1702766 (Refugee)

[2019] AATA 6500

1702766 (Refugee) [2019] AATA 6500 (12 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702766

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Amanda Mendes Da Costa

DATE:12 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 November 2019 at 2:01pm

CATCHWORDS
REFUGEE – protection visa – Thailand – religion – Buddhist – fears harm from insurgency groups – purportedly attacked while praying at temple – migration agent fabricated claims – applicant abandoned protection claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Thailand applied for the visa on 26 April 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant had a well-founded fear of being persecuted if she returned to Thailand and was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there was a real risk that she would suffer significant harm.

3. The applicant appeared before the Tribunal on 6 November 2019 to give evidence and present arguments.  The Tribunal also heard evidence from Mr [A], the applicant’s [brother].

4. The hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was represented in relation to the review by her registered migration agent, who did not attend the hearing.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the visa application.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

13. The issues in this case are whether the applicant has a well-founded fear of being persecuted if she returns to Thailand and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant 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.

    Nationality and Identity

14. The applicant provided a copy of her Thai passport to both the Department and the Tribunal.  On the basis of this evidence, the Tribunal finds that the applicant is a national of Thailand which is also her receiving country.

15. She claimed that she speaks, read and writes Thai.  Her religion is claimed to be Buddhist.  She does not claim to belong to a particular ethnic group.

16. The applicant told the Tribunal that she had originally arrived in Australia in 1985 with her mother and [sibling], [Mr A].  They are now Australian permanent residents.  She was educated in Melbourne until the age of [specified] when she returned to Thailand to care for her elderly grandmother, who was unwell.  She subsequently married in Thailand where she and her former husband had three children. One is an adult and the two younger children are cared for by their paternal grandmother.  The applicant’s former husband and children still live in Thailand.

17. The applicant said that her marriage had been an unhappy one and she been the victim of family violence perpetrated by her former husband.  She returned to Australia following her divorce in 2007 and made subsequent visits in 2008 and 2009.  On each occasion she entered Australia on a Subclass 676 Tourist visa.  Whilst in Australia in 2010 she lodged an application for a Subclass 836 carer visa, on the basis that she was caring for her mother who had developed health problems.  This application was refused in 2012 and the applicant returned to Thailand later that year.  The applicant made a further visit to Australia in 2014 as the holder of a Subclass 600 Visitor visa and after arriving back in Australia in March 2016 made the protection application.  The applicant’s account of her recent migration history is consistent with that given in the delegate’s decision.

18. The applicant told the Tribunal that she wished to re-join her mother and brother in Australia and make Australia her permanent home.  The only reason she had left Australia when aged [age] was that her grandmother was on her own and had no other family member able to provide her with care.

    Application

19. In her visa application, the applicant makes the following protection claims:

    • Although Thailand is mainly a Buddhist country, many people in the regions of Yala, Songula and Naratiwat are Muslim.
    • Insurgency groups in these areas have committed several acts of violence such as killing policemen, burning fires of the road and setting schools on fire.
    • This violence has continued and the Thai Prime Minister started losing control over the situation.
    • The United Nations has not yet passed a resolution nor does it have any policies regarding this situation.
    • This issue has become an increasing concern and poses a danger for everyone in the area, including the area where the applicant was living.
    • Due to this situation and the authorities losing control of on a day to day basis and because many people have died as a result and it is unsafe to live there, the applicant decided to come to Australia and seek protection from the Australian Government.
    • The applicant considers that she would be in danger and feel insecure in such an unsafe place if she returned to Thailand.
    • When the applicant was praying in a temple in Thailand, someone was injured by a person throwing a bomb.
    • The applicant asked for assistance from members of her religion but they were facing the same fear as her.
    • The applicant cannot move to another part of Thailand because it is not safe anywhere for a Buddhist (such as the applicant). Most places in Thailand are the same in this respect.
    • The applicant is sure that she will be harmed if she returns to Thailand and she doesn’t want to be harmed again.
    • The applicant had tried to request protection from the authorities in Thailand but had not received any response from them.
    • The authorities in Thailand are not responsible for issues of racism.

20. The Tribunal asked the applicant whether she had read the delegate’s decision and was aware of the reasons for the refusal of her visa application.  When the applicant replied that she had not read the decision, the Tribunal provided the applicant with a copy of the decision.  It adjourned the hearing for a short period of time, to enable her to read through it with the assistance of the interpreter and the applicant’s brother who can read and speak English well.

21. When the hearing resumed the applicant said that she now understood the contents of the delegate’s decision.  She said that although she arrived in Australia on a visitor’s visa she had wanted a permanent visa.  The applicant told the Tribunal that she was not a refugee and had never tried to be one.  She explained that she had not filled in any of the information in the visa application form – this had been done by a man named [Mr B] who was introduced to her in Australia by her mother.  The applicant believed that [Mr B] was a migration agent and after telling him about her migration history and her wish to be a permanent resident, he completed the visa application form on her behalf.  The applicant said that as her written English was not good, she signed the form after [Mr B] had completed filling in the required information.

22. The Tribunal showed the applicant a copy of the visa application form from the Department’s file.  The applicant advised that it was not her handwriting on the form although it was her signature at the end of the form.  The applicant stated that the protection claims made in the visa application form were not correct and she did no provide that information to the man who completed her visa application form.  In particular, the applicant said that she did not leave Thailand because of the violent acts by southern insurgency Muslim groups; she was not injured by a bomb blast when she was praying in a Buddhist temple; she would not be in danger and feel insecure if she returned to Thailand; and the reason she wished to stay in Australia was to be with her mother and brother.  She reiterated that she didn’t come to Australia as a refugee.  She told [Mr B] that she wanted to stay in Australia and become a permanent resident so she could stay with her mother and brother.

23. The applicant’s brother, Mr [A] told the Tribunal that his sister had been disadvantaged because she returned to Thailand to care for their grandmother.  The siblings had kept in contact when the applicant was living in Thailand and Mr [A] had visited his sister there on several occasions.  He also provided her with financial support from time to time. Mr [A] said their mother had come here on a spouse visa and after her divorce, had studied [here].  Both Mr [A] and his mother are permanent residents.

24. Mr [A] told the Tribunal that there was no future for his sister in Thailand and he was shocked when he discovered that she had applied for a protection visa as there is no war in Thailand.  He also said that he feared what his sister’s former husband might do to her if she went back to Thailand and tried to visit her children there.

25. The Tribunal then questioned the applicant about her contact with her children and her former husband.  The applicant explained that her former husband was granted custody of their children following their divorce.  After he remarried the children were placed in the care of his mother.  The applicant said that whilst she was living in Thailand, she visited the children on a regular basis at the home of their grandmother who lived in the same town, (situated in north-eastern Thailand) as the applicant.  Although her former husband lives in the same town, the applicant didn’t see him when she went to visit the children and she had no difficulties in spending time with her children.  The applicant’s last contact with the children was in 2016, prior to her departure for Australia.

26. The applicant has not made claims that she faces a well-founded fear of persecution or a real risk of significant harm based on her religion, nationality or her ethnicity or any other membership of a particular social group not addressed in the findings above.  The Tribunal is satisfied there are no more residual claims to examine in this review application.

27. Based on the evidence before it (and in particular the applicant’s own admissions about the claims made in the visa application and her abandonment of her protection claims), the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one or more of the five reasons set out in s.5J(1) of the Act if she returns to Thailand now or into the foreseeable future.  Accordingly the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

28. 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).

29. Based on the evidence before it (and in particular the applicant’s own admissions about the claims made in the visa application and her abandonment of her protection claims), the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that the applicant will suffer harm by way of her being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).

30. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

31. 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

32. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Amanda Mendes Da Costa
    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.

    …