Tribunal: Member Christine Cody

The applicant applied for a Protection visa because he feared physical harm from a well-connected politician in his home country of Thailand. The applicant asked the AAT to review the Department of Home Affairs’  decision not to grant him a Protection visa.

Australia has an obligation under the Migration Act 1958 to protect individuals who satisfy one of two criteria.  The first is called the ‘refugee criterion’ and broadly requires the applicant to have a ‘well-founded fear of persecution’. The second relates to ‘complementary protection’ and broadly requires that there is ‘a real risk of significant harm’ to the applicant.

Since first arriving in Australia in 2007, the applicant returned to Thailand a number of times, where he claimed he was tracked down and threatened. The AAT considered it highly unlikely that someone with a genuine fear of harm would continue to return to a place where he could be easily found.

When his most recent Visitor visa ceased in November 2018, the applicant remained in Australia unlawfully. He was detained by NSW Police at a Random Breath Test (RBT) in February 2019, after which he applied for protection. In affirming the decision to refuse to grant the applicant a Protection visa, the AAT considered the applicant’s delay in claiming protection in Australia to be significant. Additionally, the AAT found that the applicant was not a witness of truth and his account of the events which led to his fear of harm, as well as his account of events more generally, had been fabricated. For example, the applicant had been wearing a chef’s uniform at the RBT in November 2018 but claimed to have never worked in Australia during a phone interview in March 2019.

The AAT concluded that the applicant did not satisfy the refugee criterion because he did not have a well-founded fear of persecution on one of the five grounds (being race, religion, nationality, membership of a particular social group or political opinion), and that he did not satisfy the complementary criterion because he was not at a real risk of significant harm. The AAT affirmed the department’s decision to refuse to grant the Protection visa.

Read the full decision on AustLii.