1508305 (Refugee)

[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 [Mr B]’s general practitioner, [Dr D] (on 17 August 2017) by telephone. The Tribunal was assisted by an interpreter in the Thai and English languages.

6. [Ms A] was represented by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW

8. 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, as at the date of [Ms A]’s application, 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.

   Refugee criterion

9. 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).

10. 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.

11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

12. There are four key elements to the Convention definition.

13. First, an applicant must be outside his or her country.

14. Second, an applicant must fear persecution.

15. Under s.91R(1) of the Act, persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

16. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

17. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

18. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

19. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

20. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

21. 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’).

22. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

23. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Credibility

24. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, 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. Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 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.

25. 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 para 196). However, the Handbook also states (at para 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.

26. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 39:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

27. However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.” Nevertheless, as Burchett J counselled, in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

28. The Full Court of the Federal Court in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.” On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9). Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong. (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed)). In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (see MIMA v Rajalingam (1999) 93 FCR 220). The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    Section 499 Ministerial Direction

29. 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.

30. 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 EVIDENCE

    Background

31. [Ms A]’s visa application states that she was born in [District 1], Thailand in [birth date].

32. 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; and

    iv.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

33. [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 2011

    After 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 village

    He 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 2012

    There 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 Thailand

    I 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 occasions

    Added 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 happen

    Thailand 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 will

    This 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 family

    I 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 son

    Whilst 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 happen

    The 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 them

    My 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 corrupt

    I 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 now

    If 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)

1. Various documentary evidence and numerous statutory declarations have been provided to the Tribunal, including from [Ms A]’s husband, [Mr B], [a named person] (friend of [Ms A] and [Mr B]) [a named person] (travelling companion of [Mr B] to Thailand in July 2012) and [a named person] (travelling companion of [Mr B] to Thailand in September 2012), medical reports ([Dr C], [Dr D], [a named person] (Senior Case Worker [of an organisation] and Pathology report re [Master E] identifying [illness]), and also submissions from [Ms A]’s representative.

2. A summary of [Ms A]’s evidence to the Tribunal is as follows:

   (a)  [Ms A] was born in a small village in northern Thailand. She moved to Bangkok and lived there for some years with her previous partner. Her previous partner is the father of her oldest son who lives in Thailand with her mother and one of her brothers. She and her previous partner also moved to [Province 1] and lived and worked them for some time. She ended the relationship with her previous partner because of violence in the relationship. She had nowhere to go when the relationship ended so she returned home to the village.

   (b)  All of her immediate family live in the same village in northern Thailand. She has a number of siblings. Her oldest brother [lives] in the same house as her mother and her oldest son lives with them. This is the home where she was born and raised.

   (c)  After she returned home (following her relationship breakup with her previous partner), she lived at the family home. Her brother constantly raised the issue of money and eventually took her to the brothel in [Location 1]. After meeting [Mr B], he then paid some money so that she could leave the brothel. She and [Mr B] then stayed in a motel near her home village for a short period of time. During the day time she took [Mr B] to her village to meet her family – this happened [a number of] times. [Mr B] went back to Australia after some time and she then stayed in Thailand waiting for her visa so that she could go to Australia to join [Mr B]. She thinks she stayed in the motel with [Mr B] for [a number of days] and then for [a while longer] by herself. She did not go to visit her family during that [time she spent by herself]. She had no contact with them and no-one came to visit her. She did not see her son during this time. She only saw her family on the [visits] back to the village with [Mr B] before he left. When they visited the village, she thinks [Mr B] gave her brother money but she is not sure how much. Her brother was happy at that time that she had a new partner to the extent that he was a Westerner and he gave money to the family.

   (d)  [Ms A] then received her visa and came to Australia. It was for three months however she cannot remember exactly when it was. It may have been from November 2012 to February 2013. She contacted her sister once or twice during that three months asking about her son. She thinks [Mr B] may have sent money back to her family during this time but she is not sure.

   (e)  [Ms A] then returned to Thailand for about one month. She stayed with her mother, her brother and her son. She did not work when she was there. [Mr B] gave her money for her trip. She cannot now remember if [Mr B] visited her during this trip. He may have. When [Mr B] did visit he always stayed at a motel. He never stayed with her family overnight.

   (f)    [Ms A] was then granted another visitor visa and came back to Australia for another three months and then went back to Thailand again. She again stayed at her mother’s house with her mother, her brother and her son. [Mr B] again gave her money for her trip and she thinks he also sent money to her brother but she cannot remember.

   (g)  [Ms A] then returned to Australia again and she cannot remember whether she returned again for a third time. She is not sure of the trips and the timing.

   (h)  [Ms A] does remember that the last time she was in Thailand was in March 2014. She again stayed with her mother, her brother and her son. Up until this time [Mr B] was still able to give money to her brother. However, at this time [Mr B] had been sick for a few months and was no longer able to work. They had been planning to both move and live in Thailand but their plans had to change when [Mr B] became sick.

   (i)    [Mr B] used to be [occupation] but now he cannot work. She does not remember how much he used to send but she thinks at the moment he sends [amount] per month to her brother.

   (j)    Since [Mr B] has stopped working and is sending less money, her brother has been telling her mother and sister that if she returns again, she will have to go back to the brothel because there is not enough money. When she has been home on previous visits, her brother has threatened her that if [Mr B] did not send enough money, she would have to go back to the brothel.

   (k)   [Ms A] does not want to go back to the brothel again. She thinks this will happen if she returns because [Mr B] is not working so he cannot help out (with as much money) anymore. Her brother knows that she now has [Master E] (her baby with [Mr B] born in [birth date]) and her brother will take him as a hostage. Her mother has told her not to go back.

   (l)    [Ms A] cannot relocate to Bangkok as she would have to take [Master E] with her. He is only [age]. She has no friends or no-one that would be able to help her in Bangkok. She would not be able to work in [Occupation 1] there like she did previously because of [Master E] and the need for her to care for him.

   (m) [Mr B] was diagnosed with [illness] in February 2014 ([details of illness) and [a second illness]. He is also impacted by [an assortment of other illnesses].

   (a)  [Ms A] cannot leave [Master E] with [Mr B] in Australia because [Mr B] is too unwell to care for [Master E] by himself. [Mr B] cannot come to Thailand with her and stay because he will constantly be required to leave Thailand and re-enter for visa reasons. They have very limited finances and would not be able to cover the cost of him continually re-entering and departing Thailand. If she obtains work in Bangkok she will not have childcare for [Master E]. [Master E] is only [age] and has been identified as having [assorted illnesses] for which he has to be medically monitored. If she does not work in Bangkok she will not be able to survive. [Mr B] is only in receipt of a pension and does not have enough money to send to her for living expenses for an extended period in Bangkok.

   (b)  If [Ms A] returns to Thailand her only option will be to return to her home village. If she does that, without money, her brother will again force her into prostitution.

3. A summary of [Mr B’s] evidence to the Tribunal is as follows:

   (a)  His circumstances have changed. He used to work as [occupation]. However he last worked in mid to late 2013. He was granted disability support pension in April 2014 for a number of medical conditions including [details of various illnesses].

   (b)  He first met [Ms A] in July 2012 when he went for a massage in [Location 1]. He was very taken by [Ms A] whom he found to be different from anyone else he had met. He tried to find her a few further times on this trip but was unsuccessful. He returned to [Location 1] in September 2012 with his friend [and] bumped into [Ms A]. From then he started to pay so that he could spend time with [Ms A]. Towards the tail end of his visit he asked [Ms A] if she wanted to come to Australia with him. She told him that he would have to pay some money to her boss, which he did.

   (c)  He returned again in October 2012 and paid the money to the boss and they left and went to get the paperwork from her family necessary for her to come to Australia. They stayed in a hotel for a couple of days so that he could arrange the paperwork. There was little discussion with [Ms A]’s family because of the language barrier. He did not feel at all comfortable. On the first visit he didn’t give [Ms A]’s brother any money but he did do things like take everyone out and supply them with beer, alcohol and food. It is his understanding that [Ms A]’s brother received a portion of the money that he gave to the brothel boss. He returned to Australia and [Ms A] followed soon after.

   (d)  On each of [Ms A]’s subsequent visits back to Thailand, he would give her his ATM card and she would use it to withdraw funds to give to her brother. It was usually between [amount] each visit. He also regularly sent the brother money at other times.

   (e)  Upon [Ms A]’s return from Thailand in March 2014, she told him that her brother had made it quite clear that if he could not continue to provide enough money and [Ms A] returned to live with the family, she would have to go back to the brothel. [Ms A] finds this very difficult to speak about because she is so traumatised by her time at the brothel.

   (f)    It all revolves around money. Up until 2014, he had money in the bank so was able to provide money to [Ms A]’s brother but by the end of 2014, after over twelve months of not working, and then being on disability support pension, his savings had run out.

   (g)  He still sends [a smaller amount] per month to [Ms A]’s brother however without a substantial lump sum to go back with, there is no doubt in his mind that [Ms A]’s brother would force her to again work in a brothel in [Location 1].

   (h)  In his view the police in Thailand will not do a single thing to help with [Ms A] and in fact they would probably help the brother

   (i)    If [Ms A] was to relocate to Bangkok, she would literally be arriving at the airport with nothing. He has no savings left. He lives from Centrelink payment to Centrelink payment. They have spent any money they have had towards [Ms A] getting a visa.

   (j)    His older son, [Master F] (of whom he shares care with his former partner) has a severe disability and unfortunately [Master E] is starting to show similar signs such that he is being monitored as having a suspected [illness]. The thought of [Master E] being in Thailand with [Ms A] with no money and no medical care is terrifying.

   (k)   The only way he has been able to keep up the payments to [Ms A]’s brother to date is because he receives family tax benefit for [Master F] and now also [Master E]. Without these payments he would not be in a position to send any money at all. It makes it very difficult to survive but he has to make it work budget wise. If [Ms A] and [Master E] left Australia, his Centrelink income would drop by [amount] (he has made this calculation using Centrelink’s online estimate calculator). Centrelink is currently coding him as a single person because of [Ms A]’s circumstances.

   (l)    He simply will not have enough money to support himself, support [Ms A] and [Master E] in Thailand and/or appease [Ms A]’s brother by sending enough money. He is terrified for [Ms A] and for [Master E].

   (m) Even if he now wanted to move to Thailand with [Ms A], he would not be able to because of his health and also because of Family Court orders which are now in place in relation to his older son, [Master F].

   (n)  His [daughter], who is now [age], does not live with them but also considers [Ms A] a part of the family.

4. A summary of [Dr C’s] evidence to the Tribunal is as follows:

   (a)  She has provided reports dated [in] March 2016 and [in] March 2017.

   (b)  She has been consulting with [Ms A] for approximately two years. [Ms A] is impacted by a major depressive disorder and post-traumatic stress disorder (PTSD). She has grave concerns for [Ms A]’s mental health if the visa is refused. [Ms A] has voiced suicidal ideations durng sessions when considering a negative response from immigration.

   (c)  What has been disclosed by [Ms A] as to her past experiences is consistent with her presentation and her symptoms.

   (d)  Also consistent with these matters, it is not at all unusual that [Ms A] might have some memory issues of what has happened in the past. It is a very common symptom of PTSD to engage in avoidance of the subject at issue and to have memory difficulties. This can impact memory generally not just in relation to the events of the past trauma.

5. A summary of [Dr D’s] evidence to the Tribunal is as follows:

   (a)  [Master E] has just turned [age]. He is suspected of being impacted by the same [illness] that affects his older brother, [Master F]. It is important that he stay in Australia to be monitored and to receive early intervention as necessary. He is monitored by a paediatrician at [a] hospital.

   (b)  It is impossible given [Mr B’s] medical condition for him to look after [Master E] without [Ms A]’s assistance.

6. Amongst other things, it was submitted that since the Department considered [Ms A]’s application there has been a significant change in her circumstances, the birth of [Master E] on [date of birth], which increases the “real chance” and “real risk” of serious and/or significant harm occurring to [Ms A].

7. Having considered all of the evidence before it, the Tribunal makes the following findings of fact:

   (a)  [Ms A]’s brother was verbally and physically abusive towards her when she returned to the family village in Thailand in 2011 as a single parent.

   (b)  For some months in 2011/2012 [Ms A] was forced by her brother to work in a [Location 1] brothel, whilst her son remained in the family village, residing with her mother and brother.

   (c)  [Ms A] and [Mr B] met in July 2012 and [Mr B] subsequently paid for [Ms A] to be released from the brothel.

   (d)  [Ms A] has subsequently visited [Mr B] in Australia pursuant to a number of visitor visas.

   (e)  [Mr B] has, since meeting [Ms A], provided money to [Ms A]’s brother, currently [amount] per month, including for the support of [Ms A]’s oldest son who remains living in the village with [Ms A]’s mother and brother.

   (f)    [Mr B] was diagnosed with [illness] in February 2014 and has been in receipt of disability support pension since April 2014 for that and other medical conditions which impact upon him.

   (g)  [Mr B’s] savings had been extinguished by late 2014 and he is now dependent upon his Centrelink pension, supplemented by family tax benefit payments, to cover all of his family’s living expenses and to provide money to [Ms A]’s brother in Thailand, including for the care of her eldest son.

   (h)  [Ms A]’s brother has threatened [Ms A] that if she returns to Thailand without continuing and sufficient monetary support from [Mr B], she will again be required to work in a brothel.

   (i)    Due to the medical conditions impacting upon him, [Mr B] is unable to care for [Master E], or [Master F] (when he is in his care) without [Ms A]’s support.

   Issue 1 – Is [Ms A] a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on complementary protection grounds?

   Country of Nationality

8. The Tribunal accepts that [Ms A] is a Thai national, and is not a citizen of, or a national of, any other country. Further, the Tribunal is satisfied that [Ms A] is outside her country of nationality, Thailand. Thailand is therefore the receiving country for the purpose of assessing [Ms A]’s claims for protection.

   Assessment of claims

9. The Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

   As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

10. Based on her evidence, the Tribunal is satisfied and finds that [Ms A] has a genuine fear of being persecuted if she returns to Thailand with the harm feared being domestic violence at the hands of her brother and forced prostitution by her brother.

11. The Tribunal is satisfied that [Ms A]’s brother has previously imposed similar harm upon [Ms A] in the past, as is supported by the circumstances of [Ms A]’s and [Mr B]’s meeting. The Tribunal is further satisfied that without continued financial support from [Mr B] to a necessary level, there is a real chance and real risk that if [Ms A] returns to The Tribunal in the reasonably foreseeable future, her brother will again force her to work in a brothel. The Tribunal is also satisfied that [Mr B’s] finances are such that if [Ms A] were to return to Thailand with [Master E], [Mr B] will not have sufficient finances to gift to [Ms A]’s brother. Further, the Tribunal is satisfied that it is not practical for [Master E] to remain in Australia without [Ms A] given [Mr B’s] medical issues and his inability to care for [Master E] by himself.

12. However, the Tribunal is not satisfied that if [Ms A] returns to Thailand she will suffer serious harm for a Convention reason. Rather, the Tribunal considers that the harm feared is because her brother is an abusive and controlling person and is directed at her personally.

13. Having had regard to all of these matters, the Tribunal is not satisfied that the persecution claimed to be feared by [Ms A] is for reason of either race, religion, nationality, membership of a particular social group or political opinion, and finds accordingly. It follows that [Ms A] is not a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore [Ms A] does not satisfy the criterion set out in s.36(2)(a).

14. Having concluded that [Ms A] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Ms A] being removed from Australia to Thailand, there is a real risk that she will suffer significant harm.

15. The Tribunal has already found that it is satisfied that if [Ms A] returns to Thailand, without adequate money being provided to her brother (which the Tribunal has found will not be able to occur given [Mr B]’s circumstances), there is a real risk that she will again be forced to work in a brothel by her brother. The Tribunal is satisfied that this would amount to cruel or inhuman treatment or punishment and it would be intentionally inflicted and, therefore, falls within the definition of ‘significant harm’ as set out in s.36(2A). The Tribunal is also satisfied that this real risk is faced by [Ms A] personally and not by the population of Thailand generally.

16. The Tribunal has also considered the issue of relocation and State Protection, which could exclude [Ms A]’s entitlement to complementary protection.

17. The Tribunal firstly finds that it is not reasonable for [Ms A] to relocate to elsewhere in Thailand. [Ms A] has previously had experience working as [Occupation 1] in Bangkok and [Province 1]. Without [Master E], the Tribunal considers it would be reasonable, if not desirable, for her to relocate elsewhere in Thailand and obtain work to support herself. However, her circumstances have changed since [Master F’s birth]. She now has [age] year old Australian citizen son. The Tribunal accepts that [Mr B], as [Master E]’s father, is not able to care for him without [Ms A]’s assistance because of medical issues. The Tribunal further accepts that [Ms A] is unlikely to be able to find suitable childcare and medical care for [Master E] in Thailand, whilst she works, particularly in light of the medical evidence that [Master E] is likely impacted by [an illness] which requires monitoring and early intervention treatment. Nor would it be reasonable in those circumstances for [Ms A] to consider [Master E] being cared for by her family in a remote village in northern Thailand.

1. The Tribunal also consider it unreasonable for [Mr B] to relocate to Thailand. He has significant medical conditions impacting upon him. He is unable to work. His only source of income, Centrelink benefits, would not be portable outside Australia for other than a very short period of time.

2. The Tribunal also considered whether [Ms A] would be able to avail herself of protection from the authorities in Thailand to avoid the harm she fears. The Tribunal is satisfied, including based upon information from external sources[1], that [Ms A]’s circumstances of being forced into prostitution by her family, meeting her Westerner husband and an expectation of “sharing their wealth” is consistent with what is not an uncommon scenario for rural women from the northern area of Thailand. Independent country information includes that whilst women have the same legal rights as men in Thailand, they remain vulnerable to domestic abuse, rape and sex trafficking.[2] Further, although domestic violence is recognised as an offence in Thailand, domestic violence is frequently considered to be a private affair[3] and police are often reluctant to pursue reports of domestic violence[4]. Given [Ms A]’s particular circumstances, the Tribunal is satisfied that state protection would be unavailable to her and that the police would not interfere in a family situation of the nature she fears. The Tribunal therefore is not satisfied that [Ms A] can obtain protection by an authority of Thailand from her brother who has acted on his threats previously forcing [Ms A] to work in a [Location 1] brothel.

   [1] “Global Wife, Local Daughter: Gender, Family, and Nation in Transnational Marriages in Northeast Thailand”, The University of British Colombia – dissertation submitted for PhD, 1 March 2009.

   [2] Freedom in the World 2017 – Thailand, Freedom House, 16 May 2017, Section G.

   [3] ‘Concluding observations on the second periodic report on Thailand – HRC’, para 13, p. 3.

   [4] Thailand – Country Report on Human Rights Practices 2016’, US Department of State, 3 March 2017, p. 38.

3. Accordingly, having considered all of the evidence, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Ms A] being removed from Australia to Thailand given her now current circumstances, that there is a real risk that she will suffer significant harm.

4. For the reasons given above the Tribunal is satisfied that [Ms A] is a person in respect of whom Australia has protection obligations. Therefore she satisfies the criterion set out in s.36(2)(aa).

   Issue 2 – 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?

5. Given the Tribunal’s findings in relation to s.36(2)(aa), it is not necessary for the Tribunal to consider this issue.

   DECISION

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

   Susan Trotter
   Member