1703304 (Refugee)
[2019] AATA 6809
•16 December 2019
1703304 (Refugee) [2019] AATA 6809 (16 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1703304
COUNTRY OF REFERENCE: Thailand
MEMBER:Frances Simmons
DATE:16 December 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 December 2019 at 2:59pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – not supporter of current government – no political activity or harm – long period without valid visa – no appearance at hearing – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 426A, 441A(5)
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 16 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 12 August 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations.
On 21 November 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing at 10:30am on 16 December 2019. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also sent two SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing and nor did he contact the Tribunal to explain his failure to appear or request a postponement of the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Application to the Department
The applicant is a [age]-year-old national of Thailand and a Buddhist. According to the information he provided in his protection visa application, his mother, [a number of siblings] and two [children] reside in Thailand. He lived in one address in Bangkok, Thailand. He completed High School in 1987 and had worked in [work sector].
The applicant arrived in Australia on a tourist visa (subclass 676) [in] March 2003. His tourist visa ceased [in] June 2003 and he remained in Australia without a valid visa until he lodged a Protection visa application on 12 August 2016 and was granted an associated bridging visa on 16 August 2016.
In his application for protection visa, the applicant claims he fears for his safety because he does not support the current government. He claims that is very dangerous for him as Thailand is now under military rule. He is a normal person and he has the right to vote. The government is Thailand is not democratic.
The applicant was asked whether he had ever experienced harm in Thailand and he ticked no (question 91, protection visa application).
The applicant claims that he fears being arrested, sent to prison and being treated badly in prison. When asked why he thinks he would be harmed or mistreated if he returned to Thailand the applicant stated:
They put me in prison, they do not look after properly, some get bashed, they treat prisoner like slave. Not enough food. No medical. Have no right to say anything.
The applicant states ‘in Thailand military have power’, the military are corrupt, and ‘nobody can protect’ him. He cannot relocate because wherever he went he would still be in fear. He believes that the government must be selected by the people. He claims that there is no freedom to speak in Thailand. He fears for his safety in Thailand.
The applicant did not provide any documents to support his application for a protection visa.
The Department did not conduct an interview with the applicant. The delegate found that the applicant only made general claims in relation to the situation in Thailand and do not relate to personal circumstances or experience. The applicant provided a copy of the delegate’s decision to refuse to grant the applicant a protection visa with his application for review.
ASSESSMENT OF CLAIMS AND EVIDENCE
On the evidence before it, the Tribunal accepts the applicant is a citizen of Thailand.[1]
[1] Tribunal file, f.8 (biodata page of Thai passport)
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[2] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The country information before the Tribunal indicates that Thailand is a constitutional monarchy, with King Maha Vajiralongkorn Bodindradebayavarangkun as head of state. In a 2014 bloodless coup, military leaders, taking the name National Council for Peace and Order (NCPO), overthrew the civilian government administered by the Pheu Thai political party, which had governed since 2011 following lower house elections that were generally considered free and fair. Since then the military-led NCPO maintained control over the security forces and all government institutions and has issued numerous decrees restricting freedom of speech, assembly and press. [3]
[3] Tribunal file, f.2-3 (delegate’s decision); United States, State Department, ‘Thailand 2018 Human Rights Report’, available online < >
The information before the Tribunal about the applicant’s claims with his application for a protection visa is scant and lacking in meaningful particulars about why he believes he will face harm if he has to return to Thailand. The written claims set out in the applicant's protection visa application are vague but assert that the applicant will face harm for reasons relating to his political opinion. The applicant indicates he has not experienced harm in Thailand in the past but does not provide any detail that would explain why, as a result of the military coup, the applicant would now be at risk of harm in Thailand because of his political opinion. Had the applicant attended the hearing, the Tribunal would have asked him to provide further information about the basis for his claim that he would be imprisoned and mistreated if he returned to Thailand. The Tribunal would have questioned him about his objections to the military government in Thailand and whether he has engaged in any political activities in Australia and sought further detail about why he believes he would face harm in Thailand because of his political opinion.
The hearing invitation put to the applicant on notice that the Tribunal had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The applicant's claims are vague and lack meaningful detail about the situation that has led to his claimed fear of harm. As noted above, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. The evidence before the Tribunal lacks any detail about the applicant’s past activities as well as information about whether he is currently involved in any political activity and on what basis he believes he will be imprisoned and/or harmed if he returns to Thailand.
The information before the Tribunal indicates that the applicant arrived in Australia in 2003 and, while in Australia, had his Thai passport reissued [in] 2016. No explanation has been provided as to why he did not apply for a protection visa until 2016, well over a decade after he first arrived in Australia. Had the applicant attended the hearing, the Tribunal would have discussed his immigration history with him and sought his views on independent country information about the political situation in Thailand. The Tribunal would have explored with the applicant the situation of his family members in Thailand and any similarities and differences between his family members and his own situation.
The applicant filed a copy of the delegate’s decision with his application for review. The delegate’s decision notes that the applicant did not claim he would assemble as protestor in an unauthorised demonstration or that he would speak against or publish anything critical of the royal family or the current Thai government or that he would fail to comply with an NCPO order. No additional evidence or claims have been provided to the Tribunal. There is nothing before the Tribunal that indicates that the applicant has been involved in any political activity, including any pro-democracy movement or any other movement, political group or party in Australia.
On the limited evidence before it, the Tribunal is not satisfied that the applicant has been politically active in Australia or Thailand.
The applicant has not claimed to have experienced harm in Thailand in the past and the Tribunal finds he has not experienced harm in the past for reasons related to his political opinion. The limited information the applicant provided with his protection visa application is not sufficiently detailed to be capable of satisfying the Tribunal that there is a real chance that he will face serious harm or significant harm if he returns to Thailand now or in the reasonably foreseeable future on the basis of his political opinion or for any other reason. It follows that the Tribunal is not satisfied that there is a real chance he will face harm or mistreatment from the authorities or anyone else on return for reasons related to his political opinion or for any other reason. On the information available to it the Tribunal does not accept that the applicant has a genuine subjective fear of being harmed for reasons relating to his political opinion or for any reason if he returns to Thailand, now or in the reasonably foreseeable future.
On the evidence before it, the Tribunal is not satisfied that the applicant will engage in any political activities if he returns to Thailand. While the applicant may not support the current military government in Thailand, the Tribunal is not satisfied that he is a political activist of any type and does not accept that he would be motivated to take political action against the military government or to engage in any political activities about the political situation in Thailand. The Tribunal is not satisfied that there is a real chance that the applicant will be arrested, imprisoned, beaten, killed or otherwise harmed because he does not support the current military government or for any other reason.
Having considered the applicant’s claims, the Tribunal is not satisfied that he has a political profile that will attract the adverse attention of the Thai authorities or that there is a real chance that he will be persecuted or face harm of any type in Thailand because of his actual or perceived political opinion. On the limited evidence before it, the Tribunal cannot be satisfied that the applicant faces a real chance of serious harm or significant harm in Thailand for reasons of his political opinion, or any activity he has undertaken in Australia, now, or in the reasonably foreseeable future.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. His fear of persecution is not well-founded as required by s.5J of the Act. Therefore he is not a refugee within the meaning of s.5H.
The Tribunal has considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from the authorities, police or anyone else for any reason if he returns to Thailand, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the definition.
Having found that there is no real chance that the applicant will face persecution for any reason, the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. On the limited evidence before it, 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 significant harm for any of the reasons claimed or for any other reason.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). 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.
Frances Simmons
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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