1620291 (Refugee)
[2020] AATA 4977
•10 November 2020
1620291 (Refugee) [2020] AATA 4977 (10 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1620291
COUNTRY OF REFERENCE: Thailand
MEMBER:Nicholas McGowan
DATE:10 November 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made 10 November 2020 at 12:57pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from money lender – vague claims with no supporting evidence – lengthy period as unlawful non-citizen – country information – debtors to money lenders not a particular social group – benefit of the doubt – real risk of serious harm – options to reduce risk of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 5L(d), 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 dependants.
STATEMENT OF DECISION AND REASONS
REVIEW
On 24 October 2016 a delegate of the Minister for Immigration and Border Protection made a decision 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 protection visa on 9 July 2015.
The applicant first arrived in Australia [in] July 2004 on a Subclass 676 tourist visa.
The applicant’s tourist visa ceased on 24 October 2004, and the applicant became an unlawful non-citizen at that time.
A copy of the applicant’s passport was provided to the Department and has been made available by the Department to the Tribunal. Based upon the passport accompanying the application the Tribunal finds that the applicant is a citizen of Thailand and that Thailand is his receiving country. The Tribunal has made this finding having had regard to the ‘identity assessment’ of Minister’s delegate in his decision dated 24 October 2016: “The applicant has provided sufficient evidence of their identity which is consistent with their biometrics. A check of relevant systems revealed no information that raises concerns that the applicant has given a false identity.”
Invitation to participate in a hearing
On the 2 September 2020, the applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments at a hearing on the 10 November 2020.
The Tribunal’s invitation to the applicant to attend a hearing explained that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.
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 themselves of the protection of that country: s.5H(1)(a).
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
Consideration of claims and evidence
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, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The applicant wrote in his application that the reason he left Thailand was because:
“I was borrowed money from money lender. To do my business, but business was run dull. I cannot pay the interest. But I was pay half of the money. But they said I never pay anything. Whatever I pay the money. They don’t want to accept. They was cheat me. Always come my home and disturb me. Throw bottle and spoil my house. Everywhere I go the money lender people follow me. They threatening me they want to kill me..”
In response to the question of what the applicant thought will happen to him if he were to return to Thailand, the applicant wrote:
“They will kill me or disturb me forever.”.
In response to the question, ‘Did you experience harm in that country?’, the applicant selected the ‘box’ marked ‘yes’ and wrote:
“The money lender people was try to beat me. But I was escaped he just slapped me.”.
In response to the question, ‘Did you seek help within the country(s) after the harm?’, the applicant selected the ‘box’ marked ‘No’, and wrote:
“everyone scared to help me. If they help me the money lender will disturb them.”
In response to the question of whether the applicant had moved, or tried to move to another part of Thailand to seek safety, the applicant selected the ‘box’ marked ‘No’, and wrote:
“I got very small country. I cannot go any other place very easily.”.
In response to the question of whether he thought that he would be harmed or mistreated upon return to Thailand the applicant selected the ‘box’ marked ‘Yes’, and wrote:
“The money lender will disturb me. He don’t want to leave me peaceful.”
In response to the question of whether the applicant thought the authorities of Thailand can and will protect him if he goes back, the applicant selected the ‘box’ marked ’No’, and wrote:
“police don’t want to help me. Because of money problem. They want me settle my self.”.
In response to the question of whether the applicant would be able to relocate within Thailand the applicant selected the ‘box’ marked ‘No’, and wrote:
“my country is small country. They easily can find me.”
No supporting evidence has been provided to either the Department or Tribunal in respect to any aspect of his claims. The applicant did not detail or provide a copy of any contract (or detail any agreement if it was a verbal agreement) with any money lender(s) or any evidence of any threats, or any evidence of any past abuse, violence or threats of such. The entirety of the evidence is the applicant’s claims as written (and outlined above). The Tribunal notes they are very vague and without any indication of even the amount of money borrowed the applicant claims to have borrowed, the terms of any loan(s), when any money was borrowed, the name or names of any money lender, or what amount the applicant had repaid of the money he claims he owed. The applicant declined the opportunity to expand upon the claims above during the Tribunal’s hearing into the review conducted on 10 November 2020 (outlined below).
Relevant country information
The following information has been considered (and raised with the applicant during the hearing) as taken from the Department for Foreign Affairs and Trade country information report on Thailand dated 10 July 2020:
Victims of Loan Sharks
In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.
So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.
DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.Hearing into the review conducted 10 November 2020
Oral evidence of the applicant
The applicant told the Tribunal if possible, he would like the opportunity to live here [Australia]. If the applicant goes home he doesn’t know where to start his life from because of what happened. The applicant said it is like a home for him [Australia]. The applicant told the Tribunal if he has the opportunity to live here he would like to adopt a child to Australia. The applicant said since he came here he hasn’t done anything illegal since coming here, and he also works. The applicant told the Tribunal is he went home he doesn’t l know how to live. The Tribunal asked what he meant by that? The applicant said it means he can’t go home. The Tribunal asked why he couldn’t go home? The applicant told the Tribunal it is related to the weather, weather related, and also other things, he doesn’t know whether he’d be adjusted to it. The applicant says he is used to the weather here already. The applicant said that since he’s been living here for 17 years, he loves it here in Australia, and has never done anything bad. The applicant said it [Australia] is like a home to him here.
The Tribunal asked whether the applicant wished to provide any further detail in regard to his protection claims, and his fear of returning to Thailand. The applicant told the Tribunal he doesn’t want to talk about it because he is scared and when he thinks about it he is stressed. The applicant said since it’s been 17 years which has past, he tries to forget about it. The applicant said if he’s given an opportunity, he could consider himself lucky, and if not he’s not sure what to do.
Oral evidence of [Mr A]
The witness told the Tribunal he knew the applicant (who he calls [Nickname]) through his wife. The witness said he has lived together with the applicant, to whom he rented a room for a period of two-and-a-half years. He has recently left. The witness told the Tribunal he first met the applicant some short time after he’d met his now wife (as he was introduced through her). The witness said he didn’t know much about the applicant’s visa application, but told the Tribunal, the applicant is a good person, and encouraged the Tribunal to let him to stay.
Oral evidence of [B]
This witness was contacted on three separate occasions, though could not be reached. The Tribunal offered the opportunity for the applicant to submit a statement from the witness post-hearing, though he declined the offer.
Analysis
The applicant’s claims on their face maybe plausible based upon the above country information which references the existence of money lenders (also widely referred to as loan sharks). As such, and while giving the applicant the benefit of significant doubt – because of the obvious paucity of evidence, and lack of specificity of the applicant’s claims, in this case the Tribunal accepts that the applicant has borrowed a sum of money from an unauthorised lender who threatened the applicant, and in the past, slapped him.
In considering whether the applicant’s fear of harm is based upon reasons outlined in s5J(1) and in particular whether there is a social group as defined by s.5L of the Act that the applicant would belong to, the Tribunal has considered ‘debtors’, ‘borrowers unable to make repayments threatened by debt collectors’, ‘Thailand debtors’ and other similar iterations. In these instances, the ties that bind the potential group together breach s.5L(d): ‘the characteristic is not a fear of persecution’, as the group is defined by a shared fear of harm by money lenders (or loan sharks).
For this reason, the Tribunal finds that the applicant cannot be considered a member of a particular social group. Nor do the circumstances of the case lend themselves to consideration under any other of the reasons including race, religion, nationality and political opinion as per s.5J(1)(a). As such, the applicants’ claims will be considered under Complementary Protection.
Based upon the above country information, and the limited evidence relating to the applicant’s specific case, though while still giving him the benefit of any doubt that may arise due to the obvious lack of evidence, the Tribunal accepts that the applicant as a debtor faces a real risk of significant harm.
Assuming that the money lender remembers the applicant - despite many years having passed - the applicant has a number of options available to reduce the risk of harm he faces. He can seek out a loan by a formal credit agency (or bank) so as to establish a longer-term repayment schedule, or he can seek support to mediate an outcome between himself and the money lender and this may help reduce the sum owed to a manageable amount (though the amount is unknown and the applicant himself states in his visa application that he’s already paid half back), or he can formally report the threats to the police to seek protection.
Were the applicant to pursue these options, the Tribunal finds that the risk the applicant faces is one that is less than a real risk.
Accordingly, the Tribunal finds that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of his removal to Thailand.
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.
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.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Statutory Construction
-
Procedural Fairness
-
Standing
0
3
0