1621862 (Refugee)

1621862 (Refugee) [2020] AATA 175 (23 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621862
COUNTRY OF REFERENCE:                  Thailand
MEMBER:Meena Sripathy
DATE:23 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 January 2020 at 11:50am
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – does not support or approve of the military regime – prefers a democratic system of government – no past political activity or harm suffered – renewal of Thai passport – relative of former Member of Parliament – March 2019 election – post-election repression – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
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 12 December 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 on 12 February 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant has a well founded fear of persecution upon return to Thailand or that there are substantial grounds for believing there is a real risk she will suffer significant harm if returned there and therefore she is not a refugee nor a person to whom Australia has complementary protection obligations.
The issue in this case is whether there is a real chance, if the applicant returns to Thailand, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Thailand, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a [age] year old Thai national. She indicates in her application form that she is Buddhist by religion and a widow. Under family composition she provides details of three [children] born in [year], [year] and [year] in Thailand. She provides one residential address in Thailand from birth until her departure for Australia. She is educated to high school level. She provides no details of past employment in Thailand or Australia. She departed her country legally in November 2009.
In her reasons for seeking protection, the applicant states that she cannot go back to Thailand because she does not support the current military government. It is a dictator government and she does not like it. She believes in a democratic government. She believes she will be arrested and put into detention or jail for an indefinite time if she returns. She has not experienced past harm in Thailand, but does not believe anyone will help her. She fears she will be put into a brothel and will be treated badly because she is a woman. She does not believe the authorities will help her as she does not have a lot of money.
The applicant was interviewed by an officer of the Department on 4 November 2016, and an audio recording of the interview is on the Department file. Details of the evidence she provided is included in the delegate’s decision record. Following the interview the applicant provided a further hand written statement re-iterating her claims for protection. She states that Thailand is dangerous for her to live in as it is imminent that the authorities will punish her badly and subject her to torture. This government was obtained by force not by the selection of Thai people. It is not a democratic country once it is controlled by the military. She does not support military rules and has had to flee from the country. There is no freedom of speech under military rules. No equal opportunity, only corruption. No justice and a huge gap between rich and poor. She fears she will be subjected to punishment and torture.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 10 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
At the commencement of the hearing the applicant indicated that she would like to submit further information in support of her application. The Tribunal explained that the hearing is an opportunity for her to provide evidence and she can provide the information today.
She provided information about her new address. She lives at the residence of her employer, across the road from the [business] where she works as a [Occupation 1]. She lives here by herself with the boss and the boss’ husband. She has a partner since the past two years, who lives separately and she visits him 3 times a week. He was present at the hearing to support her.
She has no other family in Australia. Her sister used to live here, but returned to Thailand many years ago. She has not seen her since then. She has no other relatives in Australia. In Thailand she has two [children]. They used to live with their uncle and aunty but later moved out to study. The youngest [child] is still studying, [Discipline 1], she will finish in 8 months. The elder [child] finished studying last year and is now working. The Tribunal asked about the third [child] mentioned in the application. She said she does have another daughter but she was adopted. Now she is [age] years old and is married and lives in Bangkok with her husband. The applicant’s husband passed away many years ago and she never re-partnered in Thailand.
The applicant presented her current passport which was issued in 2018 and is valid for 5 years. The Tribunal asked her how she obtained this. She said she renewed it at the Consulate. She attended in person and had no problems or issues renewing her passport. She also renewed it once before in 2013. When asked why she renewed her passport, she said she did so because the previous one expired and so she needed to renew it.
The Tribunal asked the applicant why she came to Australia in 2008. She said she came because her family is involved in Thai politics and this is why she came. When asked to elaborate, she said her [relative] was involved in the Thai opposition at that time. He was involved in the ‘Democrat Party’ which was opposed to the government at the time, but she does not know the details. She only knows he was opposed to the government. He was a Member of Parliament and worked with Thaksin who was the previous Prime Minister. When Thaksin left the country her [relative] was still in Parliament but later he too left Thailand for [Country 1] and now he still lives in [Country 1]. This was 6-7 years ago and it was around the same time she came to Australia.
The Tribunal asked the applicant why she came to Australia. She repeated that her family was involved in politics and she felt insecure as a result and for this reason she came here. When asked if anything in particular happened to make her feel insecure she said that every now and then people would come and ask questions because the family was involved in politics and this made her feel insecure. The family is opposed to the current government and sometimes they would be questioned.
The Tribunal asked the applicant if she personally was involved in politics or political activities. She said she was. When asked to elaborate, she said she helped her [relative] with the voting. She tried to help him in the local elections to raise the voice for the party. When asked which party she helped she said she supports the ‘Democrat Party’ and she does not like the army that is taking over the government at present.
The Tribunal asked the applicant what she did when she came to Australia in 2008. She said she went around to different places to find work and changed address many times. It took her a while before she found a place in the city and she could research the internet and find out about how to make an application to remain in Australia. The Tribunal noted that she did not make the present application until 2016, some 8 years after she came and asked her why she delayed so long before seeking protection. She said she did not know about applying and only later got the knowledge after she did research on the internet about staying in Australia.
The Tribunal asked what she fears about returning to Thailand now in 2019. She said there is still an army regime there and she would prefer to stay in Australia. When asked what harm she fears, she said she feels insecure. It is not safe there.
The Tribunal asked if she has been involved in politics since she has been here. She said she has not but she has been following the news from here. She knows there was an election in March 2019 but she said it was not fair and it favoured the army. When asked about the parties that participated in the election she named the Pheu Thai Party which is the party of Thaksin and her preferred party. She said Thaksin is involved in about 4 different parties there.
The Tribunal asked the applicant, apart from not supporting the current regime, on what basis does she fear harm upon return. She said that living in the countryside, she does not know who will be around and whether they will ask questions of her such as who does she support. She fears because she is a woman and she is afraid of people asking her which party she belongs to.
The Tribunal asked if she has suffered harm on this basis in the past. She said when her [relative] was an MP and she was helping him with voting she had her car tyre punctured. The Tribunal noted that she did not mention this incident previously in her application or to the delegate at the interview. She acknowledged that she did not but she now wanted to mention it.
The Tribunal mentioned that a provision in the Migration Act provides that the Tribunal may not accept the truthfulness of claims that are raised for the first time before it unless satisfied she has a reasonable explanation for not mentioning previously. It noted that she did not mention her claims about her [relative] being a Member of Parliament or that she had her tyres punctured and this being the basis for her leaving Thailand and her failure to do so may lead the Tribunal to doubt the truthfulness of these claims. In response she explained that she did not mention it in her written application because she had limited English and no assistance and before the delegate she was afraid that she would be sent home and she did not know what she should or should not say. This is the first time she has the courage to say everything so she is telling the Tribunal now. The Tribunal indicated it would consider her explanation.
The Tribunal put to the applicant that, even if it did accept her claims, it may find that given the passage of over 10 years since she left Thailand, her [relative] no longer being a Member of Parliament, her lack of ongoing political activity, and the fact that she has approached the Consulate and renewed her passport twice already suggests she does not have a genuine subjective fear and is not of adverse interest to the government now and would not face a real chance of harm. In response she said there is no guarantee she would be safe if she returned to Thailand. Even Thaksin lives in Dubai still. She has been unable to explore the political party from here.
The Tribunal asked the applicant if there was any other reason she feared return to Thailand. She said that does not know what side people are on and so she cannot tell if she will be safe if she returned. The Tribunal noted that her three [children] have been living in Thailand and appear to be living safely. She said they are safe because they have been living with their aunt and uncle and have not mentioned that she is their family member. The Tribunal indicated that it is not clear from her evidence what the basis of her profile is that would place her or them in danger. The applicant said that she has a fear of harm as a woman who was involved in the political party of her [relative] and supports the regime of the previous government.
When asked if she wished to say anything else, the applicant said ever since she received her working visa she has been doing everything legally and pays tax and has complied with the requirements. She would like to submit further written information to support her application. The Tribunal indicated that it would write to her under s424A and she can provide further information in response to this letter.
On 11 December the Tribunal wrote to the applicant under s424A to invite her comments or response and invited her to provide further evidence in support of claims made in the application.
To date no response to the invitation or further information has been received.
INDEPENDENT INFORMATION
Political situation in Thailand 2006-2008
Information obtained from a research response prepared by the Canadian IRB indicates the political situation in Thailand was volatile and insecure in the period 2006-2008:
Thailand's military forces deposed the country's prime minister Thaksin Shinawatra on 19 September 2006 in a "bloodless" coup d'état (AFP 19 Sept. 2006; HRW 19 Sept. 2006; BBC 22 Oct. 2008). According to Amnesty International (AI), the coup was preceded by months of demonstrations that "condemned alleged widespread financial irregularities during his administration" (2007). The opposition parties had boycotted "snap" elections in April 2006, which Thaksin's Thai Rak Thai party won (BBC 22 Oct. 2008). In May 2006, these results were overturned by the Constitutional Court due to "electoral irregularities and improper intrusion by political groups allied with the Thaksin party" (HRW 19 Sept. 2006; AI 2007; see also AsiaMedia 19 Feb. 2007).
Following the coup, military leaders instituted martial law (AI 2007; US 6 Mar. 2007; CNN 20 Sept. 2006). They also suspended the constitution and legislative bodies (HRW 19 Sept. 2006; AsiaMedia 19 Feb. 2007), and replaced the Constitutional Court "with an appointed military tribunal" (Freedom House 2007; see also AHRC 6 Oct. 2006). According to the United States (US) Department of State Country Reports on Human Rights Practices for 2006, though the judiciary was considered independent, "it was subject to corruption and outside influences" (US 6 Mar. 2007, Sec.1e). On its website, the Asian Human Rights Commission (AHRC) states that "army officials have enormous powers to stop demonstrations, close roads, censor news, search people and places ... , arrest and detain people, and give orders to the bureaucracy and judiciary, as if the country was at war" (19 Jan. 2007).
…
On 30 May 2007, the Constitutional Tribunal dissolved the Thai Rak Thai party and banned 111 of its party members, including Thaksin, from political activity for five years (Reuters 28 Feb. 2008; US 11 Mar. 2008, Sec. 3; see also BBC 22 Oct. 2008). Parliamentary elections took place on 23 December 2007 (US 11 Mar. 2008; Reuters 28 Feb. 2008), and the "pro-Thaksin" People Power Party (PPP) won the most votes (ibid.; BBC 22 Oct. 2008). In January 2008, the PPP announced a six-party coalition government (Reuters 28 Feb. 2008; AFP 19 Jan. 2008). PPP leader Samak Sundaravej was sworn in as prime minister in February 2008 (BBC 22 Oct. 2008; Reuters 28 Feb. 2008).
According to a 27 August 2008 article published by the United Nations (UN) Integrated Regional Information Networks (IRIN), the People's Alliance for Democracy (PAD) and approximately 10,000 supporters engaged in months of protest to force the PPP-led government from office. The PAD is reportedly a movement involving those who align themselves with conservative factions of the monarchy and oppose Thaksin and Thaksin supporters in government (UN 27 Aug. 2008; see also The Guardian 3 Sept. 2008). According to The Guardian, the PAD was also involved in the 2006 protests that precipitated Thaksin's deposition (3 Sept. 2008). On 1 September 2008, after a week of "pro- and anti-government" mass protests, Prime Minister Samak Sundarajev declared a state of emergency in Bangkok (BBC 12 Sept. 2008; see also Reuters 1 Sept. 2008). The Prime Minister's declaration came hours after violent protests left one person dead and numerous people injured (The Guardian 3 Sept. 2008; The New York Times 1 Sept. 2008).
In September 2008, the Constitutional Court dismissed Samak Sundarajev for "accepting compensation for a second job" because he hosted two cooking shows while serving as prime minister (Time 17 Sept. 2008; BBC 22 Oct. 2008). On 17 September 2008, parliament elected Somchai Wongsawat of the PPP as prime minister (Time 17 Sept. 2008; see also BBC 22 Oct. 2008), who ended the state of emergency (Time 17 Sept. 2008). According to an article in Time, Somchai Wongsawat's marriage to Thaksin Shinawatra's sister "makes him unacceptable to the PAD"; a PAD leader reportedly stated that "the Government House siege would continue until a Prime Minister who's not from the PPP is named" (17 Sept. 2008).
On 25 November 2008, the PAD seized the Suvarnabhumi and Don Mueang airports in an attempt to oust Somchai Wongsawat (Xinhua News Agency 3 Dec. 2008). On 2 December 2008, PAD protests ceased when the Constitutional Court ruled to disband the PPP for electoral fraud (ibid.; AFP 17 Dec. 2008), along with two other parties in the ruling coalition (AP 3 Dec. 2008). By mid-December, Abhisit Vejjajiva of the Democrat Party had won a parliamentary vote to become Thailand's prime minister (AFP 17 Dec. 2008). According to Agence France-Presse, Thaksin supporters are expected to protest his appointment (17 Dec. 2008). Additionally, Prime Minister Abhisit has received criticism for his cabinet appointments, since they include members who previously supported Thaksin and defected to the Democrat Party, as well as for including an open supporter of the PAD and their airport seizure, foreign minister Kasit Piromya (BBC 22 Dec. 2008).[1]
[1] Canada: Immigration and Refugee Board of Canada, Thailand: Overview of the political situation (2006-2008), 12 January 2009, THA102989.E, available at: 17 January 2020]

Following further political conflict between Thaksin supporters and opponents over the next 8 years, Prime Minister Yingluck Shinawatra, was forced out of power in May 2014 after serving two years and nine months in office.[2]
[2] Key moments in Thailand’s political crisis, The Associated PressMay 7, 2014 >
The Democrat Party is Thailand’s oldest party and was the main opposition party to the pre coup government of Prime Minister Yingluck Shinawatra. In December 2013, members of the party resigned from Parliament and joined antigovernment street demonstrations.[3]
[3] Thomas Fuller, Thai Premier Calls for Elections as Opposition Quits, NYT, 8 December 2013 >
In its World Report 2019, Human Rights Watch stated the following about Thailand
The National Council for Peace and Order (NCPO) military junta delayed lifting severe restrictions on free expression, association, and assembly, despite announcing a national election in February 2019. There are serious concerns that political parties, media, and voters will not be given the opportunity to participate in a genuinely democratic process. Prime Minister Gen. Prayuth Chan-ocha still wields power unhindered by administrative, legislative, or judicial oversight or accountability, including for serious human rights violations.[4]
March 2019 election
[4] Human Rights Watch World Report 2019 >
On 24 March 2019, Thailand held nation-wide elections for the first time since a military coup removed the democratically-elected Pheu Thai government from office in May 2014.
In the years following the coup, Thailand was ruled by a military government, the National Council for Peace and Order (NCPO), headed by General Prayut Chanocha. Promising to return the country to a state of ‘happiness’, critics assert that the junta instead instituted an authoritarian regime, banning political activity and criminalising political dissent. For many, the 2019 elections were considered an opportunity to return Thailand to civilian rule. Others feared the junta would engineer an outcome that would perpetuate military rule, through the agency of proxy party Palang Pracharat. More broadly, the elections were considered a referendum on whether Thailand was better governed by elected politicians or by the military and the stability that they promised.
Election results produced a complicated set of outcomes, with no party winning enough seats to govern independently. Moreover, the Election Commission withheld final ballot counts for 10 weeks, initially citing the need to await the king’s coronation in early May. When finally announced, the Commission’s results were considered by many analysts to be highly controversial, unexpectedly reformulating the method for calculating party-list seats, thereby enabling Palang Pracharat to cobble together a slim majority in parliament despite Pheu Thai winning the highest number of seats. Palang Pracharat proceeded to elect NCPO leader, Prayut Chanocha, as Prime Minister, completing the military’s transformation from coup-maker to democratically elected government.
A total of 77 political parties entered the elections, spearheaded by three major parties: Pheu Thai (for Thais), Palang Pracharat party (People’s state power party) and the Democrat Party.[5] Mid-size parties were headed up by the newly-formed Future Forward party and the long-established Bhumjai Thai (Thai Pride) party.
Post-election repression
[5] Fraud, irregularities and dirty tricks: A report on Thailand's 2019 elections, Force of Renewal South East Asia, 9 May 2019, p.36, 20190509102219
Authorities have continued to target critics of the government in the period following the elections. In May and June 2019, for example, three high profile government critics were attacked by groups of men on motorcycles, leaving them with serious injuries. Human rights groups have noted that police have to date largely failed to take these cases seriously and raised concerns about possible government involvement.[6]
[6] Thailand: 3 Junta Critics Assaulted in Past Month’, Human Rights Watch, 4 June 2019, 20190605120059; 'Activists face chilling threat', Bangkok Post, 5 June 2019, 20190605133056; ‘The June 2 Assault on Ja New, (or Sirawat Serithiwat): Information for Reporters’, Thai Alliance for Human Rights, 4 June 2019, 20190619154049; 'Portraits of protest: 10 Thais gagged by lèse-majesté law, used by junta against critics of its rule', South China Morning Post, 26 May 2017, CXC9040668513; ‘Thailand: 3 Junta Critics Assaulted in Past Month’, Human Rights Watch, 4 June 2019, 20190605120059 Amnesty International Annual Report 2017-18, Amnesty International, 22 February 2018, NGED867A612; 'Thailand - No Arrests for Assaults on Junta Critics', Human Rights Watch, 29 May 2019, 20190531171541
In early May 2019, Vietnamese authorities reportedly handed over three Thai nationals accused of committing lèse majesté offences, following their extradition from Hanoi to Bangkok. Thai authorities have since failed to acknowledge their arrest or detention, raising concerns they have become victims of enforced disappearance. According to Human Rights Watch, the Thai authorities ‘have been aggressively pursu[ing the three men] and other anti-monarchy activists who operated from neighbouring countries’.[7]
[7] 'Thailand: Critics Feared ‘Disappeared’, Human Rights Watch, 10 May 2019, 20190510140937
In a further three instances in June 2019, Thai security forces and other officials have pressured a foreign satirist, a well-known comedian, and high school students to retract or apologize for videos or photos on social media deemed to make fun of military dictatorship.[8]
[8] ‘Thailand: Authorities Punish Mockery of Junta’, Human Rights Watch, 14 June 2019, 20190614161319
It has been observed that the maintenance of Section 44 of the Constitution has continued to enable Prayut to gag dissidents, much to the alarm of human rights groups and political critics. "Gen. Prayuth maintains a host of repressive powers that allow him to prosecute dissidents, gag free speech, and put critics in secret military detention. They don't tolerate even the slightest hint of mockery," said Sunai Phasuk, senior Thailand researcher for Human Rights Watch. [9]
[9] Thailand's Prayuth delays naming cabinet to wield ultimate weapon’, Nikkei Asian Review, 14 June 2019, 20190617150652
CONSIDERATION - FINDINGS AND CONCLUSIONS
On the basis of her evidence to the Tribunal and Thai passport, the Tribunal accepts the applicant is a national of Thailand and considers Thailand is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The Tribunal is mindful 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 possibly be true. (See MIMA v Rajalingam (1993) 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 a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The applicant advanced the following claims in the present application: in her written claims and before the Department she expressed fears of returning to Thailand because of her opposition of the military government and belief in a democratic government. She claimed to fear arrest and detention due to her political opinions or that she will be forced to work in a brothel and will be treated badly because she is a woman. She specified no past political activity or harm suffered. Before the Tribunal she made new claims that she left the country because her family was involved in politics and her [relative] was a Member of Parliament. She claimed she helped her [relative] in a local campaign and had her car tyres punctured and that every now and then people would come and ask questions of her because the family was involved in politics.
At the hearing the Tribunal discussed with the applicant its concerns about the claims raised for the first time before the Tribunal. She was also provided a written invitation to comment and provide further information to support her claims following the hearing. However to date no response or further information has been provided.
The Tribunal has considered the applicant’s claims, evidence and independent country information, and makes the following findings on the material before it.
Claims based on political opinion
The Tribunal is prepared to accept that the applicant does not support or approve of the military regime in Thailand, and that she supports a democratic system of government. She made this claim in her written application, and repeated it before the Department and Tribunal. While she has never articulated her political opinion in convincing detail to suggest she has or had any active role or profile as a political actor or activist, for the purposes of this application the Tribunal is prepared accept that she may have a political opinion that is opposed to the military regime and prefers a democratic system of government. The country information before the Tribunal referred to above regarding the political situation in Thailand in the period 2006-2008 describes a volatile and insecure period in which the military played a significant role.
The Tribunal does not however accept her more recently made claims that her family was involved in politics, or that her [relative] was a Member of Parliament or that she was involved in his campaign helping with votes and had her tyres slashed. These claims were made for the first time at the Tribunal hearing in December 2019, having not been mentioned in her written application lodged in February 2016 or at the Department interview in November 2016. She told the delegate at the Department interview that the reason she left Thailand was because she lived in difficulty and did not like the way the country was run. She specifically stated she was not a member of any political party and had not been involved in any political activities since coming to Australia. The applicant put this inconsistent information to the applicant for comment at the hearing and also in a written invitation following the hearing. It has considered the response she gave at hearing that she never mentioned these claims previously because she had limited English and no assistance and was afraid to mention it before the delegate. The Tribunal is not convinced by this explanation or the limited evidence she has provided to support her claims. She was unable to provide convincing detail about the political activity or involvement of her family or even the name of her [relative] who she claimed was an MP. She spoke in very general terms only of their affiliation with the Democrat Party that was in opposition at that time. The Tribunal been able to find any independent information to support her claims regarding her family or [relative]’s involvement in politics. Therefore, and having regard to s423A of the Act, the Tribunal draws an adverse inference as to the credibility of these claims and rejects them.
The Tribunal does not accept that the applicant’s family was involved in any significant way with the Democrat Party as claimed and that she helped her [relative] who is an MP and had her car tyres slashed in that context. It does not therefore accept that she has any political profile which would bring her to the attention of the authorities or any political party or group or cause her to attract any adverse attention were she to return to Thailand now or in the reasonably foreseeable future. Even if the applicant did have a family member or [relative] who was in the past a Member of Parliament, on her own evidence she said he is no longer in Thailand and therefore the Tribunal finds there is no basis on which this could bring adverse attention to her upon return.
The Tribunal accepts that since the last military coup in Thailand in May 2014, elections were held on 24 March 2019. The election resulted in the military government’s National Council for Peace and Order (NCPO) leader being elected as Prime Minister, which many have seen as simply a continuation of military rule.[10] The Tribunal accepts that independent information indicates that critics of the government continue to be targeted (see paragraphs 38-40 above) since then.
[10] Thailand's military-backed PM voted in after junta creates loose coalition', The Guardian, 6 June 2019, 20190606141320
While the country information indicates continuation of a climate of political repression and limitation on free expression in Thailand, the Tribunal is not satisfied, given its findings above regarding the absence of any political profile in respect of the applicant, and that she has not suffered any past harm on that basis, that she will face a real chance of serious harm on account of her personal views against the current military government. The Tribunal is not satisfied that she faces a real chance of being arrested or detained because of her political opinions.
The Tribunal is also not satisfied, in light of her evidence and the country information before it that she will be forced to work in a brothel or will be treated badly because she is a woman. The applicant has made no claims that she experienced any such harm in the past and there is no information before the Tribunal to support a finding that she faces a real chance of serious harm of this nature in the reasonably foreseeable future on the basis of her gender.
The Tribunal has considered the applicant’s claims individually and also cumulatively and is not satisfied that she faces a real chance of serious harm in the reasonably foreseeable future for any of the reasons specified in s5J(1).
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). On the basis of the findings above, and for the reasons stated above, the Tribunal accepts that the applicant opposes the military regime but does not accept that the applicant’s family has a political profile, or that she has an [relative] who is a former MP. It does not accept her car tyres were slashed or that she suffered any past harm for reasons of political activity in the past. Given these findings, the Tribunal is not satisfied that there is a real risk she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Thailand. 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.
Meena Sripathy
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 175

23 January 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction