1608071 (Refugee)

[2017] AATA 2152

1608071 (Refugee) [2017] AATA 2152 (10 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608071

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Roslyn Smidt

DATE:10 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2017 at 9:01am

CATCHWORDS
Refugee – Protection visa – Thailand – Social group – Victim of human trafficking – Illegal entrant – Fear of harm from gang members

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

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 is a citizen of applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] May 2016.

3. The applicant appeared before the Tribunal on 26 July 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 RELEVANT LAW

4. 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.

5. 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).

6. 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.

7. 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   BACKGROUND

9. The applicant is [age] year old woman from Thailand. She completed [number of] years of schooling in [a certain] Province in [year] at which time she was about [age] years old.

10. The applicant is divorced from her first husband. She has [adult] children with a former de facto partner in Thailand. Her children accompanied her to Australia in 2008 but returned to Thailand in September 2015 after their applications for protection were refused.

11. In 2004 the applicant married [her former husband] who is an Australian citizen.  They divorced in 2015 and shortly afterwards she met and married a man call [Mr A]. She and [Mr A] are still married and living together. [Mr A] attended the hearing and offered to provide evidence. However, he confirmed that he had no firsthand knowledge of the applicant’s situation in Thailand and it was agreed that he therefore had no relevant evidence to provide.

    MIGRATION HISTORY

12. The applicant first travelled to Australia [in] March 2002 on [temporary] visa. She was [age] years old at that time. She used a false passport provided by a man or gang who had recruited or tricked her into coming to Australia to work in a [workplace].

13. The applicant first applied for a protection visa in early 2002. She did not attend the Department interview or the Tribunal hearing in relation to this case. She claims that she was assisted by a Chinese man and knew nothing about the nature of the application or the claims which were made on her behalf.

14. The applicant was removed from Australia [in] March 2004 because she was found to be an illegal entrant after being detained while working [in] [State 1].

15. The applicant obtained a provisional partner visa as a result of her marriage to [her former husband] and re-entered Australia [in] May 2008. She visited Thailand for about two weeks in September 2008, about a week in April 2009, about two weeks in April 2011.

16. At the hearing the applicant explained that she did not currently hold permanent residence because someone had written to the Department claiming that it was a sham marriage and her visa was cancelled. She said that she was given an opportunity to comment on these issues, but was not told what was in the letter and the visa was cancelled. This appears to have occurred sometime in 2011 or 2012.

17. The applicant was granted a Criminal Justice Visa [in] March 2013. She visited Thailand 2 weeks in August 2013. She held Criminal Justice Stay visas or related bridging visas (BVF) until [January] 2014. 

18. [In] January 2014 the applicant was granted a Bridging [Visa]. She applied for protection [in] July 2014.

    SUMMARY OF CLAIMS

19. The applicant fears that she will be harmed by human traffickers who brought her to Australia in 2002 and suspect or will suspect that she has provided evidence to the authorities about their activities.

    PROTECTION VISA APPLICATION

20. In her submissions to the Department the applicant stated that she had been sent to work in Bangkok by criminal gangs and businessmen when she was still a child. She said that she had been raped and assaulted many times, that she had been a victim of human trafficking for most of her life and that her life had been threatened on many occasions.  

21. The applicant said that she had limited education and feared that if she returned to Thailand she would be entrapped and [beaten].  She also feared that she and her family would be forced into poverty and that her mental health and the mental health of her children who were also in Australia at that time would be threatened as they would have no support.

22. The applicant said that she feared the individuals and organisations which had bought and sold her since she was a young child and in particular the criminal organisation which brought her to Australia in 2002. She claimed that these organisations had threatened to enslave her and her children and to kill her if she tried to run away. 

23. In her application the applicant stated that she had documentary evidence in the form of files from the Australian Federal Police and press articles which would support her case. None of these documents was provided to the Department.

24. The applicant was invited an interview with the delegate [in] April 2016 but failed to attend.

    SUBMISSIONS TO THE TRIBUNAL

25. At the hearing held on 26 July 2017 it was established that the applicant’s children had also applied unsuccessfully for protection visa and that they had returned voluntarily to Thailand. The applicant said that they were now living with their father and that they were both still studying and also assisting their father in [his] factory.  I noted that she had previously claimed that her children would be at risk of harm if they returned to Thailand because of their association with her, but it appeared that they had not faced any serious problems. She confirmed that they had not faced problems and said that their father was an influential man and could provide protection for them.

26. The applicant indicated that she had never been involved in [work] before coming to Australia. She claimed that she had been tricked into coming to Australia by someone who offered her work in a [business] and then forced into [another type of] work. She confirmed that she had never been imprisoned or had her movement restricted during the time she was in Australia, but said that the smugglers had taken her passport and that after arriving in Australia she been told that she had to repay a $[amount] debt to the gang. I advised her that I was aware that people could be tricked in the manner she had described, but noted that she appeared to have changed her evidence as she had claimed in her submissions to the department that she had been a victim of gangs which forced her to engage in this work in Thailand and [in another country] before arriving in Australia. She said that this was not correct and maintained that she had always told the truth in her submissions to the Department and the Tribunal.

27. I asked the applicant about her circumstances during the time she lived in Thailand between 2004 and 2008. She said that she had lived in Bangkok with [her] aunt and earned her livelihood by selling [items] at the markets. She later said that she moved between her aunt’s house and the homes of friends. I asked if she had experienced any problems during those years. She said that she had had a small problem with mafia who had tried to intimidate her and told her not to reveal how they had arranged for her to enter Australia illegally in 2002. After some confused discussion it was established that she was first threatened about a year after returning to Thailand because one member of the group who sent her to Australia had been arrested in Australia and [others] had been arrested in Thailand. She said that men from the group had visited her [number] times in total and the final visit was in 2005. She told the men she had not spoken to anyone about what had happened and confirmed that she had not experienced any problems in Thailand after 2005.

28. I asked the applicant if she had experienced any problems with anyone during her visits to Thailand between 2008 and 2013. She said she had gone to visit her parents and had not experienced any problems.

29. I asked the applicant why she had been granted a Criminal Justice Visa in 2013. She said that the police had the record of her arrest in 2004 and had contacted her to request an interview. She was told that anything she said would be kept confidential. She was interviewed a number of times the circumstances in which she came to Australia in 2002. However, the investigation did not result in anyone being arrested or charged with any offence. She confirmed that nobody knew about these interviews.

30. I observed that if I accepted the applicant’s evidence at face value it appeared unlikely that she would face problems from the people traffickers who brought her to Australia in 2002. I noted that the men who approached her in Thailand appeared to have been satisfied that she had not been responsible for the arrest of members of their group as they had never harmed her and had ceased approaching her some two or three years before her return to Australia in 2008. I also noted that the police investigations she had assisted in Australia had not resulted in any arrests and it appeared that nobody was aware that she had provided any information to the police. She said that she believed that someone from the gang would be aware she had been to the police and she believed she was at risk of serious harm if she returned to Thailand.

31. I asked the applicant if she feared returning to Thailand for any other reason. She said that she did not.

32. I noted that the applicant had stated in her protection visa application that she had documents from the police that supported her claim for protection in Australia, but these documents had not been provided to the Tribunal. The applicant said that a copy could be obtained from the police. I advised her that I did not intend to approach the police for a copy of the documents, but told her that I was prepared to delay finalisation of her case for two weeks to provide her with an opportunity to obtain them and to provide any other evidence she wished in support of her case.  

33. No documents have been received by the Tribunal and the applicant has not requested additional time to provide these documents.

    CONSIDERATION OF THE APPLICANT’S CLAIMS

34. For the purposes of this decision I accept that members of the gang which brought the applicant to Australia in 2002 to [work] questioned and intimidated her following the arrest of some members of the group in Australia and Thailand sometime in 2005. However, they did not approach or threaten her during the final two or three years of her stay in Thailand between 2004 and 2008 or during her later visits which I find a clear indication that they had no continuing interest in pursuing or harming her following 2005.  

35. At the hearing the applicant confirmed that the information she provided to the police in Australia was confidential and confirmed that the information did not result in any arrests or charges against anyone in Australia or Thailand. She initially said that nobody knew about the interview, but later speculated that the gang involved would find out.  There is nothing in the evidence before me which suggests that the gang which brought the applicant to Australia in 2002 would be or become aware of her contract with police in Australia and I am not satisfied that she is currently of adverse interest to members of that gang or that there is a real chance that she would suffer serious or significant harm at their hands if she returned to Thailand within the reasonably foreseeable future.

36. In considering the applicant’s case I have also noted that claims in her submission to the Department that she would be forced or pressured to return to her former profession or forced into poverty if she returned to Thailand. However, according to her evidence at the hearing she had support from family and friends and was able to support herself by selling goods at the market during the four years she lived in Thailand between 2004 and 2008. I do not accept that there is a real chance that the applicant would be entrapped or forced into [work] or that face serious or significant harm if she returned to return to this work or that she would be forced into poverty for any reason if she returned to Thailand in the reasonably foreseeable future.

    DOES THE APPLICANT MEET THE CRITERIA FOR A PROTECTION VISA?

37. After considering all of the relevant evidence, I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons contained in the Refugee Convention or that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Thailand there is a real risk that she will suffer significant harm.

38. 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).

39. 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).

40. 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

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

    Roslyn Smidt
    Member