1619253 (Refugee)

The applicant, a former member of the Thai military, sought a protection visa in Australia, claiming a fear of arrest, torture, and imprisonment if returned to Thailand due to his alleged desertion. The Department Delegate refused the application, finding no real chance of harm. The applicant then presented further evidence to the Tribunal, including documents relating to his military service and resignation, and provided testimony that his initial application had been completed by a friend who advised him to omit details about his military background.

The legal issues before the Tribunal included whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), or alternatively, the complementary protection criterion under section 36(2)(aa). Specifically, the Tribunal had to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Thailand, the applicant faced a real risk of suffering significant harm. This involved assessing the credibility of his claims regarding his military status, the reasons for his departure from Thailand, and the likelihood of facing adverse consequences from the Thai authorities.

The Tribunal considered Ministerial Direction No. 56, which mandates the consideration of relevant policy guidelines and country information. The applicant's evidence indicated he had voluntarily enlisted as a civilian Volunteer Ranger in the Thai military in 2012, served for approximately one year, and formally requested resignation in January 2013, which was approved. However, his name was allegedly not removed from the military register until January 2016, leading him to fear being accused of desertion and arrested for corruption, as he suspected a superior officer had collected his salary. The Tribunal noted that the applicant's initial application had incorrectly stated he had no military service, a fact attributed to advice from a friend. Despite the applicant's stated fear of arrest as a deserter, he could not provide a definitive answer when questioned about the likelihood of such an event, and the Tribunal found no reports of soldiers being arrested for desertion.

The Tribunal ultimately found that the applicant had not established a real chance of suffering significant harm upon return to Thailand. While acknowledging the possibility of corruption within the military system, the Tribunal was not satisfied that the applicant's specific circumstances, including his official resignation and the delayed removal from the register, would necessarily lead to arrest and persecution as a deserter. Consequently, the application for a protection visa was refused.