1613700 (Refugee)

1613700 (Refugee) [2017] AATA 2670 (3 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613700
COUNTRY OF REFERENCE:                  Thailand
MEMBER:Melissa McAdam
DATE:3 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 03 November 2017 at 9:10am

CATCHWORDS
Refugee – Protection Visa – Thailand – Application made for incorrect visa class – Misunderstanding between applicant and agent
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 438, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on [in] August 2016 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] February 2015.
CRITERIA FOR A PROTECTION VISA
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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided in the applicant’s Protection visa application:
a.The applicant was born on [birth date] in Bangkok, Thailand. A copy of her Thai passport issued in [2013] was submitted.
b.She last arrived in Australia [in] June 2014 on a Student visa.
c.She left Thailand to seek further study in [field].
d.She may face serious or life threatening harm due to the current complicated bad political situation in Thailand.
e.She did not experience harm in Thailand.
f.She is not quite sure if the authorities can protect her in Thailand.
g.She could relocate to another state to be far away from politics.
Reports about the general political situation in Thailand were also submitted.
Departmental Interview
The Department Delegate’s decision record notes that the applicant did not respond to an invitation to attend an Interview [in] March 2016, and that she failed to attend the scheduled Interview.
Delegate’s Decision
The Delegate was not satisfied that the applicant applied for a Protection visa out of any real concern for her safety in Thailand.
Information to the Tribunal
The applicant appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. She was accompanied to the hearing by her husband, [name]. The Tribunal hearing was initially conducted without the presence of an interpreter as the applicant had stated in her review application form that she did not need an interpreter. However it became apparent that the applicant was having difficulty expressing herself in English and a Thai interpreter was arranged by the Tribunal and present by phone. The point at which this occurred is indicated in the following hearing summary:
a.The applicant has been living with her husband in Australia for over a year and they married [recently].
b.She does not want to return to Thailand because she has nothing there. It took a lot of money to come to Australia and she sold her house and assets in Thailand to travel here.
c.She does not want to be separated from her husband. He can go to Thailand with her but they cannot afford this currently as they both don’t have sufficient money.
d.Her Agent lodged the applicant’s Protection visa application for her. The applicant was not aware her Agent was doing this and is not sure what she should do. She is not able to contact her Agent.
e.She does not think she can express herself clearly in English.
f.The hearing was adjourned while an interpreter in the Thai language was arranged by telephone. The rest of the hearing was conducted with the assistance of the Thai interpreter.
g.The Tribunal explained that the criteria for a Protection visa included meeting the refugee definition in the Act, or facing a real risk of significant harm in Thailand. The applicant responded that she came to Australia and studied for the first year, and that she had sold all her assets in Thailand to come to Australia.
h.The Tribunal asked the applicant if there was anything she feared in Thailand. The applicant responded that she has nothing in Thailand.
i.The Tribunal asked the applicant if she thought she would face any harm in Thailand if she returned there. The applicant responded no, but she does not want to be separated from her husband, and everything here will have to stop.
j.The Tribunal asked the applicant if she thought she met the refugee definition. The applicant responded that her agent lodged her Protection visa application for her, but she had thought it was a sponsorship visa. She did not realise it was a Protection visa application and she does not know what to do. She would like to try to apply for a different visa so she can stay in Australia with her husband. She would like the money she paid her agent returned to her.
k.The Tribunal explained to the applicant that there was certificate on the Department’s file that a page in the file should not be disclosed to the applicant. The Tribunal informed the applicant that the page was simply a record related to her visa application, and that the Tribunal did not consider it relevant to the applicant’s review application.
l.The Tribunal asked the applicant if there was anything further she wished to say and she responded no.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted her Thai passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Thailand. The Tribunal assesses the applicant’s claims against Thailand as her country of nationality and receiving country.
The Tribunal notes that the department delegate has placed a s.438 Certificate on its file, concerning a screen print out of their computer record of a few events related to the applicant’s Student visa. The Tribunal notes that the record contains no data relevant to an assessment of the applicant’s protection claims. The Tribunal notes further that the record contains no information adverse to the applicant. The Tribunal therefore finds the record not relevant to its review and it has no regard to the record in determining the applicant’s review application.
The Tribunal notes that at hearing the applicant did not provide any basis for her Protection visa application claim to fear serious or life-threatening harm in Thailand. The applicant stated that she herself had not lodged the Protection visa application and that she was also unaware a Protection visa application was being made on her behalf. The Tribunal therefore concludes that the matters raised in the applicant’s Protection visa application do not reflect the applicant’s actual situation in Thailand. On the evidence and information before it the Tribunal does not accept that the applicant faces serious or life threatening harm due to the current political situation in Thailand.
The applicant claimed at hearing to not want to return to Thailand because she no longer has a house or assets there, and because she does not want to be separated from her Australian husband. While the Tribunal accepts that both these circumstances present difficulties for the applicant, the Tribunal does not consider that either of them amount to serious or significant harm under the Act.
No other claim to fear harm in Thailand arises on the evidence and information before the Tribunal.
The Tribunal is therefore not satisfied, on the evidence and information before it, that the applicant has a well-founded fear of persecution in Thailand for a reason specified in s.5J(1)(a) of the Act.
The Tribunal is also therefore not satisfied, on the evidence and information before it, that there is a real risk the applicant will be subjected to significant harm on return to Thailand.
CONCLUDING PARAGRAPHS
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 s.36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this 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.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2670

3 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction