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

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).
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.
The applicant applied for review by the Administrative Appeals Tribunal (the Tribunal) (differently constituted) which affirmed the Department’s decision on 11 February 2016.
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.”
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.
The Tribunal explained the reasons for the remittal on reconsideration and indicated that evidence given to the previous Tribunal could be taken into account…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1607141 (Refugee)

Details

AGLC: 1607141 (Refugee) [2017] AATA 514
Case: [2017] AATA 514
Decision Date: 8 March 2017

CaseChat Overview and Summary

The applicant, a citizen of Thailand and a Buddhist monk, sought a protection visa in Australia. He claimed that if returned to Thailand, he feared being disrobed and ostracised by the Buddhist community due to allegations of improper conduct made against him in Australia. These allegations, he asserted, were false and stemmed from a complainant with mental health issues. The applicant also expressed fear of punishment under the Sangha Act and potential physical harm, including being assaulted by a hired gangster, if he did not pay a bribe to avoid consequences related to the allegations. The Federal Circuit Court remitted the matter for reconsideration by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth), specifically whether he was a refugee within the meaning of Article 1A(2) of the Refugees Convention, or alternatively, whether he qualified for complementary protection. This involved determining if the applicant had a well-founded fear of persecution for a Convention reason (religion or membership of a particular social group) or if he faced serious harm on other grounds. The Tribunal also had to consider the evidence presented to previous Tribunal members and the applicant's further evidence and submissions.

The Tribunal reasoned that it could consider all evidence previously presented, including that given to earlier, differently constituted Tribunals, as well as new evidence and submissions. The applicant's claims centred on his fear of being disrobed, ostracised, and forced into civilian life due to false allegations of misconduct in Australia. He also feared punishment under the Sangha Act and potential physical harm, including being coerced into paying a bribe. The Tribunal noted that the applicant's official passport had been revoked due to these allegations. However, the delegate had previously found that the feared harm was not sufficiently serious or systematic to constitute persecution for a Convention reason, nor did it meet the threshold for complementary protection. The applicant further alleged that he feared assault by a gangster hired by the Sangha Supreme Council and provided media reports and statements suggesting corruption and extortion within the Buddhist administration in Thailand, including demands for bribes to retain monastic status.

Orders

Orders of the court

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Background

Background to the litigation

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 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. [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. 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. 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. [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 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. 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). 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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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