2313582 (Refugee) - [2025] ARTA 748

2313582 (REFUGEE) [2025] ARTA 748 (14 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2313582
Tribunal:General Member C Duffy
Date:14 March 2025

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

Statement made on 14 March 2025 at 3:49pm
CATCHWORDS
REFUGEE – protection visa – Thailand – economic conditions and debt, and future opportunities for child – consent to decision without hearing – generally stated claims – members of family unit wife and child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), (4), 5H(1)(a), 5J(1), (5)(d), (f), 36(2)(a), (aa), (2A), 65, 348A(1)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106(1), (3)(b)(ii)
CASE
Randhawa v MILGEA (1994) 52 FCR 437
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[1]
APPLICATION FOR REVIEW
[1] The structure of these reasons is generally adopted from another matter (2014959) in which the Tribunal, as presently constituted, issued a decision on the papers under section 106(3) of the ART Act.

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 August 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
In their application for a protection visa of 23 March 2023, the applicants asserted that they were nationals of Thailand and that they were seeking protection from, and could not return to, Thailand. Three members of the same family were included in the protection visa application form, however, only the first applicant (the male applicant) made substantive claims for protection. The second and third applicants (the spouse and child of the first applicant) did not have individual claims of their own but were rather seeking protection on the grounds that they are members of the same family unit as the first applicant.
By a decision of 16 August 2023, the delegate refused to grant the visas on the basis that the first applicant was neither a refugee, nor a person in respect of whom Australia owed ‘complementary protection’, under the Act.[2] Further, that neither the second nor third applicants were owed protection as the members of the same family unit of someone in respect of whom protection was owed under the Act.
[2] “The applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations[…].”
The first applicant sought review of the delegate’s decision to refuse to grant him a protection visa with the then Administrative Appeals Tribunal (AAT) on 3 February 2023. The second and third applicants were identified as persons also seeking review of the decision. Along with this application, the first applicant provided the Tribunal with a copy of the delegate’s decision, and the letter notifying him of same. The residential address, mobile telephone number, and email address were all the same as those that had been provided in the applicants’ original application for a protection visa.
On 14 October 2024, the AAT became the Administrative Appeals Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 4 September 2023, the Tribunal wrote to the applicants, acknowledging receipt of their applications for review. The letter told the applicants to provide any material or written arguments they wished the Tribunal to consider as soon as possible.
On 23 September 2024 the applicants wrote to the Tribunal seeking confirmation of their pending applications before it, for the purposes of Medicare enrolment. This was provided.
On 12 February 2025, the Tribunal notified the applicants that a hearing in their matter would take place on 27 February 2025, at 10am. They were asked, in that letter, to provide all documents upon which they intended to rely in support of their case by 20 February 2025, should they not have already done so. That letter also advised the applicants that if they wanted to request the Tribunal to make a decision without holding a hearing, they could use the enclosed ‘Response to hearing notice’ form to do so. The letter noted that if the applicants made such a request, this would not guarantee a decision favourable to them.
On 13 February 2025, the applicants wrote to the Tribunal, as follows:
“[…] I have been discussed with my family and we decided that we will not attend in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing.”
In addition, the applicants attached to that email a completed ‘Response to hearing notice’ form. It indicated, in salient part, that none of the first, second, nor third applicant would participate in the hearing of 27 February and that they requested the Tribunal to make a decision on the papers. Further, the document indicated that the applicants had no (further) documents nor witnesses to rely upon in support of their application. The document was apparently signed by the first applicant.
On 18 February 2025, the Tribunal wrote to the first applicant indicating that the Tribunal would proceed to make a decision on the papers in his matter, as per his request and that he would be notified of the outcome in due course. Further, that in light of this decision (to proceed on the papers), the hearing of 27 February 2025 would be cancelled.
Accordingly, the Tribunal notes, firstly, and noting the following reasons, that it has determined as a preliminary matter to make its decision in this proceeding without holding a hearing—that is, after considering only the documents and things given to it, in accordance with section 106(1) and (3) of the Administrative Review Tribunal Act 2024 (‘ART Act’). Having outlined the reasons why it has decided to proceed under this provision without holding a hearing, the Tribunal will then go on to consider the merits of the applicants’ substantive claims.
Preliminary matter—decision without a hearing
Section 106 of the ART Act provides, in relevant part:
(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to [it] and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.
[…]
Where only parties are applicant and non-participating party to the proceeding or hearing
(3) This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and
(b) either:
(i) the decision is wholly in favour of the applicant; or
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
In accordance with section 106(3)(a), the only parties to this proceeding are the first, second and third applicants and a non-participating party to the proceeding (the Minister for Immigration and Multicultural Affairs).[3]
[3] By virtue of section 348A(1) of the Migration Act, the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act.
The Tribunal is satisfied, in accordance with section 106(3)(b)(ii), that the applicants have requested the Tribunal to make its decision without holding the hearing of the proceeding.
The Tribunal has further decided that the issues in this proceeding can be adequately determined in the absence of the parties to the proceeding (in this case, the applicants) for the following reasons.
The issues for determination in this proceeding are:
a.Whether the first applicant is a non-citizen in Australia in respect of whom the Minister has protection obligations because he is a refugee; and/or
b.Whether the first applicant is a non-citizen in Australia in respect of whom there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Thailand, there is a real risk that he will suffer significant harm.
c.If ‘yes’ to either of the above questions, whether the second and third applicants are non-citizens in Australia who are members of the same family unit as the first applicant.[4]
[4] An additional issue may arise in circumstances where such applicants appear, from the material before the Tribunal, to have additional claim/s under either of section 36(2)(a) or 36(2)(aa) in their own right. This will be addressed further below, at paragraphs 51-53.
Before the Tribunal is a copy of the Department’s file relating to the applicants. It contains within it, inter alia, the applicants’ application/s for protection visas dated 23 March 2023, which sets out the first applicant’s (referred to in the application form as the ‘main applicant’) grounds for seeking a protection visa.
The departmental records show that, on 21 April 2023, the Department wrote to the applicants acknowledging receipt, and the validity, of their applications and—under a heading ‘Processing your application’, advised the applicants to bring any additional information they wished to have considered by the Department to their appointment for the collection of their ‘personal identifiers’ (ie. fingerprints and/or photographs etc.). The applicants were also told that a decision could be made on their applications at any time (ie. without them being afforded any further opportunity to provide information). The applicants were invited to attend that appointment on 12 July 2023, which, the records also show, they did. Following this appointment, the Department proceeded to make a decision (dated 16 August 2023, which is before the Tribunal). Other than the personal identifying information, the applicants did not provide any further information in support of their claims following the lodgement of their protection visa application form.
On 12 July 2023, all three applicants provided the Department with biometrics information (photographs and fingerprints). This included scanned colour images of the bio data pages of each of their Thai passports. These three images show the following:
·The first applicant was born on [Date], in Khon Kaen province[5];
·The second applicant (the first applicant’s spouse) was born on [Date], also in Khon Kaen province;
·The third applicant (the child of the first and second applicants) was born on [Date], in Khon Kaen province. He shares a surname with the first applicant.
[5] ‘Khon Kaen’ is both a province and a city, the city of the same name being the capital of the province.
The applicants’ protection visa application form indicates that their ethnic group is ‘Thai’ and that their religion is Buddhism.
At the time of the lodgement of the application form for a protection visa, the applicants were living in a suburb of Brisbane.
From this information, conclusions can be drawn as to the applicants’ identity, personal details and receiving country. Conclusions can also be drawn as to the bases for their applications for protection.
Section 5AAA(2) of the Migration Act notes that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, as well to provide sufficient evidence to establish the claim. Further, in line with section 5AAA(4), it is not the responsibility nor the obligation of the Tribunal to establish, or to assist in establishing, the applicant’s claim.
The Tribunal considers that the applicants have had ample opportunity and reminders to provide to the Department, and to the Tribunal, any additional information upon which they would like the decision-maker to rely. The applicants have submitted an application form for a protection visa wherein their claims are stated. They have elected not to provide any further material in support of those claims. They have further elected not to participate in an oral hearing. The Tribunal has before it, inter alia, the legal framework for the grant of a protection visa, the delegate’s decision, and the protection visa application form outlining the claims made by the applicants (with the substantive claims being made by the first applicant, and the second and third applicants effectively joining to those claims as members of the first applicant’s family). The Tribunal is sufficiently able to determine the applicants’ claims against the relevant criteria on the information before it. The Tribunal considers that the term ‘adequately determine’ does not mean ‘adequately determine’ in favour of the applicants.
The Tribunal is satisfied that the issues for determination in this proceeding can be adequately determined in the absence of the parties to the proceeding (in this case, the applicant). The Tribunal notes the objectives in section 9 of the ART Act which include the Tribunal providing a mechanism of review that is fair and just (section 9(a)), and which ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense as a proper consideration of the matters before the Tribunal permits (section 9(b)). The Tribunal must pursue the objective of providing a mechanism of review that promotes public trust and confidence in it (section 9(e)). The Tribunal has additionally considered these objectives in deciding that the issues before it can be adequately determined without holding a hearing in the matter.
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).
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
As previously noted, the issue in this case is whether the first applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds; additionally, if either of those questions is answered in the affirmative, whether the second and third applicants are members of the first applicant’s family. And, as a corollary, whether any additional substantive claims are apparent on the face of the application in relation to the second and third applicants (ie. whether they, or either of them, have substantive claims in their own right).
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
The Tribunal notes that the applicants attended on the Department to provide personal identifiers, as outlined above. All of this material is before the Tribunal as part of the Department’s file. The delegate did not have any concerns about the applicants’ claimed identity or nationality. Accordingly, the Tribunal accepts that the applicants are nationals of Thailand and will proceed to treat Thailand as their receiving country for the purposes of assessing their protection claims.
The Tribunal further accepts that: the first applicant is currently [Age] years old; that the second applicant is the first applicant’s spouse and is currently [Age] years old, and that the third applicant is the child of the first and second applicants) and is currently [Age] years old.
The Tribunal accepts, as true, that the applicants’ ethnic group is ‘Thai’ and that their religion is Buddhism, as stated in their protection visa application form.
The Tribunal notes that the applicants were granted FA600P000 visitors’ visas on 21 November 2022 which ceased on 23 March 2023, and that they arrived in Australia [in] December 2022. The applicants applied for protection on the expiry date of that visa.
The first applicant states, in his application, that he is neither currently employed, nor has he ever been employed. In respect of how he occupied his time and financially supported himself during this time, he states “nil” in response to the prompt “[a]ctivities undertaken” and “self-supporting” in respect of the prompt, “[f]inancial support”. The employment information provided in respect of the second applicant is identical to that provided for the first. The application further states, in respect of education (with the prompt being to provide information/ details of each applicant’s education since birth, including, inter alia, primary, middle and high school and any vocational or trade/ skill qualifications) that none of the applicants has ever studied.

In relation to the applicants’ claims for protection, the application firstly notes that the first applicant is making his own claims for protection, and that he cannot return to Thailand. Reproduced below is the entirety of the information provided by the first applicant as to his claim/s for protection:

Question

Answer

Provide reasons why this applicant left that country or those countries:

My family came to Australia to find opportunities for us, including our son. We wish our son a bright future. And due to the bad economy and living in Thailand, we decided to come here. In Thailand we have a lot of debt because we are unable to go
to work during the COVID-19 pandemic. causing us to borrow money to spend on our daily lives

Did this applicant experience harm in that country or those countries?

Yes

Give details including: the type of harm this applicant experienced; the person/people responsible for the harm; why they harmed the applicant.
Poverty and huge debt in Thailand

Did this applicant seek help within the country or those countries after the harm?
Yes

Give details including: the name of the person/organisation/authorities this applicant asked for help; what help they provided if they helped
We have no more defense in Thailand, so we decided to come here for our son's opportunity and future.

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
Yes

Give details including: where this applicant tried to move; why this applicant was unable to move; where this applicant moved to and what happened
We did move to other places but not the right thing for us

Explain what the applicant thinks will happen to them if they return to that country or those countries:
We left everything to start a new life in Australia.

Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Yes

Give details including: the type of harm or mistreatment this applicant is likely to experience; the person/people who would be responsible for the harm or mistreatment; why they would harm or mistreat this applicant.
As above

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No

Give details about why
this applicant thinks the
authorities could not, or would
not, protect them.
Unknown

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
Yes

Give details as to where this
applicant could relocate.
When we can pay off all debts in Thailand. And our son has completed his studies here. We will travel back to Thailand to start over immediately.

The Tribunal recalls that it is the responsibility of an applicant to specify all particulars of their claim/s and to provide sufficient evidence to establish it/them. Although the concept of onus of proof is not appropriate in administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision maker is not required to make out the applicant’s case for them, nor is it the Tribunal’s duty to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437 at 451).
Is the applicant a ‘refugee’?
The Tribunal recalls that 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).
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.
The Tribunal notes that the ‘well-founded fear of persecution’ provision in the Act requires, firstly, that the person fears being persecuted for one of the reasons listed in paragraph 43, above, and, secondly, that that reason, or those reasons, be the essential and significant reason/s for the persecution; that the persecution must involve serious harm to the person; and that the persecution must involve systematic and discriminatory conduct (s 5J(4)). ‘Serious harm’ is further defined in s 5J(5), which provides a non-exhaustive list of the types of harm that will amount to being ‘serious’ harm. The Tribunal notes that significant economic hardship that threatens a person’s capacity to subsist (s 5J(5)(d)), as well as denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (s 5J(5)(f)), are enumerated harms for the purposes of refugee protection.
First of all, the Tribunal accepts that the first applicant’s family came to Australia to find opportunities, including for the son of the first and second applicants, and that they left Thailand to start a new life in Australia.
The Tribunal finds that coming to Australia to find opportunities, including for a child for whom parents wish a bright future do not disclose harm, and do not disclose serious harm. The Tribunal further notes that coming to Australia due to a bad economy in Thailand does not disclose harm or serious harm. Further, the Tribunal finds that being in debt due to the COVID-19 pandemic is not harm or serious harm for the purposes of the refugee definition. The Tribunal has considered this particular aspect of the first applicant’s claim in light of the specifics of s 5J(5)(d) and 5J(5)(f) and does not accept—on the extremely limited and vague information before it—that any debt which the applicants had accrued during the COVID-19 pandemic falls within either of these provisions. Similarly, the assertion of “poverty and huge debt in Thailand” is not accepted by the Tribunal for the same reasons—there is no material before the Tribunal in support of the applicants’ experiencing poverty and/or huge debt other than a bare assertion. Additionally, there is no material before the Tribunal to support these bare factual assertions in the context of the types of serious economic harm contemplated by the ‘serious harm’ definition in the Act. For example, the first applicant has not provided the Tribunal with any details of any debts accrued by him , or his family, during the COVID-19 pandemic (amounts, interest rates, lenders, terms of repayment), or of their asserted experience of poverty.
While the Tribunal makes these findings as regards the criteria in s 5J(1), the Tribunal observes the complete absence of any detail in the first applicant’s claims, other than some very generally stated economic grievances. Further, there is no real information to satisfy the Tribunal that the applicant has a well-founded fear (or, indeed, any fear) of persecution, or that the first applicant falls within any of the enumerated groups for the purposes of the refugee definition (ie. that any harm he has experienced, is for the reason of his religion, race, nationality, membership of a particular social group, or political opinion).
For these reasons the Tribunal is not satisfied that the applicant is a refugee under the definition in section 36(2)(a) of the Act. To be clear, the Tribunal accepts that the first applicant and his family came to Australia to pursue a new life and better opportunities for them; the Tribunal further finds that any economic difficulties experienced by the first applicant do not amount to serious harm on the basis of general and vague assertions offered by the first applicant.
Is the applicant owed ‘complementary protection’?
In considering whether the applicant meets the complementary protection criteria under section 36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that he will suffer ‘significant harm’, as defined in s 36(2A), and qualified in s 36(2B).
The Tribunal has already found that the first applicant and his family came to Australia to pursue better opportunities, as stated in the protection visa application form; the Tribunal has further found that the generally and vaguely stated economic grievances (poverty, COVID-19-related debts) do not amount to serious harm for the purposes of the ‘refugee’ definition. For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Thailand, there is a real risk that he will suffer significant harm from any of the sources economic sources identified in his protection visa application (poverty, debt). Therefore, the Tribunal is not satisfied that the first applicant is a person in respect of whom Australia has (complementary) protection obligations under section 36(2)(aa) of the Act.
Are the spouse (second applicant) and child (third applicant) of the first applicant owed protection?
The Tribunal notes that the second and third applicants seek protection visas as members of the same family unit of the first applicant such that the success of their applications for protection visas is contingent upon the success of the first applicant’s claim/s for protection. Having found that the first applicant is neither a ‘refugee’ (s 36(2)(a) of the Act) nor a person in respect of whom Australia has complementary protection obligations (s 36 (2)(aa) of the Act), the Tribunal is not satisfied that Australia has any protection obligations with respect to the second and third applicants.
The Tribunal notes that the second and third applicants did not raise any additional claims of their own. In fact, in the applicants’ protection visa application, the answer ‘no’ was selected in respect of whether they had any additional claims of their own. Otherwise, the only information before the Tribunal concerning the second and third applicants is that they are Thai nationals, of ‘Thai’ ethnicity, and of the Buddhist religion.
The Tribunal has considered whether any additional claims are raised on the very limited material before it with respect to the second and third applicants and has found that there are not. Accordingly, neither the second nor the third applicants satisfy the ‘refugee’ or ‘complementary protection’ criteria in their own right.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the first 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 first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion on the evidence before the Tribunal that the first 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 first applicant does not satisfy the criterion in s 36(2).
Having concluded that the first applicant does not meet either the refugee criterion in s 36(2)(a), nor the complementary protection criterion in s 36(2)(aa), the Tribunal additionally finds that the second and third applicants are not persons in respect of whom Australia owes protection obligations on the basis of them being members of the same family unit as a person in respect of whom Australia owes protection obligations under either s 36(2)(a) or s 36(2)(aa). The Tribunal has also considered whether any additional claims are raised on the material before it as regards the second and third applicants in their own right and has found that there are not.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Question	Answer
Provide reasons why this applicant left that country or those countries:	My family came to Australia to find opportunities for us, including our son. We wish our son a bright future. And due to the bad economy and living in Thailand, we decided to come here. In Thailand we have a lot of debt because we are unable to go to work during the COVID-19 pandemic. causing us to borrow money to spend on our daily lives
Did this applicant experience harm in that country or those countries?	Yes
Give details including: the type of harm this applicant experienced; the person/people responsible for the harm; why they harmed the applicant.	Poverty and huge debt in Thailand
Did this applicant seek help within the country or those countries after the harm?	Yes
Give details including: the name of the person/organisation/authorities this applicant asked for help; what help they provided if they helped	We have no more defense in Thailand, so we decided to come here for our son's opportunity and future.
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?	Yes
Give details including: where this applicant tried to move; why this applicant was unable to move; where this applicant moved to and what happened	We did move to other places but not the right thing for us
Explain what the applicant thinks will happen to them if they return to that country or those countries:	We left everything to start a new life in Australia.
Does this applicant think they will be harmed or mistreated if they return to that country or countries?	Yes
Give details including: the type of harm or mistreatment this applicant is likely to experience; the person/people who would be responsible for the harm or mistreatment; why they would harm or mistreat this applicant.	As above
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?	No
Give details about why this applicant thinks the authorities could not, or would not, protect them.	Unknown
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?	Yes
Give details as to where this applicant could relocate.	When we can pay off all debts in Thailand. And our son has completed his studies here. We will travel back to Thailand to start over immediately.