1407022 (Refugee)

[2015] AATA 3606

1407022 (Refugee) [2015] AATA 3606 (6 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1407022

COUNTRY OF REFERENCE:                  Thailand

MEMBER:David McCulloch

DATE:6 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 06 November 2015 at 10:49am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be uncertain of his citizenship, or stateless, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] March 2014.

3. The applicant appeared before the Tribunal on 6 November 2014 and 30 October 2015. As the applicant is a minor, he did not give evidence on his own behalf. The applicant’s mother and [father] gave evidence on the applicant’s behalf. The Tribunal hearings were conducted with the assistance of interpreters in the Korean and Thai and English languages.

4. The Member of the Tribunal to whom this matter was initially constituted, and who presided at the first hearing, ceased being a Member of the Tribunal before a decision was made on this application. Consequently, the matter was reconstituted to another Member of the Tribunal. The reconstituted Tribunal has reviewed the Department and Tribunal files and listened to a recording of the hearing of the Tribunal conducted on 6 November 2014. The subsequent hearing on 30 October 2015 was presided over by the Member to whom the matter had been reconstituted.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

10. The issue in this case is the applicant’s citizenship status and the rights and treatment of his parents in Thailand, impacting on the applicant, and the applicants’ own treatment in Thailand, and whether the applicant fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The applicant was born in Australia [in] [year]. A copy of his [birth] certificate was provided to the Department. A copy of a change of name certificate issued [in Australia] has been provided.

12. The application for a Protection visa application was lodged [in] September 2013.

13. An identical written statement was provided by on behalf of the applicant to both the Department and the Tribunal. It makes the following claims.

14. The applicant’s parents are from different countries and have not registered their marriage. It is claimed that the applicant is not entitled to passports from the countries of his parents. It is claimed that his parents have tried to apply for passports for the applicant, unsuccessfully.

15. It is indicated that the applicant’s father applied for a Protection visa which was unsuccessful. The applicant’s mother is currently holding a Student visa.

16. The Protection visa is claimed because the applicant is stateless and he wants to be recognised as an Australian. It is claimed that if the applicant returns to either of his parents’ countries he will be subject to inhuman treatment.

17. The applicant’s father is Chinese and a Christian. It is claimed that the applicant’s father would suffer harm as a result of practising in underground churches. It is claimed that the applicant’s mother would not be able to migrate to China. If something happened to his parents, the applicant would become an orphan.

18. It is claimed that the applicant cannot return to his mother’s country of Thailand as he was not recognised as a citizen. It is claimed that his father could not settle in Thailand even though he is the partner of his mother, as neither Thailand or China accept migrants. As the applicant’s parents cannot settle in either country, neither could the applicant.

19. The applicant’s father goes to church in [suburb] on Sundays. The applicant’s mother does not attend as she believes in Buddha.  The applicant claims that he will lose his right as a human and his right of freedom of religious belief.

    Hearing, findings, assessment of claims

20. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437.

21. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

22. The Tribunal draws on certain information contained in the decision of the delegate of the Minister dated [in] March 2014, a copy of which has been provided by the applicant to the Tribunal.

    Country of reference and harm based on statelessness

23. The application forms for a Protection visa state ‘not sure’ in the answer to the question of the applicant’s citizenship at birth. The written statement indicates that the applicant is stateless.

24. The applicant’s Birth Certificate, dated [in] June 2012 issued in [Australia], indicates the applicant’s name as [Name A].  A Change of Name certificate dated [in] June 2012 shows the applicant changing his name from [Name B] to [Name A]. The Birth Certificate states the applicant’s mother as [name] (‘the mother’), having been born in Thailand, and the applicant’s father as [name] (‘the father’), having been born in China.  The applicant therefore has taken the combination of both parents’ surnames as his own surname. It is claimed that the mother is a citizen of Thailand and the father is a citizen of China. The Tribunal is satisfied that this is the case on the basis of passports provided by the mother and the father. The Tribunal is satisfied that the applicant is the child of the mother and the father based on the Birth Certificate, and other evidence.

25. The decision of the delegate (pp. 4-5, 7-8) makes reference to Thai law from a number of different sources which indicates that a person who is born of a mother or father of Thai nationality whether within or outside of Thailand acquires Thai nationality by birth. Information on the website of the Thai Embassy in Canberra indicates that this is the case if the parties are not married.  Such a person is a Thai citizen unless they renounce their Thai nationality.[1]

    [1] "To Acquire a Thai Nationality", The Royal Thai Embassy, Canberra, 01 January 2014, CIS27450

26. As the delegate of the Minister notes (p.5), China does not recognise dual nationality for any Chinese national.[2] Thus, the fact that the applicant is a Thai national at birth means that he is not a national of China, without further steps.  There is no evidence that steps have been taken as a means of securing Chinese citizenship for the applicant.

    [2] "Nationality Law of the People's Republic of China", People's Republic of China: Government of, 10 September 1980, CX282388

27. In both the interview with the delegate, and in the first Tribunal hearing, the parents appeared to accept that the applicant was a Thai citizen by birth. However, it was indicated that the parents have been unable to obtain a Thai passport for the applicant despite attempts to do so.  In the first Tribunal hearing, the mother indicated that she made enquiries of the Thai consulate in [Australia] to obtain a passport for the applicant. On the first visit, when the applicant had the surname [Name B], she was told that it was not possible for a passport to be issued because the applicant’s surname had to match her own. She said that she returned when the applicant had changed his name to [Name A], but they would still not issue the passport, despite the fact that the applicant’s surname was obviously a combination of the surnames of the mother and the father. The Tribunal asked the mother whether there was any correspondence with the Consulate over this issue. The mother said that there was not, and she was just told this by a staff member of the Consulate. The Tribunal indicated that the applicant’s entitlement to a passport based on this citizenship at birth was clear under Thai law and the problem might well be due to misinformation by consular staff. The mother was asked if she had received any advice from support groups or lawyers on the issue. She said that some advice been obtained from her education agent. Advice was given to the effect that she could change her name to match her son. The Tribunal indicated that the applicant’s name might also be changed.

28. In the second Tribunal hearing the mother indicated that she had taken no further action to seek a passport for the applicant in the year since the previous Tribunal hearing.

29. The Tribunal accepts that there have been difficulties faced by the parents in obtaining a passport for the applicant. However, the Tribunal is not persuaded that these difficulties are anything other than bureaucratic hurdles.  The applicant is clearly a Thai national and therefore has a right to a Thai passport.  The Tribunal considers that with proper effort the applicant would be able to obtain a Thai passport.

30. The Tribunal notes that there was a submission on behalf of the applicant in the interview with the delegate of the Minister, that the fact that the mother and father were not married to each other was an impediment to the applicant being issued with a Thai passport. This was not a difficulty that the mother, in the first Tribunal hearing, indicated was expressed as a problem by the consulate officials.  The independent information is clear the martial status of the mother and the father is not relevant to the applicant’s entitlement to Thai citizenship.   The Tribunal is not satisfied, based on the provisions of Thai law, that the applicant would be denied Thai citizenship or a passport based on the fact that his parents are not married.

31. The Tribunal considers that the applicant is a national of Thailand and therefore his claims will be assessed against that country.

32. That being the case, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on the basis of being stateless, as he is not stateless.  The Tribunal is also not satisfied that the applicant faces a real chance serious or significant harm on the basis of not being able to obtain a passport or travel document to enter Thailand.

    Refugee criterion claims against Thailand – religion

33. In the first Tribunal hearing, the mother and the father said that the applicant faced harm in Thailand based on the fact that they are Christian and that Thailand is predominantly a Buddhist country. The mother indicated that she was brought up Buddhist but has learnt about Christianity from her husband. The father said that he was not sure of the details or specifics as to how there would be harm. The mother indicated that there would be a conflict for the applicant because his friends would be Buddhist in Thailand and his parents would be Christian. The Tribunal noted that this might in fact provide a benefit to the applicant in having insight into both religions.

34. The Tribunal noted to both the mother and the father that it had no evidence, such as in the form of authoritative reports by NGOs or government organisations, that would suggest that Christians in Thailand faced discrimination or harm from Buddhists. The mother and the father were asked if they had any information that would suggest this. They did not.

35. The Tribunal notes the US Department of State, Thailand 2013 International Religious Freedom Report, which indicates that Christians are one of the five recognised religious groups in Thailand. It indicates that religions generally proselytise freely. There are 1600 registered foreign missionaries in Thailand, mostly Christian.  Whilst there were reports in 2013 of societal abuses and discrimination based on religious affiliation, belief or practice, none of the reported incidents involved Christians.

36. Based on the absence of the provision of independent information before it that would support the fact that Christians in Thailand face systemic discrimination or harm, and given the Tribunal is not satisfied there is anything in the applicant’s background or profile which would create a particular risk for him, the Tribunal is not satisfied that there is a real chance of the applicant facing serious harm in the reasonably foreseeable future should he live in Thailand as a result of his parents being Christians or should he be brought up a Christian.

    Refugee criterion claims against Thailand – father’s situation, cohesion of the family, and family support

37. It is indicated in the written claims, in the interview with the delegate, and in the first Tribunal hearing, that the applicant faces harm because the father is a Chinese national and does not speak Thai. It is indicated that he would not be able to live in Thailand. It is indicated that there would be difficulties in him obtaining work. The mother, in the first Tribunal hearing, indicated that these difficulties could cause disagreement between her and her husband, with the prospect of them divorcing and this would be harmful to the applicant in that he could grow up without the warmth of all of this family. The mother, in both Tribunal hearings, said that her parents have died, and that support from her other siblings and relatives would be limited due to them having their own families.

38. Information provided by the Thai Embassy in Canberra indicates that it is possible for an alien to apply for a residence permit. One of their categories under which an application can be submitted is to support a family who are Thai citizens.[3]  (See attachment)

    [3] "To Acquire a Thai Nationality", The Royal Thai Embassy, Canberra, 01 January 2014, CIS27450

39. Whilst generalised claims, without any details, were made of attempts of the father to obtain Thai nationality, when asked by the delegate to provide details or any evidence of contact with the Thai government, there was no comment.  In the second Tribunal hearing, the father indicated that advice had been sought from a migration agent who indicated that the father could obtain residence in Thailand, but that would involve him having to leave the country intermittently, and that would be unsettling.

40. The Tribunal asked the father in the second hearing why he and his wife would not get married, which would provide a basis for the father to acquire Thai citizenship.  According to the Nationality Act B.E. the father, as a foreign citizen, would acquire Thai nationality on the basis of marriage to a Thai citizen wife.  The father indicated that even if they could live in Thailand, the applicant was born in Australia and settled here and it would be disruptive for him to move.

41. The Tribunal considers, based on the independent information, that the father would be in a position to obtain a residence permit to live in Thailand. The information relating to the granting of such a permit before the Tribunal is not qualified by indicating that the holder of such a permit would be required to exit the country periodically. The Tribunal is not satisfied that this is the case based contrary to the father’s indicating that this is what he has been advised.

42. In any event, if a residence permit did impose such requirements, and this created difficulties for the family in settling in Thailand, the Tribunal is of the view that the mother and the father would marry as a means of allowing the father to obtain Thai citizenship and thus the ability to reside permanently in Thailand. When this was put to the mother and the father in the second Tribunal hearing, they provided no indication that they would not marry for this purpose but indicated that a move to Thailand would be disruptive to the applicant.

1. The Tribunal does not consider there is any impediment to the applicant residing in Thailand as he is entitled to a residence permit. If the conditions of the permit created difficulties in the family settling in Thailand, the Tribunal is of the view that the mother and the father would marry as a means of the father obtaining Thai citizenship and thus the ability to reside permanently in Thailand. 

2. In terms of the employment options of the father, the Tribunal accepts that there will be challenges given that he is a foreigner and it will take time to learn the Thai language. Nevertheless, as noted in the decision of the delegate (p.10), Thailand has one of the lowest unemployment rates in the world and there are almost 2 million registered migrant workers in Thailand and a further estimated 1 million unregistered migrant workers. In addition, the father has tertiary qualifications. In any event, as indicated in the interview with the delegate, the mother has been working to support the family in Australia and she indicated that she would be able to obtain employment in Thailand after completing her studies.

3. The Tribunal, whilst accepting there will be hurdles for the father in gaining employment in Thailand, is satisfied that he will be able to obtain employment over time. In any event, the Tribunal considers that the mother will be in a position to gain employment and support the applicant and the family in Thailand.

4. The Tribunal is not satisfied that the father’s ability to reside in Thailand, or his ability to obtain employment, is such that the applicant faces a real chance of serious harm, including an inability for the applicant to subsist.

5. The Tribunal considers claims that the family might fight or split up due to difficulties of the father living in Thailand or working, and that this will create emotional harm for the applicant, is purely speculative. In any event, the Tribunal does not consider that such harm would constitute serious harm for the purpose of the Act.  Family break-ups are part and parcel of everyday life throughout the world and many children are affected by break-up. Whilst the Tribunal acknowledges the hurt and impact of such break-ups on children, the harm suffered does not, in the Tribunal’s view, fall within any of the enumerated definitions of serious harm or reach a level of serious harm more generally.  The Tribunal therefore is not satisfied there is a real chance of the applicant facing serious harm due to difficulties the family will face having to live in Thailand and the impact on the cohesion of the family.

6. The Tribunal is not satisfied that limited family support of the mother’s wider family would result in a real chance of the applicant facing serious harm.

7. The Tribunal is not satisfied that the applicant faces a real chance of serious harm due to: the father not being able to live and work in Thailand; the fact that the parents are not legally married; difficulties for the father in obtaining employment; the prospect of the parents fighting or splitting up; or the lack of family support. In any event, none of the harm that is claimed in these respects would be for a Convention reason.

   Refugee criterion claims against Thailand – harm to applicant from resettling

8. In the second Tribunal hearing, it was claimed on the applicant’s behalf that he will suffer harm due to having to relocate to Thailand given that he was born in Australia and has ties here.  The Tribunal accepts that a transition by the applicant, and the family as a whole, to live in another country may well be unsettling to a degree. However, the applicant will be returning to his mother’s home country and a country of which he is a citizen, and this may have benefits for the applicant from a cultural perspective. The applicant is only [age] years old, and given his degree of conscious awareness at that age, the Tribunal is inclined to think that a transition to a new country at that age will not be overly traumatic. The Tribunal does not consider that any harm due to the unsettling nature of a move to Thailand would constitute any enumerated definition of serious harm or constitute serious harm more generally.

9. The Tribunal is not satisfied that the applicant faces a real chance of serious harm by virtue of moving to Thailand.

   Summary – Refugee criterion

10. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for reasons of his religion or due to: being stateless or being able to get a passport or travel document to enter Thailand; the father being able to live and work in Thailand; the fact that the parents are not legally married; difficulties for the father in obtaining employment; the prospect of the parents fighting or splitting up; settling in a new country; or the lack of family support; or for any other reason.

    Complementary protection criterion

11. The Tribunal is not satisfied that the applicant is stateless, and therefore it is not satisfied there is a real risk of the applicant facing significant harm on this basis. Given the lack of any independent evidence to suggest that the applicant would be at a risk of discrimination or harm due to the Christian religion of his parents, or his own Christianity, and there is nothing in the applicant’s background or profile to increase the risk to the applicant, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant on this basis.

12. Noting the previous discussion in relation to the Refugee Convention criterion, the Tribunal is also not satisfied that there is a real risk to the applicant of significant harm based on: the father being able to live and work in Thailand; the fact that the parents are not legally married; difficulties for the father in obtaining employment; the prospect of the parents fighting or splitting up; settling in a new country; or the lack of family support. In particular, the Tribunal is not satisfied that any of these issues provides a basis on which the applicant would face a real risk of cruel or inhuman treatment or punishment or degrading treatment or punishment, both being categories of significant harm as defined. The Tribunal is not satisfied that any of the issues provides a basis on which the applicant would suffer any other defined category of significant harm.

13. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

14. 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).

15. 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

16. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    David McCulloch
    Member

    
    

    ATTACHMENT

    According to the Royal Thai Embassy based in Canberra, ‘Aliens who wish to reside in Thailand permanently are eligible to apply for the residence permit’[4] under the following eligibility criteria:

    [4] < IS ELIGIBLE TO APPLY FOR PERMANENT RESIDENCE?

    1. A foreign national qualifies to apply for a residence permit if he or she has been permitted to stay in the Kingdom for a total of at least 3 years up until the date of application.

    2. A foreign whose purpose of stay in Thailand is for business or employment purpose ; investment purpose ; experts or academician purpose ; supporting a family who are Thai citizens ; being dependent of a husband or father who is a Thai citizen ; being accompanied a husband, father, or son/daughter who already has a residence permit ; and retirement (aged 60 years old or over and net monthly income no less than 30,000 baht)

    3. Foreign investors, who invest in a private/public company, purchase condominium, buy government bonds or state enterprise bonds, deposit in one or more Thai banks, and other investments in accordance with the specification of the Immigration Commission for the sum of not less than 10 million baht.

    4. Foreign Investors who made direct investment (over 10 million baht) or indirect investment (government bonds, State Enterprise bonds, condominium for the amount of 8 million baht for investor, 6 million baht for a spouse and 2 million baht for per unmarried child under the age of 20).

    5. Foreign Experts who have annual income of not less than US$ 10,000.

    6. Thai Nationals who have changed their citizenship.[5]

    [5] The Royal Thai Embassy n.d., To Acquire a Than Nationality < > <CIS27450>