1620413 (Refugee)

1620413 (Refugee) [2020] AATA 2872 (16 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620413
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Vlahos
DATE:16 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 June 2020 at 7:34am
CATCHWORDS
REFUGEE – protection visa – Thailand – debt to loan shark – Thai criminal syndicate – threatened with servitude in a local brothel – credibility concerns – effective state protection – Royal Thai Police – judicial system in Thailand – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 and Border Protection on 4 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Thailand, applied for the visas on 30 November 2015. The delegate refused to grant the visas on the basis that the application did not satisfy s.36(2) of the Act.
On 1 December 2016 the applicant applied to the Tribunal to have the decision of the delegate of the Minister reviewed.
On 23 March 2020 the applicant appeared before the Tribunal to give evidence, provide submissions and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was represented at the hearing by her registered migration agent.
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). 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.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 issue in this case is whether Australia has protection obligations in respect of the applicants. For the reasons which follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant [s] claim to their identities
Based on copies of the applicants’ passports, which was provided to the Department and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant [s] are nationals of the Kingdom of Thailand and have had their claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.
On the basis of the above-mentioned evidence before the Tribunal, the Tribunal further accepts the applicant[s]’ identities as they claimed.
Department’s file
The Tribunal has before it the Department’s file relating to the applicant (and the second-named applicant, her husband). The Tribunal also has had regard to material referred to in the delegate’s decision which was confirmed as correct and proper by the applicant when asked if this was the case by the Tribunal at the hearing.
Migration history of the parties
[In] August 2014 the applicant arrived in Australia on a [student] visa and was also accompanied by her husband (the second-named applicant). On 30 November 2015 the applicant applied for a Protection (XA) visa and was issued with the associated Bridging visa.
EVIDENCE AT THE HEARING
The applicant, [named] (the applicant) is [age] years of age and originates from [Town 1], Thailand and is a Buddhist. Her husband, [named] (the second-named applicant) is also [age] years of age and originates from [Town 1], Thailand. Both applicants have family currently living in Thailand. The applicant’s family consists of her father and mother living in her village and [number of siblings]. Before leaving Thailand for Australia, the applicant worked as [an occupation].
The applicant’s claims for protection as submitted to the Department[1]
[1] Department File - [number] Folio [89]
The applicant’s claims for protection as submitted for the Tribuanl to consider can be summarised as follows:
§The applicant [and her husband] left Thailand because they feared for their lives.
§They fear being based, kidnapped and held for ransom. Applicant [2] also fears being forced into a brothel.
§There is no state protection.
§They relocated from [Town 1] to [location] then to Bangkok usually at night and were helped by a friend.
§The “[Named Gang]” is a power above the law which has networks throughout Thailand.
The Tribunal put the above claims to the applicants and asked both (with the assistance of the interpreter) whether they confirmed these claims were their claims and to determine if they had any other further claims they would wish the Tribunal to consider. The Tribunal read each claim that was in the original application to the applicants and both confirmed for the Tribunal that the claims were true, correct and proper and desired the Tribunal to consider them.
The applicants through their registered migration agent submitted translated copies of Thai Police reports (not related to the applicants case) but as evidence of criminal activities in Thailand and how certain criminal syndicates operate – inflicting even death on those who do not accommodate their wishes and demands.[2] The Tribunal took note of these documents as they were submitted.
[2] see AAT File Folios [49]-[63]
The applicant told the Tribunal that she and her husband were in major financial difficulties because of various loans they had procured (for personal needs) with a local financial institution and a local loan shark ( a ‘another person’). The applicant clarified for the Tribunal that she and her husband owed approximately [amount] Thai baht to a local bank (‘bank loan’) and approximately [amount range] Thai Baht to a local loan shark. The applicant went on to explain, that they owed money to the bank – which was a ‘home mortgage’ and the ‘other amount’ was owed for ‘everyday living expenses’ (money loaned from a private source).
The Tribunal asked the applicant if there were documents which could be provided to the Tribunal concerning the existence of these loans. The applicant told the Tribunal that documents did exist but were ‘in Thailand’ and could be provided in translated form after the hearing if the Tribunal allowed for this to happen. The Tribunal agreed to allow a period fourteen days (14) after the hearing for the documents to be submitted in a translated form.
As for the loan procured from a ‘private source’ local loan shark, the applicant told the Tribunal that she ‘signed a document’ before receiving the money and also provided the lender with a ‘copy’ of her ‘identity card.’ The applicant was asked to tell the Tribunal – what were the terms of this agreement? The applicant’s response was – that the loan would be required to be paid in 1 to 2 years but since they (the applicant and her husband) have left Thailand – no payments had been made. However, in regards to the bank loan, the applicant stated that she has been making ‘payments to the bank’ on a ‘monthly basis.’
The applicant went on to tell the Tribunal that she was making a monthly payment (transfer of money to Thailand) to her bank of $AUD1000.00 and had paid the bank approximately AUD$10,000.00. The Tribunal requested copies of all bank funds transfers to be provided for the Tribunal to observe. The applicant told the Tribunal she would provide these records in the time frame allowed for by the Tribunal for other outstanding documentary evidence.
The applicant was asked to name the Thai bank which she was dealing with but she told the Tribunal that she could not recall the name of the bank.
Loan with private person
The applicant stated that a friend introduced her to the loan shark which the applicant described as being known as “[Alias 1].” The applicant could not recall this individual’s actual name.
The terms of the loan agreement was that the applicant would be provided with money and would repay an amount of 10% percent in interest on a monthly basis.
The applicant told the Tribunal that she made a payment of [a small amount] Baht and nothing more.
When the applicant refused to make any more repayments, the loan shark threatened her and the applicant became afraid for her life. On other occasions, the loan shark would tell her that it was a matter of time before the applicant would repay the debt by working as his prostitute in a local brothel.
The applicant was asked – did she report these threats to the local Thai police? The applicant said she did not go to the police for help but decided to leave Thailand for Australia where she believed would be better and safe.
The applicant stated that prior to leaving Thailand; she contacted [a relative] in Australia who provided her with money which enabled her to purchase tickets for Australia and to make all necessary visa arrangements.
The Tribunal was told that the applicant fears to return to Thailand. The applicant went on to tell the Tribunal that the police in Thailand not protect her or her husband.
The applicant told the Tribunal that she was able to leave Thailand without raising the loan shark’s suspicions because she told no one about her decision to leave Thailand for Australia.
EVIDENCE FROM APPLICANT’S HUSBAND
The husband confirmed for the Tribunal that the loan with the bank was in his name and it was a home mortgage.
The husband also confirmed for the Tribunal the amount owed on the loan being approximately [amount] Thai baht.
The husband also confirmed that both he and the applicant (wife) are making monthly payments to the bank from moneys earned through employment in Australia.
The husband provided very little detail about the loan procured from “[Alias 1]” or the local loan shark except to say he was in fear of what would happen if that loan was not paid.
DISCUSSION OF DOCUMENTARY EVIDENCE
The Tribunal made enquiries concerning the Police reports (copies) (translated) and the ‘graphic photographs’ submitted prior to the hearing by the applicants’ registered migration agent, [Mr A].
[Mr A] told the Tribunal that these photographs and police reports did not relate to the applicants’ matter but was an indication of what would happen to the applicants if they were returned to Thailand and their ‘whereabouts’ was discovered by the loan shark.
[Mr A] also went on to tell the Tribunal that the Thai police was corrupt and seldom provided protection to Thai citizens who are living in the villages. The Thai police was very much involved in corrupt practices especially since the military coup and neglect to carry out normal police protection duties.
Further submissions provided by the applicant post-hearing
The applicant’s migration agent, [Mr A] provided the Tribunal with further documents as far as it concerned the applicant claim. These documents were as follows:
§Copy- land Mortgage Agreement as Security in the name of the Applicant dated [in] December 2013 with [a named] Bank
§A land Sales Agreement dated [in] December 2016
§Various Bank statements recording the deposit and transfer of various sums of money but with other description provided as to the money’s source and payment destination.
§Copies also of marriage and birth certificates.
COUNTRY INFORMATION – THAILAND – Law and Order considerations
Law and order in Thailand is provided by the Royal Thai Police (RTP).
According to Interpol, in its report dated 21 October 2016[3]:
[3] CIS38A80122376: “Thailand Royal Thai Police”, Interpol, 21 October 2016
….the Royal Thai Police is under the direct command of the Prime Minister. With strength of about 230,000 officers and the RTP’s main functions are to:
·Provide strength to His Majesty the King, Her Majesty the Queen, the Heirs to the Throne, members of the Royal family, the Regent, Royal Representatives and Royal guests.
·Direct and supervise the operation of all police to ensure quality service and compliance with the laws.
·Prevent and suppress crime
·Maintain public order and national security
·Assist the public
·Perform other duties stipulated by Thai law
·Carry out law enforcement activities as assigned by the Prime Minister in support of national development.
The US State Department report on Thailand, 2018 provides the following information regarding Thailand’s judicial system:
The interim constitution provides for independent judiciary, although the NCPO issued orders that            prohibited members of the judiciary from making any negative public comments against the NCPO. Additionally, the interim constitution provides the NCPO with the power to intervene “regardless of             its effects on the legislative, executive, or judiciary…” to defend the country against national security             threats.
Human rights groups remained concerned about the NCPOs influence on independent judicial      processes, particularly the practice of prosecuting civilians in military courts. According to these           groups, the lack of progress in several high profile cases involving alleged police and military abuse       diminished public trust in the justice system and discouraged some victims of human rights abuses         from seeking justice.”[4]
[4] >
On the issue of trial procedures, the US State Department states:
The law provides for the presumption of innocence. There is no trial by jury. A single judge decides trials for misdemeanours; regulations require two or more judges for more serious cases. Prior to its suspension, the Constitution provided for a prompt trial, although a large backlog of cases remained in the court system. While most trials are public, the court may order a closed trial, particularly, in cases involving national security, the royal family, children or sexual abuse.
In ordinary criminal courts, defendants enjoy a broad range of legal rights, including access to a    lawyer of their choosing, prompt and detailed information on the charges against them, free    assistance of an interpreter as necessary, the right to be present at trial, and the right to adequate        time and facilities to prepare a defence. They also have the rights not to be compelled to testify or to confess guilt, to confront witnesses, to present witnesses, and to appeal. Authorities did not always              automatically provide indigent defendants with counsel at public expense, and there were allegations      authorities did not afford defendants all the above rights, especially in small or remote provinces.
In a 2014 order, the NCPO redirected prosecutions for offenses against the monarchy, insurrection,           sedition, weapons offenses, and violation of its orders from civilian criminal courts to military courts.         In 2016 the NCPO ordered an end to the practice, directing that offenses committed by civilians after             that date would no longer be subject to military court jurisdiction. According to the Judge Advocate    General’s Office, military courts initiated 1,728 cases involving at least 2,211 civilian defendants since    the May 2014 coup, most commonly for violations of Article 112 (lese majeste); sedition; failure to              comply with an NCPO order; and violations of the law controlling firearms, ammunition, and        explosives. As of August approximately 278 civilian cases remained pending before military courts.
Military courts do not provide the same legal protections for civilian defendants as do civilian criminal      courts. Military courts do not afford civilian defendants’ rights outlined by the 2017 constitution to a     fair and public hearing by a competent, impartial, and independent tribunal. Civilians facing trial for    offenses allegedly committed from May 2014 to March 2015--the period of martial law--have no right             of appeal.
INFORMATION CONCERNING THAI CRIMINAL SYNDICATES
According to a report ‘Asian Transnational Organised Crime and its impact on the United States: Developing a Transnational Crime Research Agenda’, (2006), the US Justice Department reported that:
Known by various synonyms including ‘criminal gangs’, ‘gangsters’, ‘mafia’, ‘organised criminal      groups’ or ‘syndicates’, felonious groups have a long history, and salient ongoing presence in Thailand and surrounding Southeast Asian nations. Furthermore, they operate at many scales ranging from the    local patch, to the transnational scale, often taking advantage of the region’s porous land and sea          borders. The scale of activity ranges from organised middle-range local crime such as pick-pocketing,           bag snatching, petty theft, burglary, mugging, intimidation, random violence, minor extortion, drug              dealing, card skimming, scamming, and pimping – to more serious crimes including drug smuggling,           drug production, people trafficking, sex-trafficking, child phonograph, counterfeiting, serious fraud,      money laundering, kidnapping-ransom, major extortion, extra-judicial debt-collecting, loan sharking, arms-dealing, murder, maiming, contract killing, trade in illicit good, stand-over tactics, violent           entrepreneurism, corruption of official, and nefarious influence peddling.[5]
Moreover, the advent of mass media and internet-based connectivity, in addition to providing new           opportunities for major globalised crime networks, has also led to brand-extension, with, for example,              some local gangs in Thailand emulating the fashions, paraphernalia and tattoos of North American gangster, such as the Mexican cholos.[6]
A local term for mafia/organised crime groups in Thailand is ‘Chao pho’ (also, ‘Jao pho’ or ‘Jao phro’)         which translates as ‘godfather’.[7] These operate in both urban and rural areas, and depending on          locality, may be involved in any of the aforementioned criminal activities. However, Thailand has       also been infiltrated by, or in some cases been a haven, for other organised criminal groups such as      the ethnic Chinese Triads/Tongs/Jiatou/Fuk Ching, the Japanese Yakuza, Malaysian Sindikets and      some European and American mafia groups.[8]
Thailand is ranked 76 out of 167 on Transparency International’s 2015 Corruption Perceptions Index, placing it in the middle belt of developing nations, along with India and Brazil, for example,       which are also ranked at 76.[9]
Despite this, Thailand does have a large Interpol connected police force and judiciary, and        nationals, foreign residents and visitors co-exist with a background level of crime comparable with          that of other developing nations in the region. Media such as The Polytechnic in 2015, reported on a perceived rise in criminal activity in large urban centres such as Bangkok and across Thailand          generally:
….Organised crime is a serious and rising issue in Thailand. Gangs operating at a high level of   crime often control and corrupt the local government. These groups are called chao pho,   which ironically translates to “godfather’, and act as a mafia. According to Thai authorities 39                 of Thailand’s 76 provinces are experiencing the tumult of the local chao pho….the crime in                 Thailand – especially Bangkok – is affecting the quality of life for citizens, and the military                   government is taking measures to cover up much of if in effort to preserve the lucrative   tourist business.[10]
[5] CISBE8E6BE770: “ASIAN TRANSNATIONAL ORGANISED CRIME AND ITS IMPACT ON THE UNITED STATES: DEVELOPING A TRANSNATIONAL CRIME RESEARCH AGENDA”, U.S. Department of Justice, 01 March 2006
[6] OGD95BE926619 2016: US Department of State, 2016. ‘Thailand 2016 Trafficking in Persons Report’, 30 June 2016
[7] CX1B9ECAB12502: “Bangkok’s Mexican Gangsters’ Coconuts Bangkok, 21 March 2014
[8] CXBDE6A0DE1811: “Crime on the rise across Bangkok”, The Polytechnic, 16 September 2016
[9] CX6A26AE11681: “Transparency International Corruption Perceptions Index 2015 – Thailand”, Transparency International, 01 January 2016.
[10] CXBD6A60DE18911: “Crime on the rise in Bangkok”, The Polytechnic, 16 September 2016

This is a view reinforced by frequent reports of crime and criminal gang activity in large newspapers such as the Bangkok Post. However, this is counterbalanced by less sensationalist ‘US Department of State – Bureau of Diplomatic Security (OSAC) Report 2016’[11] which gives Thailand a ‘Post Crime Rating ‘ of ‘medium’ and reports that:
[11] CIS380122437: Thailand 2016 Crime & Safety Report: Bangkok – OSAC – Bureau of Diplomatic Security – US Department of Stat, OSAC, Bureau of Diplomatic Security, U.S Department of State, 19 February 2016
Overall Crime and Safety Situation

             Generally speaking, Bangkok is a safe place for those wishing to conduct business or take part in tourism.

             Post Crime Rating: Medium

             Crime Threats

             Most criminal activity is limited to "non-confrontational" street crimes and crimes of opportunity              including: purse snatching (including drive-by snatchings from motorcycles), pickpocketing, petty    theft, jewellery schemes, and tourism fraud. Many U.S. citizens have had passports, wallets, and other           valuables stolen in Bangkok's Chatuchak Weekend Market, on Chao San Road, and at other crowded      areas. Pickpockets and thieves typically cut into purses or bags with a razor and remove items     surreptitiously. Additionally, U.S. citizens across Thailand have been robbed of their valuables and            other possessions after soliciting the services of commercial sex workers. Thieves may also victimize      travellers on long-distance bus routes.

             Credit card fraud and identity theft also regularly occur in Thailand. There have been recent instances       in which international criminal organizations based in Malaysia, Ukraine, Russia, and elsewhere have         installed sophisticated “skimming devices” to steal card holder information from ATMs. The obtained information was then used to withdraw money from victim accounts.

             Violent crimes (murder, rape, assault) against Americans and other foreigners are relatively rare. Those that do occur typically happen at night, often when victims (both male and female) have been             drinking and are separated from their travelling companions. These crimes are most common in      Bangkok, Pattaya, Chiang Mai, and tourist areas in southern Thailand, including Phuket, Koh Samui,        Koh Phangan, and Krabi. Sexually-motivated violent incidents, committed by both Thai citizens and visitors, are most likely to occur at parties, discos, or beaches, such as the Full Moon Party on      Phangan Island. There have also been reports of criminals using scopolamine or other “date rape”             drugs to spike drinks and rob their victims.
The same report goes on to say:
There are numerous international and indigenous organized crime elements operating throughout Thailand, but they are mainly concentrated within the major cities. Their activities include illicit drugs, human trafficking, prostitution, document fraud, production of counterfeit goods, etc.
FINDINGS AND REASONS
The Issue of Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in its findings of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:
….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could be reasonably have been accepted….
The Tribunal also accepts that “….if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt….” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]. However, the Handbook states at (paragraph [204]):
….The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The applicant claimed that both she and her husband had experience financial problems in Thailand after being unable to service two loans they had procured. One, was a loan owed to a legitimate financial institution (house mortgage), the other owed to a local loan shark. The house mortgage was being paid from money earned in Australia, the other, owed to a local loan shark was still outstanding. The Tribunal was provide with copies of translated documents concerning the applicant’s mortgage loan and copies of money transfers made from Australia to their bank in Thailand. The Tribunal accepts that the applicants had legitimate financial commitments with their bank in Thailand. Also, the Tribunal accepts that the applicants may have experienced financial problems while in Thailand but does not accept the totality of their claims as presented to the Tribunal at the hearing concerning the issues they claimed to have with a local money lender - as credible.
First, in regards to the applicants’ current and continuing debt – mortgage with their local financial institution, if they are experiencing – past and at present difficulties in servicing the mortgage, they have, in the opinion of Tribunal, access to Thai legal system and through their instruction of a Thai legal representative who may re-negotiate their mortgage with the bank involved. Therefore the Tribunal finds and concludes that there is nothing to suggest the applicants are in any way precluded from accessing the legal system in Thailand (as it operates at present) for assistance.
Second, the applicant (s) in her evidence before the Tribunal provided no evidence to substantiate her claims of having been forced to leave Thailand because of threats being made against her for the non-payment of a loan/debt owed to a local loan shark. The applicant’s claims lacked credibility. It should be pointed out that a person to whom Australia owes protection obligations under the Refugees Convention is a person who has, in the terms of the Convention, a well-founded fear of persecution for reasons of ‘race, religion, nationality, membership of a particular social group or political opinion.’ A person who has a well-founded fear of persecution for reasons other than a Convention reason is not a refugee within the terms of the Convention. The applicant’s evidence was that she owed a debt to a local loan shark but told the Tribunal that her written evidence of the existence of this loan was not available – except to say - she signed a piece of paper and provided him with a copy of identification card. She went on to say (as did her husband in his evidence) that the two made some payments to the loan shark and then stopped making them. As a result of this collective defiance, the loan shark threatened them with servitude in a local brothel and instead of seeking protection from the local Royal Thai Police (RTP) they left ‘secretly’ from Thailand for Australia. Nevertheless, while here in Australia, they (both applicant and her husband) have been working and providing repayments on a monthly basis to their bank. The Tribunal accepts the possibility that there is an outstanding loan with a local Thai bank but does not accept the applicants’ claim that there is money owed to a local loan shark. First, the applicants having dealt personally (as they claimed) with this loan shark could not provide the Tribunal with a description of this person and his name. They only referred to him as a ‘private source’ and ‘[Alias 1]’. Therefore, the Tribunal does not find or accept as credible the applicants’ claim that they had procured a loan from a local loan shark and having been unable to make repayments in favour this loan, were targeted with threats of servitude in a local brothel which forced them to leave Thailand and as a result do not have a well-founded fear of persecution for any Convention reason pursuant to s.5J(1) (a) (b) or (c) of the Act.
Third, in the main applicant’s evidence before the Tribunal, the applicant stated that she had not reported the loan shark’s threats to the local Royal Thai Police (‘RTP’). Her reason for not reporting her problem was that the RTP would not become involved in her matter because they were under the ‘influence’ of this ‘person’ to whom the debt was owed. The applicant, the Tribunal finds, did not present any sufficient reasons why she could not have sought the assistance of the local police in order to provide her and her husband and other family members (if warranted) with protection except to say, that it was a waste of time in doing so because of the influences the loan shark had on the way and means the local police conducted themselves. In the Tribunal’s opinion, the applicant did not provide any credible reasons why the local police in Thailand could not assist her if she desired protection for her person and family members. Indeed, the country information referenced by the Tribunal indicates that Thailand despite its recent economic and political problems has a functioning police force and judicial system. The country information reports that the Thai military authorities – which include the armed forces, police and the courts – are reasonably effective in combating local crime and protecting persons within their jurisdiction [and despite some systemic corruption existing in part] from criminals and criminal harm. Therefore, the Tribunal finds that effective protection measures as defined in s. 5LA of the Act are available to the applicant in Thailand and that she does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
For the reasons given in paragraphs [54] to [57] above, the Tribunal does not accept that the applicant or her husband were threatened by a loan shark – she described as a ‘[Alias 1]’ or that there is a real chance that she will face persecution involving serious harm because she and her husband could not repay any amounts of an alleged debt which was still outstanding and because the RTP could not and would not provide protection, if they were to return to Thailand now or in the foreseeable future. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as is defined in s.5J of the Act.
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) of the Act.
The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion of complementary protection in s. 36(2)(aa). For the reasons provided in paragraphs [54] to [55] above, the Tribunal does not accept that the applicants were threatened by a loan shark they described as a ‘[Alias 1]’ because they could not pay a loan they had procured from this individual, nor that there is substantial grounds for believing that as a necessary an foreseeable consequence of her being removed from Australia to Thailand in the reasonably foreseeable future, there is a real risk that they will suffer significant harm as they claimed and that they had no protection from the local police because of the influence this ‘[Alias 1]’ exerted on the local police. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa) of the Act.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Vlahos
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.
…
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.
…

[2020] AATA 2872

16 June 2020

Key Legal Topics

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Immigration

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Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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