2416860 (Refugee)
[2025] ARTA 1690
•1 July 2025
2416860 (REFUGEE) [2025] ARTA 1690 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Emma Sophie Fell
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2416860
Tribunal:General Member M Poon
Date:1 July 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – female sex worker – religion – Muslim – family violence – forced marriage – physical assault – access to mental health care – fear of killing – internal relocation – state protection – referral for Ministerial Intervention – best interests of the children – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Chan v MIEA (1989) 169 CLR 379
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCA 2143
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIEA v Singh (1997) 72 FCR 288
MIEA v Wu Shan Liang (1996) 185 CLR 259
Prasad v MIEA (1985) 6 FCR 155
SZDCD v MIBP [2019] FCA 326
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.
General Member M Poon
Statement made on 1 July 2025 at 10:09am
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the Department’), on 21 May 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth)[1].
[1] Unless otherwise stated, all references to legislation are to the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth)
The applicant who is a national of Thailand, applied for the visa on 30 November 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 was represented throughout the entire process, from lodgement of her original protection visa application dated 30 November 2023, to the application for review by the Tribunal.
On 14 October 2024, the Administrative Appeals Tribunal (‘the AAT’) became the Administrative Review Tribunal (‘the Tribunal’). The Tribunal is authorised to continue and finalise any aspect of the review not already completed by the AAT.[2] This decision and statement of reasons is made by the Tribunal.
[2] See the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
On 11 April 2025, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled on 24 June 2025. The hearing invitation included the following:
Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.
On 14 April 2025, the applicant requested an adjournment on the basis that she and her current partner were currently actively investigating the option of applying for an onshore partner visa, and the detrimental impact on her mental health.
On 16 April 2025, I declined the request for an adjournment of the hearing because the applicant had not actually lodged an onshore partner visa application and there was insufficient evidence about the applicant’s incapacity to attend the hearing.
On 13 June 2025, the applicant requested an adjournment for at least one month to allow her partner visa application (which had been lodged with the Department on 8 June 2025) to progress, and for her to receive further mental health support. The applicant provided one-page letters from her general practitioner and a psychiatrist.
On 16 June 2025, whilst I acknowledged that the applicant has mental health issues and was pursuing a partner visa application, I declined her request for an adjournment of at least one month, for the following reasons:
·The presence of mental health issues was not of itself evidence that the applicant was currently unfit to participate in the hearing scheduled on 24 June 2025. The medical letters did not contain sufficient detail as to explain why or how her mental health issues were of such severity that she was presently unfit to participate in a private hearing for a maximum period of four hours (with breaks) on 24 June 2025 – for example, it did not appear that the applicant was currently hospitalised or otherwise incapacitated due to medication.
·Furthermore, the medical letters did not explain why or how the applicant will be ‘stabilised’ or better placed in one month’s time to participate in a Tribunal hearing, and what treatment the applicant will receive during a one-month adjournment.
·There was no certainty as to the timeframe for which a partner visa application will be processed and determined, and it was not appropriate for the Tribunal to await the outcome of that application before making its decision on the protection visa application.
On 17 June 2025, the applicant’s representative notified the Tribunal via email that the applicant does not wish to attend the hearing scheduled for 24 June 2025 and requests the Tribunal make a decision on the papers. Included in that email from the applicant’s representative, was a bundle of documents, including submissions.
In reply, the Tribunal notified the applicant via email on 19 June 2025 to her representative, that it had cancelled the scheduled hearing and will proceed to make a decision on the papers as the applicant requested, and that she will be notified of the decision in due course.
Section 106(1) of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’) allows the Tribunal to make its decision without holding a hearing in certain circumstances. Such circumstances include those specified in s 106(3) of the ART Act, namely, when the only parties to the hearing are the applicant and a non-participating party, and the applicant requests the Tribunal to make its decision without the hearing, and it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.
I am satisfied that the email on 17 June 2025 from the applicant’s representative, constitutes a request from the applicant under s 106(3)(b)(ii) of the ART Act.
The issue which requires determination is whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) if returned to Thailand; and if not, then whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of returning to Thailand, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa).
In this case, the issues for determination in the proceeding can be adequately determined in the absence of a hearing. I have before me a copy of the Department’s file, including the applicant’s protection visa application form, the delegate’s decision record and the bundle of documents submitted to the Tribunal on 17 June 2025, which includes submissions.
Having assessed the materials before me, I am satisfied that they enable me to determine the applicant’s identity and receiving country, and to form conclusions about whether the applicant meets the criteria for a protection visa in s 36(2), in the absence of further evidence or submissions from her.
THE APPLICANT’S CLAIMS BEFORE THE DEPARTMENT
The applicant had help from a legal practitioner, in completing her protection visa application form dated 30 November 2023. The applicant’s claims for protection in that application were in summary, that she was physically assaulted by her stepfather, sexually assaulted by her stepbrother, she worked as a sex worker and used drugs to cope, she has no skills due to being forced into marriage at a young age, and she suffers from bipolar disorder.
The applicant fears if she returns to Thailand, her stepfather will kill her; and she will not cope as she would not know how to survive and what work she would do. She is worried she could be forced back into sex work, and this would lead to serious mistreatment and more adverse impacts on her mental health.
THE DEPARTMENT’S DECISION AND REASONS
On 21 May 2024, the Department’s delegate refused to grant the applicant a protection visa, because the delegate found that the applicant is not a person in respect of whom Australia has protection obligations under either ss 36(2)(a) or (aa). This is because the delegate found first, that the applicant is not a refugee as defined in s 5H(1); and second, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of returning to Thailand, there is a real risk the applicant will suffer significant harm under s 36(2A) and therefore, she also does not meet the criteria for complementary protection.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36, as well as the Migration Regulations 1994 (Cth) at Schedule 2. An applicant for the visa must meet one of the alternative criteria in ss 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 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.
THE TRIBUNAL’S FINDINGS AND REASONS
The issue for determination is whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) if returned to Thailand; and if not, then whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her returning to Thailand, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa).
I am very sympathetic to the applicant. If there were a discretion under the legislation for me to grant the applicant a protection visa on compassionate grounds, I would exercise that discretion in her favour. However, the criteria for a protection visa is more narrowly prescribed and for the reasons set out below, I find that if the applicant returns to Thailand, she does not face a real chance of persecution, or a real risk of significant harm in the reasonably foreseeable future. Therefore, the applicant is not a person in respect of whom Australia has protection obligations.
It follows that I have concluded that the decision under review should be affirmed.
Mandatory considerations
In accordance with Ministerial Direction No. 84, made under s 499, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, 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.
Country information
The relevant country information from DFAT is as follows:[3]
[3] DFAT Country Information Report Thailand (18 December 2023) at paras 2.7 – 3.76
Mental healthcare
·Thailand has an advanced healthcare system with its citizens having access to good quality, affordable public healthcare under the government-funded Universal Coverage Scheme (‘the UCS’). Over 75% of the population is covered by the UCS, and the remainder are covered under schemes for civil servants and private sector employees.
·All provinces, districts and sub-districts have provincial hospitals, district hospitals and health centres respectively. Also, there are many high-quality private hospitals, which are the first choice of many wealthier Thais and foreign medical tourists. Thai medical staff are generally well-trained, and the number of doctors per head of population meets global benchmarks.
·Mental healthcare is covered under the UCS. There are 20 dedicated psychiatric hospitals nationwide, and community-based facilities and psychiatric units within general hospitals. Psychiatric medicines are included on the National List of Essential Medicines and covered under the UCS. Notwithstanding the possibility of long wait times, the Mental Health Department offers a 24/7 counselling hotline, as well as chat services on social media and chat platforms. People with mental illness can often face challenges when attempting to access care, particularly in rural areas. There is a nationwide shortage of qualified psychologists, especially outside Bangkok.
Domestic violence
·There is a dedicated national 24/7 domestic violence hotline and government-run shelters in all provinces. One Stop Crisis Centres (‘OSCC’) are available in all public hospitals. OSCCs provide survivors with healthcare, including doctors, nurses, and psychologists, and referral to other services, such as social workers, shelters, police, lawyers, and non-government organisation (‘NGO’) services. In 2018, more than 13,000 women and girls accessed these services. In-country sources reported that women could theoretically relocate to other towns or provinces to escape abusive relationships, although in practice this often depended on their financial resources, support networks and whether or not they had dependent children.
·DFAT assesses that women in Thailand face a moderate risk of gender-based violence, including, but not limited to, domestic violence and sexual assault. While state protection mechanisms exist, DFAT’s assessment is that women face societal, legal, and institutional barriers to accessing them. The ability to relocate to escape a perpetrator depends on individual circumstances, including their financial resources and support network. It may be difficult or impossible for a woman to gain protection from a perpetrator that is high-ranking or powerful. DFAT assesses that women from ethnic minority communities are at higher risk of gender-based violence and have less access to state protection.
Working in the sex industry
·Thailand is one of the world’s major sex tourism destinations and women comprise the majority of sex workers. While sex work is illegal, the law is only sporadically enforced. Sex workers are vulnerable to exploitation and harassment because of their legal status. The Move Forward Party proposed a draft bill to legalise sex work ahead of the 2023 election.
Religion
·While DFAT estimates the Muslim population in Thailand at 5% to 10%, Islam is the dominant religion in Thailand’s southernmost provinces (Narathiwat, Pattani and Yala), and in Satun province. There are small Muslim populations in Bangkok, Chiang Mai and other parts of the country.
Economic/financial hardship
·According to the World Bank, Thailand has been an upper-middle income economy since 2011. Poverty has significantly declined in the past 30 years from 58% in 1990 to 6.8% in 2020.
·Thailand’s major economic sectors include tourism, services, manufacturing and agriculture. While agriculture contributes less than 10% of GDP, it employs approximately one-third of the labour force.
·While Thailand has one of the lowest official unemployment rates at 1.05%, in practice, there is considerable unemployment and under-employment, including among recent university graduates.
·Over the past decade, Thailand has expanded its welfare system. Approximately 14.5 million Thais who are over 18 and earn less than THB 100,000 (AUD 4,200) annually, are eligible for benefits under the state welfare card scheme. Those benefits include a THB 300 (AUD 12) monthly cash handout, THB 500 (AUD 20) credit for public transport, discounts for gas and utility bills, and extra cash handouts for the disabled and elderly.
Evidence before the Tribunal
There are no apparent concerns with the applicant’s identity. I am satisfied that the applicant is a citizen of Thailand, and that Thailand is her receiving country. I have assessed her claims against that country.
Based on the evidence before me, I accept that during her time in Thailand, the applicant was diagnosed with bipolar disorder; her stepfather beat her on multiple occasions; her stepbrother tried to rape her on two occasions; she was forced into marriage at a young age; she worked as a sex worker for several months and used drugs to cope; and she is relatively unskilled. I also accept that the applicant suffered domestic violence from her third husband (Mr P) who was an Australian citizen and is now deceased. It is not necessary in the circumstances to detail at length, the harm previously suffered by the applicant.
It is however, necessary to set out the applicant’s evidence insofar as it relates to whether her fear of harm if she returns to Thailand, is well-founded and meets the legislative requirements.
According to the applicant’s statutory declaration of 12 April 2024:
Fear of physical harm from stepfather
·The applicant is from a Muslim background. Her family are strict Muslims, living in the Southern part of Thailand.
·The applicant’s stepfather physically beat her on multiple occasions. For example, in 2008 there was an occasion when he beat her 100 times and injured her badly because he wrongly suspected her of having sex with her boyfriend, outside marriage.
·The applicant moved out of her family’s home, cut ties with her family and has not spoken to her stepfather in over 10 years.
·The applicant is afraid that her stepfather will kill her if she returns to Thailand. She cannot return to her family because her then-husband (Mr P) gave them information about her employment history as a sex worker. If she returned to Thailand, her family would ask her to see them and ask about the information they received from Mr P. The applicant is scared of the punishment and alienation she would experience. It would be dangerous for her because there is a real risk based on her stepfather’s past behaviour, that he would kill her.
Fear of economic/financial hardship
·The applicant’s family will not support her emotionally or financially if she returns to Thailand. She has nothing in Thailand, and no-one will value or support her.
·Since 2009, the applicant has worked in several jobs including as [several occupations including] sex worker and selling [product 1]. She worked inconsistently with several periods of unemployment during which she was supported by her family or husband at the time.
·The applicant has no skills due to being forced into marriage at a young age. Most jobs require a qualification which she does not have, so she would not be able to get a safe job anywhere in Thailand. The only possible job for her would be working in a very small restaurant as a waitress but the wages cannot cover her living expenses.
·From prior experience, she cannot work well with others because of her mental health. She would often cry and quit her job whenever someone criticised her. She does not think she could afford her current medications if she returned to Thailand. In the past she relied heavily on her husband (Mr P) to cover the expenses.
Fear of deterioration in mental health
·The applicant was diagnosed with bipolar disorder in Thailand and has experienced significant violence throughout her life.
·In order to survive and support herself, the applicant became a sex worker as it provided much higher pay. This work was very hard, and she was mistreated by many men. She then started using drugs to survive and keep doing the sex work.
·The applicant worked as a sex worker for several months until she could not handle it anymore and quit. She was able to cease drug use about one to two months after she ceased the sex work.
·Sex work is illegal in Thailand. She does not want to return to this type of work. She is also fearful of the impact on her mental health should she be forced back into this type of work. She really suffered in the past and promised herself that she would never return to this work. She is worried that if she is forced back into sex work to survive, it would lead to serious mistreatment and severe negative impacts on her mental health.
·The applicant met Mr P in April 2022. She became pregnant to Mr P. In her religion it is frowned upon to be pregnant and unmarried, so she was feeling suicidal during this time. Mr P sent her money for an abortion, but she used the funds to buy a ticket from Bangkok to Phuket, which is her hometown. The applicant was feeling guilty about the idea of terminating the pregnancy as it was against her religion, and she had other children (from her previous marriage).
·After giving birth to Mr P’s child, the applicant’s mother said she must marry Mr P, to do right things according to their religion. The applicant married Mr P although she did not love him. After arriving in Australia [in] August 2023, the applicant realised how difficult their living conditions were as they were living in a caravan park with a baby. After she started having troubles with Mr P, she asked if she and their baby could return to Thailand. Mr P did not agree, and it led to numerous arguments.
·The applicant’s mental health deteriorated as they did not have secure accommodation.
·After the applicant had been in Australia for a while, Mr P sent a text message to her second husband (who is the father of her two older children), to her mother, and to her sister, with information about her history as a sex worker. When her second husband asked if the information was true, the applicant told him it was not. The applicant’s mother told her that Mr P sent her information about the sex work but she did not ask further about it. The applicant thinks if her mother knew it was true, she would not be able to accept it and she would cut ties with her.
·The applicant became pregnant again to Mr P. She had planned to commit suicide while in [City 1]; she cut her wrists and was admitted to the [City 1] hospital on more than one occasion.
·Mr P is now deceased. Prior to Mr P’s death, he sought parenting rights (through Family Court proceedings) to the applicant’s daughter, who is an Australian citizen.
·The applicant did not give birth to another child to Mr P.
·The applicant’s mental health deteriorated significantly in Australia because Mr P would constantly bring up things from her past and this made her feel bad about herself. He would call her a liar, junkie and a whore and threaten to send naked images of her to her second husband in Thailand. Mr P would say he would send the applicant back to Thailand and that she would have to leave their daughter with him.
Relocation
·It would be very difficult for her to survive anywhere in Thailand. She does not have a place to return to. She cannot live with her mother and stepfather as she is afraid of her stepfather.
Protection from authorities
·Thai authorities and police cannot protect her because they do not get involved in family matters. If she gets mistreated by men while doing sex work, she cannot report it to the police as sex work is illegal. They will not help her and could call her mother and stepfather which would create more danger for her.
Information from the Department subject to a non-disclosure certification/notification
The Department file received by the Tribunal included a certificate and notification under s 438 (which has since been repealed), that the disclosure of certain information would be contrary to the public interest as it was given to the Minister or the Department in confidence.
I formed the view that the certificate/notification was valid. I also formed the view that given some of that information was adverse to the applicant and relevant to her case, then as a matter of procedural fairness, it was appropriate to disclose that information to the applicant (with appropriate redactions and instruction that it not be disclosed to any other party) and to invite her to provide submissions on that information.
The applicant’s submission was that I should place no weight on the unsubstantiated allegations made against her in that information.
Having considered all the materials before me cumulatively, I have not been assisted by the information subject to the non-disclosure certification/notification and therefore, I have not relied on that information in any way, in making a decision on whether the applicant meets the criteria for protection.
Does the applicant satisfy the refugee criterion for protection?
The applicant must face a real chance of persecution for one or more of the reasons identified in s 5J(1)(a) to meet the refugee criterion for protection.
The concept of ‘real chance’ in assessing well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court[4] as a substantial chance, as distinct from a remote or far-fetched possibility. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J.[5]
[4] See Chan v MIEA (1989) 169 CLR 379 at 389
[5] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) at 171
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Nor is mere speculation or assumption enough to establish a ‘well-founded fear’.[6] Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.
[6] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
Section 5AAA provides that it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not appropriate to 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 the applicant's case for him or her. Nor is the decision-maker required to accept uncritically, any allegation made by an applicant.[7]
[7] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The relevant date for assessing the applicant’s claims to protection is when the decision is made and not when she left Thailand, or when she lodged her application.[8]
Is there a real chance of harm if the applicant returns to Thailand?
[8] MIEA v Singh (1997) 72 FCR 288
I accept the applicant’s evidence that her stepfather is a strict Muslim and that she was physically beaten by him on multiple occasions.
The applicant’s evidence was that she has cut ties with her family (although she has contact with her mother), moved away from them, and has not spoken to her stepfather in over 10 years. Nevertheless, I have given the applicant the benefit of the doubt and accept that given his history of violence and strict Muslim faith, her stepfather will punish her because of her previous work in the sex industry. I therefore find there is a real chance of physical harm to the applicant by her stepfather, if she returns to Thailand.
I also accept the applicant’s claim that she has no formal qualifications and is not highly skilled. On that basis, I find there is a real chance she will suffer economic/financial hardship, if she returns to Thailand.
I also accept that given the applicant’s history, including her diagnosis of bipolar disorder, there is a real chance of a deterioration in her mental health, if she returns to Thailand.
Is the harm serious?
The applicant fears her stepfather will kill her. I am satisfied that such harm constitutes the type of harm described in s 5J(5) as being ‘serious harm’ as it is a threat to her life or liberty, or significant physical ill-treatment (ss 5J(5)(a) and (c)).
However, I do not find the economic/financial hardship or the deterioration in mental health, will be of such severity as to meet the level of ‘serious harm’ as described non-exhaustively, in s 5J(5).
I accept that the applicant does not have any formal qualifications. However, I do not accept that sex work is her only means of an income if she returns to Thailand. The applicant has previously worked in [roles]; and also as a self-employed [product 1] seller. And, there was no evidence before me that the applicant would not be eligible to access Thailand’s welfare system.
Also, while I accept that the applicant will not receive support or help from her parents in Thailand, the evidence indicates that the applicant is in a committed relationship. There was no evidence before me that her current partner Mr B, cannot or will not continue providing support to her, including financial support.
Consequently, I find that her limited employment prospects do not constitute a denial of capacity to earn a livelihood of any kind where the denial threatens her capacity to subsist (s 5J(5)(f)); and I also find the economic/financial hardship to the applicant does not constitute significant economic hardship that threatens her capacity to subsist (s 5J(5)(d)).
In relation to the harm of her deterioration in mental health if she returns to Thailand, I also find that it does not constitute a denial of access to basic services, where the denial threatens the person’s capacity to subsist (s 5J(5)(e)). This is because the country information above indicates that mental health treatment and services are available in Thailand, albeit not to the same extent as in Australia. Indeed, the applicant was diagnosed with bipolar disorder and prescribed medicines – which she has been taking for about eight years – while in Thailand. And, while I note the nationwide shortage of qualified psychologists, especially outside Bangkok, there was no evidence before me that the applicant cannot again receive mental health treatment in Thailand or that it will not be adequate.
Is one of the specified reasons in s 5J(1)(a) the essential and significant reason for the harm?
It is clear from the evidence that the applicant’s fear is not for the reasons of race, religion, nationality or political opinion. The question is whether the applicant’s membership of a particular social group (‘PSG’) is the essential and significant reason for the harm.
What constitutes ‘membership of a PSG’ is explained in s 5L.
Based on the materials before me, I am satisfied that the elements in s 5L are met. I find that ‘female sex workers’ constitutes a PSG and that the applicant is a member of that PSG because:
·the characteristic shared by each member of the PSG is that they are female sex workers (s 5L(a)); and
·the applicant shares that characteristic, or is perceived by her family as sharing the characteristic (s 5L(b)); and
·the characteristic distinguishes the group from society (s 5L(c)(iii)); and
·the characteristic itself is not the fear of persecution (s 5L(d)).
In addition, s 5J(4)(b) states that the persecution must involve serious harm to the person. As stated above, I find only the physical harm from the applicant’s stepfather meets the level of ‘serious harm’ as described in s 5J(5).
I accept that the applicant fears harm from her stepfather for reasons of her membership of a PSG – i.e. because of her previous employment as a sex worker and/or her stepfather’s perception that she is still a sex worker (despite it no longer being the case).
Does the real chance of serious harm relate to all areas of Thailand?
I am not satisfied that the real chance of serious harm relates to all areas of Thailand.
There is no evidence before me that the applicant’s family – particularly her stepfather – has sufficient power or influence that they can find her in all areas of Thailand. Also, it is not unreasonable in the circumstances, for the applicant to move to another area of Thailand where her stepfather does not reside.
Furthermore, I note the applicant’s evidence was that Mr P is now deceased. He can no longer send the applicant’s family any information about her previous sex work. The applicant’s evidence was that when Mr P sent such information to her second husband, she had told him it was not true; and that her mother said that Mr P had sent her the information but did not ask the applicant further about it. Importantly, the applicant’s evidence was that if her mother knew it was true, she would not be able to accept it and she would cut ties with the applicant. Given the applicant’s continued contact with her mother, it is reasonable to conclude that her mother has not believed the information previously sent by Mr P.
Given my finding that the real chance of persecution by the applicant’s stepfather, does not relate to all areas of Thailand – and my earlier finding that neither the economic/financial hardship nor the deterioration in mental health, meet the level of ‘serious harm’ – it follows that the applicant does not meet the refugee criterion for protection in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test in assessing well-founded fear.[9]
[9] MIAC v SZQRB (2013) 210 FCR 505
As explained earlier, I am satisfied that if the applicant returns to Thailand, there is a real chance of: physical harm from the applicant’s stepfather; economic/financial hardship; and a deterioration in the applicant’s mental health.
Does the harm meet the definition of ‘significant harm’?
Significant harm is exhaustively defined in s 36(2A).
I accept that the physical harm from the applicant’s stepfather constitutes significant harm because it will arbitrarily deprive the applicant of life or will be cruel or inhuman or degrading treatment (ss 36(2A)(a), (d) and (e)).
However, for the reasons explained below, I do not find that economic/financial hardship or deterioration in the applicant’s mental health, meet the narrow definition of significant harm in s 36(2A).
While the descriptions in s 36(2A) are passively worded, they nevertheless require a perpetrator of that harm, that is, the harm must be because of the acts of other persons.[10] It does not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.[11] The majority in GLD18 v MHA[12] confirmed that there was nothing erroneous in the Courts’ statements in CHB16 and CSV15 that self-inflicted harm does not constitute significant harm, and noted that it is the intentional infliction of mental harm by others (which may cause a person to engage in self-harm) that is critical to the satisfaction of s 36(2)(aa).[13]
[10] GLD18 v MHA [2020] FCAFC 2 at [37]
[11] CHB16 v MIBP [2019] FCA 1089 at [65]–[68] (NB. special leave to appeal was refused: CHB16 v MIBP [2019] HCASL 377); and CSV15 v MIBP [2018] FCA 699 at [34]
[12] [2020] FCAFC 2 at [89] and [90]
[13] See also SZDCD v MIBP [2019] FCA 326 at [48] where the Court held that deprivation of an appellant’s access to medical treatment in Australia as a consequence of his removal to Bangladesh would not amount to him being arbitrarily deprived of his life under s 36(2A)(a); and EZC18 v MHA [2019] FCA 2143 at [47] where the Court upheld the Tribunal’s finding that suicide could not constitute the arbitrary deprivation of life in s 36(2A)(a)
Consequently, while I am very sympathetic to the applicant’s mental health issues, deterioration in her mental health if she returns to Thailand, does not fall within the exhaustive list in s 36(2A). Self-inflicted harm does not constitute arbitrary deprivation of life (per s 36(2A)(a)) or the death penalty (per s36(2)(b)). And, upon return to Thailand, there is no person intentionally inflicting mental harm on her to amount to torture (per s 36(2A)(c)), or cruel or inhuman or degrading treatment (per ss 36(2A)(d) and (e)).
Also as explained above, while I accept that the applicant may have limited employment prospects, I do not find that returning to sex work is her only option. There was no evidence before me that the applicant’s current partner Mr B, with whom she now has a child, cannot or will not continue to provide her with financial support; and no evidence that the applicant will not be eligible for any welfare payments. Thus, any financial hardship that the applicant faces also does not amount to deprivation of life, or torture, or cruel or inhuman or degrading treatment; and is also not because of the intentional act of another person.
Is it reasonable for the applicant to relocate?
According to s 36(2B)(a), there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if 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.
I note in the applicant’s statutory declaration that before coming to Australia, she had only lived in Thailand and that she moved around a lot in Thailand.
As explained earlier, I am satisfied in the circumstances, that it is reasonable for the applicant to relocate to an area of Thailand where there would not be a real risk that she will suffer significant harm, for example Bangkok. There was no evidence of the applicant’s family presently residing in Bangkok or having connections with anyone in Bangkok. According to the applicant’s evidence, her family live in the Southern part of Thailand (her stepfather’s house is in Narathiwat province). I also note from the country information that the applicant’s ability to access mental health treatment, including a psychologist, is greater in Bangkok.
The applicant’s evidence also indicates she was living in Phuket after she left her family’s home. There was no evidence from the applicant that during that time, she had any contact from her stepfather. Indeed, her evidence was that she has not spoken to him in over 10 years.
REFERRAL FOR MINISTERIAL INTERVENTION
I have considered the applicant’s request for the Tribunal to refer her case to the Minister under s 417 for consideration of their personal, non-compellable, power to substitute a decision of the Tribunal for one that is more favourable to the applicant if it is in the public interest to do so.
I have considered the circumstances of this case with respect to the Minister’s guidelines relating to the consideration and exercise of their power under s 417. I acknowledge that the guidelines indicate that the Minister will generally only exercise the discretion in cases which exhibit one or more unique or exceptional circumstances. For the reasons below, I find it appropriate to refer this case to the Minister.
Compassionate circumstances regarding the family unit
I consider there to be strong compassionate circumstances that if not recognised, would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen, being the applicant’s two infant daughters (Ms Z and Ms J) and an Australian family unit (where Ms Z, Ms J and Mr B are all Australian citizens).
Ms Z is the [age]-year-old girl born to Mr P, who was an Australian citizen and now deceased. Ms J was born on [date] to Mr B, who is an Australian citizen and is the applicant’s current partner.
Ms Z and Ms J are still very young and require close ongoing care and support from their mother. Long-term separation from their mother at this early stage of their lives would have serious consequences for their development and well-being. It is not in either of the children’s best interests to be separated from their mother.
If the applicant is required to return to Thailand, she faces the real prospect of separation from Ms J, if Mr B and Ms J could not relocate to Thailand. Furthermore, it is in Ms J’s best interests to be raised by both her parents and have them both actively support her development.
It is also in Mr B’s best interests if the applicant can remain in Australia. If the applicant is required to return to Thailand, then he will need to choose between remaining in Australia without the applicant and potentially as a single father, or attempting to relocate to Thailand, or being without the applicant and his daughter (if both children went to Thailand with the applicant). Mr B does not speak Thai, has never resided in Thailand and does not have any support in Thailand, including family.
Article 23.1 of the International Covenant on Civil and Political Rights 1966 (‘the ICCPR’) notes that the family ‘is the natural and fundamental group unit of society and is entitled to protection by society and the state’. And, Article 3(1) of the Convention of the Rights of the Child 1989 (‘the CRC’), states that ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.
There can be no doubt, based on all the materials before me, that it is in the best interests of both Ms Z and Ms J, both of whom are Australian citizen infants, that the applicant be permitted to remain in Australia with them and Mr B, and for the family unit to remain intact.
Allowing the applicant to remain in Australia complies with Australia’s obligations under the ICCPR and the CRC.
Compassionate circumstances regarding the applicant’s mental health
I also consider there to be strong compassionate circumstances regarding the health and/or psychological state of the applicant that if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to her.
It is clear from the evidence before me, that the applicant suffers from multiple mental health issues, for which she requires ongoing treatment. The applicant has attempted suicide on multiple occasions and has been hospitalised several times for her mental health conditions. She has suffered prolonged abuse throughout her life from different people, including her own family.
And, it appears from the applicant’s own evidence, as well as the medical evidence before me, that her mental health deteriorated significantly (as shown by her incidents of self-harm) after she came to Australia and due to the abusive relationship with Mr P. According to the letter dated 29 July 2024 by the applicant’s social worker, the applicant’s relationship with Mr P (which ended in late August 2023) was characterised by domestic violence including emotional abuse and coercive control, and resulted in psychological distress for the applicant.
In a letter dated 15 April 2025, a psychiatrist stated that:
·The applicant has experienced recurrent episodes of major depressive disorders including some episodes with psychotic features. She has required hospitalisation on five occasions and has attempted suicide on a number of occasions.
·The applicant suffers from complex post-traumatic stress disorder following significant childhood sexual and physical abuse as well as intimate partner violence.
·The applicant had recently experienced periods of low mood with intermittent suicidal thoughts in the postnatal period. She is well supported by her partner Mr B, and he has been a strong protective factor in supporting her during these periods.
·In their opinion, if the applicant is forced to return to Thailand, she will experience a significant deterioration in her mental state with an increased risk of harm to herself.
·The applicant has experienced significant trauma while living in Thailand and there is a significant risk of triggering those past traumas should she be forced to return. In spite of what has been done to the applicant, she has displayed incredible resilience and has been able to establish a safe and loving environment for herself and her daughters in Australia.
According to the letter dated 10 June 2025 from the applicant’s general practitioner:
·The applicant was diagnosed at age [age] with bipolar disorder type 1 and her bipolar has been up and down since early 2024.
·The applicant’s mental health has improved since she has been with her current partner Mr B, but still not fully stabilised.
There was also a letter dated 16 June 2025 from a family support specialist at a domestic violence refuge, which stated that: the applicant experienced emotional and financial abuse and control; due to the high-risk nature of the violence perpetrated by Mr P, the applicant was forced to leave behind support systems and their home; and the refuge helped the applicant with reporting domestic violence breaches to police and the Family Court.
While deterioration in the applicant’s mental health does not meet the requisite harm to satisfy the refugee or complementary protection criteria, based on the independent information before me, I consider that given her circumstances, if the applicant is forced to return to Thailand as a single mother (with Ms Z) and without her partner (Mr B) and baby (Ms J), her mental health condition will only be exacerbated and may result in serious, ongoing and irreversible harm and continuing hardship to her.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
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.
…
0
12
0