1507549 (Refugee)

[2017] AATA 718

1507549 (Refugee) [2017] AATA 718 (4 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507549

COUNTRY OF REFERENCE:                  Thailand

MEMBER:B. Mericourt

DATE:4 April 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2017 at 10:52am

CATCHWORDS
Refugee – Protection visa – Thailand – Particular social group – Transgender – Sex change surgery – Family violence – Complaints against education agents – Internal relocation – Credibility issues

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

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] August 2014 and the delegate refused to grant the visa [in] May 2015.

3. On 3 June 2015, the applicant lodged an application for review of the Department’s decision with the Tribunal

4. The applicant appeared before the Tribunal on 17 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review by her registered migration agent.

   RELEVANT LAW

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.

   BACKGROUND

10. The applicant was born as a male in [District 1], Thailand in [year] and is a citizen of Thailand. Her religion is Buddhism. Her parents are divorced and both reside in Thailand. She also has a [Relative A] residing in Thailand and [Relative 2] residing in Australia. She completed [educational level] in [year] and attended university in Thailand from [month, year] to [month, year]. She has never been employed in Thailand.

11. On [date] the applicant had sex change surgery in Bangkok.

12. [In] September 2012 the applicant was granted a [student visa] and she entered Australia [in] October 2012. During the period of her student visa she departed Australia [in] March 2013 for a period of one month returning [in] April 2013; departed Australia [in] December 2013 returning [in] January 2014; and departed Australia [in] April 2014 returning [in] April 2014.

13. [In] August 2014 the applicant lodged an application for protection. Essentially her claims are based on fear of harm from fraudulent education agents who defrauded her in respect of her student visa and fear of harm from her father does not accept her sex change.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The Tribunal has before it the applicant’s Department file which includes her written application for protection, supporting evidence of her sex change operation, photographs of injuries the applicant suffered after an assault, photographs of damage to the applicant’s room in Thailand, a submission from her authorised migration representative, a recording of her interview with the delegate conducted [in] May 2015 and a copy of the Department’s decision record dated [in] May 2015.

    Claims made in the applicant’s written application for protection

15. The applicant stated that she left Thailand to come to Australia as a student but also for protection and ‘a free life’. She feared she would be bashed or killed by her father or education agents. She did not think that she could seek protection from the relevant authorities in time because corruption is too high and the police “mostly connect to these people”. She referred to the submission made by her authorised migration representative.

16. The submission dated [in] August 2014 stated that the applicant is lodging her protection visa application on two grounds. First as a member of a social group on the basis that he/she is now a transvestite and has undergone major sex change surgery. The second is that she fears being physically harmed by fraudulent education agents both in Thailand and in Australia. The applicant originally came to Australia as a student and enrolled to attend university. She paid a large sum of money to education agents in Thailand in two payments. However, she was incapable of passing any IELTS tests. When it was discovered that she could not speak sufficient English she was transferred to a lesser college and enrolled in a diploma course and money was again paid for this course. This enrolment was done via an education agent in [Australia]. The applicant was apparently not informed or advised even after paying the fees of the commencement of any course and eventually discovered that her visa had been cancelled. The applicant’s agent at that time did not pass on various correspondence from the Department of Immigration. When she enquired as to what was happening with her visa given she had paid the money, she was told to “keep quiet” and that if she complained the agent would have friends come around and take care of her and he told her that he had corrupt officers in the Department of Immigration who could have visas cancelled and the police come around and have her taken to the airport and deported immediately. The applicant was very fearful and sought assistance from her [Relative 2] who resides in [Australia].

17. The applicant’s claim related to her sex change surgery is that following her operation, and upon her return to the family home, she was violently assaulted by her father. The beating was so severe that the applicant ended up in hospital with injuries for which she has provided photos. Her father was arrested by police and was to be charged, but the applicant did not want her father to be jailed so she did not press charges. She has the name of the police officer involved but is too fearful to return to Thailand to obtain a copy of the report. Following the assault the applicant required medical treatment. Her parents’ marriage broke up. Her mother was able to accommodate the sex change but her father never could and is very angry as he saw it as an affront to his masculinity and as a failure as a father. Apparently he also saw it as a severe violation of his Buddhist faith. Consequently the applicant had nowhere to go. Her mother went to her own family in the provinces because she feared for her own safety and the applicant returned to Australia on her student visa as her [Relative 2] returned to in Australia.

    Claims made at the interview with the delegate [in] May 2015

18. The Tribunal has listened to the recording of the interview and is satisfied that the summary of interview in the delegate’s decision is accurate

19. The applicant stated she was assaulted by her father [in] January 2014 when he was under the influence of alcohol because he was angry about the applicant’s sex change operation. [Details deleted]. She suffered severe injuries and was hospitalised. She reported the assault to the police. She provided the delegate with the name of the police inspector to whom she reported her assault. She later dropped the charges.

20. The applicant returned to Thailand [in] April 2014 because she wanted a reconciliation between her parents. She resided at her mother’s home and was not harmed as her father was not aware of her location. The applicant said that she did not believe she could relocate to another part of Thailand to avoid her father because there is a large family involved who may find out where she is and her father will investigate and when he finds out where she lives she will be assaulted again and possibly killed by him. She also fears harm from her father’s relatives.

21. The delegate put to the applicant that when she was assaulted the first time the police responded and this could be considered to indicate she could rely on state protection. The applicant stated that it is all about who has the most money. She has [a relative] (the mother of her [Relative 1’s] [friend]) making trouble for her in Thailand and this person knows powerful people. People gossip and they would find out where she is if she returned. Police are slow to respond and even when they do, often they just require the offender to pay a fine.

22. The applicant also stated that she is fearful that her education agent in Thailand, who was a Thai national, may pay someone to hurt her in Thailand. She has not reported her to the police in either Australia or Thailand.

    Department’s decision

23. The applicant provided a copy of the Department’s decision to the Tribunal.

24. The delegate accepted that the applicant had had a sex change operation in January 2012 and was satisfied that she feared serious harm. However, the delegate was not satisfied that the applicant’s fear was well founded or that there was a real chance that she would suffer serious harm if she returned to Thailand for a Convention reason or that there are was a real risk she would suffer significant harm if she was removed from Australia to Thailand. The delegate also found that she could seek and obtain adequate protection from the relevant authorities in Thailand and/or relocate to avoid the harm that she fears.

    Submission made by the applicant’s authorised migration representative

25. On 2 March 2017 the applicant’s authorised migration representative provided the Tribunal with a submission dated 25 February 2017 stating that there are no material changes in her original application, except the applicant’s father had located her mother in August last year, assaulted her and attempted to stab her with a knife. Her mother had not informed anyone except her own mother and sister of her new address. The police were called but took an inordinate amount of time to come, forcing her mother to leave the premises out of fear and she returned to the city. The police took a report from the applicant’s [Relative 3]. Her father was apparently on drugs or inebriated and was enquiring about when the applicant would return so that he could avenge his honour by killing her. The applicant was informed of this incident by her mother, [Relative 1] and [Relative 3]. Her [Relative 1] is her mother’s carer because she is often ill.

26. The applicant maintains that nothing has changed in Thailand. She is still in fear as the above incident proves and state protection is too slow because the culture in Thailand leans towards the male and domestic violence is entrenched in the culture. The applicant maintains this is doubly so in most of Thailand which is why so-called “lady-boys” always live in fear, as males feel threatened by any kind of deviate (sic) issues. Police generally either cause threats themselves or take bribes for safety or divulge their location to others. The applicant does not wish to return to a permanent state of fear. The applicant claims that this protection is guaranteed under the UN Convention in terms of freedom from sexual discrimination.

    TRIBUNAL HEARING

27. The Tribunal discussed the applicant’s background, current circumstances in Australia and claims for protection which are summarised as follows:

28. The applicant said her parents are divorced and live in Thailand. Her [Relative 1] also lives in Thailand with her mother in [Province 1]. Her father is currently living in [District 1] in [Province 1] [distance] away from her mother.

29. The applicant said that when she was granted a student visa she intended to study English. She had studied two years of a [course] in Thailand which had components in [three specified subjects], but did not complete the third year of her degree. She decided to drop her studies in Thailand and do some English before finishing her degree. She had plans to study [a course] in Australia after studying English to a sufficient level. She studied English for 6 months at a college in [City 1]. She obtained a certificate. Her agent told her that she could have a break and she returned to Thailand. She returned to Australia a month later to discover her visa had been cancelled. The Tribunal asked her how long after she returned to Australia she discovered her visa had been cancelled. She said that she thought it was about 3-4 months after she returned.

30. The Tribunal put to her that her visa must still have been valid until after April 2014 as she travelled in and out of Australia three times, last returning in April 2014. This means that she ‘had a break’ for over 15 months.

31. The applicant said that her agent told her that she could take the time off if she was unwell and she was still unwell after her surgery. The Tribunal put to her that did not make sense as she had her surgery 9 months before she first came to Australia. Then when she first came to Australia she studied for 6 months. She said that she had to attend the doctor for frequent medical check-ups post-surgery as she had some [problems]. She had further surgery on her first visit back to Thailand in April 2013 to have [corrective surgery]. She had to recover from that.

32. The Tribunal put to her that she had never mentioned this before. She said she only talked about what happened with her father and her agent to the Department. The Tribunal asked if she had any evidence of her surgery. She said that it was only minor surgery and she recovered in a hotel. The Tribunal put to her that there would still be a hospital or clinic record of any surgery and asked if it was the same clinic she had had the original surgery. She agreed to try to obtain evidence of her surgery from the clinic.

33. The Tribunal again put to the applicant that according to her own evidence she had a 15 month break when she was not attending any courses and even she must have realised that as the holder of a student visa this would be a problem.

34. The applicant said she enrolled in another English course at a different college and she attended occasionally.  She was too sick to go very much and only attended on and off. The agent told her that he would deal with all her absences on her behalf. The Tribunal put to her that the college would have been obliged to contact her directly about her non-attendance. Also she had personal responsibility as the holder of a student visa to ensure that she was complying with the requirements of the visa.

35. The agent provided the Tribunal with some documents related to the applicant’s student visa and enrolment in various courses. The courses were at three different educational institutions and included [three specified courses]. The applicant said that she paid about [amount] baht to her first agent for her courses and another AUD$[amount] to her second agent in Australia. The Tribunal asked the applicant why she would pay such large sums of money for courses she never studied. She said that her agent managed everything and in the end she discovered the agent lied to her and her student visa was cancelled.

36. The applicant said that she borrowed the money for her course fees and some of her living expenses from her ‘[Relative 2]’ in Australia with whom she lived. They had some issues and her [Relative 2] kicked her out. Her [Relative 2] accused her of bad habits and not helping around the house and always going out with men and to parties. Her [Relative 2] also told her family in Thailand all these things which were not true. The applicant clarified that this person is not actually a blood relative – she is the [relative] of her [Relative 1’s] [friend]. The Tribunal asked the applicant why this person would lend her such large sums of money. The applicant said that her ‘[Relative 2]’ felt pity for her and her [Relative 1] because she and her [Relative 1] were poor and had to forage in the forest. This person said that she would help support her to study in exchange for the applicant agreeing to look after when she got old as she had separated from her partner. This person had the title deed to her family’s house. The applicant borrowed money from her to apply for the student visa in exchange for holding the title deed to her parent’s home. They signed a contract about the loan. When the applicant was studying she also worked part-time in a [business] to try to repay her. Later her mother sold their [farm] in Thailand to repay the debt. The applicant thought this was about two years ago. This did not repay the entire debt, but over the past two years she has repaid her [Relative 2] over time with her [Relative 1’s] assistance.

37. The applicant’s authorised migration representative said that the ‘[Relative 2]’ was his client and he could vouch for the connection with the applicant.

38. The applicant is currently working ‘on and off’ in a [business] in [City 2]. She shares an apartment with her friend.

39. The Tribunal put to the applicant its concerns about the credibility of her evidence related to the period she was in Australia prior to her student visa being cancelled and this may give rise to concerns about the credibility of any further evidence she provided. The Tribunal adjourned the hearing to provide the applicant an opportunity to discuss issues related to her credibility with her authorised migration representative.

1. After the adjournment the Tribunal asked the applicant if she wish to change anything in her previous evidence. The applicant stated that originally she planned to study English and then return to complete her degree in Thailand. However, as she had a large debt she decided to stay and work to repay her debt before she returned. She consulted her agent about how she could work more and reduce her studies so she could repay the debt. The agent said they could hire someone to go in her place to the college so that it would appear that she was meeting her attendance obligations. She kept paying the fees for her courses which she did not attend. She had troubles with her ‘[Relative 2]’ and she just wanted to pay everything off to resolve the situation and having nothing to do with her anymore. The Tribunal clarified with her that her recovery from surgery was not the reason she did not attend her courses. The applicant said that the surgery also played a part in her decision.

   Claims

2. The applicant said that she feared returning to Thailand as her father had assaulted her during her visit to Thailand in January 2014. Her father had been working in Bangkok but has now returned to the province in which the family lives.

3. When the applicant had her sex change surgery in January 2012 her father was working in [another country] and did not know about it. He returned to Thailand about 7-8 months later. At first he didn’t know but a [relative] told him. He couldn’t accept it and thought it was ‘unnatural’. The Tribunal tried to clarify whether the applicant’s father returned to Thailand before the applicant came to Australia. The applicant said that he returned to Thailand before she left Thailand herself, but she was working in a different city and didn’t see him. Her father didn’t find out about the surgery until she had left the country.

4. The applicant visited her home only a few times during the time she returned to Thailand in April 2013. Her father was still occasionally living at home during that period as her parents were not yet divorced. There were maternal relatives living in the house just in case “things” happened. There was verbal abuse and arguments but her mother and her relatives tried to stop anything happening. Sometimes the applicant would stay at other relatives’ houses if the verbal abuse became too much. Her [Relative 1] also came and went from the household. The applicant was not harmed by her father during this visit.

5. The applicant returned to Thailand for another 7 weeks in December 2013/January 2014. Her parents were still not divorced at that time. During that visit her father punched her in the face and tried to kill her and her mother and tried to burn down the house and the car. The applicant was injured. She had bruising and [swelling and bruising].  Her father [details of assault deleted]. She attended a hospital as she had recently had [a procedure] in early January 2013 in Bangkok and was concerned about the damage to [that body part]. She attended the local hospital – [District 1] hospital, for her injuries. She was treated as an out-patient. She then went to a cosmetic clinic in [Province 1] about her nose. The applicant’s mother was also [injured] and she was also threatened with a knife. She had to have stitches at the hospital. Her father also damaged furniture in the home.

6. The applicant said there has been a history of domestic violence since she was a child as her father is an alcoholic and had frequently become violent towards her mother when he was drunk. Her father had often worked overseas. He had not been violent towards her although when she was young he would say that she wasn’t his child. He wasn’t violent toward her [Relative 1]. He owns weapons including a gun and a knife. He once shot at her mother when she was pregnant with the applicant, but missed.

7. The applicant, together with her mother and [Relative 3], reported the assault in January 2014 to the police. The police made an incident report and talked to her father as did the village headman. They got relatives from both sides of the family to have a conference about what to do because it was such a serious life threatening incident. Her mother filed for a divorce at the district office and moved to the city where she rented a place with the applicant’s [Relative 1]. The applicant dropped the charges against her father because the police said she would have to return to Thailand for several court attendances. Her mother and [Relative 3] agreed to drop the charges.

8. The applicant visited Thailand again in April 2014 as she was concerned about her mother. Her father was still coming to her home to harass her. He had tried to hurt them when they visited her grandmother’s home but her mother’s relatives stopped anything happening.

9. On [a date in] March 2016, her mother visited her grandmother for [an event]. Somehow her father got wind of this visit. He was waiting with a knife and beat and injured her mother and said he would kill the applicant if she returned.

10. The Tribunal asked the applicant how her father would know about their visits to her grandmother. She said that her father knew a high ranking police officer and also someone could have seen her mother’s car parked out front and told her father.

11. The Tribunal put to the applicant that if her father was waiting for her mother in March 2016 it could not have been because he saw her mother’s car as the applicant had said he was waiting there when her mother arrived. The applicant thought that may be a relative or another villager told him her mother was planning to visit. 

12. The Tribunal put to the applicant that Thailand has a population of over 68 million people. If she did not tell him, her father would be unaware that she had returned to Thailand and she could relocate to another city such as Bangkok where it would be impossible to find her.

13. The applicant said that her father knows a lot of people. If she returns to Thailand he would be able to find her or hire a private investigator to find her. Her mother suggested it would be best for her not to return to Thailand. Although her father would not know where she was initially he would eventually find her. The Tribunal put to her its views that the risk of harm from her father would be extremely remote if she were to relocate to another part of Thailand.

14. The Tribunal put to the applicant country information which indicates Thailand is the most tolerant countries in Asia towards LGBT people and has enacted legal protections for lesbian, gay, bisexual and transgender people. Whilst there is still some social discrimination and discrimination in employment, in 2015 the government legislated against discrimination on the basis of sexuality in employment, provision of goods and services (including police protection) and all other areas including indirect discrimination and hate speech.

    The country’s first law specifically protecting LGBT people came into effect this week. Thai parliament passed the 2015 Gender Equality Act in March. The law is designed to protect members of the LGBT community and aims to punish discrimination based on gender identity and sexual orientation. Those found guilty of discrimination may face up to six months in jail and a 20,000 baht fine. The law defines “unfair discrimination among the sexes” as any action that “segregates, obstructs or limits the rights” of a person because they have “a sexual expression different from that person’s original sex.”

    Somchai Charoenamnuaysuk –  Director-General of the Department of Family Affairs and Family Development – noted that the law bars government agencies, private organisations, or Thai individuals from formulating anti-gay policies, rules, regulations, measures, or operating procedures.[1]

    [1] Pink News, Joe Williams, Thailand introduces first law to protect LGBT people, 10 September 2015, Accessed 17 March 2017

15. The applicant said that the police would not protect her and she could not be 100% safe in Thailand because her father could pay money to police officers. The police were too slow in responding to the incident in January 2014. She would be constantly paranoid about her father harming or killing her.

16. The applicant said that she was also fearful of her ‘[Relative 2]’ who is now visiting her family in Thailand and the Thai agent who is both here and in Thailand. She has never reported this agent in Australia, although her [Relative 2’s] partner, [Mr A], made a complaint about him/her but she does not know what has happened.

17. The applicant moved to [another city] and then [City 2] because she is frightened she may run into her ‘[Relative 2]’ in [City 1]. The Tribunal put to her that she was offered her hearing in [City 2]. She said that she needed to see her lawyer in [City 1] so she came anyway.

18. The applicant thought her [Relative 2] may call her father and tell him to harm her. The Tribunal asked her why her [Relative 2] would do that when, if she intended harm, she could harm her here. The applicant said her [Relative 2] has no friends her and is illiterate and doesn’t know where she is, so she could not harm her in Australia.

19. The applicant said that the Thai agent would harm her because s/he is angry and resentful and wants to take revenge on her. She thinks they will hire someone to take revenge on her. The Tribunal put to her that she said she had never made a complaint about them. She said that [Mr A] made the complaint on her behalf. She tried to call them and meet with them but they never responded. They know that the complaint came from her and they would be concerned about their own reputation.

20. The Tribunal again put to the applicant that it would be almost impossible to find her in Thailand if she relocated and did not inform people where she was living. The Tribunal also considered that it would be an extremely remote possibility an agent in Australia would spend money hiring someone in Thailand to harm her, in order to take revenge for some slur on their reputation three years earlier, particularly as she had never actually reported him/her to the police.

21. The applicant’s authorised migration representative requested the Tribunal to ask the applicant who had referred her to the original agent for her student visa. The applicant said her friends referred her.

22. The applicant’s authorised migration representative stated that it was not fair to suggest that the applicant should not communicate with her family if she returned to Thailand. The Tribunal said it was not suggesting she did not communicate with her family, rather she did not inform them of her location if she was concerned someone would ‘gossip’ and tell her father where she was.

23. The Tribunal granted the applicant’s authorised migration representative two weeks to provide a written submission. At the time of this decision no submission had been provided to the Tribunal.

    FINDINGS AND REASONS

    Requirement that the decision-maker be ‘satisfied’

24. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Country of reference

25. On the basis of the applicant’s Thai passport provided to the Department, the Tribunal finds that the applicant is a citizen of Thailand. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Thailand. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Thailand, the Tribunal also finds that Thailand is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

26. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

27. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph 196). However, the Handbook also states (at paragraph 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

28. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

29. For reasons discussed further below, the Tribunal formed the view that the applicant has embellished and fabricated her claims for the purpose of obtaining a permanent visa to remain in Australia. The Tribunal found numerous inconsistencies in her claims as were put to her at the hearing and as are described in the above account of the applicant’s evidence given at the hearing. 

30. The Tribunal considers that the applicant has knowingly breached the conditions of her student visa and does not accept the applicant’s reason for not attending any courses was because everything was managed by her education agent. The Tribunal considers that if a person is granted a student visa they are aware that they should be enrolled in and attending a course in Australia and that a “break” of 15 months would not be acceptable. The Tribunal does not accept that the applicant was too ill to attend classes after her second operation in Thailand. She has provided no evidence of this surgery or ill-health after surgery. As she provided evidence from the same clinic of her sex change surgery the Tribunal considers it would be possible for her to provide any evidence of subsequent surgery at the same clinic.

31. The Tribunal noted that after it had raised its concerns about the credibility of the applicant’s evidence regarding the period she was a holder of a student visa, she then admitted that she had agreed to an arrangement for someone else to attend in her place to deliberately mislead the education provider and the Department and to enable her to work instead.

32. Based on the applicant’s evidence the Tribunal considers that the applicant did not genuinely intend to study in Australia for more than a very brief period. Rather she intended to work in Australia in order to pay for further surgery such as her [procedure] and that she deliberately and intentionally breached her student visa conditions for this purpose. The Tribunal places significant weight on the applicant’s failure to comply with relevant migration law, and finds this undermines her character, credit, and credibility. 

33. For these and for other reasons expressed below, the Tribunal finds the applicant to not be a reliable or credible witness but rather a person who does not face a real risk of significant harm but seeks to use the protection visa regime as a vehicle to secure a permanent visa. 

    Does the applicant meet the refugee criterion and, if not does she meet the complementary protection criterion?

34. The applicant claims that she fears persecution as a result of being a member of a social group, that is, persons who have had a sex change operation.

35. The Tribunal is satisfied that the applicant had a sex change operation from male to female [in] January 2012 prior to her entry to Australia. The Tribunal therefore accepts that the applicant is a member of a social group – trans-gender people or LGBTI people.

36. The applicant has claimed that she fears serious or significant harm from three people – her father, fraudulent migration agents and her ‘[Relative 2]’ who is located in Australia.

37. The Tribunal accepts that the applicant has probably had a history of family violence in Thailand, and that her mother was the victim of her father’s violence when he was inebriated. The Tribunal accepts the applicant’s evidence that she was not herself the subject of violence prior to her sex change operation.

38. The Tribunal accepts that it may have been difficult for her father to accept her sex-change operation and he may have been angry about it.

39. Based on the photographs of her injuries, the Tribunal accepts that the applicant was assaulted in January 2014. Although there is no evidence that the perpetrator was her father as the applicant stated she withdrew any charges against her father, the Tribunal is prepared to accept that he was the perpetrator on that occasion.

40. The Tribunal accepts that the applicant’s parents divorced after this event. However, the Tribunal considers it reasonable to assume that her parents divorced as there had been a long history of her father assaulting her mother when he was in the country and her mother finally took steps to leave the relationship.

41. The applicant has not provided any supporting evidence that her father located her mother and assaulted her in October 2016. However, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that her mother was assaulted again when her father was inebriated.

42. Country information indicates that the Thai government has legislation protecting family members from family violence.

    Thailand promulgated the Domestic Violence Victim Protection Act of B.E. 2550 (2007) which not only protects the victims of domestic violence, but also seeks to punish and reform the offenders. The law allows lawsuits or prayers for redress to be filed directly to the Court in cases involving domestic violence. The Court is able to issue orders that may be specifically addressed to the situation of each particular case. A few important points of the law are as follows:

    “Domestic violence” is defined broadly to include:

    ·any act done either intentionally or in a manner likely to cause harm to body, mind, or health of a family member; or

    ·coercion or exertion of immoral influence over a family member in order for him or her to commit an act, yield to an act, or to refrain from act.

    ·Acts committed through negligence are specifically exempted.

    The maximum penalty for committing an act of domestic violence is up to six months imprisonment or a six thousand baht fine or both, excluding “relief money” that a Court may order an offender to pay to the victim.[2]

    [2] Siam Legal, Don Surnumpol, Domestic Violence Law in Thailand, 5 June 2015, Accessed 16 March 2017

1. The applicant gave evidence that she reported the assault against her to the police who acted on her complaint and spoke to her father, the village headman and arranged mediation with relatives from both sides of the family. This indicates that the police followed the procedures that are recommended in domestic violence situations. The applicant stated that she withdrew the charges because she did not want to return to Thailand to go to court and her mother and [Relative 3] agreed.

2. The applicant gave evidence that she did not suffer any harm from her father on her subsequent visit to Thailand in April 2014, either because he did not locate her or because relatives were present to ensure nothing happened.

3. Taking into consideration the above findings cumulatively, the Tribunal finds that the applicant was subject to one incident of domestic violence after her sex change surgery and she sought protection from the relevant authorities, the police, who acted according to the law.

4. As the Tribunal put to the applicant several times, Thailand has a population of over 68 million people and many large cities, including Bangkok, to which the applicant could relocate to avoid any harm she feared from her father. The applicant claims her father will find her wherever she is.

5. The Tribunal does not accept that the applicant’s father would find her and there is only an extremely remote risk that he would even look for her wherever she is in Thailand. The Tribunal is satisfied that it is both safe and reasonable for the applicant to relocate to another part of Thailand to avoid any harm that she fears from her father or from any other person.

6. The Tribunal does not accept the applicant’s claims that she fears serious or significant harm from fraudulent education representatives in both Thailand and Australia. The applicant stated that the agent in Australia knows that she considers he defrauded her because her ‘[Relative 2’s]’ partner, [Mr A] lodged a complaint. However, she had earlier said that her [Relative 2] had agreed to pay for her education costs because her ‘[Relative 2]’ was alone, had no partner or friends and wanted the applicant to look after her in her old age. The applicant also said she herself has never made a formal complaint about her agent to the authorities or the Department in Australia. The Tribunal considers the applicant’s evidence about any potential threats for harm from the education agents with whom she dealt in respect of her student visa to lack credibility.

7. The Tribunal is satisfied there no real chance or real risk that the applicant will suffer serious or significant harm from education/migration agents in either Thailand or Australia if she returns to Thailand now or in the foreseeable future.

8. The applicant does not accept the applicant’s claims that her ‘[Relative 2]’ in Australia will harm her if she returns to Thailand. The Tribunal does not accept her [Relative 2’s] intention is to harm her, given the applicant said she has repaid her debt to her ‘[Relative 2]’ and has had nothing to do with her for some time, and not suffered any harm from her ‘[Relative 2]’ in Australia. In any event, the Tribunal considers that there is no possibility her [Relative 2] would be able to locate her in Thailand if she does not return to her family home. 

9. The Tribunal is not satisfied that there is any real chance or real risk that the applicant will serious or significant harm from her ‘[Relative 2]’ directly or indirectly if she returns to Thailand now or in the foreseeable future.

10. Based on the above findings both individually and cumulatively the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if she returns to Thailand, or that she will suffer serious harm having regard to the examples of serious harm in s.91R of the Act.

11. Based on the above findings both individually and cumulatively the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, that there is a real risk she will suffer significant harm having regard to the exhaustive definition of serious harm in s.36(2A): 5(1) of the Act.

    CONCLUSION

12. 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).

13. 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).

14. 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

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

    B. Mericourt

    
    

    Member