1502485 (Refugee)

[2016] AATA 4063

1502485 (Refugee) [2016] AATA 4063 (11 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502485

COUNTRY OF REFERENCE:                  Thailand

MEMBER:David McCulloch

DATE:11 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2016 at 9:46am

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 a citizen of Thailand, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] February 2015.

3. In a letter to the Tribunal dated [in] February 2015 the applicant indicates that the application was lodged to trigger the ability to apply for Ministerial Intervention as the applicant is the mother of an Australian citizen child. The applicant waives her rights to a hearing and requests that the Member affirm the decision of the Department so that a request for Ministerial Intervention can be commenced.

4. The applicant was represented in relation to the review by her a migration agent, but whose registration had lapsed [in] December 2015.

   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 whether the applicant is maintaining that there is a real chance of serious or significant harm should she return to Thailand.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

12. The applicant last arrived in Australia on a [temporary] visa [in] April 2013. The applicant first visited Australia on a [temporary] visa [in] December 2005.  Including the first and most recent visit, she has travelled to Australia on [number] occasions since 2005.

13. The application for a Protection visa was lodged [in] April 2014.

14. The application forms for the Protection visa make the following claims. The applicant indicates that she left Thailand for the protection of her [number of] children who are Australian citizens as well as for herself. She refers to harm from political instability and uprisings. She indicates that there is a dangerous environment surrounding her home, with many incidents of attacks and murders by local gangs and Mafia. The applicant also fears harm because if she returns to Thailand the children will be without a mother or guardian.

15. The applicant indicates that her home had been damaged, broken into and goods stolen a few times. The applicant has also experienced three deaths – two in the same building where she lived and one outside the home. These deaths are under investigation.

16. The applicant indicates that the authorities, police and the government do not fix problems and cannot protect the applicant and her family.

17. The relevant application form indicates that the applicant has [children] who were born on [date] and [date], respectively.

18. The Tribunal notes the following from the interview with the delegate of the Minister.

19. The applicant lived in Bangkok from around 2001 until 2005. She owned a [factory]. She sold the factory and decided to move to [city]].  She bought a [property] in a prime location. She also purchased a [business].

20. Whilst in Australia, the applicant obtained income from tenants who live in the building. She was also provided some support by her ex-partner. Issues relating to the building are taken care of by her [siblings], who live elsewhere. They clean the building and collect rent.

21. The applicant indicated that a person in the building died [in] 2007. There was an incident in 2012 where a [foreign] person was found dead and his girlfriend disappeared after the event. The applicant indicated that she left before the circumstances of the death were explained. The applicant also indicated that a person was killed near the building in [an] accident.

22. The applicant indicated that interests associated with the Mafia have been applying pressure on her to sell the building at below market rate. She indicated that they want to buy the building for around $[amount] but it is worth $[amount]. She indicated that they come to her with government documents to agree to the sale. She indicated that they threatened to burn the building down. The applicant indicated that she reported this to the police on two or three occasions in 2011 but the police did not take action. When asked if she had police reports, she said that these were in her safe.  She indicated that it would be possible to obtain the reports from the police station.

23. The applicant indicated that if she was to sell the building at a commercial rate she would need to look for buyers outside the area who were not aware of the difficulties with the building. She indicated that she needs the maximum price to secure the welfare of herself and children.

24. The applicant indicated that her [siblings] had suffered no difficulties because they are not the owners of the building. It was put to the applicant that the fact that the rental business operating within the building had not been disrupted might suggest that there was not a risk of harm. The applicant indicated that there was a situation where there was an electrical short in the building and while she did not know the cause, this could have been a deliberate targeting.

25. When asked why the applicant could not live elsewhere in Thailand to avoid the harm, she indicated that she could not work in her home area because she would either need to be a farmer or work in government. She indicated that she could not live in Bangkok because it is expensive and busy and not a good environment for her children to grow up in. [City 1] is a better environment.

26. When asked why the applicant could not attempt to sell the property in [city] she indicated that this would take a lot of planning.

27. The applicant indicated that whilst she fears generalised violence and concern over political unrest, she provided no evidence that she had been particularly targeted in this respect. She referred to a general unrest and a concern that she might be followed when she was in [city].

28. The applicant indicated that she was not politically involved.

29. The applicant indicated that if she returns to Thailand she will need to take her children with her, but they will not fit in.

30. The applicant has been in Australia with her children, and leaving the country for brief periods to return to Thailand, to comply with visa requirements. The applicant indicated that this is expensive for her. She asks to be given a visa to allow her to remain in Australia with her Australian citizen children.

    Findings and assessment

31. The applicant has indicated to the Tribunal that the application for the Protection visa was lodged as a means of facilitating an application for Ministerial Intervention. The applicant requested that the Tribunal affirm the delegate’s decision.  The Tribunal takes that advice by the applicant as indicating that the situation as claimed by the applicant in Thailand is not such that there is, or that the applicant fears, a real chance of serious or significant harm for the reasons claimed, or for any other reasons. The Tribunal is therefore not satisfied that there is a real chance of the applicant facing serious or significant harm for any of the reasons claimed, or any other reasons, including: as a result of political instability and uprisings; as a result of the prevalence of crime in [city] or elsewhere in Thailand; as a result of pressure or threats faced by the applicant from the Mafia to sell property owned by her in [city]; as a result of her children not fitting in in Thailand; or for any other reason.

32. Given those findings, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason for any of the reasons claimed, or for any other reasons.

33. Given those findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm for any of the reasons claimed, or for any other reasons.

34. 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).

35. 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).

36. 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

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

    David McCulloch
    Member