1702518 (Refugee)

1702518 (Refugee) [2020] AATA 296 (13 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702518
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Vlahos
DATE:13 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 February 2020 at 10:28am
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – membership of opposition party and participation in protests – injuries in protests – credibility – role and level of activity in organisation – left country through major airport on own passport – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), 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 (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.
_________________________________________________________________________
In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
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 13 February 2017 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 6 October 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy s.36(2) of the Act.
On 14 February 2017 the applicant made an application to the Tribunal to review the Department’s decision to refuse him a Protection visa.
The applicant appeared before the Tribunal on 10 February 2020 to give evidence and to present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai language.
The applicant was not represented by a legal representative or 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 applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport filed on the Department’s file and presented at the hearing to the Tribunal, the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Thailand and has his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. Therefore, on the basis of the herein mentioned reasons, the Tribunal accepts the applicant’s identity as claimed.
Applicant’s visa background
[In] October 2008 the applicant arrived in Australia as the holder of a [Temporary] visa. [In] January 2009, the applicant’s [Temporary] visa expired and he became an unlawful non-citizen [in] January 2009. The applicant then lodged an application for a Class XA Subclass 866 Protection visa and associated Bridging visa (which was issued) on 6 October 2015. The applicant told the Tribunal that since his arrival in Australia in 2008, he has no returned to Thailand, though he remains in contact with his family there.
The applicant’s claims for seeking protection in Australia
The applicant’s claims for protection submitted to the Department[1] and the basis of the applicant’s application for review are as follows:
§He [the Applicant] came to Australia because he became a target of the government and an enemy of the state.
§The Shinawatra government was overthrown by a military coup.
§He was the head of a group that supported Shinawatra and they [the group] fought with the army.
§Since then he became a fugitive from the Thai army who wish to arrest and imprison him, but he fled to South Bangkok.
§He is still being hunted by the government [military] assassins and he is on a government ‘black list’.
§There is no state protection or place to relocate in Thailand.
[1] See, Department of Immigration and Border Protection [Home Affairs] File no. [number] Folio no. [109]
The Tribunal asked the applicant if he had any other claims for the Tribunal to review, consider and to determine in addition to those which were the subject of the application for review. The applicant through the interpreter told the Tribunal that he had no further claims to make except for those originally submitted to the Department as part of his application for Protection visa.
Applicant’s personal background
The applicant was born in Bangkok, Thailand where he continued to live until he left for Australia. The applicant is not married but has family still living in Thailand, which consists of his elderly mother and [sibling]. His father is deceased. He is a Buddhist and was not employed prior to leaving Thailand for Australia. He has received an education and holds a [Qualification] from [a University in Thailand]. Currently, in Australia, the applicant is working [in a location, doing a job task]. The Tribunal was told that the applicant has been doing this work for the entire period he has been in Australia. He works [in a location] in [City], Victoria and ears AUD$500-800.00 per week when working in season. He also pays the required ‘…tax…’ to the Australian government.
EVIDENCE AT THE HEARING
The Tribunal asked the applicant to explain why the Thai military authorities considered him a “…enemy of the state…” as he claimed in his application for Protection visa. The applicant’s response was to describe himself as a ‘…party worker…’ for the now ousted Shinawatra government. The applicant’s work (according to his evidence) was to gather people to attend political rallies organised by the government in ‘…support…’ of ‘…democracy in Thailand…’ The applicant described his role as being ‘…a leader…’ of a group of party workers tasked with such responsibilities. Also, the Tribunal was told that the activities undertaken for the democratically elected government were aimed at stopping the forced removal of the government from office by a military coup.
The Tribunal was provided with a photocopy of the applicant’s party ‘membership card’ which had attached to it a photograph of the applicant with the numbers “03-154710” and in the English language the title “National United Front for Democracy against Dictatorship” “(NUDD)”.[2] The applicant stated that he joined the NUDD prior to the military coup.
[2] See AAT File
The Tribunal asked the applicant if he could describe the political platform and aims of the NUDD. The applicant stated the following as the political aims and platform of the NUDD – (1) To have a ‘classless society in Thailand’, (2) To eliminate poverty, (3) Employment for those who want to work, (4) Proper financial management of the national economy and (5) Implementation of a ‘national well-being program for the Thai economy…’
As a member of the NUDD, the applicant described to instances of his direct political involvement. The first, he claimed he organised (with others) large political demonstrations in favour of the Shinawatra government ‘…outside the royal residence…’ and another outside the ‘…the Parliament…’ Both rallies happened according to the applicant in ‘September 2006.’
The Tribunal asked the applicant whether by being one of the organisers of these two major political rallies just prior to the military coup did he receive any threats. The applicant stated that he was threatened by persons sympathetic to the Thai military during this period and was told if matters changed, he would be targeted for what he was doing. The applicant told the Tribunal that after receiving these threats directly and in person, he began to fear for his wellbeing and life if a coup occurred.
Regardless, of the efforts made by the applicant and others in favour of democracy in Thailand, this did not prevent the military coup which occurred in September 2006.
The applicant stated that when the coup occurred, he remembered that there were many deaths and injuries inflicted on persons that supported the continuation of democracy in Thailand.
The Tribunal asked the applicant, whether he had suffered any injuries as a result of the military clamp-down of public protests. The applicant stated that he did suffer injuries inflicted upon him by supporters of the military coup. Specifically, the applicant described his injuries to his back and shoulder where he was ‘…hit …’ by a ‘firearm…’
The Tribunal asked the applicant did his injuries (he suffered) cause him to be hospitalised for a period of time. The applicant’s response was to tell the Tribunal that his ‘…injuries were not serious injuries…’ which ‘…required medical attention…’ His main concern after the coup had occurred was to avoid detention and to ‘escape from Thailand…’
The Tribunal asked the applicant to explain how he avoided being detained by the military for a period of two years after the military coup. The applicant said that ‘…he kept a low profile…’ in the south of Bangkok where he lived and he mainly relied on his family to do anything for him. He went on say that he did not ‘go out much…’ and this helped him avoid detention.
The Tribunal asked the applicant – how did gain a passport from the military authorities which permitted him to leave Thailand for Australia when he was an ‘enemy of the state…’ as he claimed. The applicant told the Tribunal that he had gained his passport before he had come to the attention of the military authorities.
The applicant was asked to explain to the Tribunal his claim that the military authorities and government considered him to be a “…enemy of the state…” and how an enemy of the state was allowed to leave Thailand on a validly issued passport. The applicant told the Tribunal that when the military took over the government after ousting Shinawatra, they did not have all the names of persons who had supported that government and thus the applicant was able to leave Thailand without any problems.
The applicant was asked to explain in detail – why was it necessary to leave Thailand for Australia. The applicant was also asked to explain what did he do after the coup having occurred which forced him to consider leaving for Australia for his personal safety? The applicant provided no response.
The Tribunal asked the applicant to explain why it took him took a total of seven (7) years to make an application for a Protection visa? The applicant said that he had difficulties understanding what needed to be done [in Australia] for a person to make an application for a protection visa. Once he was told what to do by ‘friends…’ he made his application.
The Tribunal asked the applicant to explain his statement (written) and response to Question 90 of his Protection visa application where he claimed:
“…I am not going back to my country again in relation to the problem. I became a spy game by dark forces up to an aggressive fights occur. I am not feel safe anymore wherever I go. Therefore, I request from the Australian Government to seek a visa protection. I hope my application is approved and I wish to live here as a legally and if approved I would like to obtain the status as a permanent resident as almost (7) years I was in the country [Australia]…”
(the applicant’s wording adopted)
The applicant stated that what he meant by the words “…spy game…” was that while he was a member of the NUDD since 2006, he was gathering people to support the democratically-elected government. No further explanation was provided by the applicant to the Tribunal.
The Tribunal referred the applicant’s attention to a Certificate that had been issued by the Department regarding the disclosure of certain information under s. 438 of the Migration Act 1958. The Tribunal informed the applicant that the Certificate related to the Department’s [own] analysis and review as with regards to the authenticity of the applicant’s passport. The Tribunal noted that the Department’s analysis determined that the applicant’s passport was “a legitimately manufactured document, personalised in an appropriate manner with no alteration...” The applicant was invited to comment by the Tribunal but declined to make any comment concerning the Certificate and the information it related to and disclosed.
COUNTRY INFORMATION – THAILAND POLITICS AND POST- COUP SITUATION
HUMAN RIGHTS WATCH according to the Asian Correspondence, 13 January 2017, reported:
“…that Thailand’s military junta increased its repression and repeatedly failed to respect      human rights and restore democratic rule in 2016.
“In its annual World Report 2017 released on Friday, HRW described 2016 as a tumultuous year      for Thailand following the demise of King Bhumibhol Adulyadeji, with the military administration             rolling back on its pledges made to the United Nations General Assembly and Human Rights     Council.
“The group said the new constitution, adopted in an August referendum that was marked by a           crackdown against its critics, effectively entrenches unaccountable and abusive military rule.
“In the Thailand chapter of 687-page report, HRW’s Asia Director Brad Adams opined that the            Kingdom was facing a deteriorating human rights crisis as the military “has          tightened its grip on        power and led the country deeper into dictatorship.”
“Rather than leading the country back to democratic rule, the junta has increasingly persecuted         critics and dissenters, banned peaceful protests, censored the media, and suppressed speech in              the press and online” Adams said in a statement on Friday.
“The rights group noted that the ruling National Council for Peace and Development (NCPO) – led      by Prime Minister General Prajut Chan-ocha – has also banned political activity and public      gatherings; made expression subject to criminal prosecution, conducted hundreds of arbitrary       arrests and detained civilians in military detention.
“Adams said General Prayut’s September 12 order to end the practice of persecuting             civilian cases in military courts was a limited step because it does not apply to the more       than 1,800 civilians already awaiting trial in military courts.”[3]
[3] Human Rights Watch – Thai Junta falls back on rights promises, deepens crisis with dictatorship”, Asian Correspondent, 13 January 2017, CXC904066266
The US State Department 2015 Human Rights Practices Report provides the following overview of Thailand’s government:
“Thailand is a constitutional monarchy. The king serves as head of state and has traditionally exerted political influence. In May 2014, in a bloodless coup, military and police leaders, taking the name of the National Council for Peace and Order (NCPO) and led by General Prayut Chan- cha, overthrow of the interim government led by the Puea Thai political party, which had governed since 2011 following National Assembly lower house elections that were generally considered free and fair. The military-led NCPO maintained control over the security forces and all government institutions.
“The interim constitution remained in place during the year, as did numerous decrees severely limiting civil liberties, including restrictions on freedoms of, assembly, and the press. On April 1, the military rescinded martial law and replaced it with NCPO Order No. 3/2015, issued under Article 44 of the NCPO-imposed interim constitution, which grants the military government similarly sweeping power to curb “…acts deemed harmful to national peace and stability…” Additionally, Article 48 of the NCPO-imposed interim constitution grants immunity to coup leaders and their subordinates for any pre-or post-coup actions ordered by the NCPO, regardless of the legality of the action.”[4]
[4] Thailand – Country Report on Human Rights Practices 2015, US Department of State, 13 April 2016, OGD95BE926328
In its 2015 Annual Report, Freedom House states that:
“The National Council for Peace and Order (NCPO), the military junta that seized power in a 2014      coup, continued to suppress political dissent in 2015. Civil society activists were closely     monitored, and individuals who expressed anti-coup sentiments were frequently summoned for     questioning and intimidation sessions known as “attitude adjustments”. Nevertheless, some signs    of resistance surfaced during the year, including a series of student protests opposing the coup.          The government responded with threats, arrests, and charges of sedition.
“The NCPO lifted martial law in April, but invoked an article of the interim constitution to issue           orders that granted its leader unchecked powers beyond judicial oversight, and expanded the     authority of the military officers in the area of law enforcement. The orders also preserved most    of the restrictions on expression and assembly that had been in effect under martial law.
“Meanwhile, the NCPO’s road map for a return to civilian rule was adjusted in 2015 pushing general elections further into the future. A controversial draft constitution that had drawn      criticism from across the political spectrum was ultimately rejected in September 2015 by the        National Reform Council (NRC), an advisory body appointed by the NCPO. The move triggered a      new round of drafting. At year’s end, general elections were not expected until 2017, the delays              have prompted concerns that the NCPO intends to hold on to power indefinitely.”[5]
[5] Freedom in the World 2016 – Thailand, Freedom House, NGE 43874C444

The UN News Service, 19 August 2016, reported:
“The United Nations human rights arm [has] expressed concern about the mounting constraints         on the democratic space in Thailand – calling for a prompt return to civilian rule.
“Following the military coup in May 2014, severe restrictions on freedoms of expression and              opinion and assembly have been in place through the use of criminal and military laws and          orders, said Chairperson Ravina Shamdasani of the Geneva-based Office of the UN High       Commissioner for Human Rights
“She elaborated that restrictions spiked in the lead-up to this month’s Constitutional             Referendum.
“Overall, at least 1,300 people have been summoned, arrested or charged, and 1,629 civilians tried before the military courts, “the spokesperson explained – “Since June, at least 115 people have been arrested or charged under military orders, criminal codes and the Constitution Referendum Act for expressing their opinion on the draft constitution or reporting human rights, including torture”, she added.
“Twelve people arrested in Chiang Mai Province in late July remained in detention, along with a          student activist who was incarcerated on 6 August. The others were released, but have been charged or remained under investigation.”[6]
[6] CX6A26A6E8511: “Concerned by curbs on free expression in Thailand, UN rights office calls for ‘prompt return to civilian rule.’” Human Rights Watch, NG2A465F52
Human Rights Watch in its 2017 reports that:
“Thai authorities at least 120 politicians, activists, journalists, and supporters of political movements who had criticised the proposed constitution, publicly announced they would vote “no” urged voters to reject the draft constitution, or sought to monitor voting…”[7]
[7] Human Rights Watch World Report 2017, Human Rights Watch, NG2A465F52
The Independent (United Kingdom), on 7 August 2016 provided a useful background to the current situation in Thailand:
“Thailand has endured 13 successful military coups and 11 attempted takeovers since it replaced      an absolute monarchy with a constitutional one in 1932. This would be Thailand’s 20^th constitution.
“Leaders of the latest coup say frequent political conflicts had made the country ungovernable           and the military rule was necessary for stability. The junta set up hand-picked committees to             draft a charter that would enshrine its declared goal of reforming politics by eliminating         corruption.
“But others believe the new constitution has a different aim: to weaken allies of former Prime            Minister Thaksin Shinawatra, the central figure in the roiling of Thai politics.
“Shinawatra’s political machine has easily won every national election since 2001, mainly due to        the support of working-class and rural voters who benefited from his populist policies. Leading      the other side is Thailand’s traditional ruling class and royalists – known as the “yellow shirts” –    unnerved by Thaksin’s support, especially as it contemplates its future. The King Bhumibol           Adulyadej, whose righteous rule has anchored the Kingdom since 1946, is 88 and ailing.
“The army ousted Thaksin in a 2006 coup, after “yellow shirt” protesters took to the streets and         accused him of abuse of power, corruption and disrespecting the king. He has lived abroad since 2008 to avoid prison for a corruption conviction that he says was politically motivated. The 2014             coup ousted his sister Yingluck Shinawatra, who was elected prime minister in 2011.
“Those who brought down Thaksin now seek to weaken major political parties, which would              ensure that real power stays in the hands of what is dubbed the permanent bureaucracy: the     military, the courts and other unelected guardians of the conservative bloc.”[8]
[8] CX6A26A6E8633 “Thailand votes by public referendum – to make its government even less accountable to the people”, The Independent (United Kingdom), 7 August 2016.
Finally, Strategy Page, on 13 July 2016 summarises Thai politics as follows:
“The pro-military parties (yellow shirts) that lost the national elections in 2011 used their continued control of the courts and the military to outlaw the elected government (‘red shirts’) after which the army stepped in to “keep the peace”. This was not a unique event in Thai history but most Thais are fed up with the coups. There have been twelve of them in the last 80 years, since a constitutional monarchy replaced the centuries old absolute monarchy…”[9]
[9] CX6A26A6E6468 “Thailand: The Military governments seek help from China” Strategy Page, 13 July 2016.
The issue of a s.438 Certificate
At the hearing the applicant was advised by the Tribunal (through the interpreter) that:
a)On 20 February 2017, the Tribunal received information about the applicant from the Department of Immigration and Border Protection
b)The Department of Immigration and Border Protection provided a certificate issued under s.438 of the Act.
c)That certificate indicates that the Department submitted the applicant’s Thai government issued passports for verification and were found to be a legitimately manufactured document, personalised in an appropriate manner with no alteration.
d)The certificate was by the Assistant Director, Protection Processing Administration (PPA) and the Delegate of the Minister for Immigration and Border Protection.
e)The Tribunal sought comment from the applicant (with assistance of the interpreter) about the Tribunal’s proposed decision that the certificate is valid and that the certificate’s information (to which it applied) was relevant to the applicant’s review because the information verified that the applicant had travelled to Australia on genuine and valid passports issued by the current authorities in Thailand.
f)The applicant provided no comments in response to this information as the Tribunal revealed to him.
g)Accordingly, the Tribunal finds the certificate is valid and that the information to which the certificate attached to is relevant to the applicant’s review because it relates to the applicant’s claims for protection.
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 expressed 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 have been reasonably 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 following:
….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 aims. This usually involves an assessment of the credibility of the applicant [s]. 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 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 & Another (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal accepts that based on the current country information referenced by the Tribunal and incorporated within this decision, Thai citizens in recent years, have participated in various political rallies and demonstrations supporting either the ‘red’ or ‘yellow’ shirt factions which have opposed each other in their struggle to assert their own ‘vision’ for the Kingdom of Thailand’s future. Indeed, the applicant, in the opinion of the Tribunal may have participated in such political demonstrations in favour of the ‘yellow shirt faction’ as did many thousands of other Thai citizens who held similar views (as he did). However, the applicant’s versions of events, and in particular his account of his political involvement and the consequences which he claimed to have experienced thereafter as a result of this political activity in favour of the now deposed Shinawatra government as submitted to the Tribunal raises certain issues of credibility.
The applicant claimed that he, of his own free will chose to support the Shinawatra government. He told the Tribunal that he joined the ‘United Front of Democracy against Dictatorship (the ‘NUDD’) and as a member of the NUDD, he recruited followers and persuaded people to attend the various rallies in support of the (now ousted) government and ‘democracy’ in Thailand. He also claimed because of these activities when the Shinawatra government was ousted in a military coup in 2006, he was on the Thai Military’s ‘black list’ and considered a person of interest and after a period of hiding in the southern parts of Bangkok, he left Thailand in 2008 to seek refuge in Australia. The applicant claimed that he continues to be a person of interest and if he was to return in future to Thailand he would be arbitrarily detained by the Thai military authorities.
The Tribunal accepts that the applicant was a ‘member’ as he claimed of the NUDD. He submitted a copy of a ‘membership identity card’ which in the Tribunal’s opinion validates his claim of belonging to an opposition group which opposed and opposes the current military regime in power in Thailand. However, it is the applicant’s other claims that raise significant issues of credibility. First, the Tribunal was told that the applicant was working for the NUDD and was an important member entrusted with the task of recruiting members and for organising political demonstration rallies against the Thai military and their establishment allies (the red shirts). This activity, the Tribunal was told placed the applicant’s name on a ‘black list’ and made him a person of interest for the Thai military government. The applicant also claimed that he had been involved in ‘…spy game by dark forces…’ which led to ‘aggressive fights…’ which he was involved in.[10] As a result of this claimed political activity, the applicant (after the coup in 2006) averted detention by discretely hiding in parts of south Bangkok until he was able to leave Thailand two years later in 2008. The applicant’s recollection of events lacks credibility. The information available to the Tribunal as far as it concerns the present situation in Thailand since the coup, presents a different picture of how the military deal with political opponents or persons of interest. Currently, many have been imprisoned or arbitrarily detained by the military and face an indefinite future (see country information). The applicant on the other hand, regardless of his claims of deep political involvement was able to elude capture and leave on a validly issued passport from Bangkok International Airport. A person who was considered a political opponent or a person of interest would not be able to elude capture for two years in a militarily controlled country or be issued by the same military government authorities with a valid travel document. Therefore, the Tribunal does not accept or find that the applicant’s participation or activities as a member of the NUDD or by him being a supporter of the deposed Shinawatra government caused him to have a well-founded fear of persecution for his political opinions or because he chose to associate in public with many others in a political party and organisation opposed to the Thai military government or that as a member of NUDD placed him on a ‘black list’ or made him a person of interest to the Thai military authorities or for any other reason pursuant to s.5J (a) of the Act.
[10] See applicant’s question response to Q.90 of his application for Protection visa, Department of Immigration File no. [number] Folio [19]
Second, the applicant claimed that he had been involved ‘…in a spy game by dark forces’ which led him ‘…to aggressive fights…’ The Tribunal notes at Q.94 of the applicant’s application form as submitted to the Department he claimed “….[I] was struck by them until I suffered a severe injury…’[11] At the hearing the Tribunal asked the applicant whether his involvement with others in demonstrations against the military and their supporters had he suffered any injuries and who injured him. In response, the applicant stated that he had been injured on his shoulder by ‘someone’ with a ‘rifle’. The Tribunal asked to applicant whether he had suffered ‘severe injuries…’ requiring him to attend hospital. In response the applicant told the Tribunal he did not go to hospital because the injuries were not serious. Again, this response by the applicant at the hearing down-playing his alleged injuries leads the Tribunal to conclude that such claims as to injuries inflicted upon the applicant because of his alleged political activities were included in his application for a Protection visa as mere embellishments of the truth so as to enhance the applicant’s claims for protection and therefore, the Tribunal finds and concludes that they do not have any substance and are not credible.
[11] Ibid Department File, see Folio [18]
Third, the applicant claimed that he feared to return to Thailand because of a ‘…spy game...’ he was involved in prior and after the 2006 military coup d’état which made him a person of interest to the military authorities and would cause him to be arbitrarily detained if and when he was to return to Thailand in the reasonably foreseeable future. Again, the applicant’s claims are difficult to reconcile with the circumstances which allowed him to come to Australia in 2008. He left on a properly issued and valid passport – issued by the Thai authorities without any problems and this leads the Tribunal to conclude that the claims of being involved in a ‘spy game’ which made him a person of interest to the Thai military were embellishments of the truth and of the applicant’s actual circumstances introduced by the applicant as a means to enhance his claims for protection while in Australia and therefore, in the opinion of the Tribunal not credible and therefore do not provide the applicant with a basis to claim to have a well-founded fear of persecution for his political opinions, activities or because of his association with any particular group which may be a concern or interest to the military authorities and allowing him to claim the protections provided for to persons as s.5J of the Act in toto provides.
For the reasons given by the Tribunal in paragraphs [48] to [52] above, the Tribunal does not accept that the applicant was forced or compelled to leave Thailand for his political opinions and beliefs or because he was considered by the Thai military authorities a person of interest because he and others had organised rallies and demonstrations in favour of the now deposed civilian government Shinawatra as he [the applicant] claimed if he returns to Thailand now. 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 by 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).
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) of the Act. For the reasons in paragraphs [48] to [52] above, the Tribunal does not accept that the applicant was forced to leave Thailand for his political opinions and beliefs as he claimed, or that he faced curtailment of his freedoms and possible arbitrary detention by the Thai military authorities because of his involvement in NUDD and in organising public support for the ousted civilian government of Shinawatra nor that there substantial grounds for believing that, as necessary and foreseeable consequence of his being removed from Australia to his country of reference – Thailand, there is a real risk that he will suffer significant harm because of his work as a political organiser for the NUDD having the task of gaining supporters to protest their support for the ousted Shinawatra civilian government.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 296

13 February 2020

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Immigration

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Statutory Interpretation

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Procedural Fairness

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Natural Justice