not satisfied that the applicant will be subjected to an intentional infliction of significant harm as required by the Act. The Tribunal is satisfied that the chance of the applicant being subjected to significant harm in prison is remote.
Evidence concerning the applicant’s travel out of Thailand and various complaints made to people about her treatment in Thailand
The applicant claims that she left Thailand in February 2021 unlawfully and escaped the border to [Country 2]. Evidence was provided about how that travel was secured, and the Tribunal accepts this as true. The Tribunal accepts that the applicant subsequent to her departure from [Country 2], she has resided for periods of time in [Country 3], as well as [Country 1], and that she has previously been detained at [City] in [Country 3].
The applicant leaving Thailand may be corroborative of the applicant fleeing persecution or fleeing to avoid significant harm in Thailand in the future. It may also be evidence of the applicant fleeing Thailand to avoid a lawfully imposed criminal sanction. In the circumstances of this case, the Tribunal is satisfied it is the latter because the Tribunal is not satisfied that the applicant has been targeted with criminal prosecution because of her complaint and civil case concerning the transfer of her [property].
At the Tribunal hearing, the Tribunal was told that she did not seek asylum in [Country 1][3] because the applicant was ‘waiting for the Supreme Court to get back to them.’ It was also suggested that they consulted a lawyer in [Country 1] to explore remaining in that country. A similar response was provided about why the applicant did not seek asylum when she was in [Country 3][4], adding that she does not do so because her intention was to go to [Country 4] and seek protection.
[3] United Nations High Commissioner for Human Rights 1]
[4] United Nations High Commissioner for Human Rights >
The Tribunal finds it incredulous to believe that if the applicant was being targeted through criminal prosecution in Thailand, and believed that the judiciary in Thailand was corrupt, the applicant would have confidence that the Supreme Court of Thailand would do anything other than be in conclusion with the corruption. The Tribunal is not satisfied that the applicant’s circumstances in Thailand would prevent her from seeking asylum in [Country 1] or [Country 3] if she genuinely believed she was being targeted by Thai authorities.
The Tribunal acknowledges that the applicant provided various documents to corroborate the belief that they applicant was being targeted by Thai authorities because of her proceedings and complaints involving her [property]. These include, among others, text messages to a Sydney based lawyer when the applicant was in [Country 2], a letter dated 11 August 2022 to the Australian Minister for Home Affairs, a letter dated 5 July 2022 to the Thai Senate, a letter dated 3 August 2021 from the applicant’s husband to a [City, Country 5] based lawyer, as well as an acknowledgment from a police officer with the Australian Federal Police which appears to suggest that the applicant and her husband had submitted documents to that person. The applicant also provided screen shots of Facebook friend requests from people who were identified as Thai Royal Police and Thai Prison guards.
However, the Tribunal is not satisfied that those documents are corroborative of the applicant’s claims that she is being targeted by Thai authorities. In the circumstances of this case, the Tribunal assesses those documents as an attempt to put a complexion on the circumstances of the seizure of the applicant’s [property], resulting complaints and civil proceeding, and the criminal proceedings that is not true.
CONCLUSION
The Tribunal is satisfied that the applicant will return to Thailand and be required to serve 4 years imprisonment. The Tribunal is not satisfied that the loss of her [property] and resulting civil proceedings or claims was done because she was being ‘targeted’ by Thai authorities, or that criminal proceedings were initiated against her because she was being ‘targeted’ because of the complaint or proceedings in connection with the loss of her [property].
The Tribunal is satisfied that the applicant will return to Thailand as a person who is required to serve a term of imprisonment. The Tribunal is not satisfied that the imposition of the imprisonment is ‘persecution’ and is not satisfied that the imprisonment is significant harm.
Refugee
For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Thailand based on her race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Thailand, there is a real risk the applicant will suffer significant harm as defined in the Act.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz

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 4776

16 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction