1508305 (Refugee)

Case [2017] AATA 2387

1508305 (Refugee) [2017] AATA 2387 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508305

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Susan Trotter

DATE:27 October 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 27 October 2017 at 5:36pm

CATCHWORDS

Refugee – Protection Visa – Thailand – Forced prostitution – Lack of state protection – Domestic abuse – Australian citizen child – Health issues – Complementary protection

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BZADA v MIC and RRT [2013] FCA 1062
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167

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, [Ms A], a Protection visa under s.65 of the Migration Act 1958 (the Act).

  2. [Ms A], who claims to be a citizen of Thailand, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] June 2015.  

  3. The delegate refused to grant the visa on the basis that they were not satisfied that [Ms A] is a person in respect of whom Australia has protection obligations because she is not a refugee, as defined in the legislation. Further, the delegate was not satisfied that [Ms A] was a person in respect of whom Australia has other protection obligations as provided for in the legislation.

  4. [Ms A] lodged an application for review of the delegate’s decision with the Tribunal on 18 June 2015.

  5. [Ms A] appeared before the Tribunal at two hearings, on 17 August 2017 and 21 September 2017, to give evidence and present arguments. The Tribunal also heard evidence from [Ms A]’s husband, [Mr B] in person (on 21 September 2017) and from [Ms A]’s treating psychologist, [Dr C] (on 17 August 2017) and [Ms A]’s and…

Continue reading 1508305 (Refugee)

Sign in free to access the full text

Details
AGLC
1508305 (Refugee) [2017] AATA 2387
Case
[2017] AATA 2387
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Ms A, a woman seeking a protection visa. Ms A claimed she feared returning to Thailand due to a history of domestic violence, forced prostitution by her family, and a lack of state protection in her home region. She also raised concerns about her son's safety and her own inability to support him and her family if she returned without financial means.

The primary legal issues before the Tribunal were whether Ms A met the criteria for a protection visa under the 'refugee' criterion, or alternatively, on complementary protection grounds. The Tribunal was also required to consider if Ms A was a member of the same family unit as a person in respect of whom Australia has protection obligations and who holds a protection visa of the same class.

The Tribunal's reasoning focused on section 36(2)(aa) of the Migration Act 1958 (Cth), which relates to Australia's protection obligations. Based on the evidence presented by Ms A, including her detailed account of forced prostitution, domestic violence, and the pervasive corruption and lack of effective state protection in her home area of Thailand, the Tribunal found that she satisfied this criterion. The Tribunal noted that due to these findings, it was not necessary to consider the other grounds raised.

Consequently, the Tribunal remitted Ms A's matter for reconsideration with a direction that she satisfies section 36(2)(aa) of the Migration Act. This indicates that the Tribunal was satisfied that Australia has protection obligations towards Ms A.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It follows that the issues to be determined by the Tribunal are as follows:(a) Is [Ms A] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion? or on complementary protection grounds?; or(b) Is [Ms A] a member of the same family unit as a person in respect of whom Australia has protection obligations and that person holds a protection visa of the same class?CONSIDERATION OF CLAIMS AND EVIDENCEBackground [Ms A]’s visa application states that she was born in [District 1], Thailand in [birth date]. Further information provided in [Ms A]’s visa application is as follows:(a) She speaks, reads and writes Thai and speaks English.(b) Her religion is Buddhist.(c) She is married to [Mr B] and has a [step-daughter].(d) Her [son] (date of birth [date]) lives in Thailand.(e) Her widowed mother, her [siblings] live in Thailand.(f) Her various places of residences have been as follows:i.From birth until August 2004, she lived in [District 1];ii.From August 2004 to August 2011 she lived in Bangkok with her boyfriend;iii.From August 2011 to March 2012 she was kept in a brothel in [Location 1] against her will; andiv.From November 2012 up until the date of the visa application she has lived with her partner at various addresses in Australia.(g) From June 2005 to December 2008 she worked as [Occupation 1] in Bangkok. From December 2008 to February 2009 she worked as [Occupation 1] in [Province 1].(h) She last arrived in Australia [in] March 2014.(i) Her main reason for remaining in Australia is that “I need protection from my brother and domestic violence and forced prostitution which has happened to me before I do not want to have to return to prostitution forced upon me by my family. I have nowhere else to stay except with my husband where I will be safe.”Claims [Ms A] sets out her claims for protection in her protection visa application form as follows:Why did you leave that country?“I left for a combination of reasons In 2012 I left Thailand to see Australia and get to know my now husband.The other reason was to be able to escape the brothel I had been forced to work in my members of my family. In 2012, when I met my now husband all I wanted to do was get out of the situation I was in.”Have you experienced harm in that country?“I have experienced ongoing domestic violence for members of my family especially one of my brothers. He was always violent but was not as bad until after my father died in 2008. Once he became the head of the family he got a lot worse.He has beaten and kicked me, punched me, verbally belittled me and forced me to work in a brothel in [Location 1] for his own financial gain. (also a family member) I have scars on my body from the violence. The abuse was really bad when I went back to live in the family home in late 2011After years of constant abuse from my partner I broke up with him in 2011 and went [home] in late 2011, My brother was constantly at me for money, where I would get money and how I would bring money into the house. I was unable to contribute anything as there is no work in or around the villageHe would hit me, call me names such as useless and idiot. My Mother who lives in the same house was unable to stand up to him. He kept threatening to sell me and force me to go and work in a brothel and eventually made good on his threats in March 2011 I was taken to [Location 1] by him in a car and he gave me to the woman who then took my identity cards and told me I was now hers. I had no choice but to go with my brother to [Location 1]. He scares me.I was forced to sleep in a small room with other people and made to have sex with [a number of] people a day. I was abused and threatened, by the woman who paid for me my son was threatened and I was subjected to physical violence, slaps and pinches for being late waking up and the like. I worked from [early morning until late at night] with no days off at all. It was a horrible time for me. I only received a small amount of money for the sex I was forced to do. Most of it went back to the big boss to pay back what she had given my brother I was only able to leave when [Mr B] paid the big boss some money to release me. Even then I did not get back my ID and had to go and get brand new set. I met [Mr B] first in July 2012 and and he paid for my release in i think October 2012There was nothing I could do to get out of my situation. In [Location 1] I was threatened and the life of my son was threatened. In my village domestic violence is a way of life that goes unchecked in the community. My brother is head of the family and he does what he likes to who he likes in the family.”(sic)What do you fear may happen to you if you go back to that country?“I am in a very difficult position. My son is in Thailand and if I go back under the conditions I will have to go back with/to My brother has made it quite clear i will be going straight back to [Location 1] to work again. When i went back in [2014] he was especially nasty after i told him my husband was sick and could no longer send money.My husband has been selling his possessions to send money back to my family and whilst that has been happening everything has been ok but recently he has run out of things to sell off and has become ill and is not able to work for the foreseeable future and therefore now cannot provide for me and my son and family if I return to ThailandI am certain that as i am unable to go back and support my son I will be subjected to the same balance and treatment that happened to me the last time I went home and that has happened on other occasionsAdded to this now is the shame felt by my family that I have married a westerner and he cannot support me whilst I am in Thailand. My family are angry with me and I am scared to return for I know what will happenThailand is not like Australia, because I have a son I have no choice but to be with my family OR provide for my son and family whilst they look after him. I cannot move anywhere else as I would be a single parent with no help or no house and I could not even work as in Thailand there is no childcare for the general population. If I left the family village with my son I would be forced to live on the streets.If I go back and my husband cannot support me and my son AND end money to my family I will be abused by my brother, suffer domestic violence and be forced into prostitution against my willThis is cruel and inhumane treatment that, as a woman, I should not be forced to endure. I do not want to have sex with men for money or to be beaten or threatened or to have my some threatened and I do not want my only option to get out of this to be becoming beggar on the streets of Bangkok, homeless with my son.”Who do you think may harm/mistreat you if you go back?“My brother is the head of our family and he does what he likes when he likes with no care for anyone else or their feelings. He has been violent and abusive to me over a number of years and he is the person who will be mistreating me. I will also be deprived of my freedom once I get forced to go back to work as a prostitute. I do not want to be exposed to violence and I do not want to be forced to work as a prostitute.If I get forced to go back to [Location 1] i will be deprived of my freedom, be forced to have sex with men for money against my will and i will be mistreated by my "big boss "again.I do not want to be forced to do anything to do with ex for money and I do not want to be subject to domestic violence.”Why do you think this will happen to you if you go back?“I have already been told in no uncertain terms by my brother what will happen if i return and if my husband does not support me, my son and my family. I have no choice but to comply with him as I have nowhere else to go if I go back except to the family. Single girls with children do not move away from family in Thailand and especially [where] I am from.I have been told I have brought great shame to the family by marrying a poor westerner and that I will not be allowed to stay in the village if I cannot pay my way. I will have no choice but to return to forced prostitution if I return to Thailand. Because I am now with a western man pay your way needs money for the whole house, not just me and my son.I have been told I have culturally brought shame on to my family for being with a poor westerner and that one way or another i will provide for the familyI know 100% that what happened to me in 2011/2012 will happen again and I do not want to be hit and forced to work in a brothel. I do not want to sleep with men for money and I do not want to be exposed to domestic violence.If I return there is no escaping what will happen to me. I have a child, I am bound to my family in Thailand if i return or i will end up living on the streets with my sonWhilst I am here I am safe from inhumane treatment and my son is safe from threats.”Do you think the authorities of that country can and will protect you if you go back?“I come from a village in remote north east Thailand. The village is 18 km from the nearest town. We do not even have police in the village. There is no chance whatsoever that any report I would make to the police would be taken seriously. Even if they did my brother would bribe them and nothing would happenThe police do not care about domestic violence and the ingrained gender attitudes that prevail in my home area would also stop the police from acting. The police are inherently corrupt in every way and money buys anything with themMy culture is one of family and insular beliefs. My culture also dictates that a man can do what he likes to woman without recourse.I am also scared to go to the police as I would then have nowhere else to go when my brother kicks me out and I might even get arrested myself as the police are very corruptI could never report my captivity in the brothel either as the place in [Location 1] are paid off by people to look the other way and direct threats were made in relation to my son by people if I ever said anything. I am even scared to be mentioning them nowIf I walked into a police station in my home state I would be insulted and laughed at. Domestic violence and selling people for money is second nature where I come from. Western morals do not apply.”(sic)

Decision

Reasons for decision

Given the Tribunal’s findings in relation to s.36(2)(aa), it is not necessary for the Tribunal to consider this issue.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.