1703058 (Refugee)

1703058 (Refugee) [2020] AATA 2625 (11 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703058
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Vlahos
DATE:11 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 June 2020 at 8:38am
CATCHWORDS
REFUGEE – protection visa – Thailand – victim of human trafficking – fear of killing – criminal gang – forced prostitution – threats to family in Thailand – repaying debt to criminal gang – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 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 & 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 1 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 13 November 2015. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the delegate’s decision on 22 February 2017.
A hearing of the applicant’s application for review of the delegate’s decision by the Tribunal was scheduled for 25 March 2020.
The applicant was assisted at the hearing by an interpreter in the Thai and English languages and the applicant was represented at the hearing by a 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 to [name] (the ‘applicant’). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Based on a copy of the applicant’s passport, which was provided to the Department of Immigration & Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Kingdom of Thailand and has had his claims assessed against that country in relation to sections 36(2) (a) and 36(2)(aa) of the Migration Act (the Act).
On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
Background – Applicant’s migration and visa history
The applicant first arrived in Australia as the holder of a Class TU [Student] visa [in] January 2015. On 13 November 2015 the applicant lodged an application for a XA-866 Protection visa and the associated bridging visa was granted. On 14 April 2016 the applicant’s TU – 500 Student visa ceased.
EVIDENCE AT THE SCHEDULED HEARING
Background of the applicant
The applicant originates from Nakhon Ratchasima, Thailand. She is a Buddhist by faith and is [age] years of age and married. She has family living in Thailand which consists of her parents and her sister. The applicant’s husband has accompanied her to Australia. The applicant also told the Tribunal that she has child. The Tribunal notes that both the applicant’s husband and child are not part to this visa application review. The applicant and her husband arrived in Australia in 2015 due to the applicant having successfully applied and had been granted a student visa to study ‘English’. The Tribunal was told that the applicant did not pursue her studies.
The applicant’s migration/visa history
[In] January 2015 the applicant and her spouse arrived in Australia as the holder of Class TU [Student visa]. On 13 November 2015 the applicant lodged a valid XA- 866 Protection visa and was granted the associated bridging visa. On 14 April 2016 the applicant’s student visa ceased. On [date] the applicant’s child was born. On 1 February 2017 the Department refused the applicant’s protection visa On 22 February 2017 the applicant lodged her merits review application with the Tribunal.
The applicant’s claims for Protection
The Tribunal noted that the applicant made the following written claims in her application for Protection visa which was submitted to the Department:
§The applicant left Thailand because she feared for her life
§The applicant fears being bashed, kidnapped and forced to work in a brothel, may be even killed.
§[She} relocated from Naichon Ratchasima to [another city] then to Bangkok usually at night helped by a ‘close friend’.
§The ‘[Gang 1]’ is a power above the law which has networks everywhere in Thailand.
The applicant [through an interpreter] was asked by the Tribuanl whether the claims made by her to the Department required any amendment, changes or variations. In response the applicant told the Tribunal that she did not have any changes to make to her original claims for protection and wished the Tribunal to consider them as they represented the basis of her Protection visa application.
The circumstances which led the applicant to come to Australia
The applicant told the Tribunal that when she arrived in Australia she did not attend to her studies. She went on to tell, that [a person she could not identify by name] met her and her husband at [City 1] airport and took “…her to a brothel”.
The applicant stated that at first [when she had arrived] she was not aware of circumstances – that she had been placed in ‘brothel…’
The applicant stated that the place, unknown persons transported her to, was approximately ‘thirty (30) minutes from [City 1] Airport and that the colour – ‘pick…’ was a predominant feature of the inside of the building.
The applicant said that she stayed at this premises for approximately “…two to three weeks…” She went on to tell the Tribunal that at the ‘brothel’ the applicant did not have her husband (living with her).
The Tribunal asked the applicant – where did her family live while she worked at the brothel? The applicant stated that her husband lived – elsewhere.
The applicant was asked – did you live at the brothel and work there also? Her response was that she ‘worked’ and ‘lived’ at the brothel.
The applicant was asked the name of the brothel she lived and worked for the period of 2 to 3 months? She told the Tribunal that she ‘…could not remember the name of the brothel…’ She went on to tell the Tribunal that she was always kept inside and was never allowed outside and those that were there would not tell her anything.
The applicant was asked – whether she received any money during her time at the brothel? She stated that the brothel owners took all the money and she ‘…saw no money…’
The applicant said that her ‘work’ at this ‘brothel’ commenced in 2015 when she arrived in Australia and continued for ‘…2 to 3 weeks…’
The applicant was asked to explain in detail – what happened after the three weeks? The applicant stated that a ‘customer’ [the applicant’s description] ‘saw that something was wrong…’ and ‘agreed’ to ‘help me…’ The person described only as the ‘customer…’ helped the applicant to escape from the brothel.
The applicant then stated that her ‘ordeal’ was not reported to the [State 1] Police because she did not know the ‘English language well…’
The Tribunal asked the applicant – if she reported her problem to another organisation while here in [State 1]? Again, the applicant said that she did not report her ordeal to any other community organisation.
The applicant was asked – if her husband reported the matter to the [State 1] Police? Again the applicant said ‘no’ and this was also confirmed by her husband. The applicant told the Tribunal (and later, her husband) that they did not report this issue to the Police here in [State 1] because when this became known, the applicant’s family in Thailand would be threatened as a reprisal. The applicant went on to explain to the Tribunal that her family members in Thailand had been threatened since her escape became known to the criminal elements in Thailand. The applicant said that if she did not repay the expenses for being sent out to Australia her family will be killed. Similar threats [according to the applicant] were communicated to her and her husband – here in Australia. The applicant had been warned that she was not safe even if she was in Australia.
Again, the applicant told the Tribunal that she did not ‘report these threats’ to the Police because it would trigger reprisals against her family members in Thailand.
The applicant said that a ‘very big harm…’ will happen from the gang – she identified by the name, “[Gang 1]…”
The applicant explained to the Tribunal that ‘she’ and ‘her husband’ do not trust the police in Thailand and this lack of trust has influenced their thinking in Australia. Generally, in Thailand the police are corrupt and do the biding of the military and powerful business interests and care nothing about the ordinary person in the villages.
The Tribunal asked the applicant - why she had not returned to Thailand? The applicant said that she could not return because she had a debt to repay to the criminals that organised her visa to Australia. Unless this debt was repaid in full she could not return. Also, if she did return, she could only return to her family – with whom she lived and the criminals know the ‘address…’
The applicant stated that she is not currently working because she has a small child to take care of and both she and her husband are provided with ‘refugee assistance’ from [Centrelink], (amount of money is approximately, 89% (paid to the applicant of the normal pension amount received by a pensioner).
The applicant was provided with a two week period to provide any further information or documents which would assist the Tribunal in the determination of her protection claim.
Further information provided to the Tribunal
The applicant’s legal representative provided copies of emails which originated from [a named officer] of the Australian Federal Police’s Human Trafficking Team stating that the agent ‘had no success in contacting certain ‘named individuals.’ [1]
[1] AAT File No 1703058
The Tribunal was also provided with a statutory declaration dated 8 April 2020 from [name], the applicant’s migration agent attesting that the names of the applicant and others had been provided to the AFP for investigation of their claims that they had been ‘victims’ of a criminal human trafficking ring.[2] The declaration goes no to depose that the migration agent had not received any further notification from the AFP concerning their investigations.
[2] Ibid
COUNTRY INFORMATION – CRIMINAL ACTIVITY- THAILAND AND THE MILITARY AUTHORITIES
Law and order in Thailand is provided by the Royal Thai Police (RTP).
According to Interpol, in its report dated 21 October 2016[3]:
[3] CIS38A80122376: “Thailand Royal Thai Police”, Interpol, 21 October 2016
….the Royal Thai Police is under the direct command of the Prime Minister. With strength of about 230,000 officers and the RTP’s main functions are to:
·Provide strength to His Majesty the King, Her Majesty the Queen, the Heirs to the Throne, members of the Royal family, the Regent, Royal Representatives and Royal guests.
·Direct and supervise the operation of all police to ensure quality service and compliance with the laws.
·Prevent and suppress crime
·Maintain public order and national security
·Assist the public
·Perform other duties stipulated by Thai law
·Carry out law enforcement activities as assigned by the Prime Minister in support of national development.
The US State Department report on Thailand, 2018 provides the following information regarding Thailand’s judicial system:
The interim constitution provides for independent judiciary, although the NCPO issued orders that            prohibited members of the judiciary from making any negative public comments against the NCPO. Additionally, the interim constitution provides the NCPO with the power to intervene “regardless of             its effects on the legislative, executive, or judiciary…” to defend the country against national security             threats.
Human rights groups remained concerned about the NCPOs influence on independent judicial      processes, particularly the practice of prosecuting civilians in military courts. According to these           groups, the lack of progress in several high profile cases involving alleged police and military abuse       diminished public trust in the justice system and discouraged some victims of human rights abuses         from seeking justice.”[4]
[4] >
On the issue of trial procedures, the US State Department states:
The law provides for the presumption of innocence. There is no trial by jury. A single judge decides trials for misdemeanours; regulations require two or more judges for more serious cases. Prior to its suspension, the Constitution provided for a prompt trial, although a large backlog of cases remained in the court system. While most trials are public, the court may order a closed trial, particularly, in cases involving national security, the royal family, children or sexual abuse.
In ordinary criminal courts, defendants enjoy a broad range of legal rights, including access to a    lawyer of their choosing, prompt and detailed information on the charges against them, free    assistance of an interpreter as necessary, the right to be present at trial, and the right to adequate        time and facilities to prepare a defence. They also have the rights not to be compelled to testify or to confess guilt, to confront witnesses, to present witnesses, and to appeal. Authorities did not always              automatically provide indigent defendants with counsel at public expense, and there were allegations      authorities did not afford defendants all the above rights, especially in small or remote provinces.
In a 2014 order, the NCPO redirected prosecutions for offenses against the monarchy, insurrection,           sedition, weapons offenses, and violation of its orders from civilian criminal courts to military courts.         In 2016 the NCPO ordered an end to the practice, directing that offenses committed by civilians after             that date would no longer be subject to military court jurisdiction. According to the Judge Advocate    General’s Office, military courts initiated 1,728 cases involving at least 2,211 civilian defendants since    the May 2014 coup, most commonly for violations of Article 112 (lese majeste); sedition; failure to              comply with an NCPO order; and violations of the law controlling firearms, ammunition, and        explosives. As of August approximately 278 civilian cases remained pending before military courts.
Military courts do not provide the same legal protections for civilian defendants as do civilian criminal      courts. Military courts do not afford civilian defendants’ rights outlined by the 2017 constitution to a     fair and public hearing by a competent, impartial, and independent tribunal. Civilians facing trial for    offenses allegedly committed from May 2014 to March 2015--the period of martial law--have no right             of appeal.
INFORMATION CONCERNING THAI CRIMINAL SYNDICATES
According to a report ‘Asian Transnational Organised Crime and its impact on the United States: Developing a Transnational Crime Research Agenda’, (2006), the US Justice Department reported that:
Known by various synonyms including ‘criminal gangs’, ‘gangsters’, ‘mafia’, ‘organised criminal      groups’ or ‘syndicates’, felonious groups have a long history, and salient ongoing presence in Thailand and surrounding Southeast Asian nations. Furthermore, they operate at many scales ranging from the    local patch, to the transnational scale, often taking advantage of the region’s porous land and sea          borders. The scale of activity ranges from organised middle-range local crime such as pick-pocketing,           bag snatching, petty theft, burglary, mugging, intimidation, random violence, minor extortion, drug              dealing, card skimming, scamming, and pimping – to more serious crimes including drug smuggling,           drug production, people trafficking, sex-trafficking, child phonograph, counterfeiting, serious fraud,      money laundering, kidnapping-ransom, major extortion, extra-judicial debt-collecting, loan sharking, arms-dealing, murder, maiming, contract killing, trade in illicit good, stand-over tactics, violent           entrepreneurism, corruption of official, and nefarious influence peddling.[5]
Moreover, the advent of mass media and internet-based connectivity, in addition to providing new           opportunities for major globalised crime networks, has also led to brand-extension, with, for example,              some local gangs in Thailand emulating the fashions, paraphernalia and tattoos of North American gangster, such as the Mexican cholos.[6]
A local term for mafia/organised crime groups in Thailand is ‘Chao pho’ (also, ‘Jao pho’ or ‘Jao phro’)         which translates as ‘godfather’.[7] These operate in both urban and rural areas, and depending on          locality, may be involved in any of the aforementioned criminal activities. However, Thailand has       also been infiltrated by, or in some cases been a haven, for other organised criminal groups such as      the ethnic Chinese Triads/Tongs/Jiatou/Fuk Ching, the Japanese Yakuza, Malaysian Sindikets and      some European and American mafia groups.[8]
Thailand is ranked 76 out of 167 on Transparency International’s 2015 Corruption Perceptions Index, placing it in the middle belt of developing nations, along with India and Brazil, for example,       which are also ranked at 76.[9]
Despite this, Thailand does have a large Interpol connected police force and judiciary, and        nationals, foreign residents and visitors co-exist with a background level of crime comparable with          that of other developing nations in the region. Media such as The Polytechnic in 2015, reported on a perceived rise in criminal activity in large urban centres such as Bangkok and across Thailand          generally:
….Organised crime is a serious and rising issue in Thailand. Gangs operating at a high level of   crime often control and corrupt the local government. These groups are called chao pho,   which ironically translates to “godfather’, and act as a mafia. According to Thai authorities 39                 of Thailand’s 76 provinces are experiencing the tumult of the local chao pho….the crime in                 Thailand – especially Bangkok – is affecting the quality of life for citizens, and the military                   government is taking measures to cover up much of if in effort to preserve the lucrative   tourist business.[10]
[5] CISBE8E6BE770: “ASIAN TRANSNATIONAL ORGANISED CRIME AND ITS IMPACT ON THE UNITED STATES: DEVELOPING A TRANSNATIONAL CRIME RESEARCH AGENDA”, U.S. Department of Justice, 01 March 2006
[6] OGD95BE926619 2016: US Department of State, 2016. ‘Thailand 2016 Trafficking in Persons Report’, 30 June 2016
[7] CX1B9ECAB12502: “Bangkok’s Mexican Gangsters’ Coconuts Bangkok, 21 March 2014
[8] CXBDE6A0DE1811: “Crime on the rise across Bangkok”, The Polytechnic, 16 September 2016
[9] CX6A26AE11681: “Transparency International Corruption Perceptions Index 2015 – Thailand”, Transparency International, 01 January 2016.
[10] CXBD6A60DE18911: “Crime on the rise in Bangkok”, The Polytechnic, 16 September 2016

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

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

             Post Crime Rating: Medium

             Crime Threats

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

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

             Violent crimes (murder, rape, assault) against Americans and other foreigners are relatively rare. Those that do occur typically happen at night, often when victims (both male and female) have been             drinking and are separated from their travelling companions. These crimes are most common in      Bangkok, Pattaya, Chiang Mai, and tourist areas in southern Thailand, including Phuket, Koh Samui,        Koh Phangan, and Krabi. Sexually-motivated violent incidents, committed by both Thai citizens and visitors, are most likely to occur at parties, discos, or beaches, such as the Full Moon Party on      Phangan Island. There have also been reports of criminals using scopolamine or other “date rape”             drugs to spike drinks and rob their victims.
The same report goes on to say:
There are numerous international and indigenous organized crime elements operating throughout Thailand, but they are mainly concentrated within the major cities. Their activities include illicit drugs, human trafficking, prostitution, document fraud, production of counterfeit goods, etc.
FINDINGS AND REASONS FOR DECISION
The Issue of Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in its findings of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:
….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could be reasonably have been accepted….
The Tribunal also accepts that “….if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt….” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]. However, the Handbook states at (paragraph [204]):
….The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
That applicant claimed that she approached by certain persons in Thailand who organised her visa application to Australia with her husband. The applicant’s intention in coming to Australia was to study the English language. However, when she arrived in Australia, the Tribunal was told ‘unknown’ and ‘unnamed’ persons took her and her husband into forced custody and forced her to live and work at an illegal [City 1] brothel while her husband lived elsewhere. After a period of two to three weeks in servitude as a sex-slave, the applicant was assisted by a ‘customer’ of the brothel and both she and her husband were extracted from this servitude. However, the Tribunal was told the applicant and her husband fear their future because the criminal elements are both active here, in Australia, and also in Thailand, where there have been threats made to the applicant’s members and against the applicant.
The Tribunal has concerns about the applicant’s evidence and credibility.
Initially, the applicant provided very little evidence to the Tribunal about her first few weeks in Australia and her experiences at an illegally operating brothel in [City 1]. The Tribunal was told that when the applicant and her husband arrived, they were taken for a thirty minute drive to a premises that was [according to the applicant] ‘pink in colour’ in its interior. The applicant provided no further description even though she claimed to have lived there [against her will] for three weeks – at the most. Then, the Tribunal was told that a ‘customer’ of this brothel ‘felt concern’ for her and helped both the applicant and her husband to ‘escape’. The Tribunal was also told that the two did not want to report matters to the Police here in [City 1] because they would suffer the consequences both here, in Australia and with their family in Thailand when they returned.
Nevertheless, matters were [in a confusing manner] reported to the AFP as the written evidence provided by the applicant’s migration agent shows. The Tribunal accepts that there has been a report made of an alleged human trafficking ring for sex operating in some part of [City 1]. From what the Tribunal has observed from the documentation submitted, the investigation is possibly still ongoing and the AFP is still accumulating its evidence in this investigation. However, there have been no conclusive outcomes concerning the investigation thus far. That being the case, the Tribunal was not provided with any documentation – for example, witness statements or copies of CDs of recorded interviews made by the applicant to the AFP as far as it concerned her issues. As a standard procedure, an interview would have been conducted by the AFP and a copy transcript - electronic or voice recorded would have been created and exchanged. Nothing as such was produced to the Tribunal by the migration agent or by the applicant. This tends to lead the Tribunal to conclude that either the AFP had little evidence or information to proceed with a fully-blown criminal investigation or the investigation is still proceeding and the applicant’s part in it all was very minimal considering the time she stayed at the illegal brothel. Indeed, in the Tribunal’s opinion, the investigation seems to be seeking further information at the stage it is at – for example, the AFP agent is asking for further contacts in his last email to the migration agent. Therefore, the Tribunal accepts that the applicant may have been somehow involved in an issue of human trafficking for sex [while here in Australia] but she has been proper in having the matter dealt with (as her migration agent submitted) by the AFP which would provide her with all the assistance and protection – to her and her husband and child while they remain in Australia.
However, the applicant in her evidence before the Tribunal claimed that these criminal elements which involved her in an illegal brothel for two or three weeks in Australia, continue to threaten her family members in Thailand – her parents and have also communicated threats to the applicant if she returns to Thailand in the immediate future.
The applicant claimed that her trip to Australia with her husband was funded by these criminal elements and if the amount of money owed was not paid – the lives of the applicant, her husband, and child and family members will be threatened. Indeed, the applicant told the Tribunal that she could not live elsewhere in Thailand and needed to remain with her family. Also, she did not have the means to support her family if she moved to another part of Thailand. Finally, the Tribunal was told that the criminal gang involved would locate the applicant in any location in Thailand. This ‘fear’ was not explained by the applicant and very little was provided explaining this criminal gang described only as “[Gang 1]” via submissions provided to the Tribunal by the migration agent.
Furthermore, the applicant told the Tribunal that no report was made to the RTP (Royal Thai Police) by her family because the RTP could not provide assistance because they were ‘corrupt’ and did nothing in form of protection for ordinary people. The applicant had no confidence in the RTP in providing her and her family with protection if and when it was required if she was to return in the foreseeable future to her village in Thailand.
Firstly, the Tribunal in light of the evidence submitted after the hearing of the AFP’s investigations, accepts that the applicant and her family may have been threatened by some criminal elements operating in and around her village in Thailand. The Tribunal also accepts that there was some kind of financial dealings between the applicant, her family and the local criminals (as they were described by the applicant) which funded the applicant’s visa application to Australia. These facts appear in the applicant’s statutory declaration. The Tribunal also accepts that there were threats made to the applicant’s family and indirectly against the applicant. In her evidence before the Tribunal, the applicant stated that her family had not reported the threats to the local Royal Thai Police (‘RTP’). Her reasons for her family not reporting these threats was, that the RTP would not become involved in her family’s matter because they were under the ‘influence’ of these criminals to whom the debt was owed. The applicant doubted that the local branch of the RTP would provide her and her family any protection if she was to return to her village in the reasonably foreseeable future. According to her the ‘corruption’ of the RTP with the military provided no assistance for ordinary people like her. The Tribunal finds that the applicant did not present any sufficient reasons why her family could not have sought the assistance of the local police in order to provide themselves with protection when threatened (if they were threatened) by these criminals demanding money. No effort was made by them. They only assumed no protection will be provided to them. The same came be said in the Tribunal’s opinion about the applicant’s fears that when she returns to her village (with her family) and is threatened the local RTP would not intervene. Again, the applicant makes assumptions that this will be the case. In the Tribunal’s opinion, the applicant did not provide any credible reasons why the local police could not assist her if she desired protection for her person and family. Indeed, the country information referenced by the Tribunal indicates that in Thailand despite its recent economic and political problems [it] has a functioning police force and judicial system. The country information also reports that the Thai military authorities – which include the armed forces, police and the courts – are reasonably effective in combating local crime and protecting persons within their jurisdiction [and despite some systemic corruption existing in part] from criminals and criminal harm. Therefore, the Tribunal finds that effective protection measures as defined in s. 5LA of the Act are available to the applicant in Thailand and that she does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
For the reasons given in paragraphs [56] to [60] above, the Tribunal though the Tribunal accepts that the applicant and her family members had been threatened by local criminal elements, the applicant described as “[Gang 1]” for money the applicant owed to them, there was is no real chance that either the applicant or her family will face persecution involving serious harm because that debt could not be repaid by the applicant and was still outstanding, if she returns to Thailand now or in the foreseeable future. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as is defined in s.5J of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion of complementary protection in s. 36(2)(aa). For the reasons provided in paragraphs [56] to [60] above, the Tribunal does accept that the applicant though threatened by a criminal gang she described as ‘[Gang 1]’ because she could not pay a loan she had procured from this gang, there are no substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Thailand (with her husband and child) in the reasonably foreseeable future, there is a real risk that she (and her family and other family members) will suffer significant harm as she claimed and that she had no protection from the local police because of the influence these criminals exerted on the local police.
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa) of the Act.
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 2625

11 June 2020

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