2421237 (Refugee) - [2025] ARTA 1519

2421237 (REFUGEE) [2025] ARTA 1519 (15 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2421237

Tribunal:General Member J Wilson
Date:15 May 2025

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

CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – victim of loan shark – fear of physical assault – threats from money lenders – multiple visits to Australia – internal relocation – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant lodged an application to have the decision reviewed in the Administrative Appeals Tribunal (AAT) on 3 July 2024.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
BACKGROUND AND ISSUES
The Tribunal finds the applicant is, as claimed, [an age]-year-old female national of Thailand. She has a history of visiting Australia intermittently since 2009. In January 2024 the applicant entered Australia on a visitor visa and then subsequently applied for protection on 8 May 2024, for reasons associated with being a victimised by a creditor in Thailand.
The issue for determination in this application for review concerns whether the applicant meets the criteria for the grant of a protection visa per s 36(2)(a) or s 36(2)(aa) of the Act, being the refugee criteria or the complementary protection criteria, respectively.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) of the Act 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) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1) of the Act, 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) of the Act, 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.
CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application
In her protection visa application, the applicant claims she was born in the Surin province of Thailand. The applicant listed her marital status as ‘separated’ and her religion as ‘Buddhist’. She claimed that she completed High School in Thailand and that her occupation is now a freelance [occupation 1] and company director of a Thai company.
When responding to the question about her travel history, in the protection visa application the applicant wrote that she had never applied for a visa to travel to any other country and was travelling to Australia using her own savings.
She wrote that she came to Australia to accompany her mother to attend her sister’s wedding in Australia.
With respect to her claim for protection, the applicant wrote that she:
actively engages in facilitating loan guarantees for my husband’s relatives, securing support from influential informal lenders …
With a long-standing relationship built on trust over many years, I confidently vouch for their integrity and reliability, cementing my decision to endorse these loan agreements. The borrower faced financial hardships, leading to an inability to fulfil his debt repayment as agreed, following his abrupt departure from the area without prior notice. He subsequently fled to [Country 1], a fact I learnt through his neighbour, exacerbating the challenges of recovering the owed funds. As the guarantor, I was coerced by the lender into repaying the entire loan on behalf of the borrower under duress, facing intimidation tactics from individuals hired to enforce debt collection. Despite not being the rightful owner of the debt, these agents resorted to repeated demands for payment, compelling me to settle the outstanding amount.
In her protection visa application, the applicant wrote that she did not seek help and answered ‘yes’ to the question about whether she had attempted to relocate, however provided no further detail.
When asked what she thinks may happen to her on return to Thailand, the applicant wrote that she was ‘deeply concerned that the lender would track me down and subject me to physical and emotional harm. I fear the lender’s associates may resort to violence against me putting my well-being at risk…’.
In addition to the protection visa application, the applicant provided a two-page letter titled Statement of Claim dated 7 May 2024 (Statement of Claim), a colour copy of the bio page of her valid Thai passport and a colour copy of her Thai National ID card.
The Statement of Claim contained largely the same information as the protection visa application, however also added that:
a.she had received a menacing phone call from an unfamiliar individual who threatened harm to her family which now makes her fearful of venturing out;
b.she received another call from someone ‘intent on restricting my movements’;
c.on multiple occasions, she was trailed by a man, culminating in a near crash while driving;
d.that there had been a persistent presence of an unknown person lurking near her home. She said she had endured the experiences for over five months;
e.she applied for a visa to Australia to take a short break from the seriousness of life at work; and
f.she has little confidence in the Thai police’s ability to protect her, noting that connections exist between the money lender and law enforcement.
There is no evidence of the Department undertaking an interview with the applicant.
In summary, the delegate refused to grant the visa on the basis that they were satisfied that effective protection was available to the applicant in Thailand, based on the country information available, and that accordingly, the applicant did not have a well-founded fear of persecution per s 5J(2) of the Act. The delegate did not engage in any fact-finding concerning the credibility of the applicant’s protection claims.
Evidence before the Tribunal
The applicant’s review application was accompanied by a copy of the bio page of passport, the delegate’s decision record, and a letter dated 3 July 2024 addressed to the Tribunal, the substantive content of which, is the same as the claims made in her protection visa application, and which includes reference to the fact she facilitated loan guarantees to relatives of her husband.
The hearing
The applicant appeared before the Tribunal, unrepresented, on 19 March 2025 in-person in Canberra to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister who joined a section of the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant gave oral evidence that:
a.she had prepared her visa application and associated cover letter herself, using Google translate;
b.she was born in Surin, but moved to Bangkok around the age of 18 and had lived there since;
c.her parents were [farmers], however are now retired in the Surin province;
d.she entered a relationship with the father of her child at the age of [age], and remained in that relationship until two months prior to her arrival in Australia (a duration the Tribunal calculates to be approximately 22 years). She claimed that after they separated (which according to her statement above would equate to approximately March 2024) that she returned to live with her mother in Surin, prior to coming to Australia;
e.she said her partner is [an occupation 2] and that he introduced her to the Thai [Industry 1];
f.her child is now aged [age], and lives in Bangkok with her father and has commenced her [further studies];
g.she had travelled internationally on many occasions, including to [names countries] and Australia on four occasions;
h.she worked as a freelance [occupation 1] in Thailand and ran a secondary business making [product 1]. Since her relationship breakdown, her partner has ceased referring her work in the [Industry 1], and she is now effectively unemployed in Thailand;
i.since arriving in Australia, she has worked in [specified] businesses;
j.her sister lives in Canberra, and is currently applying for a permanent visa on the basis her partner is an Australian citizen; and
k.she sends money home to her mother and daughter.
In oral evidence and when asked by the Tribunal, the applicant said she left Thailand on the most recent occasion to accompany her mother to Australia to be present for her sister’s wedding. She said her mother has now returned home, but that she fears returning home because she has guaranteed a loan to a creditor who is still chasing her.
The applicant stated that her former partner’s cousin (the borrower) (who she referred to by his full name) had sought a loan to pursue a business opportunity. The applicant stated that if she recalled correctly, in July 2023 the creditor (whom she referred to by first name only) had come to her home together with the borrower to sign the loan contract – she explained her partner had agreed to act as guarantor for a loan value of 200,000 Thai baht. When the borrower and creditor arrived at the home, the applicant explained that her husband was not home, and that she proceeded to sign the loan contract in his absence as guarantor. Later in the hearing, when asked why she would do such a thing, she told the Tribunal that her partner had told her to sign the document.
The applicant claimed the value of the loan she guaranteed was 2,000,000 Thai baht. When asked by the Tribunal about the nature of the creditor business, she said she did not think the creditor operated under a business name, but rather his personal name. She said that the creditor also employed staff.
The applicant stated that she thought the terms of loan included a 10% interest rate compounded monthly to be paid in a 6–12 month period. The Tribunal, noting the quantum of the loan, asked the applicant to explain how the borrower could be expected to repay a $2,0000,000 Thai baht loan with such compounded interest in that short timeframe. The applicant responded by suggesting the borrower had intended to invest the money, make a profit, then quickly repay the loan.
The applicant said that by September 2023 or October 2023 the borrower had not paid the interest payable and had fled to [Country 1]. She said the creditor came to her home to seek payment of the outstanding interest. She said she had three further interactions with the creditor, being on two occasions at her home, and a third occasion where the creditor had traced her to her mother’s house where she was living in the Surin province.
The applicant said that in addition to the creditor visiting her, he sent his staff to her home to yell at her, which she said happened 10-20 times. She also recounted a situation when she was reversing her car from her driveway and a motorbike rider rode up to the car and smashed the passenger side window with a baseball bat. She considers it was one of his staff that damaged her car on that occasion.
She said she also felt as though she was being surveilled constantly.
She said that her partner had considered she had been ‘stupid’ and would not accept any responsibility for her stupidity, and that he ultimately ended their relationship in December 2023 as a result of this issue. She said she consequently returned to live with her mother in Surin, prior to coming to Australia. In attempting to reconcile the evidence, the Tribunal interprets this claim as the partner expressing his frustration at the quantum of the loan she claims to have guaranteed, rather than her signing of the loan, because in earlier evidence the applicant stated her partner had asked her to sign the loan contract.
She said she talked to her sister about the loan when it became to be a problem, because they talked regularly.
She stated that she did not want to contact the creditor to obtain a copy of the loan contract as she did not want to alert him to the fact that she is now in Australia. She said she may be able to ask her mother to travel to her partner’s cousin’s wife house, in an attempt to secure a copy of the loan.
The Tribunal shared relevant country information with the applicant and also put the applicant on notice that it was concerned about the absence of any documentation to support her claims, and apparent differences in her evidence. Specifically, the Tribunal informed the applicant that differences appeared between her written claims in the protection visa application and her oral evidence, citing the example that in her cover letter she referred to menacing phone calls and being followed in vehicles, whereas in oral evidence she mentioned neither. The applicant said she had not raised those instances in oral evidence because she understood the Tribunal’s question differently to mean it was interested primarily in the applicant’s interactions with the creditor.
The Tribunal asked the applicant whether she would like to ask her sister to give any evidence to support her claims. During the hearing, the applicant offered her sisters telephone number in Australia, and the Tribunal telephoned the sister with the assistance of an interpreter.
The applicant’s sister gave oral evidence that supported the applicant’s claims that she had come to Australia for her wedding and because she was avoiding creditor issues at home in Thailand. When asked about the applicant’s marital status, the sister said she thought the applicant remained in a long-term relationship with her partner, and did not seem aware that they had separated.
The sister also said that the applicant had spoken to her about being concerned about her safety and that someone was following her. However, contrary to the applicant’s evidence, the sister gave oral evidence that she only became aware of the creditor problem once the applicant arrived in Australia and told the Tribunal that she thought the applicant had guaranteed a loan for a friend, and made no mention of the borrower being a member of the partner’s extended family.
When the Tribunal later raised the differences in the sister’s knowledge of the situation, the applicant responded by telling the Tribunal that she did not want to tell her sister the whole-truth, because she didn’t want her sister to hate her child’s father.
Post-hearing evidence
On 3 April 2025 the applicant provided the following additional documentary evidence to the Tribunal to support her claims:
a.a scanned birth certificate written in English for her daughter, which confirms the applicant’s oral evidence that she is [age] years of age, and the name, date of birth and address of her parents;
b.a translation of a scanned company certificate issued on 25 September 2023, that names the applicant and her former partner as directors of the company;
c.a digital business profile/resume document pertaining to the applicant’s skills and experience in the Thai [Industry 1]; and
d.a scanned loan contract and accompanying translation dated 1 April 2025 that includes that the contract was made:
i.at a street address in [a named district], Bangkok;
ii.on 17 August 2023;
iii.between the borrower (the name being consistent with that given in oral evidence) and the creditor containing both first and surname (noting only the first name had been provided by the applicant at hearing);
iv.for the sum of 2,000,000 thai baht at a 10% interest rate, consistent with the oral evidence;
v.to be repaid in full by 17 August 2024;
vi.stating in clause 2, that ‘as evidence for the money I have borrowed, I have brought as evidence for the loan, I have appointed Miss [applicant’s name] aged [age] years, residing at [address], as my guarantor’ [sic]; and
vii.containing the signatures of three people written in Thai script, with signature lines for the borrower, lender and guarantor, respectively.
Country Information
In addition to considering the applicant’s evidence, the Tribunal has also considered the Department of Foreign Affairs and Trade (DFAT) Country Information Report – Thailand dated 18 December 2023 (the DFAT Report) concerning the treatment of debtors and victims of loan sharks.

The DFAT Report confirms that many Thai nationals face high levels of household debt,[1] and that loan sharking is a widespread problem.[2] The Tribunal has also considered more recent information compiled by the Department of Home Affairs in 2024 that considers the treatment of debtors in Thailand.[3] The country information also speaks to the effectiveness of Thai authorities in addressing the issues posed.
[1] DFAT Report, 7 [2.9].
[2] Ibid 29 [3.112].
[3] Department of Home Affairs, Country of Origin Information Service, Common Claims – Thailand (Effective from 16 October 2024).
While the Tribunal was initially open-minded as to the application of the country information to the applicant’s circumstances, for reasons set out below, as part of its assessment of the claims it has not been necessary for the Tribunal to engage with the country information in further detail.
FINDINGS AND REASONS
Identity, Nationality, Receiving Country and Personal Particulars
The Applicant provided a copy of Thai passport to the Department of Home Affairs. There was no evidence available to the Department to suggest that her passport was a bogus document. According to the Department’s decision record, it undertook a check of relevant systems which revealed no concerns about the applicant’s identity. Accordingly, the Tribunal accepts the applicant’s identity.
There is no evidence to suggest the applicant has a right to enter and/or reside in, whether temporarily or permanently, any other country.
Based on the documents provided by the applicant and accepted by the Department, the Tribunal finds the applicant is a Thai citizen and accordingly her protection claims will be assessed against Thailand as the receiving country.
On the evidence supplied, the Tribunal also accepts that the applicant completed High School in Thailand, worked in the Thai [Industry 1] as claimed, is employed in Australia, is a mother to [an age]-year-old girl and that she keeps in regular contact with her sister, who is also currently resident in Canberra.
Assessment of protection claims
It is often necessary for the Tribunal to make credibility findings in reviews of protection visa applications. This is one such application.
The Tribunal has noted that the visa applicant has a history of travel to Australia, which on its face, suggests she has complied with her prior visa conditions and has established a positive immigration record. This history weighs in the applicant’s favour. The Tribunal also accepts that the applicant has a sister resident in Australia and considers that fact incentivises the applicant to maintain any positive immigration record so she can continue to visit her. It strikes the Tribunal as curious that any person, after many years of repeated visits, would potentially jeopardise their ability to travel to Australia through lodging a non-genuine protection claim. This observation also weighs in favour of the applicant’s claims having credibility. In this case, the fact that the applicant would enter Australia on four occasions before seeking to engage Australia’s protection obligations suggests that something in her life has changed, which is potentially relevant to her claims.
However, the Tribunal has identified several differences between the evidence presented by the applicant in her protection visa application, in the hearing, and by her sister. The Tribunal raised the essence of the differences with the applicant at the hearing and gave her an opportunity to comment. On receipt of the post-hearing submissions, and particularly the purported Loan Contract, further discrepancies arise. The unresolved differences in the evidence lead the Tribunal to affirm the delegates decision.
The Tribunal is concerned about differences in the applicant’s evidence concerning her marital status and claimed date of separation. Given the applicant’s claim that she was guaranteeing a loan effectively in her partner’s absence, the Tribunal has considered evidence relating to her marital status as relevant to its assessment of the claims.
The Tribunal notes that through her protection visa application the applicant lists her marital status as ‘separated’ and in free text responses refers to her ‘husband’, whereas in the hearing she explained they are not legally married and are now separated. The Tribunal places only a small degree of weight on this difference in terminology as a single factor, as it notes the applicant’s evidence that she used Google translate to write her application and matters of slight differences in terminology may be explained by differences in the Thai and English languages or use of translation tools. The Tribunal is concerned that during the hearing the applicant indicated she had separated from her partner two months prior to coming to Australia (which would be approximately March 2024 according to her movement records), whereas later in the hearing she indicated they separated in December 2023. The Tribunal’s concerns about the marital status of the applicant are further exacerbated by the conflicting witness testimony provided by her sister, which suggests that the applicant is not separated, and the relationship is ongoing, and that the applicant did not tell her of her troubles until she arrived in Australia.
The Tribunal is not persuaded by the applicant’s explanation for the differences in the evidence provided by her sister (indicating that she had not told her sister the whole truth), because she had earlier told the Tribunal she shared a close relationship with her sister. With respect to the claims concerning the applicant’s marital status, the Tribunal prefers the sister’s evidence because of additional circumstantial detail she offered, concerning the age difference between the applicant and her partner, being later verified by the details contained within the applicant’s child’s birth certificate. This suggests the sister’s evidence was given truthfully, and accordingly the Tribunal prefers the sister’s evidence.
With respect to the loan arrangements, the Tribunal is also concerned about differences in the applicant’s evidence concerning her experience as a lender or guarantor. In her protection visa application (extracted at paragraph 14 of this decision) the applicant writes that she has a history of assisting her husband’s relatives with loans and suggests that her ability to broker loan agreements was owed to some level of skill or characteristic on her behalf. However, in the hearing she told the Tribunal that the loan arrangements being the subject of this review was her first experience guaranteeing a loan. The Tribunal finds it difficult to reconcile the differences in this evidence. The applicant also told the Tribunal she had experience borrowing from a bank.
The production of the Loan Contract to the Tribunal in post-hearing submissions raises several additional problems. Firstly, it was not provided to the delegate. Accordingly, the Tribunal is required to apply an inference unfavourable to the credibility of the document if the Tribunal is satisfied the applicant does not have a reasonable explanation why the evidence was not raised before the primary decision was made.[4] In oral evidence the applicant said she did not wish to alert the creditor to her whereabouts by requesting a copy of the loan contract, and thought she would have to ask family to assist her. The applicant has provided no evidence of how she has been recently able to obtain the Loan Contract, in circumstances where she previously was not able to obtain it for the delegates consideration.
[4] Migration Act 1958 (Cth), s 367A.
Secondly, there are substantive details within the purported Loan Contract which trouble the Tribunal, namely that the signature of the guarantor does not match the applicant’s signature in her passport provided to the Tribunal. The guarantor’s signature on the Loan Contract is written in the Thai language, whereas the applicant’s signature as available to the Tribunal in her passport is written in the English alphabet. The applicant has provided no evidence to suggest she has two or more signatures that might explain the difference. Other minor discrepancies are also apparent, including:
a.the purported Loan Contract is dated 17 August 2023, however in oral evidence the applicant told the Tribunal she thought she signed the agreement in July 2023; and
b.the purported loan contract writes her age as [age], although according to the Tribunal’s calculations, the applicant would have been aged [a year older] at the time she purportedly signed the contract.
Thirdly, the purported loan document appears as a digital scan, rather than an original document which raises some questions as to the authenticity of the document, and also appears to be translated in Thailand, rather than by a NAATI endorsed translator.[5]
[5] Administrative Review Tribunal (Common Procedures) Practice Directions 2024 (cl 6.2) requires evidence to be presented in English, or accompanied by a NAATI certified translation and the Tribunal may not accept evidence that does not comply.
While no single difference in isolation may be material to the claims, the cumulative differences in the evidence comprise a sufficient quantum that the Tribunal is not persuaded that the applicant’s marital status is as claimed, or that the loan agreement exists as claimed.
The Tribunal’s findings are also grounded by the applicant’s other evidence to the Tribunal, namely that she is a woman with solid career experience in the Thai [Industry 1] as a freelance consultant and as having international travel experience. With such life experiences, the Tribunal is not satisfied that in all of the circumstances she would sign as guarantor any loan, and particularly not a loan of 2,000,000 Thai baht (being a significant sum (equivalent to approximately AUD$95,000)) without first checking the details with her partner, who was, according to her evidence, intended as the original guarantor for the loan. Signing the contract in those circumstances, and for that sum, appears to run contrary to the experience she claims in her protection visa application, which portrays the applicant as an experienced lender.
Considering the totality of the evidence provided, the differences identified in the evidence, and having regard to s 5AAA of the Act which requires the applicant to specify all particulars and provide sufficient evidence to establish the claim, the Tribunal does not accept the applicant is seperated from her long term partner and does not accept that she is a guarantor for a loan in the sum of 2,000,000 Thai baht.
It follows that the Tribunal does not accept that she was the victim of any prior harm in Thailand owing to being a guarantor for a loan and having debts to a creditor. Specifically, the Tribunal does not accept that she was the victim of menacing calls, surveillance or monitoring, that a person was lurking near to her home or that she was involved in a physical altercation in the driveway of her home or whilst driving.
The applicant has provided no other evidence to the Tribunal that would suggest she experienced harm, or is at risk of harm, for any other reason.
Does the applicant satisfy the refugee criterion for protection?
Following the Tribunal’s findings above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm (or any harm) now or in the reasonably foreseeable future if she returns to Thailand.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution per s 5J of the Act. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution it is not satisfied that the applicant is a refugee per s 5H of the Act. Because the applicant does not satisfy the definition of refugee, the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
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), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[6] the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[7]
[6] MIAC v SZQRB (2013) 210 FCR 505.
[7]See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Following the Tribunal’s findings set out above that the applicant will not face any harm now or in the reasonable foreseeable future if she is returned to Thailand, for the same reason the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to Thailand, that there is a real risk she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36 (2) (aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no information to suggest that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 19 March 2025
Representative for the applicant: N/A
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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