2518125 (Refugee)
[2025] ARTA 1936
•2 September 2025
2518125 (Refugee) [2025] ARTA 1936 (2 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2518125
Tribunal:General Member T Barty
Date:2 September 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 02 September 2025 at 2:45pm
CATCHWORDS
REFUGEE – protection visa – Thailand – economic conditions – borrowed from loan shark for business and later for travel – harassed and threatened and ongoing approaches to family – mental distress – partner with children in Australia – previous visa cancelled and applicant in immigration detention – agent’s advice to apply for protection visa rather than partner visa – inconsistent claims and evidence – no documentation about business loan – no claim of physical harm – able to gain second loan – country information – loan sharking a criminal offence – interest limited by law, police investigations and support for victims – accessing state protection sometimes difficult, and victims at high risk of harassment and moderate risk of violence – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIMA v VBAO of 2002 [2004] FCA 1495Any 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 on 7 April 2025 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 22 March 2025. In her application she said she was a national of Thailand. The delegate refused to grant the visa on the basis that the applicant was not a refugee and was not entitled to complementary protection.
The applicant appeared before the Tribunal on 19 June and 6 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted mostly in English, with the assistance of an interpreter in the Thai and English languages as necessary.
At the conclusion of the hearing on 19 June 2025 the applicant was given the opportunity to provide further evidence by 4 July 2025. She provided documents on 14 July 2025. The Tribunal listed the matter for further hearing on 6 August 2025. The applicant made a further written submission on 11 August 2025.
BACKGROUND
At the time of this decision, the applicant is a [Age]-year-old woman. The passport she provided to the Department says she was born in Bangkok, Thailand.
Movement records indicate the applicant first travelled to Australia on [in] February 2009 on a vocational education and training sector visa. She left Australia [in] July 2011, returned from [July] 2011 to [January] 2012, and returned to Australia [in] March 2020. She has remained in Australia since that time.
At the time of the hearing, the applicant was in immigration detention.
CLAIMS AND EVIDENCE
Evidence before the Department
In the applicant’s protection visa application the applicant provided the following information about her claims for protection:
· She left Thailand because of financial stress, safety concerns and the lack of opportunities for a stable livelihood. She left because of overwhelming financial difficulties. She borrowed money to come to Australia from informal lenders and has not been able to settle her outstanding loans. She is now facing threats from those lenders who are known to use aggressive tactics, and she fears she would be in immediate danger if she returned. She also left because there is limited legal and social support for people facing financial hardship.
· The informal lenders have threatened her, and she has received phone calls and messages warning her of severe consequences if she fails to pay her debts. Some of the lenders have also approached her family demanding payment and causing extreme stress for her and her family. She also experienced economic hardship and struggled to survive and there is stigma associated with financial struggles and it was difficult to seek help or support.
· She attempted to get help after she was threatened and harassed by the informal lenders but there was little protection from authorities or support systems. Law enforcement often does not intervene, and other support resources were limited.
· She considered relocating but realised that moving would not provide a real solution, as the informal lenders have extensive networks and go to great lengths to track down individuals.
· She fears that if she returns to Thailand she faces serious harm both physically and psychologically due to threats from informal lenders, financial instability and the lack of legal protections. Since she left Thailand, they have persistently contacted her and her family demanding payment and issuing threats and she believes the threats would escalate if she returned to Thailand. Even while she has been away her family has been harassed and pressured by lenders and they may continue to target her family using them as leverage to force her to pay. Without stable income she would be trapped in a cycle of debt making it impossible to escape the threats from lenders. She also fears they may force her into dangerous or exploitative conditions. Based on her experiences and that of others in similar situations, she has no confidence that the authorities would intervene to protect her.
· In Thai society financial hardship carries a strong stigma and those who are unable to repay their debts face judgment and discrimination. Finding housing, employment or community support in a new area would be difficult.
There was also a typed record of an interview conducted on 24 March 2025 between the applicant and an officer of the Department of Immigration and Border Protection regarding the applicant’s Bridging Visa E application. It is not a verbatim (word for word) record but is the officer’s typed record. It notes that the applicant had a previous name [Name]. In that interview record, the applicant said that she could not go home because she borrowed from loan sharks and she wanted the opportunity to earn money to pay the debt, and to study so she can work when she returns to Thailand. She said that she came to Australia in 2009 to study language and she also did a Certificate III in [Subject 1]. When she went back to Thailand she opened a [workplace 1], but it did not succeed, and she borrowed money for the [workplace 1] and some for personal use. She borrowed about 200,000 baht in 2013 and paid 20,000 per month, and then she got another loan to come to Australia of about 30,000 baht. She tried to pay that back and transferred about $200-300 AUD a week, but then she met a guy and could not send money back. The interest grew and she now owes over 30,000 AUD. When asked why she applied for a protection visa she said it is so she can work in a [workplace 1] and get money to send back to Thailand, so her family does not have to. She said she now has a boyfriend in Australia. He has [young] children, and he is sick and cannot work.
In relation to the protection visa application, the delegate concluded that the applicant’s fear of economic hardship was not a fear of persecution for reasons of her race, religion, nationality, political opinion or membership of a particular social group. In relation to harm from the loan shark they concluded that the applicant could obtain effective protection. Considering her claims individually and together, the delegate was not satisfied the applicant was a refugee. In considering complementary protection, the delegate concluded the applicant’s claim that she could not obtain a job with sufficient wages to support herself would not amount to significant harm as that is defined. They also concluded that the applicant could obtain protection such that there would not be a real risk of significant harm.
Evidence before the Tribunal
Before the hearing the applicant provided a ‘Certificate of Facts’ signed by [Ms A]. The statement said that she was the [sister] of the applicant. She said the applicant began borrowing money from informal creditors in March 2014 to invest in her [workplace 1] and the amount was approximately 300,000 baht. She paid off the debts according to the agreement until the remaining outstanding amount was 200,000 baht. The applicant had experienced cruel, unfair and severe threatening methods of debt collection on several occasions. When she could not pay, they called to threaten her. They left voice messages and text messages threatening to hurt her or to reveal personal information and the debt has now increased to approximately 500,000 baht. There were also times when strange men came to the house and asked for the applicant and used foul language to frighten her and the family. This had a severe impact on the applicant’s mental health as she felt unsafe and did not dare leave the house alone. She said that the information was true and she had known, witnessed or been continuously told this information by her sister.
The applicant also sent links for three [social media] clips to the Tribunal prior to the hearing.
The applicant’s personal background
At the hearing the Tribunal asked the applicant about her personal background. She said she was born in Bangkok. She lived with her family in [Town], a town in the north of Thailand. She has 2 [sisters].
Her parents made a living selling [products] from a small shop. She lived in [Town] and went to school there until she went to high school in Bangkok. She lived with her sister and her mother while she attended school in Bangkok. After she finished high school in about 2006, she started studying [subject 2] at [College], and then changed to do [subject 3] at [University]. She did not finish that course, and her sister and mother thought it would be good for her to come to Australia to study [subject 1].
In 2017 when she was in Thailand she got married, and they divorced in 2023. The applicant said she and her husband separated in 2020 when she moved to Australia, although when she came here she considered that she was still in a relationship, but within 6 months the relationship ended as her husband was having an affair. She has a son from that marriage who lives with her mother and father in [Town]. Her son was born on [Date]. Her ex-husband asked for the divorce because he wanted to get re-married. When she left in 2020 her son remained with her mum and sister in [Town]. Before she left Thailand she was living in [Town] and her husband worked in the south of Thailand as [an occupation 1]. He came home about once a month for about one week at a time. While she was living in [Town] with her son she would help in the family shop, and she and her son lived in a separate house.
Her son is currently in school, and she contacts him once a week. She last saw him in 2020. Her son lives in the shop with her parents, and when his father comes back to [Town] he (her son’s father) lives in the same house where they used to live. Her [sister] ([Ms A]) lives with her partner in [Town] also, and she also cares for the applicant’s son. Their [other] sister lives in the north of Thailand and works in her uncle’s [store].
When asked why she first came to Australia in 2009, she said it was a good opportunity to study [subject 1] and English to help the business in [Town]. Her mother gave her about $1000 to come here and paid for her accommodation for one month. The applicant said she then worked in a [workplace 1] to pay her expenses. She was living in Melbourne in an apartment she shared with other students that she met at school. Between 2009 and 2011 she studied English and [subject 1].
The Tribunal asked about the time in 2011 that she left Australia. Initially the applicant could not recall but thought that she met her sister in [Country] for a holiday.
She left Australia in 2012 and went to live in Bangkok where she lived with her [other] sister who was working as [an occupation 2]. The applicant worked in the [part] of a new [workplace 2] for about one year and then went back to [Town] as she wanted to open a [workplace 1]. At that time her credit was not good, she could not get a loan from a bank and she took out a loan from a loan shark. She started her business in about 2014. She had a photo on [Social media] that showed she ran the business which was called ‘[Business name]’. The business is no longer operating but there is still a [Social media] page. The business operated for about a year or a year and a half. She operated the business with her sister’s friend who helped with the [work task].
While she was running the business, she lived in her parents’ shop. When the business ended, she was still living with her parents and helped in their shop. Her parents supported her financially and she did not have any living expenses. She lived with her parents until she married and then she moved in to her husband’s house.
The Tribunal asked why she decided to return to Australia in 2020. She said it was because the loan sharks made her very stressed and asked for the money back. They came unannounced and made threats. She did not have work and did not have the mind set to do anything. She worried about her family’s safety and thought the best thing would be to study and work in Australia and send money back. She thought they would be safe if she did that.
When she came to Australia in 2020, she lived in Melbourne city in an apartment. She studied [subject 1] again as she had not finished the course before. She supported herself by working in [Suburb 1] as [an occupation 3] at a [workplace 1]. After about a month the Covid 19 pandemic started, and she moved out of the city and lived near the [workplace 1].
Currently she is in immigration detention where she has been for 3 months. Before that she was living with her partner in [Suburb 2]. They have been together over 2 years. She can’t work and so looks after him and his [children]. The children live with them on the weekend. Her partner has heart disease and [Condition 1]. He used to work in a [workplace 3], but since he was diagnosed with [Condition 1] in November last year he receives Centrelink payments. He has had [surgery] but still [not improving].
The applicant’s protection visa application and her protection claims
In relation to the protection visa application made in March 2025, she said that while she was in detention a friend put her in contact with a migration agent. The applicant got her partner to pay for the agent. After about 3 days in detention she spoke to the agent who said they could get her out of detention. The agent asked about her background, and the applicant said that she has a partner, and the agent advised that she could apply for a partner visa and the agent would charge $13,000. The applicant asked if she could pay in instalments, but the agent said that was not possible and that the other option was to apply for a protection visa which would cost $3,000. The agent explained that because she had a loan shark and they harassed her, that was the best way to apply for a protection visa.
The applicant was asked whether she got help to fill out the protection visa application. She said that the agent completed the form. The applicant acknowledged that where the form says that she did not get any help with the form, that is incorrect. Also the agent did not ask about her relatives in Thailand. The agent did not meet her in-person, and their interactions were by a call or on-line chat.
When asked why she had not made the application for a protection visa previously, she said that she did not know whether it was okay to apply for it in her situation, she only thought about the partner visa. She did not know about the protection visa until she received advice from the agent.
The Tribunal asked whether she had any concerns in 2020, and what she thought would happen if she returned at that time. She said she was concerned for her and her son and their safety. She thought if she was there the loan shark would come and ask for the money, and she came here to work and study and to send money back to pay them. Before that they threatened her.
The Tribunal put to the applicant that she had allowed her previous visa to lapse, and that it was possible the Tribunal could conclude that she did not fear persecution and only applied for a protection visa in order to extend her time in Australia. She said she did not know that her visa was cancelled as her ex-boyfriend forced her to work, and he had control of everything, including her email. She tried to run away from him, but he always found her. She was in a relationship with him from 2022 to 2023.
In relation to her claims for protection and loans from an informal lender, the applicant said she first took out a loan before she started the business in 2014 or 2015. She borrowed 200,000 baht from a person introduced by a friend. Her friend had borrowed from the same lender. The money was put in her bank account, and she gave them her Thai ID. She said she signed a document about the loan but did not receive a copy. The terms of the agreement were that the interest was 20% per month. Repayments were not fixed and depended on what she could afford. She paid them about 3,000 or 5,000 baht per week while the [workplace 1] was running. They would come and get the money from the [workplace 1]. She thought the business would go well and she would repay it. She paid them in cash and kept money aside from the business to pay them.
When asked if she had any documents or records relating to the loan, the applicant said she had a chart with a list of repayments and the dates of the repayments on her phone, but she needed wi-fi to access it. She said she paid them a total of about 100,000 baht in Thailand and here. When the Tribunal suggested that would only be 20 to 30 weeks of repayments, and her evidence was that the business operated for over one year, she said that maybe she did not pay every week. They told her to pay whatever she could. They seemed very kind and she just wanted to open her [workplace 1]. She said she did not borrow from her family because they did not have much money. Although they had paid for other things for her in the past, she said that this was a big amount of money, and if her family had lent her the money they would have been involved in the [workplace 1] and she did not want that.
The applicant said that in Australia she paid about 8,000 AUD but she stopped paying about 3 years ago. She stopped paying because her ex-boyfriend took all the money. Then when she was with her new boyfriend she could not work because she had back pain. She said she had records of the payments she made from Australia as those amounts were made by bank transfer. Later in the hearing she said that she was not sure how much it was.
During the first hearing on 19 June 2025, the applicant said that was only loan from a loan shark. The Tribunal referred to the bridging visa interview which referred to another loan for 30,000 baht when she was coming to Australia. She said that was from her mother and father because she could not borrow from the loan shark. The applicant seemed unclear about this amount, and then said that she was not sure if she borrowed extra from the loan shark and would check on the schedule of payments on her phone.
When asked about the [social media] clips provided to the Tribunal before the hearing, she said that another detainee gave her some advice. She said that she searched on-line and found them. The clips show loan sharks harassing other people, not her family or her.
The applicant said she would be able to provide a list of payments including payment dates, records of the transfers of money from Australia, and the bank statement to show when the loan shark put the money into her bank account.
The Tribunal asked the applicant how much she owes now. The applicant said it was 550,000 baht. She said that last year they told her sister that was what she had to pay back.
The applicant was given the opportunity to comment on her evidence that she borrowed money for her [workplace 1] and then stopped paying when the [workplace 1] closed down a year or a year and a half later but that she only left Thailand in 2020, and that this may indicate that she did not fear harm. She said that she lived with her family in the shop after the [workplace 1] closed, and the loan shark only came to the [workplace 1] and to the house where she lived with her husband. She said they did not come to her parent’s shop because she asked the loan sharks not to do anything that would involve her parents, and they respected that. However, she said that they spoke to her sister and said they are looking for her (the applicant). When they spoke to her sister, her sister lied to the loan shark and said they had not spoken to the applicant for a year.
When asked why she did not want to return to Thailand now or in the reasonably foreseeable future, the applicant said that she is afraid they will come and ask for the money back in a harsh way. If she went back now she could not pay them back and if she does not pay they will do something bad to her, and she does not want anything bad to happen to her family.
The Tribunal asked that applicant about the loan shark’s actions. She said that when she could not pay every week, they would come and ask for the money back. They would shout, and they broke a window in the [workplace 1]. They threatened her sometimes and said that she has to pay the money back somehow, and if she could not, they will keep hunting and destroy her life. She said that after the [workplace 1] closed, they came to see her sometimes. After she married, they came to the house and asked for money because her partner was not there. When asked if her [occupation 1] husband acted against the loan shark, she said he did not want to get involved. He was not there all the time and could not do anything. He was just starting out as [an occupation 1]. She said they did not come to the house when her husband was there. She is now divorced from him and if she goes home, he cannot do anything to protect her.
The applicant was asked about the threats, phone calls and text messages referred to in her visa claims. She said that those things were on a phone she had in Thailand. However, she said that she could get footage of the man coming to her father’s shop last year looking for her. She said they only came to the shop that one time. When asked if they had any other contact with her family other than that one time last year, she said they had not.
When asked about her visa application which says that since she left, they have persistently contacted her and her family demanding payment, she said that they did contact her, but that was when she was in Thailand.
The applicant said that she had the list of repayments on her current phone. It only contains the list of payments she made since she has been in Australia. She said that when she was in Thailand, she kept a book with a list of the payments she made.
When asked if she or her family had complained to police about the loan shark’s actions, she said that she did not because she was scared they would do something. The Tribunal put to the applicant that property damage and yelling and threats may not amount to serious or significant harm and gave her an opportunity to comment. The applicant was upset at this point in the hearing and said that she wants to go home to visit her family and her son, but when she was in Australia she met a bad guy. She is now with a good person, but he is sick.
The applicant was asked how demands for payment or yelling and threats would affect her. She said that it would make her stressed and lose confidence. She might get to the point where she wants to do something to escape. Her visa application referred to mental distress as a result of the pressure from the creditors and her inability to find work. She said that she had not had mental health treatment in Thailand or Australia.
Her visa application also referred to financial hardship. When asked about this during the hearing, she said if she goes back, she cannot repay the loan shark because she does not have any income. If she works for her parents she would not get paid. If she wants to go to her family without those worries, she would have to pay first and she does not have money to pay the loan shark and does not have work in Thailand. She said it is hard to get a good job. She said her back is better now, but she cannot work because she does not have a visa. When asked about obtaining work in Thailand, she said she feels that if they know she is there they would come and threaten her, and she is anxious. She said she has no skills and does not have money for a small business. The applicant said that if she had a visa in Australia she could work and send money home. She said the last time she was earning enough to send money home was when she was working as [an occupation 4] about 3 years ago.
We discussed the country information that unemployment is low in Thailand, and she had work experience from her previous work. She said that they will want her to pay them. She does not want them to do a bad thing to her or her family. They have not done anything to her family because she is not there and she does not want to face them again.
When asked whether she could live somewhere else in Thailand, the applicant said that she wants to live with her family. She said if she is in Australia, she has more chance to pay the debt and then it would be easier to see her family again. The Tribunal suggested that if she lived in a big city, the loan shark would not know she was there. The applicant was given the opportunity to comment, and said that she did not have anything to say.
Her visa application also said that she experienced stigma as a result of financial struggles. When asked if she was worried about that if she returned to Thailand, she said that she feels that it would be embarrassing, and she is afraid if she cannot pay back the money. She said they will not harm her family if she is in Australia. She was not sure how they would know if she returned to Thailand, but she is scared to go back.
The Tribunal referred to country information (including that referred to at paragraph 72 of these reasons). After reading the substance of that information to her, the applicant said that in the worst-case scenario they would kidnap her son or harm her family or kill her. She said that the police are corrupt and take money from loan sharks. While her son’s father is [an occupation 1], he is not there all the time and does not want to get involved.
The applicant was asked about the difference between her evidence that the outstanding loan was 550,000 and her sister’s statement which says it is 500,000. The applicant said that she was not sure – she had the number 5 in her brain. She said that her sister wrote the statement herself. When asked why her sister did not mention the loan shark coming to the shop asking for her, the applicant said she did not know.
After the hearing was adjourned on 19 June 2025, the applicant was permitted further time to provide the documents she discussed during the hearing. She provided documents on 14 July 2025. The Tribunal listed the matter for further hearing to allow the applicant to explain the contents and relevance of the material she sent to the Tribunal.
At the resumed hearing on 6 August 2025, when asked how much she borrowed for the [workplace 1] she said it was 30,000 AUD and then said it was about 500,000 baht. When the Tribunal indicated that she had previously given evidence that it was 200,000 baht, she said she was not sure. She said she got mixed up – the amount she has to pay back is 500,000 and her sister said that they told her that she owes 500,000 to 550,000 baht.
The documents the applicant provided included some material that was untranslated. The documents appeared to be screenshots of records of financial transactions. At the resumed hearing we discussed these documents. When asked, the applicant said they were evidence of repayments and transfers from the loan shark. The applicant was asked to explain the parties to these transactions because many were between [the applicant – Alias] and [Company]. She said that [Alias] was her old name and that is what is on her bank account. She changed her name before she came to Australia. She changed her name because her sister said her old name is not good.
The applicant explained the 200,000 baht paid to her bank account on 4 February 2020, was from the loan shark just before she came to Australia. The loan was for her to come to Australia. The applicant was asked about the record which showed 150,000 baht paid to her ([Alias]) in May 2022. She said that one of her friends asked her to borrow the money and the applicant asked the loan shark to help. The loan was paid to her, and she gave it to her friend who needed it to pay school fees in Australia. Her friend paid every month and some of the transactions for repayments that were in the documents provided to the Tribunal are her friend’s repayments (the transactions dated 6 June 2022, 7 July 2022, 6 August 2022 and 5 September 2022). She said that debt had been repaid. When asked how she knew it was repaid, she said she was living in the same place with her friend and her friend got a text from the lender to say it was repaid.
When asked why there were 2 payments made on the same day on some occasions, she said that when she still had her phone she would transfer money for herself and her friend. When she lost the app, her friend paid her loan herself. The 660-baht payments were the applicant’s own payments.
The documents also included screenshots of transactions in English which showed transfers from [Alias] to [Company] as follows:
· 5 April 2022 for 5,500 baht
· 5 May 2022 for 7,000 baht
· 6 June 2022 for 660 baht
· 7 July 2022 for 660 baht
· 6 August 2022 for 630 baht
· 5 September 2022 for 660 baht
She said she had not repaid the 200,000 baht she borrowed in February 2020. She said she could not pay it because of her ex-boyfriend. She said there were more repayments, but they are not in her photos, and she does not have the banking app. She said that she thinks she paid them 300,000 baht, but when she stopped paying the interest kept accruing.
She explained that to make transactions in Thailand they are required to have an identification card and when she changed her phone number in 2022 or 2023 she could not make any transactions. Later in the hearing she said that she had a phone in Thailand and kept that until 2023 and she got rid of it because her previous boyfriend harassed her. When asked why she did not get the app on her new phone, she said she needed an I.D. card to register on the app and had to go in person to a Thai bank. She said she did not use a different app because she could not transfer money when she was with her boyfriend in 2022-23, and in 2025 her passport expired and that was needed to get a banking app.
The documents provided ended in November 2022 – with a payment of 13,550 baht. When asked if that was the last payment, she said she was not sure. There might have been 2 more.
As she had given evidence previously that she borrowed money in 2014 or 2015 from a loan shark, she was asked if the 2020 and 2022 loans were in addition to that, and she said they were.
The applicant was asked about her statements on the first hearing day that she could obtain a copy of the bank statement which would show the loan for the [workplace 1] deposited into her bank account, she had a list on her phone of the repayments she made in Australia, and she would have records of her transfers of funds from Australia to the loan shark. She said she could not get that evidence because she could not log into the bank app. She said she did not have a list on her phone but had a list in Thailand and could not remember where she put it. She cannot get into the Wise app. The records and screenshots she did provide were in her Google account and she checked but she did not have other records or texts from the lender.
When asked about the video footage she said she would provide, she said that the man attended only once, and her sister told him she had no contact with the applicant for a year. Her sister told him not to traumatise the applicant’s son, and he had not returned. She said there was no video footage of that man, only customers.
The applicant was asked why she had not mentioned the February 2020 and May 2022 loans during her previous evidence. She said that one was her friend’s loan and she did not think that was relevant. In relation to the loan for 200,000 baht, she said she thought it was not related to the [workplace 1]. When the Tribunal pointed out that the previous evidence was not only about the [workplace 1] loan but was a discussion about lending from the loan shark, she said she did not know. When given an opportunity to comment on issues with credibility given that her evidence was not consistent, she said that she cannot go back to Thailand and does not want to be harmed, and she does not want her child to see violence. She said that she could not remember things about the loan, and she tried her best to get evidence.
The Tribunal asked the applicant why she continued borrowing from the lender if he was harassing and threatening her. She said that when her friend asked for help her friend was very stressed, and she asked the loan shark and thought that while she was here she would try to repay it and the loan shark would get more interest.
When asked why the lender would lend her money and why she would go to them if she was afraid of them, she said that she thought if she came to Australia she could study and work and pay them back, but in Thailand she cannot. Her parents could not support her, and she borrowed money to come here. When asked why she borrowed again from the loan shark if she was afraid of him, she said she did not have a good bank record and did not know any other loan sharks.
The applicant was asked to clarify her evidence that she got a new phone in 2023 and that she could not get a new money transfer app because she needed a passport, but her passport did not expire until February 2025. The applicant said that she could not pay the lender because she had to pay for accommodation and then after she broke up with her ex-boyfriend (in 2023) she had back pain and could not work. Her new partner looked after her and she started a new relationship with her partner mid-2023. She considers that she is still in a relationship – they still care about each other and keep in contact, although he has not been to visit her in detention because of his [Condition 1].
Following the conclusion of the hearing on 6 August 2025, the applicant wrote to the Tribunal on 11 August 2025. Her email said that she is unable to return to her country of origin under any circumstances as her life would be in imminent danger and her family would be exposed to serious harm. She had been the target of threats, and her safety cannot be guaranteed. Her son deserves to grow up free from fear and violence and her parents would not be able to endure the psychological and emotional trauma if their family was harmed. In Thailand lives can be taken swiftly and without justice. She asked for the opportunity to rebuild her life in a secure environment. She is in severe emotional distress, anxiety and suffering. She desperately needs the protection visa and the chance to live in safety and free from persecution and harm.
Country information
In relation to loan sharks in Thailand, country information indicates that illegal lending is a serious issue in Thailand. The Department of Foreign Affairs and Trade (DFAT) reports that it accounts for an estimated 20 per cent of total lending. Many borrowers have multiple debts – lending from one to pay off another. Loan sharks charge high interest rates.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, 18 December 2023, [3.112]
Loan shark operators include criminal gangs, wealthy individuals and corrupt officials. Enforcers use a variety of means to get borrowers to repay their debts, including verbal harassment, threats of legal action and vandalism. It can also extend to seizing household assets, burning down homes or businesses, violent threats against victims, their family members and guarantors and carrying out physical attacks. DFAT reports of cases where victims were beaten or forced into drug trafficking or sex work to repay their debts.[2] News reports confirm that assaults, harassment and threats do occur.[3]
[2] Ibid [3.113] – [3.115]
[3] Thongnoi J, Millions of Thai borrowers struggle to get out of debt, Benar News, 1 March 2024, Millions of Thai borrowers struggle to get out of debt — BenarNews; Ngamkham, W, Loan sharks held for hitting woman, Bangkok Post, 29 July 2024, Bangkok Post - Loan sharks held for hitting woman
Loan Sharking is a criminal offence, and interest is limited to a maximum of 15 per cent. Loan shark victims can get support, and police do investigate loan sharks.[4]
[4] DFAT [3.115] – [3.117]
The government is active in disrupting the practice and police arrested 100 people in the first half of 2022.[5] In December 2023 the Prime Minster declared a crackdown on illegal loans and loan sharks as a national priority in order to restore normalcy and social order. He announced a process where debtors could file petitions and sign up for a scheme. In addition the police set up a suppression centre to receive complaints about loan sharks.[6] Mechanisms put in place to help mediate between debtors and non-banking creditors were accessed by 150,000 people.[7]
[5] DFAT [3.116]
[6] Wipatayotin, A, Loan sharks now targeted by Srettha, Bangkok Post, 9 December 2023, Bangkok Post - Loan sharks now targeted by Srettha
[7] The Nation, Govt will keep helping loan shark victims, even unregistered ones: Anutin, 3 March 2024, Govt will keep helping loan shark victims, even unregistered ones: Anutin (nationthailand.com)
DFAT reported that corruption is a serious obstacle, and local officials are often involved in loan sharking or turn a blind eye to it and it can be difficult to access state protection where the alleged loan shark is a high-ranking official, military or police officer or local powerbroker.[8]
[8] DFAT [3.117]
DFAT assesses that victims of loan sharks are at high risk of verbal, social and online harassment, and at moderate risk of violence including assault, arson and vandalism.[9]
[9] DFAT [3.118]
In relation to the economic situation, DFAT reports that Thailand experienced rapid economic growth and social development since the 1960’s. It is considered an upper-middle income economy. Tourism is a large part of the economy – 20% overall. Other major sectors are services, manufacturing and agriculture. Agriculture contributes less than 10 percent of GDP, although about one-third of the population are employed in agriculture.[10]
[10] DFAT [2.7] –[2.8]
Poverty has reduced in the last 30 years to 6.8 percent in 2020. Inequality remains very high, with rural households generally much poorer than urban households. The official unemployment rate is very low but in practice there is considerable unemployment and underemployment. Other economic challenges include low productivity, high levels of household debt and falling real wages and a large shadow economy. [11]
[11] DFAT[ 2.9]
Thailand has expanded its welfare system over the past decade and about 14.5 million Thais are eligible for benefits.[12]
[12] DFAT [ 2.10]
In relation to support for health issues, Thailand has a health care system which provides citizens with access to good quality, affordable public healthcare under the government-funded Universal Coverage System (UCS). More than 75% of the community is covered by the UCS and the rest are covered by schemes for civil servants and private sector employees. Mental health care is covered in the UCS. There are dedicated psychiatric hospitals, community care facilities and psychiatric units in general hospitals. There are 24/7 counselling hotlines and on-line chat services. However, those living with mental illness can face challenges accessing care, particularly in rural areas, and there is a shortage of qualified psychologists, particularly outside Bangkok. Stigma is a disincentive to seeking mental health support because many Thais link mental illness to supernatural causes and seek help from monks or black magic.[13]
REASONS AND FINDINGS
[13] DFAT [2.12] – [2.14]
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Issues
The issues in this review are whether the applicant is a refugee or owed complementary protection in accordance with the provisions of the Act.
The applicant’s country of nationality
The applicant provided a copy of her Thai passport to the Department and has consistently stated in documents that she is a citizen of Thailand. In the hearing she discussed her past in Thailand and the Tribunal accepts the evidence that the applicant is a Thai citizen. There is no evidence that she is a citizen of any other country, and there is no evidence that she has a right to enter or reside in a third country. The Tribunal finds that the applicant is a Thai citizen and assessed her protection claims with Thailand as the receiving country and country of nationality.
Analysis of the evidence and findings in relation to the applicant’s claims.
Section 5AAA of the Act places an obligation on protection visa applicants to present their case. It is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.
The applicant’s claims and evidence were presented in her visa claim, the material presented to the Tribunal and her oral evidence at the Tribunal hearing.
In relation to the protection claims made in her visa application, the applicant was open about the circumstances of her application. The applicant’s previous visa was cancelled, and she was not on any visa at the time of the hearing. She was in immigration detention. She said that while in detention she sought advice from a migration agent who assisted her with her claim.
The Tribunal accepts the consistent evidence of the applicant that she first came to Australia in 2009 and remained here until 2012. When she returned to Thailand, she started a [workplace 1] in 2014 or 2015, and it operated for about one or one and a half years.
The applicant’s claims for protection relate to the money she borrowed to operate the [workplace 1] and the consequences of not repaying the loan. She said that she borrowed money from a loan shark, and her sister’s statement also says the applicant borrowed money from informal creditors. The applicant’s evidence was that she signed something, but she does not have any loan agreement or document confirming the existence of the loan or the amount or terms of the loan. Country information indicates that while loan sharking is a criminal offence, borrowing from loan sharks is common in Thailand and on the basis of the applicant and her sister’s evidence about the business and the loan, the Tribunal accepts that the applicant borrowed money in 2014 or 2015 from a loan shark.
The applicant’s evidence was that she initially borrowed 200,000 baht which was deposited into her bank account, and that she made loan repayments in Thailand and when she came to Australia. At the hearing on 19 June 2025, she said she could obtain a copy of the bank statement which would show the loan deposited into her bank account, she had records on her phone of the repayments she made in Australia, and she would have records of her transfers of funds from Australia to the loan shark. The Tribunal allowed the applicant time to provide that evidence.
The applicant did provide further evidence after the adjournment. Although the evidence showed payments to a person with a different name, as the applicant had disclosed that name in the interview with the delegate about her bridging visa, the Tribunal accepts that the applicant had a previous name and that was the name used for her banking accounts. The evidence provided did not show the initial loan in 2014 or 2015 to the applicant but showed two further loans.
The documentary evidence provided showed that the applicant obtained and received 2 more loans in February 2020 before she came to Australia, and May 2022. She said the purpose of the first of these was to come to Australia and the May 2022 loan was for a friend. The Tribunal accepts the applicant’s evidence that the second loan was for a friend as at the resumed hearing the applicant was able to provide a coherent narrative about that loan and was able to point to and explain documents that appeared to confirm the history of that loan. The Tribunal accepts that the applicant also took out a loan from the loan shark to travel to Australia in February 2020, and the amount of that loan was 200,000 baht. The Tribunal accepts her friend’s loan has been repaid.
While the Tribunal accepts the applicant took out a loan for her [workplace 1], there is no evidence of the amount of the loan other than the oral evidence of the applicant, and in her sister’s statement. The applicant’s evidence was that it was for 200,000 baht, and her sister said that after some repayments the balance owing was 200,000 baht. During the hearing on 6 August 2025, the applicant said it was for 500,000 baht but then said she was not sure, and she was confused.
The applicant’s evidence at the hearing on 19 June 2025 was that she made repayments and would provide further documents to corroborate the payments she made when she was in Australia. When discussed, she said there were two sources of evidence – a schedule of payments (amounts and dates) on her current phone and payment transfers (payments made by her from Australia). She was not able to provide a schedule of payments, and the evidence of the payment transfers included both her and her friend’s repayments for a period. Her evidence at the hearing about the amounts she repaid was vague, and she had difficulty recalling how much she had repaid in Thailand and in Australia. Initially she said that she repaid amounts of 3000 – 5000 baht weekly when the [workplace 1] was operating. After further questioning, she said she did not pay every week. She also said that she thought she repaid 100,000 baht in total (in Thailand and Australia) and later in the hearing that she had paid about 8,000 AUD (approximately 170,000 baht[14]) when she was in Australia. Throughout the hearing, when questioned, the applicant often said she was not certain of details. While there were some screenshots of a few payments by her to the loan shark, her oral evidence on the issue of the amount she had repaid was not comprehensive, the applicant was frequently uncertain. Her evidence was not consistent, and the Tribunal concluded it was not reliable. In the absence of consistent or cogent evidence about the repayments made, it was not possible to make findings about repayment of the loans. At the hearing the applicant said that she understood that she still owed 550,000 baht and her sister’s statement said that the amount was 500,000. As a result of this inconsistency, and the inability to make a finding about the amount repaid, the Tribunal was not satisfied of the balance owing on her loans.
[14] According to the exchange rate as at 2 September 2025; Wise website, Australian dollars to Thai bahts Exchange Rate. Convert AUD/THB - Wise
The applicant’s protection claim is in relation to her fears from the loan shark if she returns to Thailand. The applicant’s evidence at the hearing contradicted her visa application statements in important aspects. Her visa application said that she borrowed money to pay for her journey and education in Australia and is ‘now facing significant threats from these lenders’. It said that she had been subjected to persistent threats and aggressive collection tactics; had received phone calls and messages warning her; and some lenders had approached her family demanding repayment and causing them extreme distress. It said that she tried to negotiate with the lenders, however her requests were met with increased pressure, intimidation and threats of harm. It said that her family also became targets of harassment from the lenders and experienced significant emotional and psychological distress.
The applicant’s sister’s statement was not consistent with the applicant’s oral evidence. The statement said that the creditors called every day and there were voice messages and text messages threatening her. At the hearing the applicant’s evidence did not corroborate the repetitive and ongoing nature of the harassment described in her sister’s statement.
The Tribunal accepts that the visa application was written by the applicant’s agent and that as a result, it is expected that there may be some differences in aspects of the claims. However, some of the differences about the persistence and nature of threats, and the demands of her family were significant. Given that the applicant did not write the claims, and she described giving instructions to the agent by telephone or message, the Tribunal gave more weight to the applicant’s direct, oral evidence at the hearing. The Tribunal also gave more weight to the applicant’s direct, oral evidence of her circumstances and experiences than to her sister’s statement.
The applicant’s evidence was that the [workplace 1] commenced in 2014 or 2015 and operated for one to one and a half years, which means it would have operated until 2015 or 2016. She said that while the [workplace 1] was operating the loan shark came to the [workplace 1] to ask for or demand payment, that they broke a window and threatened that they would keep hunting her and destroy her life. After the [workplace 1] closed, they came to her home when her husband was not there. Her oral evidence was clear that the loan shark did not threaten or intimidate or harm her family and that they only went to the family’s shop on one occasion, and that was last year. On that occasion they asked where she was, and her evidence was that her sister lied to them, and there was no suggestion that there was harassment, threatening behaviour, intimidation or physical violence. Initially her evidence was that since she has been in Australia (from March 2020), she has not had any contact from the loan shark at all. Her evidence was that after the [workplace 1] closed, she could not make repayments and did not make any payments until she came to Australia.
The documentary evidence she provided before the resumed hearing showed that the applicant obtained and received 2 more loans in February 2020 and May 2022 – one was for her to travel to Australia and the second was for her friend. However, the applicant had not disclosed these loans accurately previously. She did not disclose borrowing for a friend, and her initial evidence at the hearing was that she only borrowed for the [workplace 1], and when she was reminded that her visa application referred to borrowing 30,000 baht to come to Australia, she said that was from her parents and then that she was not sure and would check her records. The records subsequently provided show the amount she borrowed to come to Australia was 200,000 baht – a significant difference. Relying on the documents provided, the Tribunal accepts that she borrowed 200,000 baht in February 2020 before she left Thailand and borrowed money from the same lender in May 2022 on behalf of a friend.
100. As the applicant contacted and was able to borrow from the same lender in 2020 and 2022, this indicates firstly, that she did not fear the lender to the extent described in her other evidence and that she and the lender were able to communicate with each other. Secondly, the evidence that the lender provided further funds to the applicant is not consistent with a lender who is dealing with a person who has a considerable outstanding debt to them, who is behind in their repayments and who the lender has harassed and threatened in order to make her repay her debt.
101. The Tribunal must consider what would happen to the applicant in the reasonably foreseeable future. The Tribunal accepts that the [social media] clips provided by the applicant are consistent with country information about the more serious actions of loan sharks. While country information about loan sharks in Thailand indicates that their actions to recover money can include instances of serious violence and harassment, the applicant’s evidence was that more serious and extreme types of harm had not occurred to her or her family. The applicant’s evidence was that she did not make repayments of the loan after the [workplace 1] closed until she came to Australia. That means that she made no payments for approximately 4 years before she left Thailand, and she borrowed from the same lender again in 2020. In this period the applicant did not suggest that there was any progression in the severity or nature of the loan sharks’ demands, threats or damage. The applicant’s evidence was that they had not harassed her since she came to Australia and had advanced her more money in 2022, and had spoken with the family once in the 5-year period since she left Thailand.
102. As it is consistent with country information about the actions of loan sharks, and on the basis of the applicant’s evidence about what happened to her, the Tribunal finds that in the applicant’s situation demands for repayment included yelling, property damage and threats to pursue her. While the Tribunal accepts that this would be upsetting, there was no evidence of physical harm, and the one instance of property damage (a broken window at her [workplace 1] over 10 years ago) was relatively minor. On the basis of the applicant’s evidence the Tribunal finds that the applicant has not experienced harassment, threats or harm since she has been in Australia, which is more than 5 years. The Tribunal finds that the loan shark has not harassed or harmed any of her family.
103. The applicant’s evidence about the demands, threats and property damage was that this caused her stress and anxiety and that she continues to experience anxiety about what would happen if she returned to Thailand. Her sister’s statement also confirms the impact on the applicant’s mental state. The Tribunal accepts that evidence and finds that the actions of the loan shark caused the applicant stress and anxiety. At the hearing the applicant said she had not had any mental health treatment or support in Thailand or Australia.
104. The Tribunal finds that if the applicant returned to Thailand and the loan shark became aware of her return, that they could resume the types of behaviour and actions demonstrated in the past. On the basis of those past actions and behaviours and that the applicant was able to borrow from the loan shark in 2020 and 2022, has not had any other contact from them or any threats during her time in Australia, and they have had contact with the family on one occasion, the Tribunal finds that the likelihood of the applicant or her family members being subject to any escalation or more severe harm at the hands of the loan shark in the reasonably foreseeable future is less than a remote possibility.
105. In relation to the applicant’s fear of financial hardship, the stigma associated with that and the challenge of getting a good job, the Tribunal accepts the country information regarding the Thai economy and labour market. The economy is relatively strong and unemployment is low. The Tribunal finds that if she returned to Thailand, the applicant could experience some financial hardship and the challenge of having to find work in the reasonably foreseeable future, however those harms would not be such that her life and physical wellbeing or safety would be threatened, and her capacity to subsist would not be threatened.
Does the applicant satisfy the refugee criterion for protection?
106. In addition to s 5J(1)(a) which contains the subjective requirement, that an applicant must in fact hold a fear of being persecuted, s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In considering the refugee criterion, persecution must involve serious harm and systematic and discriminatory conduct. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. In addition, for the purposes of s5J(5), threats in the form of declarations of intent do not normally on their own constitute ‘serious harm’. The term ‘serious harm’ contemplates that a person’s livelihood or well-being will be jeopardised in a material way.[15]
[15] Minister for Immigration and Multicultural and Indigenous Affairs v VBAO OF 2002 [2004] FCA 1495 (19 November 2004)
108. The Tribunal found above that the applicant had experienced demands for repayment including yelling, property damage and threats to pursue her. The Tribunal also found previously that on the basis of the loan shark’s past actions and behaviours and that the applicant was able to borrow from them in 2020 and 2022, that she has not had any other contact from them or any threats during her time in Australia, and they have had contact with the family on one occasion, that the likelihood of the applicant or her family members being subject to any escalation or more severe harm at the hands of the loan shark in the reasonably foreseeable future is less than a remote possibility.
109. As a result, there is not a real chance of persecution. She does not meet s 5J(1)(b) and does not have a well-founded fear of persecution in respect of borrowing from a loan shark.
110. In relation to financial hardship, stigma and difficulty finding a good job, the Tribunal has found previously that if she returned to Thailand the applicant could experience some financial hardship and the challenge of having to find work in the reasonably foreseeable future, however those harms would not be such that her life and physical wellbeing or safety would be threatened, and her capacity to subsist would not be threatened. The Tribunal finds that does not amount to serious harm for the purposes of the Act. The applicant does not satisfy s 5J(4)(b) and does not have a well-founded fear of persecution.
111. Although it was not raised specifically by her, the Tribunal also considered the applicant’s claims in relation to her health, including her mental health. She said that she experienced stress and anxiety in the past and expressed concerns about returning to Thailand. She has experienced back pain previously, but her evidence is that it is resolved. While country information indicates that there is stigma around mental health issues, the Tribunal finds that the applicant’s stress and anxiety and the stigma she could experience would not amount to serious harm, and she does not satisfy s 5 J(4) in relation to her mental or physical health.
112. The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that in her circumstances, she would face a real chance of serious harm now or in the reasonably foreseeable future if she returned to Thailand. The applicant does not satisfy the refugee criterion.
Does the applicant satisfy the complementary protection criterion for protection?
113. 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).
114. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, 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 the Tribunal considers that reasoning appears equally applicable to the refugee criterion in the Act.
‘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.
116. For the reasons given previously, there is not a ‘real risk’ of the applicant suffering significant harm in respect of borrowing from a loan shark. As a consequence, she does not satisfy s 36(2)(aa).
117. The Tribunal has found previously that if she returned to Thailand the applicant could experience some financial hardship and the challenge of having to find work in the reasonably foreseeable future, however those hardships and challenges would not arise from the intentional or deliberate act or omission of a third person or persons that would amount to significant harm as defined in s 36(2A) and s 5. Similarly, in relation to her back pain, and the anxiety, stress and stigma she could experience in the reasonably foreseeable future, those issues do not meet the definition of significant harm.
118. The applicant does not satisfy the complementary protection criteria.
CONCLUSIONS
119. 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 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 suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
122. The Tribunal affirms the decision not to grant the applicant a protection visa.
Dates of hearing: 19 June 2025 and 6 August 2025.
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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