1607141 (Refugee)

[2017] AATA 514

1607141 (Refugee) [2017] AATA 514 (8 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607141

COUNTRY OF REFERENCE:                  Thailand

MEMBER:B. Mericourt

DATE:8 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2017 at 11:42am

CATCHWORDS
Refugee – Protection visa – Federal Court remittal - Thailand – Religion – Buddhist monk – Allegations of improper conduct in Australia – Ostracised by the Buddhist community  – Loss of status as monk – Fear of punishment from Sangha Council – For payment of a bribe allegations would be dropped – Medical conditions

LEGISLATION

Migration Act, 1958, ss 5(1), 36(2)(a), (aa), (b), or (c),65, 91R(1)(b) and (c)
Migration Regulations 1994, Schedule 2

CASES

SZEPZ v MIMIA (2006) 159 FCR 291
MIAC v SZGUR (2011) 241 CLR 594
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] June 2013 and the delegate refused to grant the visa [in] December 2013.

3. The applicant applied for review by the Administrative Appeals Tribunal (the Tribunal) (differently constituted) which affirmed the Department’s decision on 11 February 2016.

4. The applicant lodged an appeal with the Federal Circuit Court (FCC) which remitted the Tribunal’s decision with the consent of the Department [in] May 2016. The reason for remittal was that “The Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 because it did not give to the applicant clear particulars of information contained in and attached to a letter received by the Department of Immigration and Border Protection from a third party that, in its terms, constituted a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations.”

5. The applicant appeared before the Tribunal on 13 January 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 his registered migration agent.

6. The Tribunal explained the reasons for the remittal on reconsideration and indicated that evidence given to the previous Tribunal could be taken into account in the review. The Tribunal took further evidence from the applicant about his background, his claims and his current circumstances. During the hearing, the Tribunal put to the applicant the information referred to in paragraph 4 above pursuant to s.424AA of the Migration Act.

   BACKGROUND

7. The applicant was born in [year] in Thailand and is a citizen of Thailand. He does not have the right to enter or reside in any other country. The applicant first entered Australia for a period of [time] as the holder of [Visa 1] in 1991. The applicant entered Australia on [Visa 2] [in] June 2005. He was granted two renewals of his [Visa 2] [in] May 2006 and [in] May 2007.

8. [In] February 2008 the applicant was granted a [Visa 3] He travelled in and out of Australia on [number] occasions as the holder of this visa. He last arrived in Australia [in] January 2013.

9. The applicant lodged an application for protection [in] June 2013. The applicant stated that he fears he will be disrobed by the Buddhist Association and ostracised by the Buddhist community in Thailand and forced to revert to civilian life. He claims this will occur as a result of allegations made against him of improper behaviour in Australia. The Department refused to grant the visa [in] December 2013.

10. The applicant lodged an application for review of the Department’s decision with the Tribunal. He appeared on two occasions before two different members of the Tribunal on 3 November 2014 and 26 October 2015 to give evidence and present arguments. The Tribunal affirmed the Department’s decision on 11 February 2016.

11. [In] March 2016, the applicant applied to the Federal Circuit Court for review of the Tribunal’s decision and the matter was remitted by consent [in] May 2016.

    RELEVANT LAW

12. 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.

13. 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).

14. 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.

15. 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’).

16. 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.

    Non-disclosure certificates

17. The Department’s file contains a non-disclosure certificate issued pursuant to s.438(1)(a) of the Act. The documents covered by the certificate are as follows;

    ·Protection Visa Validity Checklist which lists administrative matters to be checked including, payment of the lodgement fee, name and nationality of the applicant, notation passport photographs, personal identifiers and identity documents have been provided;

    ·Identification Checklist which lists the name of the applicant, notes the submission of photographs and fingerprints and unauthorised offices declaration;

    ·computer movement records of the applicant for his entry and departure from Australia since 1994;

    ·the copy of the Federal Circuit Court Orders dated [in] May 2016 and associated administrative documents; and

    ·Disclosure Decision checklist which indicates whether there are any non-disclosure certificates on file.

18. These documents are not relevant to the matters to be determined by the Tribunal. Furthermore, the Tribunal considers that these documents are not covered by public interest immunity and thus the certificate relating to these documents is not a valid certificate.

19. The Tribunal put to the applicant that it considered the certificate to not be valid in respect of these specific documents and invited him to comment on their validity. He had no comments.

20. The non-disclosure certificate also relates to documents about [number] other matters which the Tribunal considers to be covered by public interest immunity and thus the certificate relating to these documents is valid.

21. The Tribunal put to the applicant that it considered the certificate to be valid in respect of these specific documents and invited him to comment on their validity. He had no comments.

22. The Tribunal put the gist of the matters covered by the certificate to the applicant during the hearing of 13 January 2017 pursuant to s.424AA of the Act (see below).

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he meets the complementary protection criterion.

24. The applicant’s claims are contained in his statement dated [in] June 2013 accompanying his application for protection; at an interview with the delegate [in] December 2013; in his oral evidence at the Tribunal hearings of 3 November 2014 and 26 October 2015 (differently constituted Tribunals); in his oral evidence at the Tribunal hearing of 13 January 2017 and in the submissions provided by his authorised migration representative.

    Information that can be considered on remittal

25. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[1] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[2] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [1] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [2] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

26. In SZEPZ v MIMA, a Full Court of the Federal Court found that, where a Tribunal decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[3]

    [3] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.

27. In conducting the review the Tribunal has considered the material provided to the first Tribunal and the oral evidence given to the previous Tribunal hearings in addition to the oral evidence the applicant provided to this Tribunal and the submissions made to this Tribunal by his authorised migration representative. The Tribunal also had regard to relevant country information and media reports as cited in this decision.

    Claims made in the applicant’s written statement of claims dated [in] June 2013

28. The applicant stated that [in] May 2013 he was informed by the [city] [Organisation] that the Buddhist Committee had cancelled his current passport due to a complaint of his misconduct as a Buddhist monk in [city]. This was a false allegation based on hearsay. As the result of the cancellation of his passport his application for a [Visa 3] lodged [in] November 2012 was put on hold. He believed that if he returned to Thailand he would be at real risk of being ostracised by the Buddhist monk community because of the false allegations detailed in his application. He would be forced to stop practising as a Buddhist monk and become a civilian. When he had previously stopped practising as a Buddhist monk about 22 years ago he was very unhappy and consequently returned to become a Buddhist monk again.

    Claims made at the interview with the delegate [in] December 2013

29. The Tribunal has listened to the recording of the interview with the delegate and is satisfied that the summary in the delegate’s decision dated [in] December 2013 is accurate.

30. At the interview the applicant provided evidence about his history as a monk from the time he was [age]; evidence about the year in which he stopped practising in 1991 in order to provide financial support to his parents and how he was unhappy returning to civilian life. He returned to being a monk. He provided evidence about how acts of impropriety or allegations of impropriety were handled by the Buddhist administration in Thailand; evidence about his work in Australia as a Buddhist monk; and evidence about his contact with [Ms A] from 2005, how she had some mental impairment which led to her accusing various people of stealing her assets; [information deleted] and how she made false allegations about him. The applicant stated that he fears he will be forced to leave the monkhood and he would be ostracised by the Buddhist community in Thailand and forced to revert to civilian life as a result of false allegations made against him of improper behaviour in Australia. He fears that the provisions contained in the Sangha Act BE 2505 will be invoked against him and he will not be able to renew his ordinary passport. The applicant’s representative stated that the applicant feared persecution on account of his religion and membership of a particular social group (Buddhist Monks) and that he feared significant harm by way of being subjected to degrading treatment or punishment.

    Department decision dated [in] December 2013

31. The delegate accepted that the applicant’s official passport had been revoked as a consequence of the allegations made against him. However, the delegate was not satisfied that the harm that he feared is serious harm and or that it is systematic and discriminatory conduct as required by subsections 91R(1)(b) and (c) of the Act, and therefore the applicant’s fear of harm was not for a Convention reason and does not amount to persecution. Whilst the delegate accepted that the applicant may feel he has been humiliated and degraded, the delegate did not accept that any sanctions imposed upon the applicant would be inflicted with the intention of humiliation and degrading treatment, and he therefore did not meet the requirements for complementary protection.

    Claims made at the Tribunal hearings on 3 November 2014 and 26 October 2015

32. The Tribunal has listened to the recordings of the Tribunal hearings on 3 November 2014 and 26 October 2015.

33. At the first Tribunal hearing the applicant reiterated the claims made in his written statement and at his interview with the dlegate. He claimed that he feared that he would be disrobed and there would not be a fair process investigating the false allegations made against him by the person in Australia. This would mean he would be humiliated and ostracised by the Buddhist community. He also feared physical harm on his return as this had happened to some monk friends returning to Thailand from the [Country].

34. In addition to the claims made to the Department and at the first hearing summarised above, at the second Tribunal hearing the applicant stated that he feared he will be assaulted by a gangster hired by the Sangha Supreme Council. He had been asked to pay a bribe but as he had no money to pay a bribe to the gangster to spare his life he feared he would suffer the same consequence as other disrobed monks. He provided the Tribunal with a number of media reports relating to misappropriation of funds by the [priest] of [temple], [Mr A], a member of the Supreme Sangha Council; a statement dated [in] May 2010 from [name], a Buddhist monk who had been threatened with disrobing unless he paid [amount] million baht to the Sangha Supreme Council; and a statement from [name] dated [in] August 2014 stating that he had been told by [Mr A] that he needed to pay a [amount] baht to retain his Sangha title and after visiting Australia and returning to Thailand in August 2013, he was met by [number] men at the airport who held him at gunpoint and told him to pay the outstanding money for the title he was expecting.

35. The applicant claimed he will not be able to re-ordain due to the false allegations made against him of [allegations deleted]. (These are the actions that lead to a monk being stood down under the Sangha Act). He claimed he could not get a fair trial due to the mental capacity of the person making the allegations against him ([Ms A]).

36. In addition, the applicant provided various documents concerning his credentials, his activities, references attesting to his character and medical reports indicating that the applicant has long-standing [medical conditions] and would benefit from continuation of his medical treatment in Australia.

37. At the second hearing, the applicant stated that discussions about the false complaint made against him took place over the telephone between himself and a [associate] to [Mr A] about three years ago in 2013. He was specifically told by this person that retaining his status as a monk depended on him funding expenses to build a temple in a provincial area of Thailand. He later said that he was told he would be physically harmed if he did not pay for these expenses. The applicant stated he thought that he would be stopped at the airport, disrobed and subjected to physical harm. This would exacerbate his existing medical conditions and cause him to have a [medical event].

38. Following the second hearing the applicant’s authorised migration representative provided the Tribunal with two statutory declarations and several media reports as follows;

    ·A statutory declaration made by the applicant dated [in] November 2015 stating in April 2013 the applicant contacted [Mr B], the [official] of the office for supervision of [name]. This is the person who the applicant indicates recommended that his passport be revoked. The applicant indicated that in the phone conversation he was told that he committed criminal offences including [details deleted] and would need to be brought back to Thailand to be jailed. Prior to this he would be disrobed. He indicated that on return they may be able to discuss the issues. At one point, [Mr B] indicated that if the applicant had a lump sum of money to donate towards a temple construction then he may be able to discuss the matter with the Committee and make the matters go away. However, if he did not contribute, the applicant’s safety cannot be guaranteed and he will face being disrobed at the airport and facing a jail term. The applicant indicated that his sponsor [Mr C] then called [Mr B] and in that conversation a similar corruption demand was made.

    ·A Statutory Declaration is provided by [Mr C] dated [in] November 2015. [Mr C] stated that he is the [senior official] of the [name] Association and that he facilitated the applicant’s travel to Australia.  He stated that around May 2013 the applicant told him about his conversation with [Mr B] and his demand of a donation to secure the clearing of his name. [Mr C] stated that he rang [Mr B] directly. He was told by [Mr B] that he had no right to ask about the cancellation of the applicant’s passport. [Mr C] told him that he must have taken corruption money from someone over there and that the matter must be decided in an Australian court. He accused [Mr B] of taking a bribe which he denied. [Mr B] asked him if he had money to pay for the Court and [Mr C] said that he had the money to pay for a solicitor to fight the matter in court in Australia.

    ·Four Internet media reports: a report dated 5 April 2015 referring to badly behaving clergy, corruption scandals and vast wealth amassed by some temples in Thailand; a report dated 25 February 2015 referring to scandals in the Supreme Sangha Council concerning reports of embezzlement by senior monks, drug possession and charges over trafficking wildlife; a report dated 27 February 2015 concerning an activist monk calling for Buddhist overhaul over corruption; and a report dated [in] January 2015 concerning the removal of [Mr A] from the Supreme Sangha Council in January 2015 due to continuing allegations of corruption.

    Tribunal decision dated 11 February 2016

1. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason on any of the grounds he claimed or on any other ground. The Tribunal concluded that any potential lack of due process under the Sangha Act in Thailand would not operate with a specific intention to cause harm to the applicant or would cause him extreme humiliation. The Tribunal accepted that the applicant may suffer some psychological pain as a result of being disrobed and having to live as a civilian, and may consequently suffer an exacerbation of his medical conditions. However, the Tribunal was not satisfied that such harm would be either intentionally inflicted or intended to cause the harm such as to meet the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in the Act.

   Claims made at the Tribunal hearing on 13 January 2017

2. The Tribunal asked the applicant if he wished to make any corrections or additions to the evidence he gave at the previous two Tribunal hearings. He said that he forgot some things as he had never appeared in a court setting before and because of his [medical] condition.

3. The applicant said that he did not tell the Department or the previous Tribunal that he would be disrobed and removed from his position as a monk and this may cause him to die due to his [medical] condition. The Tribunal put to him that he did give this evidence previously. He said that it would be a “very massive issue for him”.

4. The second issue the applicant said he forgot previously is about the money that [Mr A]’s [associate] is requesting. If he returns to Thailand he will be imprisoned for 20 days. The Tribunal asked who will imprison him. The applicant said it could be the police or members of the Sangha Council.

5. The Tribunal put to the applicant that it would be an extremely remote possibility that  the police in Thailand would charge him with a criminal offence that occurred in Australia unless he had been charged with such an offence in Australia. The applicant said that the [associate] will inform either the Sangha Council and/or the police that he has misappropriated funds. The inner group of the Buddhist Association has in the past accosted monks in Thailand whom they believe to have behaved improperly.

6. The Tribunal asked the applicant if he had tried to renew his passport. He said that he tried in 2013, 2014 and ‘currently’. He tried to get in touch with the Committee and received a letter of refusal. He then telephoned them to ask how to proceed and they did not give permission for him to proceed. He was in touch with the Thai Conuslate just before his passport was due to expire. They informed him he could not do anything without the permission of the Sangha committee.

7. The applicant was in touch with [Mr A]’s [associate], [Mr D] at the end of 2015 about getting his passport renewed. This is the same [associate] that he spoke with in 2013. He advised the applicant to return to Thailand to come to some agreement with the Sangha Committee as the financial matter of how the applicant dealt with donations is not yet cleared. [Mr D] again asked the applicant for money to establish a temple in his home town before the applicant’s name could be cleared. The applicant said that he didn’t have the resources to pay although the [associate] did not name a specific amount. The [associate] said they could talk about it in Thailand.

8. The Tribunal put to the applicant country information and media reports[4] that the Supreme Council has been subject to major reforms in 2016 to deal with allegations of corruption. The applicant responded that there is a lot of uncertainty as the current government is a military government which does not tolerate dissent. Any laws it has passed are not legitimate as it is not a democratically elected government.

   [4] Reuters, 12 March 2015, Activist Monk seeks board's overhaul in Thailand over corruption fears, by Amy Sawitta Lefevre, Nakhon Pathom, Thailand, Accessed 11 January 2017

9. The Trtibunal put to the applicant that [Mr A], the former [senior official] of the Sangha committee, had been accused of corruption and disrobed himself in Janaury 2015. The applicant said that he has heard further news that he is still working in the background. There is a new [senior official] who is a close friend of the previous [senior official].  He is the former [assistant] [position] (his title is also [as Mr A]). The applicant has heard rumours but has no evidence that [Mr A] is still working in the background.

10. The applicant said he was fearful of the influence the inner committee of the Sangha Council. He thought they would disrobe him and strip him of his title. According to the Sangha Act if a person is suspected of improper behaviour he is disrobed and stood down. If he is found not guilty then he is restored to the monkhood. It would be very humiliating for the applicant to be disrobed in Thailand as he has a good reputation. The Tribunal put to him that he said to the previous Tribunal that he had evidence he had not misappropriated funds, the allegations were without substance and he had been found guilty without evidence and there was no justice. The applicant responded stating that he does not have specific evidence that he has not misappropriated funds but there is also no evidence that he did so.

11. The Tribunal put to the applicant that he did have medical evidence (which he had provided to the Tribunal) that the person who made the allegation had a [medical condition] or mental health problem at the time the allegations were made and since then she has changed her will and given her power of attorney to other people. Surely he could provide this material to the Sangha Council in support of his claim that he had not misappropriated funds. The applicant said that he is still concerned that they will not follow due process and give him justice and they will disrobe him and dismiss him from the monkhood. Even if he could be returned to the monkhood he would still experience extreme humiliation and shock and, due to his poor health, he may die.

12. The Tribunal asked the applicant if he feared anything else if he returned to Thailand. He said no - it was losing his status as a monk that he most feared.

13. The Tribunal asked the applicant why he thought he in particular would be targeted for imprisonment and possible harm. He said that there are various cases of monks who have worked overseas being targeted by the Committee on their return to Thailand. These happen every year.  His case is very similar to their situations. They are doing it all over the world to other monks.

14. The Tribunal asked the applicant if he had ever been charged with any offence before in Thailand and he said no.

    Information put to the applicant pursuant to s.424AA of the Act

15. Pursuant to s.424AA of the Migration Act the Tribunal put to the applicant information in the Department’s file which the Tribunal considers could be a reason or part of a reason to affirm the Department’s decision and invited him to respond to or comment on that information at the hearing. The Tribunal informed the applicant of his right to additional time to comment on or respond to the information and consult his representative and also his right to respond in writing if he preferred. The Tribunal put to the applicant that the information was relevant as some of the information was inconsistent with the evidence that the applicant provided at the hearing and this inconsistency means that the Tribunal may consider the applicant’s evidence to lack credibility.

16. The particulars of the information are:

    ·A copy of a court order from the Magistrate Court of [name] Sub-district dated [in] September 1990 which states that the applicant was charged [in] September 1990 with [charge deleted]. The applicant confessed to the charges and he was sentenced to [number] months imprisonment and confiscation of the material;

    ·the applicant was a suspect in fraud-related offences in 2009 in which he [offences deleted]. There was insufficient evidence to proceed against the applicant;

    ·anonymous allegations that correspond to the allegations made by [Ms A] which are the same as the applicant reported at the previous hearing.

17. The applicant provided the following comments and responses:

18. In regard to the court order he said that at that time (1990) he was not a monk. It was during the period he had left the monkhood. A senior monk had asked to borrow a projector. Another monk reported this person and the senior monk asked the applicant to take the rap for him as he was not in the monkhood at the time. He agreed to do so.

19. The applicant said that he had forgotten all about this matter when asked if he had ever been charged an offence in Thailand.

20. In regard to the fraud related offences in 2009, he said he had nothing to do with that money. [Mr C] was the [senior official] and ‘owner’ of the temple and the applicant simply stayed there. [Mr C] handled all the money and the applicant never handled the money related to donations for the temple. Money in his account was money donated to him personally and not to the temple. He thought there was about $[amount]. The Tribunal put to him the information that there was $[amount] in his account of which transfers of $[amount] had been made to Thailand until the account was empty in November 2009. The applicant said that this was his personal money which he had used to build a temple in his birthplace, [village], [name] sub-district.

21. In regard to the anonymous allegations the applicant had no comment as he had previously told the Department and Tribunal about the allegations in detail.

22. The Tribunal places little weight on the court order of 1990, in part, as the offence occurred some 27 years earlier, and in part because the Tribunal considers it has no relevance to the current matter. The Tribunal did have some concerns, however, that the applicant said he had completely forgotten that he was charged, found guilty and served a sentence in jail for this offence.

23. The Tribunal had regard to the applicant’s evidence that this offence occurred when he was not a practicing monk, and he therefore did not endure disrobing or defrocking at the time. As he was permitted to re-enter the monkhood shortly after he served his jail sentence, the Tribunal considers that this incident would not exacerbate the current situation that he faces.

24. The Tribunal places little weight on the information related to the allegations of fraudulent use of funds donated to the temple as the information states there was insufficient evidence to proceed with charges. The information is consistent with the applicant’s evidence that he is being accused of fraudulent use of funds although the Tribunal had some concerns that the applicant recalled only $[amount] in funds being donated to him personally which is just over one third of the amount he allegedly transferred to Thailand.

25. The Tribunal considers that as the information states there was insufficient evidence to proceed with charges this would be in the applicant’s interest as any complaints made from Australia to the Sangha Council in Thailand would not be verified by the police or authorities in Australia.

26. The applicant has provided the Tribunal with copies of the changed will and power of attorney and medical reports related to [Ms A] indicating that [Ms A] suffers from a [medical condition] and he is no longer a beneficiary. He is able to provide the same material to the Sangha Council in Thailand in defence of any allegations of misappropriation of funds together with the many character references from Australia that he provided to the Tribunal.

27. The Tribunal places no weight on the anonymous allegations as the applicant has provided consistent evidence to the Department and to the Tribunal about the nature of these allegations.

    Witness evidence

28. [Mr C] said he sponsored the applicant to come to Australia together with [Mr C]’s [sibling]. He had nothing to add to his statutory declaration of November 2013. He thought that if the applicant returned to Thailand now he will have problems. He will be disrobed and stood down from being a monk. He will be imprisoned by [Mr D]. Someone (also called  [name]) in Melbourne informed on him saying he had misappropriated funds. He is the person who created the problem in 2009 when the applicant was applying for a permanent visa and this person did not submit the application. Twice they paid him $[amount] but he did not submit the documents.  

29. The couple that now have [Ms A]’s power of attorney and another monk at the temple in [town], [name], have also informed on the applicant. He thought that [name] wanted to be the ‘owner’ of the temple in [town] which is why he informed on the applicant who was the ‘owner’ of the temple at the time. 

30. The third person to make trouble for the applicant is [Mr D] (the [associate] to the head monk of the Committee).  [Mr C] thought that he will imprison the applicant. He has authority to do so as he is second in command of the Committee in charge of the monkhood. According to the law in Thailand he has the authority to order the police to imprison people who breach religious law (Sangha Act). The Tribunal put to the witness that the state/judicial system and religious bodies are separate in Thailand and there would be some kind of due process for the police to bring charges against the applicant. The witness said he will not follow the correct legal procedures.

31. The Tribunal asked [Mr C] if he was concerned about anything else happening to the applicant if he returns to Thailand. He said he is worried about what is happening in Thailand where people are being imprisoned for no reason. The Tribunal asked why the applicant would be targeted in particular. He said that is was because they want money from him and he may be killed.

32. The applicant’s authorised migration representative requested 14 days in which to make a submission to the Tribunal, which the Tribunal granted.

33. [In] January 2017 the applicant’s authorised migration representative provided the Tribunal with the following:

    ·a submission stating that (a) the Sangha Council has demonstrated its power by causing the Thai Consulate not to renew the applicant’s passport; (b) the false allegations made against the applicant provided an opportunity for members of the Sangha Council to attempt to extort money from the applicant; (c) this brings the applicant within the complementary protection provisions; (d) if the applicant was forced to return to Thailand he would be subjected to degrading treatment and punishment; (e) this would be by being disrobed and possibly charged with criminal offences; (f) due to the power of the Sangha Council, the Thai government would not protect him;

    ·a DVD with four YouTube clips relating to the disrobing of four monks; and

    ·transcripts of the YouTube clips with a comment from the applicant that the clips show “Thai police forcibly disrobing the monks who were accused of committing offences in all four cases without any fair trials. It constitutes severe violation of human rights in Thailand.”

34. The Tribunal has viewed the YouTube clips. Two of the clips involve the police who appear to have charged the monks with offences based on actual behaviours that had been independently witnessed. All the clips relate to offences committed in Thailand. The translations were provided by a translation company in Thailand.

35. On 15 February 2017, the Tribunal wrote to the applicant inviting him to comment on information that the King of Thailand had appointed a new supreme patriarch to the Sangha Council on 7 February and he had been inaugurated on 12 February 2017. Political analysts state that he is a neutral figure and a compromise between both sects of Buddhism in Thailand.[5]

    [5] Channel News Asia, 7 February 2017, Thailand's king appoints new Buddhist patriarch, accessed 15 February 2017

36. On 21 February 2017 the applicant responded stating that although the King had appointed a new supreme patriarch this made no difference to his situation as “All the other sections pertaining (to) administration, exacting punishment and receiving punishment of Sangha Act 1963 still remain in full force and effect. They apply to Sangha Administration in Thailand and abroad which come under National Buddhism Office of Mahathera Council. Since this law is still in effect, my offences are not absolved and I cannot return to Thailand. With such Act remaining in full force and effect, Mr Kan Yuenyoung (the new supreme patriarch) could do nothing to absolve me from accusations”.

37. On 22 February 2017, the applicant’s authroised migration representative provided further material – photographs, untranslated newspaper articles, an English language newspaper articles from the Bangkok Post dated 19 & 20 February 2017 and a CD all relating to an incident in Thailand at Wat Phra Dhammakaya at which police tried to arrest the former abbot. The temple monks and thousands of civilian supporters resisted the raid and several monks were injured in the skirmish. The incident occurred two hours before the deadline given by the Department of Speical Investigation for people to leave the temple grounds so that they could conduct a search. Phra Dhammajayo (the head abbot) is wanted by the police for forest encroachment, money laundering and receiving stolen assets.

    FINDINGS AND REASONS

    Requirement that the decision-maker be ‘satisfied’

38. 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

39. 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

40. 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.

1. 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.

2. 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.

3. For reasons discussed below, the Tribunal formed the view that the applicant has embellished his claims for the purpose of obtaining a permanent visa to remain in Australia. 

   Relevant country information and media reports

4. The Tribunal had regard to the information in the Chulalonkorn Journal of Buddhist Studies about the role and responsibilities of the Sangha Council in Thailand[6] and other independent information about recent events involving the Sangha Council in Thailand. Based on this information the Tribunal accepts the following;

   ·the Sangha Council has absolute power over all monastic matters;

   ·Section 4 of the Sangha Act BE2505 concerns niggaha-kamma (censure) and defrocking of monks when they transgress the Dhamma-Vinaya and includes the definition of standards and procedures for imposing niggaha-kamma in different cases and examine appeals, orders or judgements on the provincial level.[7] It makes no reference to the Sangha Council having any authority to order the police to imprison people who breach religious law;

   ·there is no check-and-balance to provide transparency of the Sangha Council’s decision-making[8];

   ·that to obtain a passport for travel abroad, a monk must have an official letter from Sangha Supreme Council granting the applicant permission to travel abroad, a Buddhist monk identification card and a copy of House/Temple Registration[9];

   ·allegations of corruption, fraud and other inappropriate conduct amongst the Buddhist clergy in Thailand are common and have frequently been in the media particularly since early 2015 when the activist monk, Phra Buddha Issara, mounted a campaign to “clean up” Thai Buddhism;

   ·some monks have been ‘defrocked’ or ‘disrobed’ in public[10];

   ·the dispute among the different branches of the Thai Buddhist clergy is not only an internal power struggle but has the potential to spread overtly into the political sphere as a proxy war pitting supporters of former Prime Minister Thaksin  Shinawatra against his opponents among the Bangkok elites, military and the monarchy.[11]

   [6] Sunthorn Na-rangsi,  Administration of the Thai Sangha: Past, Present and Future, The Chualonkorn Journal of Buddhist Studies, Vol.1 no 2, 2002, Accessed 9 February 2017

   [7] Sunthorn Na-rangsi,  Administration of the Thai Sangha: Past, Present and Future, The Chualonkorn Journal of Buddhist Studies, Vol.1 no 2, 2002, Accessed 9 February 2017

   [8] New Mandala, Khemthong Tongsakulrunggruang, 1 December 2016, Can Thailand tolerate more than one form of Buddhism? Accessed 9 February 27

   [9] Ministry of Foreign Affairs, Thailand, Accessed 9 February 2017

   [10] Material provided by the applicant

   [11] Startfor (Strategic Forecasting), Thailand: Buddhist feud threatens fragile peace, 7 March 2016, Accessed 9 February 2017

5. The Tribunal is satisfied that the government of Thailand is a constitutional monarchy and, whilst Buddhism is the dominant religion and receives special benefits from the government, there is no state religion. The Sangha Supreme Council does not have the power to order police to arrest charge or jail monks or to jail monks themselves. There have been attempts by police to arrest high profile monks from the Dhammakaya sect which is perceived to have links with former Prime Minister Thaksin Shinawatra and on occasion police have been involved when monks have been accused of criminal behaviour, such as laundering money or sexual assault. 

6. Based on the above information, the Tribunal is satisfied that the applicant is unable to renew his Thai passport as a monk as he does not have an official letter from the Sangha Supreme Council granting the relevant permission. However, the Tribunal is also satisfied that the Thai Embassy in Australia is able to issue the applicant with a travel document for him to be able to return to Thailand.

   Does the applicant meet the refugee criterion?

7. The Tribunal considered the situation if the applicant returns to Thailand now or in the foreseeable future.

8. The Tribunal accepts that the applicant is a Buddhist monk.

9. The Tribunal accepts that the applicant was involved in a situation in which he was made power of attorney and beneficiary of a person in Australia who had a [medical condition] and that after she made him power of attorney and beneficiary he [action deleted].

10. The Tribunal is satisfied that allegations of misconduct were made about the applicant after this and that the person involved later changed her power of attorney and the beneficiary of her will to another person. The Tribunal accepts that the allegations made of misconduct, largely centred around [allegations] by the applicant were made to the Sangha Council in Thailand by a person or persons in Australia.

11. The Tribunal accepts that the Sangha Supreme Council has the power to investigate a monk charged with misconduct and to disrobe him if the Sangha Council finds that he has engaged in misconduct; specifically theft, having sexual relations or claiming to have supernormal powers. During any investigation an accused monk would be ‘stood down’, that is temporarily disrobed and relieved of his duties until the investigation is completed.

12. The applicant has previously claimed that the reason he will be persecuted is because he is a member of a particular social group, that is a Buddhist monk or Buddhist monk who has worked overseas. In this case, the applicant is stating that he will suffer degrading treatment or punishment as he will be ‘defrocked’ or ‘disrobed’ if he returns to Thailand and that this would cause him extreme humiliation. He fears this harm from the Sangha Supreme Council. He also believes that he could not seek protection from the authorities as the Sangha Supreme Council has the authority to order the police to imprison him, and this is what they would do because they are corrupt.

13. As discussed above, the Tribunal accepts that the Sangha Supreme Council has power over all monastic matters and that these powers and administrative procedures are laid down in the Sangha Administration Act. The Tribunal is satisfied that the implementation of the Sangha Act and its administrative procedures is an application of the law or process of general application and therefore would not constitute discriminatory conduct towards the applicant. The fact that the Sangha Act regulates a specific class of persons (Buddhist monks) does not mean that it is not a law of general application. Although the Tribunal accepts the application of this Act may on occasion be corruptly implemented, the Tribunal is not satisfied that the Sangha Act per se is discriminatory in its intent or effect or that the applicant would be discriminated against on the basis of his membership of a particular social group.

14. The Tribunal accepts that the applicant would suffer psychologically if he were to be disrobed and stood down, even if only temporarily, while his matter is determined by the Sangha Council.

15. As discussed above, the Tribunal does not accept that the Sangha Council has the authority or power to order the police to jail or harm the applicant. The Sangha Council does not imprison monks for misconduct but imposes various forms of niggaha-kamma (censure) which usually involves defrocking a monk for a temporary or permanent period of time. The Sangha Council may refer a matter to the police if the monk has been accused of criminal activity. In this matter, the applicant has been accused of financial misconduct relating to a person in Australia. The Tribunal is not satisfied that the Thai police would act on allegations of financial misconduct that occurred in Australia, particularly when there is no evidence from Australian authorities that charges have been laid or the applicant gound guilty of financial misconduct of any kind.

16. The Tribunal is not satisfied that there is any independent evidence that indicates that the applicant is of greater risk of harm as a result of the military being in power. The King of Thailand has recently appointed a new supreme patriarch of the Sangha Council who is regarded as “neutral”. There is no independent evidence before the Tribunal that the former President of the Sangha Committee, [Mr A], continues to wield power behind the scenes since he was stood down himself in January 2015, and the applicant has stated that he has only heard rumours himself.

17. Based on the country information the Tribunal does not accept that the applicant will be arrested by the police at the airport or jailed without due process in the Thai national criminal system. 

18. The applicant has claimed that he fears being physically harmed or even killed by gangsters associated with the Sangha Council as he is not willing to pay a bribe that has been demanded from a particular member of the Council.

19. Given the number of media reports relating to allegations of bribery and corruption against Buddhist monks and senior members of the Sangha Council, the Tribunal accepts that it is possible that a member of the Council suggested that the applicant pay an undefined amount of money to have the matter “cleared up”.

20. Based on the country information and media reports referred to above, the Tribunal accepts that it is possible that the Sangha Council process will not be transparent and could be procedurally unfair in the sense that evidence is not appropriately assessed, hearsay evidence accepted and requests for “donations” made in order for a positive determination to be made. The applicant has suggested that monks who have worked overseas are targeted. The Tribunal has considered whether this is a claim that the applicant will be persecuted because he is a member of a particular social group, that is, monks who have worked overseas.

21. The Tribunal had regard to the written statements provided by other monks ([names) who had worked overseas and had been asked to pay bribes or extortion money by [Mr A] and who claimed to have then suffered violence as a result of not paying the amounts demanded. There is no independent information to substantiate either witnesses’ claims of assault.

100.   In both cases the witnesses clearly stated [Mr A] made the demands for the money. In [name] case the demands for money were made in 2009/10 and in [name] case the demands for money were made in 2012/13. Both claim to have been assaulted when they did not pay the full amount.  Given the significant number of media articles related to alllegations of corruption against [Mr A] (provided by the applicant) the Tribunal accepts that he may have made demands from monks for money in order to make charges against monks “disappear” or for the granting of titles. However, none of the media articles suggest that he has used violence against other monks to obtain money or property. The Tribunal therefore places little weight on the witness’ claims that [Mr A] organised for people to assault them. In addition, given his very public sacking in January 2015 from the Sangha Council due to allegations of corruption over a period of at least two years, the Tribunal is satisfied that he is no longer in a position of power.

101.   The Tribunal is also not satisfied that a threat of physical harm by monks or gangsters contracted by monks were made to the applicant if he returns to Thailand, as the applicant did not make this claim to the Department or to the Tribunal at his first hearing. The applicant’s witness made no mention of a threat of physical harm in his statutory declaration dated November 2015, although he did state that the applicant had been asked to make a donation. This witness also provided a copy of a letter he claims to have written to [Mr A] in May 2013 stating that  ‘a group of people who bear the applicant ill will including monks from different sects and lay people making complaints against him’ and requesting “his favour to appoint an investigation and inquiry committee to do justice to and to be fair to (the applicant) in accordance with the law”. The Tribunal considers this suggests that the applicant did not fear serious harm from [Mr A] at that time, but rather he wished [Mr A] to support the implementation of due process in the investigative process.

102.   The Tribunal considers that the worst outcome for the applicant of not paying such a bribe or not having a fair hearing about the allegations, would be that he would be permanently ‘defrocked’ or ‘disrobed’, stood down as a monk and experience ostracism within the Buddhist monk community, which is essentially the original claim that he made to the Department and at the first Tribunal hearing. The Tribunal is not satisfied that the this would amount to persecution, having regard to the the examples provided in s.91R(2) of the Act.

103.   The applicant has submitted that the recent incidents in Thailand, particularly the incident of 17 February 2017 support his claims that it is not safe for him to return to Thailand.

104.   The Tribunal is satisfied that these incidents relate to police charging and attempting to arrest Phra Dammajayo, the head monk of Wat Phra Dhammakaya. There is no evidence before the Tribunal that any of the alleged allegations relating to the applicant have anything to do with the charges laid against Phra Dammajayo. There is no evidence before the Tribunal and the applicant has not claimed to be involved in this particular situation, or in any of the incidents reported in the media.

105.   Based on the above finding, the Tribunal is not satisfied there is a real chance that the applicant will suffer serious harm as a consequence of any incidents involving other monks in Thailand.

106.   As discussed above, the Tribunal accepts that the applicant would suffer psychologically if he were to be disrobed and stood down. The applicant has stated that he would be so stressed that this may aggravate his [medical] condition and he may die. Nevertheless, the Tribunal is not satisfied that the psychological harm and stress that he would experience would be as a result of his systematic  and discriminatory persecution as a member of a particular social group or for any of the other Convention reasons.

107.   The Tribunal is not satisfied that the applicant would be unable to obtain or continue to obtain appropriate medical treatment for his medical conditions. Thailand has had "a long and successful history of health development," according to the World Health Organization. Universal health care for Thai nationals has been established since 2002. “Thailand is now a middle-income country (MIC) and has made remarkable progress in health in recent years”.[12]

[12] World Health Organisation, 2011, WHO Country Cooperation Thailand 2012-2016, Accessed 7 March 2017

108.   Having regard to the above evidence and findings both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for a Convention reason. The Tribunal is not satisfied that the  applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Thailand now or in the foreseeable future.

Does the applicant meet the complementary protection criterion?

109.   The Tribunal has considered whether, on the evidence before it, that as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk the applicant will suffer significant harm.

110.   As discussed above, the Tribunal accepts that allegations of misconduct have been made in respect of the applicant to the Sangha Council in Thailand and that consequently, it is likely he will have to answer these allegations. Given the administrative procedures in the Sangha Act, it is possible the applicant may be temporarily disrobed or defrocked and stood down whilst he undergoes such process.

111.   The Tribunal has accepted that it is possible that the former [official] of the Sangha Council committee, [Mr A], and/or his [associate], [Mr D], suggested that the matter could be expedited or cleared up if the applicant made “a donation” (paid a bribe). The Tribunal accepts that the applicant has refused to pay a donation.

112.   Independent evidence before the Tribunal indicates that [Mr A] was stood down in January 2015 and there is no independent evidence before the Tribunal that he continues to wield power behind the scenes. Independent evidence before the Tribunal indicates that the Sangha Council now has a new supreme patriarch who is regarded as relatively neutral.

113.   Based on the above evidence, the Tribunal accepts that the Sangha Act indicates that the process that the applicant may have to undergo as a result of allegations being made of misconduct, may involve temporary disrobing while the allegations are investigated and determined and permanent disrobing and standing down from the Buddhist monkhood if he is found to be guilty of such allegations.

114.   There is no evidence before the Tribunal that members of the Sangha Council have any authority or power to order the police to arrest or imprison the applicant.

115.   There is no evidence before the Tribunal that the police would be involved or that the applicant would be imprisoned either at the airport or at any other time, as the allegations do not involve any criminal activities in Thailand. No charges relating to misconduct or any criminal behaviour have been made against the applicant in Australia.

116.   There is no independent evidence before the Tribunal that members of the Sangha Council have engaged gangsters to harm or kill monks or other people who have not paid bribes or for any other reason.  The Tribunal has placed little weight on the two witness statements from monks who claim to have been assaulted as a result of not paying bribes or extortion demands as there is no independent evidence or media reports that incidents such as these have occurred at the direction of [Mr A] or other members of the Sangha Council.

117.   As discussed above, the Tribunal accepts that the applicant will suffer psychologically if he is disrobed and stood down even if this is only on a temporary basis, and that this would be humiliating for him.

118.   The Tribunal had regard to the definitions of ‘significant harm’ in definitions in s.36(2A) and s.5(1) of the Act.

(2A)  A non-citizen will suffer significant harm if:

(a)  the non-citizen will be arbitrarily deprived of his or her life; or
(b)  the death penalty will be carried out on the non-citizen; or
(c)  the non-citizen will be subjected to torture; or
(d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)  the non-citizen will be subjected to degrading treatment or punishment.

119.   S.5(1) defines degrading treatment or punishment as follows:

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)  that is not inconsistent with Article 7 of the Covenant; or

(b)  that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

120.   Based on the above evidence, the Tribunal is not satisfied that the applicant will suffer significant physical harm or arbitrary deprivation of his life or torture, or cruel or inhuman treatment or punishment from the police, military or members of the Sangha Council or members of the Buddhist monkhood if he returns to Thailand now or in the foreseeable future.

121.   The Tribunal considers that the emotional/psychological harm to the applicant that may arise as a result of what he considers to be degrading treatment or punishment by the Sangha Council would fall within the qualifications set out in s.5(1) above. The Tribunal is satisfied that the initial act of defrocking or disrobing and standing the applicant down from the Buddhist monkhood while any charges against him were investigated would would arise only from lawful sanctions that are not inconsistent with the Articles of the Covenant.

122.   The Tribunal is not satisfied that any lack of due process by the Sangha Council would fall within the above definition of significant harm. The Tribunal is not satisfied that any lack of due process such that the process may not meet Australian standards of law or procedural fairness in law would operate with the specific intention to cause extreme humiliation which is unreasonable such that it would fall within the above definition of degrading treatment or punishment.

123.   The Tribunal accepts that the applicant has a number of health conditions including [medical condition] which may be exacerbated under conditions of extreme stress, and therefore potentially exacerbated by a process of defrocking or disrobing him as a Buddhist monk. However, the Tribunal does not accept that any exacerbation of his medical conditions would be intentionally inflicted or that any process undertaken by the Sangha Council in respect to the allegations against the applicant would be intended to cause exacerbation of his medical conditions. The Tribunal is therefore not satisfied that any exacerbation of the applicant’s medical conditions falls within the definition of significant harm, or degrading treatment or punishment as qualified in s.5(1)(b) above.

124.   The Tribunal is not satisfied that the applicant would be unable to obtain appropriate medical care or prevented from obtaining appropriate medical care for his health conditions in Thailand, should they be exacerbated by the psychological and emotional stress of being disrobed.

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

CONCLUSION

126.   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).

127.   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).

128.   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

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

B. Mericourt
Member

Reuters, 2016 Politics and corruption fuel batted for Thai Buddhism’s top post, by Amy Sawitta Lefevre and  Aukkarapon Niyomyat, Bangkok, 15 January 2016, Accessed 11 January 2017
Asian Correspoondent, 19 June 2016, Thai Prime Minister urges ‘corrupt’ Buddhist monk to surrender’, by Asian Correspondent staff, Accessed 11 January 2017