1703341 (Refugee)

1703341 (Refugee) [2020] AATA 4201 (1 July 2020)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703341
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Vlahos
DATE OF DECISION:  1 July 2020
DATE CORRIGENDUM
SIGNED:15 October 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
·On page 12, the paragraph number ‘17’ should be deleted, and replaced with paragraph number ‘71’;
·On page 13, the paragraph number ‘68’ should be deleted, and replaced with paragraph number ‘72’;
·On page 13, the paragraph number ‘69’ should be deleted, and replaced with paragraph number ‘73’;
·On page 13, the paragraph number ‘70’ should be deleted, and replaced with paragraph number ‘74’;
·On page 13, the paragraph number ‘71’ should be deleted, and replaced with paragraph number ‘75’;
·On page 14, the paragraph number ‘72’ should be deleted, and replaced with paragraph number ‘76’;
·On page 14, the paragraph number ‘73’ should be deleted, and replaced with paragraph number ‘77’;
·On page 14, the paragraph number ‘74’ should be deleted, and replaced with paragraph number ‘78’;
·On page 14, the paragraph number ‘75’ should be deleted, and replaced with paragraph number ‘79 ‘;
·On page 15, the paragraph number ‘76’ should be deleted, and replaced with paragraph number ‘80’;
·On page 15, the paragraph number ‘77’ should be deleted, and replaced with paragraph number ‘81’.

Peter Vlahos
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703341
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Vlahos
DATE:1 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 1 July 2020 at 6:36am
CATCHWORDS
REFUGEE – protection visa – Thailand – procurement of loan with a loan shark – promise of training and work in Australia – forced into sex work – threats made to family by money lender – credibility concerns – country information – effective State protection – state action taken against illegal moneylenders in Thailand – anti-Money laundering laws – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5LA, 36, 65, 499
Migration Regulations 1994, 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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Thailand, applied for the visas on 20 April 2016. The delegate refused to grant the visas 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 26 February 2017.
A hearing of the applicant’s application for review of the delegate’s decision by the Tribunal was scheduled by telephone for 26 March 2020.
The applicant was assisted at the hearing by an interpreter in the Thai and English languages and the applicant was represented by a registered migration agent.
The applicant’s wife (the ‘second applicant’) also presented evidence to the Tribunal.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether Australia has protection obligations in respect of first – named applicant and subsequently the second-named applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicants’ identities and country of origin
Based on a copy of the applicants’ passports, which were provided to the Department of Home Affairs (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Kingdom of Thailand and has had their individual and collective claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.
On the basis of the above-mentioned evidence before the Tribunal, the Tribunal further accepts the applicants’ identity as claimed.
The Department’s file
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicants provided a copy of the departmental record of decision to the Tribunal with the review application.
Background – the applicants’ migration history
The applicant (hereinafter ‘the main applicant’) arrived in Australia as a dependant on his wife’s [temporary] visa. On 12 April 2016, the [temporary] visa was cancelled and the applicant (and the second –named applicant) became an unlawful non-citizen. On 20 April 2016 the applicant lodged a Class XA subclass 866 Protection visa and was granted the attached Bridging visa.
EVIDENCE AT THE HEARING
Background of the applicants
The applicant originates from [City 1], Thailand. He is [age] years-of-age and is married with child. His religious affiliation is ‘Buddhism’ and has stated in his application form that his occupation (while in Thailand) was that of a labourer.[1] He has family still living in Thailand and his family consists of his parents and his [sibling]. The applicant’s [child] (born in [year]) lives with the applicant’s parents.[2]
[1] see Department of Home Affairs File [number] folio [62]
[2] Ibid Department file, see folio [60] Other family members not included in Part B
The applicants’ claim (s) for protection
The Tribunal noted that in his original application for Protection visa which was submitted to the Department and the subject of this review, the applicant’s claims were as follows:
§The applicant and his spouse left Thailand because “influential people” were hurting them.
§If the applicant returns to Thailand he fears being attacked, kidnapped or killed.
§He and his family have tried to relocate but without success – nowhere is safe (in Thailand) and “The Hilltop” (gang) is a power above the law.
The applicant was asked by the Tribunal whether there were any further claims he and his wife would expect the Tribunal to consider in addition to the above claims. The applicant through the interpreter informed the Tribunal that the claims that were before the Tribunal were not his claims or those of his wife. These had been drafted by a third party who was neither a legal representative nor a migration agent properly registered. This situation was confirmed by the applicant’s current migration agent, [named].
The applicant having informed the Tribunal of his situation proceeded to provide the Tribunal with his current claims with the assistance of his migration agent and they were (summarised) as follows:
§The applicant and his wife were promised by persons in Thailand training and work in Australia.
§They were provided with a visa and passport on condition they procured a loan with a local loan shark (for the financing of this employment opportunity) in the amount of 800K baht. The amount of 650K baht was for ‘study’ in Australia and a further 150K for airfare.
§However, matters in Australia proved very different and difficult for the applicant and his wife. His wife was forced for a short period of time to work as a ‘sex worker’ in a local brothel in Sydney.
§After a week, the applicant’s wife and the applicant left Sydney.
§However, the applicant claims that the debt is still continuing amounting to an increase of 80K per month. It is claimed that it had increased to 2.25m baht.
§The applicant and his wife cannot repay this sum of money and fear that upon returning to Thailand they will be tortured, and even killed by those to whom they own the money.
§They hold no hope of receiving any protection from the Thai military or civilian police authorities.
The applicant and his wife provided the following documents in support of their claim for Protection. They are as follows:
§Statutory Declaration by the first-named applicant dated 1 May 2020
§Statutory declaration by the second-named applicant dated also 1 May 2020
§Bank Statement recording various monetary transfer transactions originating from the applicant to his family members in Thailand
§[Child]’s birth Certificate (in the Thai language) (no translation provided)
The applicant told the Tribunal that both he and his wife decided to leave Thailand after they had discussed ‘Australia’ and ‘study in Australia’ with another person (the applicant) identified as “[Person A]”. This individual extolled the benefits of study in Australia and other employment opportunities which the applicant and his wife found appealing.
The applicant stated that the entire project required the applicant to borrow approximately 800K baht. He went on to explain, that 650K baht would be paid for the applicant wife’s studies in Australia and a further (approximately) 150K baht for airfares and initial living expenses in Australia.
What followed, according to the applicant was that he was told by [Person A] to contact a “[Mr B]…” a local moneylender and to organise the loan as had been discussed.
At the meeting with [Mr B], the applicant said that the loan agreement’s terms were discussed and were agreed to as follows: (1) The applicant would borrow 800K baht, (2) at an interest rate of 10 % per month. There was no written contract. Indeed, in discussing the agreement with [Person A], the applicant stated that he was told that he would have no issue meeting the interest payments because he would be earning a considerably good amount of money – working in Australia.
Indeed, the applicant told the Tribunal that it was his understanding of the entire arrangement - that he would be able to earn 40K to 60K baht working in Australia and therefore would have no problems in servicing the loan he had agreed to with [Mr B].
The applicant stated that the agreement was finalised on 1 February 2015 and on 22 February 2015 the applicant and his wife left for Sydney, Australia.
The applicant stated that the person called ‘[Person A]’ had organised everything in Australia.
When the applicant and his wife arrived in Australia, they were taken to local hotel, where it operated as the applicants temporary accommodation (at AUD$330.00 per week) for two weeks. The applicant’s wife on the other hand, the Tribunal was told, applied for a ‘…massage job…’
The applicant said that his wife agreed to do massage work even if it was difficult because ‘…the money was good…’ However, the applicant and his wife were not told that ‘massage work’ would involve also ‘…sex…’ The wife disagreed with this line of work and did not return to the massage parlour.
The applicant admitted to the Tribunal that he and his wife have not received any threats from the owners of the massage parlour because of his wife’s refusal to work there as a masseur and sex worker.
After the massage parlour, the applicant (husband) worked at a [business] for three days a week earning approximately AUD$60.00 per day. This employment at [the business] is still continuing.
The applicant was asked – how much money does he and his wife owe to the moneylender, [Mr B]? The applicant stated that the debt owed to [Mr B] was approximately 2.5m baht. The applicant again confirmed for the Tribunal that there was no signed contract in existence between him and [Mr B]
The applicant was asked – did he and his wife make payments to the moneylender, [Mr B] while they have been in Australia? The Tribunal was told that payments were sent electronically to his father’s bank account in Thailand, and the applicant’s father would complete the process by paying [Mr B] directly.
The applicant was asked to tell the Tribunal – how much money has he and his wife managed to send to Thailand for repayment of the loan? The applicant told the Tribunal that both he and his wife had managed to send to Thailand approximately 80, 000 baht. The applicant did not clarify at the hearing how his father paid over to [Mr B] the money. He subsequently submitted a bank statement with various figures on it – recording the fact that money had been transferred from Australia to Thailand to his father and various other members of the applicants’ family.
The applicant was asked – whether there had been any threats levelled by [Mr B] or any person associated with [Mr B] because a large sum of money was still unpaid and outstanding? The Tribunal was told by the applicant that ‘threats’ had been made against the applicant’s family – if the money owed and interest was not fully paid. The applicant went on to tell the Tribunal that he had been told by his father, that [Person 1] told him that if the money was not paid – the applicant ‘…would no see his family again…’
The applicant was asked – had the local Thai police been approached following these threats and asked to intervene and provide some protection? The applicant told the Tribunal that that the police have not been told because the police (Thai) will do nothing to these moneylenders.
Therefore, according to the applicant it is better for him to remain in Australia and to work as he is currently doing in order to continue paying-off his debt to [Mr B]. He went on to tell the Tribunal that if he was returned to Thailand, he would not be able to find employment to pay-off his debts because he does not possess the necessary education to be able to find better employment.
The Tribunal asked the applicant – did he have in his possession any documentation which proved that he had a substantial debt owing to [Mr B] as he claimed? The applicant again told the Tribunal that he had no such documentation in his possession.

EVIDENCE FROM THE APPLICANT’S WIFE

The applicant’s wife told the Tribunal that she and her husband could not be returned to Thailand because the two had no other means open to them to work (as they did in Australia) and earning the money to pay-off the loan still outstanding to [Mr B].
The applicant’s wife reiterated that the amount of money owing to the moneylender was always increasing because of the unpaid interest.
The applicant’s wife also told the Tribunal that “sometimes” the money she and her husband transferred to the applicant’s father in Thailand “was not even enough to support” the couple’s family.
It was the applicant wife’s opinion, that as long as the two remained in Australia, they would at least attempt to manage the debt and at the same time provides financial assistance to their family members in Thailand.
COUNTRY INFORMATION – ILLEGAL MONEYLENDERS IN THAILAND AND THAI STATE ACTION
The Thai Examiner.com on 10 February 2019 reported the headline news that “14 Wealthy loan sharks take in by Thai police as money lending menace and debt remain a big problem.”[3] The report goes on to say that the Thai police arrested in Bangkok 14 loan sharks lending money at a daily rate of up to 20%. The paper also expressed the view, that the illegal business of the loan sharks had created a “chronic personal debt problem “in Thailand that is not lessening but increasing. This is the case, despite nearly 5 years of genuine and substantial efforts by the Thai authorities, including the regulation of casual lending and police enforcement against those who continue to abuse vulnerable Thai lenders.
[3] >
The article goes on to say that since the current government came to power in 2014, it has (together with the authorities) worked hard to take on the menace of illegal money lending which is also linked to other criminal abuses. While there had been a (according to the report) a “genuine effort” to combat the problem, much remains to be done. At the end of 2018, one survey found that nearly 78% of Bangkok households are currently in debt with over 53% falling behind on monthly repayments.
That being the case, Thai police stepped up their campaign against illegal money lenders in Bangkok when no less 14 (according to this report) wealthy loan sharks were rounded up in raids in the eastern suburbs of the city. The raids, carried out by the Metropolitan police, targeted a money lending gang with links to criminal gangs who were believed to have infiltrated the lucrative market.

In Thailand, unfortunate people with debts and financial pressures succumb to borrowing money at exorbitant, almost unbelievable, rates of up to 20% per day. The latest arrests in Bangkok are believed to be in relation to a particular gang known for the use of motorcycle helmets as they drive around the city collecting payments from debtors. Thai police believe that very wealthy and well connected individuals may be behind the illegal activity which causes untold misery for borrowers and their families.
For the last few years, Thailand has been waging a war against illegal money lending. When the military government came to power it identified the problem as a priority. For the first three years, many initiatives were launched to encourage Thai people using causal of short term borrowing facilities to open bank accounts and seek assistance from banks, particularly government owned banks in Thailand such as the Government Savings Bank. The government also introduce regulation and initiatives to bring some casual lenders under its control setting strict limits on annual interest rates to be charged. The initiatives included targeted lending programs which assisted thousands borrowers and involved billions of baht in loans.
Simultaneously, Thai police with the assistance the military have been called in to get tough on the illegal loan sharks and purveyors of misery who continued in the trade despite being warned off. In Bangkok, Thailand’s Immigration police, in the last few months, identified dozens of Indian money lenders who managed to extend their immigration visas using illegal arrangements with Thai women who masqueraded as their wives. The operation saw Thai police going to court to get orders to reverse marriages that had been registered legally but were, in fact, sham arrangements. All involved were arrested and faced prosecution and where applicable, deportation.
For the last twenty years, Indian money lenders have been a significant feature of the casual money lending business in Thailand. The money leaders regularly visit small business people operating stalls or small shops in Bangkok and other Thai urban centres. They develop their lending networks by word of mouth. Thailand’s Immigration Police, where they have apprehended these illegal money lenders found to be in breach of Thailand’s immigration laws, have promptly deported them and in many instances, placed them on immigration blacklists.
Another tactic employed by the illegal lenders is money lending through the sale of goods on instalment. The problem of causal money lending in Thailand can see some borrowers pay up to 60% of their salary every month just to keep multiple creditors at bay. Many chronic borrowers have to revolve loans just to pay off other loans in an endless cycle. The matter is even more pressured for some middle class Thai people, often with government jobs in the civil service, who have loans from reputable financial institutions but also resort to casual lenders when they cannot make monthly repayments and provide for emergencies.
A recent report shows that up to 74% of Thai households have, in the past, defaulted on a debt or repayment. Thailand has some quite progressive bankruptcy legislation on its books but, at the same time, places strict requirements on civil servants whereby bankruptcy results in automatic dismissal and the loss of career for the person involved. This is an aggravating factor for many under financial pressure. Another key facet of Thailand’s relationships with borrowing and casual lenders is the fact that many Thai people own land in the country which often can act as collateral for loans or even casual loans.
Last year, a series of swoops by the military and police, working together, saw land ownership documents returned to Thai borrowers after they were seized from money lenders who were found to have breached Thailand’s laws governing financial lending in particular maximum annual interest rates. The raids, involving the Thai military and police, saw a heart-warming ceremony in August 2018 in which Thailand’s Deputy Prime Minister Prawit Wongsuwan handed land registry documents back to no less than 684 delighted borrowers in the north of Thailand.
The links between criminality, violence and abuse is another disconcerting facet of the causal money lending trade. Last year, a Thai couple was arrested by Thai police after a Thai woman reported that she had been illegally detained and sexually assaulted. It was alleged that the duo had met the creditor and took her to a house which she was first assaulted and then raped by the man. Thai police arrested a 32 year old Thai women and her 44 year old husband. It is reported that the duo were charged with illegal money lending, illegally detaining the woman, assault, robbery and rape. The couple denied the charges made against them.
It was reported that the 26 year old Thai women had borrowed ฿100,000 from the man and the woman. At a meeting they are reported to have bundled into their truck in the Sri Racha area of Chonburi. They then took her to a rented house where the assault and rape took place. It was reported that after the attack the couple could not be found for two week until Thai police located them in Prachuap Khiri Khan Province. The police investigation into the matter concluded that the couple had been lending sums of money to less well-off people at a daily interest rate of 20% in the area. They had engaged in threatening behaviour and even damaged the property of creditors who could not meet the repayment obligations which they imposed. The police probe resulted in more people coming forward against the money lending couple. The initial police complaint was filed in early May 2018 and two weeks later the couple were charged.
Thai government introduced money lending license and tight regulation in 2017
The Thai government has sought to regularize the causal money lending trade by introducing legislation requiring money lenders to be licensed and limiting the interest rate to not more than 15% per month or 36% per annum. Known as [Pico finance] licenses, the scheme has seen hundreds of companies licensed throughout Thailand to provide legal loan services on a casual basis. Figures to the end of 2017 showed loans of nearly ฿220 million extended with a remarkably low non performing rate of only 2%. However, the biggest assistance to poor or less well-off Thai borrowers has come from government schemes in association with national lenders such the Government Savings Bank which has seen billions of baht lent. The problem with household debt in Thailand is a big one. It is a singularly powerful economic issue weighing on the Thai economy. Despite healthy growth in the Thai economy last year, a report last October showed that nearly 78% of Bangkok households were in debt with over 53% running behind on monthly commitments and repayments.
Loan Services/Factoring/Loan Broking/ Fine trading. According to the government’s estimates, there are about 200,000 informal lenders in Thailand, many of which charge excessive interest rates, creating an unfair burden for borrowers. The Thai government and relevant agencies have tried to reduce such illegal loans with various schemes such as the abovementioned non-bank services.[4]
[4] >
There are 2 groups of service providers that require licenses: commercial banks licensed under the FIBA, and non – bank service providers licensed under the Notifications of the MOF. No license fee is charged for any of the licenses.

          For Non – bank service providers, previously, there are three types of loan businesses            which are regulated by the Bank of Thailand (“BOT”) and are required a license prior to       conducting such regulated businesses, as follows:
a.          Personal Loan under Supervision (P-Loan). Under the Notification of the BOT    regarding Personal Loan, the Personal Loan under supervision is the loans   without collateral provided to individuals, without a specific purpose, or with the   purpose of buying goods and services for private consumption, or to use for   business operations, including leasing and loans secured with cars.
                   The notification regarding personal loan has just been amended in January 2019   to include loans with insured cars to be under the supervision of the BOT.
b.               Retail Loan for Occupations under Supervision (Nano Finance). This is to    provide loans up to Baht 100,000 to an individual, without collateral, to use for   business operation purposes. The total interest, fines, service fees, and   charges shall not exceed 36% per year (effective rate).
c.                Provincial Retail Credit under Supervision (Pico Finance). This is to provide    loans with or without a specific purpose to an individual seeking to borrow up to   Baht 50,000, with or without collateral. The total interest, fines, service fees, and   charges shall not exceed 36% per year (effective rate).
Recently, On April 29, 2019, the BOT issued Notification 4/2562 Re: The Determination of      Rules, Procedures, and Conditions for Peer-to-Peer Lending Businesses and Platforms,            which became in effective on the following day.

              The notification is Thailand’s first legislation relating to P2P lending, and it provides a             number of parameters within which P2P platform providers and P2P lenders must operate. It          defines a P2P platform provider as a person who provides an electronic system or network       for        P2P lending, and a lender as a natural or juristic person who offers     a loan through an electronic        system or network (excluding crowdfunding providers). Apart from that, the Notification also               prescribes certain requirements and rules for conducting P2P Lending platform business in               Thailand.

              Platform providers subject to the P2P Notification must comply with the required      qualifications and professional standards and must be financially sound. They must also i) not be    a financial institution, ii) be a company incorporated in Thailand, iii) have a         minimum paid-in              capital of THB 5 million, and iv) have at least 75% of its shares held by Thai       nationals. Platform          providers are also prohibited from holding the money, property and securities of the               lenders and borrowers, so a qualified custodian is required. Custodians must be either           authorized custodians under Securities and Exchange Commission (SEC) regulations or      authorized commercial banks (for escrow accounts) under BOT regulations.

              The P2P Notification restricts borrowers to natural persons, and prohibits borrowers from      being platform providers, directors, or authorized persons of the platform providers.           Borrowers must also not have previously obtained personal loans from three lenders. The P2P          Notification also sets credit limits based on the borrower’s monthly income and cash inflow into        the borrower’s deposit account, and may be set at a higher rate if the loan is for business              purposes. Lenders, however, may be natural or juristic persons who are not platform             providers and individual lenders are set a maximum credit limit of THB 500,000 per year.

It was further reported on 3 October 2019, that the Thai government had approved a draft regulation which would allow financial institutions to scrutinise their customers’ source of money, to prevent money-laundering and terrorist financing.[5] Rachada Dhnadirek, a deputy government spokeswoman, said the cabinet approved the draft regulation proposed by the Anti-Money Laundering Office (AMLO), which is intended to bring its powers on a par with international standards.
[5] >
“The draft contains a set of improved criteria to examine the information of financial institutions’ customers” said the government spokeswoman. The draft regulation will affect investment consultants, gem and gold traders, real estate brokers, electronic payment providers, antique traders under the law governing auctions and antique trade, and non-bank credit companies.
Under the draft regulation, business will be compelled to suspend business transactions with customers whose financial activities are deemed suspicious, and report them to AMLO. “…For cross-border transfers exceeding 50,000 baht, both the ordering and the recipient institution will be required to obtain information about the origin of the funds, as well as both the sender and recipient…” said the government spokeswoman.
The draft law was proposed after Thailand failed to meet the International Standard for Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT), with 17 areas listed as needing further improvements.
It is a widely held opinion in Thailand that to improve Thailand’s score, the government must begin requiring financial institutions to examine the activities of customers who hold political positions, and ban institutions from approving transactions that might be related to criminal and terrorist activities.[6]
[6] ibid
The role of AMLO in Thailand: Anti-Money laundering laws strengthened
The Anti-Money Laundering Act B.E. 2542 (the “AML Act”) was recently amended by Amendment No. 5 which took effect on 9 October 2015. The new amendment makes changes to provisions to be in-line with the current anti-money laundering situation, to increase enforcement efficiency, and to conform to international standards. Key changes are as follows:[7]
[7] predicate offenses Additional predicate offenses have been added such as offenses             relating to human trafficking, online gambling, and offenses relating to unfair practices in relation to            derivatives and agricultural commodity futures.
2. Expanded scope of money laundering offenses The AML Act now includes “knowingly acquiring,           possessing or using Assets Connected to Illegal Activities” as one of the acts that is considered as a      money laundering offense.
3. Onboarding policy and customer due diligence The AML Act now subjects all types of Reporting           Entities under section 16 of the AML Act (instead of only Financial Institutions and certain types of       Reporting Entities) to the obligations under section 20/1 to (a) stipulate a policy on onboarding clients         and risk management and (b) conduct customer due diligence (CDD), in accordance with ministerial          regulations.
4. Non-disclosure obligations Financial Institutions and Reporting Entities are prohibited from      disclosing information or conducting any action that may make customers or third parties aware of      the CDD, the transaction reporting, or the sending of any information to the Anti-Money Laundering     Office (AMLO), except in certain cases. Violation of this non-disclosure obligation carries a penalty            (i.e., imprisonment not exceeding five years or fine not exceeding THB 100,000 or both).
5. Compliance by Trained Staff The Anti-Money Laundering Office (AMLO) is obligated to hold      training for Financial Institutions and Reporting Entities. Financial Institutions and Reporting Entities must arrange for trained staff to conduct or monitor report preparation, conduct the Know-Your- Customers (KYC) requirement, and CDD obligations in compliance with the AML Act, otherwise they    will be subject to a penalty (i.e., fine not exceeding THB 500,000).
6. Extended CDD Record Keeping The information and documents regarding CDD must be kept for a         period of 10 years from the close of the account or termination of the relationship with the customer.
7. Coordination with other regulators The AMLO is empowered to send a list of non-compliant    Financial Institutions and Reporting Entities to the supervisory regulators for further proceedings     under other relevant laws. Additional amendments covered include; Assets Connected to Illegal      Activities, reporting of transactions, composition powers and authorities of the Anti-Money        Laundering Board and Transaction Committee, penalties, etc.
FINDINGS AND REASONS FOR DECISION
The issue of credibility
67.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….
68The 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…
69.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.
70.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).
17.     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).
1. The Tribunal accepts that the applicant and his wife may have some financial problems as far as it concerns their family livelihood and subsistence and an amount of money owed. However, the applicant and his wife’s version of events as provided in evidence before the Tribunal raises certain issues of credibility.
2. First, the applicant in his evidence told the Tribunal that he owed a local moneylender – a person he named as [Mr B] an amount in excess of 2.5m baht. This money had been procured by the applicant in order to enable him and his wife to travel to Australia for education (for his wife) and employment for the applicant. This, however, did not eventuate as was planned. The applicant’s wife instead of doing studies was introduced to the massage industry and sex industry which caused her grief and disappointment. The applicant on the other hand, worked and has continued to work in a local [business] at varying hours of work. The applicant and his wife provided very little detail with regards to the massage parlour the wife worked at. However, the Tribunal accepts that the applicant and his wife may have fallen victim to some-kind of illegal activity which may have originated in Thailand which have found both in Australia in a different set of circumstances. The country information available to the Tribunal seems to suggest that many people in Thailand could and have fallen victims to unacceptable practices engineered by criminal syndicates in order to money launder illegal money into the Thai economy. Therefore the scam the applicant and his wife have described to the Tribunal is not in the opinion of the Tribunal is not an impossible happening. These types of scams occur and sadly costing the individuals caught up in them a severe financial loss – they and their families cannot redeem or rectify and often place themselves and their families in harm’s way.
1. The applicant and his wife suggest from their evidence that they are victims and feel directly threatened from such criminal syndicates to whom they claim they owe approximately 2.5m baht to. They also claim that they are now working and sending to Thailand money which is then directly paid by the applicant’s father to a [Mr B] – a local money lender. The aspect of the applicant’s evidence which the Tribunal finds difficult to accept as credible, is the claim he and his wife make that they are working while here in Australia and sending money to the applicant’s father (in Thailand) who in return pays the local money lender. The applicant and his wife submitted to the Tribunal a bank statement for the period 27 October 2019 to 15 April 2020. The statement has various amounts which have been transferred to the applicant’s father but also to other members of the applicant’s family. This raises particular concerns for the Tribunal as far as it concerns the claim that the money the applicant and his wife state were sent for the sole purpose of repayment of their debt. Which amounts of money went where and how much? The Tribunal, it should be pointed out was told by the wife in her evidence that she and her husband could not always earn enough money to pay their debt because they also had to assist her father and their other family members and child who are living in Thailand. No corroborative evidence was provided to the Tribunal from the applicant’s father detailing what he had paid on behalf of the applicant to [Mr B]. For all intents and purposes, [Mr B] may have received nothing for the period the bank statement records. The Tribunal was not told - except provided with a bank statement with the names of various family members attached to various sums of money.
2. Moreover, the Tribunal was told in evidence by the applicant that after the massage parlour debacle, they have been working to settle the debt in Thailand. That being so, the applicant has been in this country (with his wife) and working since 2015 and has only provided bank statements for money transferred to Thailand for the period 27 October 2019 to 15 April 2020 – a period of approximately 6 months – what has gone on since 2015? The Tribunal was provided with no evidence. It stands to reason, that if there was such a debt in existence and owed to a local money lender who had enormous influences even with the local authorities (as the applicant claimed), the applicant and his wife would have commenced honouring their obligations sooner than later. Therefore, the Tribunal concludes and finds that, if the applicant and his wife were to return to Thailand, they do not have a well-founded fear of persecution for money they claimed to owe to a local moneylender in accordance with s. 5J (a), (b) or (c) of the Act.
3. Second, the applicant claimed in his evidence before the Tribunal that he and his wife feared to return to Thailand because the moneylender had threatened them with violence if the money owed by them was not paid (together with the interest charged). The applicant claimed that these threats had been made to his father by the moneylender. It was also claimed by the applicant that his father did not report these threats to the local Thai police because the local police in Thailand did not touch these persons. It was inferred by the applicant’s responses to the Tribunal’s questions, that the Thai police had no interest in such matters and would be feel intimidated by such powerful moneylender personalities. Therefore, the applicant, his wife and family would not and could not rely on the Thai police’s protection or generally speaking - on the Thai state’s protection. The Tribunal does not find this claim credible based on the country information the Tribunal has accessed and incorporated within this decision in paragraphs [46] to [57]. The Tribunal acknowledges this information which reports that the authorities in Thailand have taken concerted action against moneylenders and associated criminal activities and have been proactive. The Tribunal does not accept that, as the applicant claimed, the police in Thailand were not willing or would not assist or were incapable of protecting the applicant and his other family members from these criminal elements. There is nothing in the evidence submitted to the Tribunal by the applicant and his wife that would suggest such assistance (protection) would not be forthcoming. The Tribunal therefore considers that effective protection measures as defined by s.5LA of the Act are available in Thailand for the applicant to access (and his wife and other family members) and those protective services service all Thai citizens despite, race, nationality, religion, membership of a particular social group or political opinion and therefore, the applicant does not have a well-founded fear of persecution in accordance with s.5J(2) of the Act.
4. For the reasons the Tribunal has given in paragraphs [68]-[72] above, the Tribunal does not accept that the applicant was under an obligation to make any repayments as he and his wife claimed to a local Thai moneylender, nor that this loan had blown out to 2.5m baht as was claimed, nor that there is a real chance the applicant and his wife will face persecution involving serious harm if the return to Thailand now. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well- founded fear of persecution as defined in s.5J of the Act.
5. For these reasons given above, the Tribunal is not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36(2)(a).
6. The Tribunal having concluded that the applicant (and his wife) does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion, complementary protection in s.36(2)(aa). For the reasons the Tribunal has provided in paragraphs [68]-[72] above, the Tribunal does not accept that the applicant was under an obligation to make any repayments as he and his wife claimed to a local Thai moneylender, nor that this loan had blown out to 2.5m baht as was claimed and that the applicant was unable to repay it, nor that there are substantial grounds for believing that, as necessary and foreseeable consequence of his (and his wife’s) removal from Australia to Thailand , there is a real risk that he (and his wife) will suffer significant harm because the applicant is unable to repay a significant debt owed to a moneylender and that he would not have the protection (against threats) from the local Thai police or the Thai state. 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.
7. The Tribunal is not satisfied that the other applicant is a person with respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second-named applicant is the wife of the first-named applicant and is a member of the same family unit as the first-named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first-named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b) (ii) and the remaining criteria for the visa are met.
  decision
8. The Tribunal affirms the decision not to grant the applicants protection visas.
  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 Mr 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

Immigration
Administrative Law

Legal Concepts

Judicial Review
Jurisdiction
Natural Justice
Procedural Fairness
Standing
Statutory Construction

[2020] AATA 4201

1 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction