1703660 (Refugee)

1703660 (Refugee) [2022] AATA 2359 (8 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1703660

COUNTRY OF REFERENCE: Thailand
MEMBER:Paul Windsor
DATE:8 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 June 2022 at 11:21 am
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – women – victims of family violence – forced prostitution – criminal gangs – fear of killing – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 426, 441
Migration Regulations 1994, Schedule 2
CASES
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 20 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa on 2 April 2015.
In her protection visa application the applicant indicated she was born [date] in [Town 1], Thailand. She stated that she is ethnic Thai, a Buddhist, and has been married but is now divorced. She stated she departed Thailand legally [in] June 2014 and arrived in Australia on [the following day], entering on a Visitor visa.[1]
[1] See the Departmental file.
In her application, the applicant indicated she sought protection in Australia because she was being abused mentally and physically by her ex-husband in front of her children.[2]
[2] See the Departmental file.
While she was not invited to an interview, the delegate accepted that the applicant fears harm in Thailand from her ex-husband, but found she could rely on state protection if she encountered difficulties on return to Thailand. In relation to the complementary protection criterion the delegate considered the applicant could obtain protection from the Thai authorities such that there would not be a real risk of her suffering significant harm.
The applicant applied to the Tribunal for review of this decision on 2 March 2017.
Failure to attend the scheduled hearing
On 20 May 2022 the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 8:30 am on 8 June 2022. The applicant was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.
The letter advised the applicant that if she was not able to appear as scheduled, she should advise the Tribunal as soon as possible. She was advised to note that the Tribunal will only make changes to the hearing arrangements if satisfied that it is reasonable and there are good reasons for doing so, and she must assume that the hearing will go ahead as scheduled unless she has been advised otherwise.
The applicant was also advised that if she did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before the Tribunal.
The applicant was sent SMS reminder messages regarding the hearing on 1 June and 7 June 2022 to her mobile phone [number].
The applicant did not attend the scheduled hearing. She did not contact the Tribunal to explain her non-attendance.
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) of the Act; the invitation, which was sent by email to the email address provided by the applicant in her review application, was not returned to sender; and SMS reminders about the hearing were sent to the mobile phone number provided by the applicant on two separate occasions. The applicant did not respond to the invitation to attend the hearing and has not contacted the Tribunal to explain why she did not attend the scheduled 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 (Cth) (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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant’s claims for protection were set out in her protection visa application.[3] Her claims are summarised as follows:
·She left Thailand because she was tortured by her ex-husband. He abused her mentally and physically almost every day in front of her children. He wants her to be a prostitute so he can earn money from her.
·He would come to the house and make problems, whacking her for his pleasure and threatening her.
·Her ex-husband is a politician and has his own gangster group. He brought a group to her house and asked them to see her. He told her that he will kill her and her children if she does not do prostitution.
·She sent her children to live with her parents and ran away to Australia without his knowledge.
·She fears if she returns to Thailand her ex-husband will torture her to be a prostitute for him or will kill her and her innocent children.
·She can’t seek help from the authorities because her ex-husband will use his power as a strong politician to cover him. He will bribe the authorities to cover his back. He would find her wherever she went.
·She is from a poor family who earn only enough to feed her children.
[3] See the Departmental file.
Findings and reasons
Identity
On the basis of the copy of her passport submitted to the Department,[4] the Tribunal accepts that the applicant is a citizen of Thailand and that her identity is as claimed. The Tribunal accepts that Thailand is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[4] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Thailand, there is a real risk she will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
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 them. 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 (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal accepts that the applicant is of Thai ethnicity and the Buddhist faith. Her passport confirms that she was born in [Town 1], a province in Western Thailand. In her application she indicated that she lived in [Town 2] in [District 1], Kanchanapuri province, which is located approximately [distance] west of Bangkok. While the applicant did not provide any details of her children in the application, she indicated at question 45 that she is in touch with her mother and children in Thailand. The Tribunal accepts that the applicant is divorced and has children in Thailand who are in the care of her mother.
In her application, the applicant also indicated that, after completing her schooling, she studied at [University 1] in Bangkok, completing a course in [Subject 1] (but did not indicate when she did this or the nature of the qualification she obtained). She indicated she worked in [a workplace] as an [Occupation 1] (but did not indicate where or when she did this).
The Tribunal found the applicant’s claims to be vague, lacking in detail, unsupported by any evidence, inconsistent with some of her other statements and improbable.
The applicant stated that she is from a poor family who only earn enough to feed her children, but this is contradicted by her evidence that she completed a tertiary level qualification in [Subject 1] at [University 1] in Bangkok and worked in [Occupation 1] role in [a workplace] in Thailand.
The applicant claimed that her ex-husband is a politician and has his own gangster group, but she did not indicate who he is, what political party he belongs to and what office he holds. She did not provide any details of the gang she stated he has.
The applicant stated that her ex-husband abused her almost every day, but did not indicate why she tolerated this for a time without seeking assistance from the authorities, or, if she was powerless against her husband as suggested, how she was able to avoid being forced into prostitution if that was her husband’s aim.
The applicant claimed that her ex-husband whacked her for his pleasure, and mentally and physically abused her almost every day, but did not provide any medical evidence of any injuries sustained or supporting statements from medical professionals, friends or family, attesting to the abuse she claims to have suffered.
Most significantly, the applicant has not indicated what happened when her ex-husband found out she had fled to Australia. If he is a ‘strong’ politician and as powerful and abusive as she claims, it would be expected that he would have gone to her mother’s residence and taken the children (which the Tribunal assumes are also his children, as the applicant has not indicated otherwise), and used his control of their children as leverage to force the applicant to return to Thailand. There is nothing in the evidence to suggest he has done this or to suggest that he has harassed the applicant’s mother or the children in any way, since she left Thailand.
The Tribunal also notes that the applicant did not make a protection visa application until 2 April 2015, nearly 10 months after she arrived in Australia [in] June 2014, and nearly seven months after her visitor visa would have ceased and she became an unlawful non-citizen in Australia. The Tribunal considers that if the applicant fled Thailand in the circumstances claimed, fearing ongoing torture and being forced into prostitution, she would have found out about protection visas and made a protection visa application much sooner than she did after arriving in Australia.
These are all matters that the Tribunal would have questioned the applicant about if she had attended the scheduled hearing.
After carefully considering the available evidence, the Tribunal does not accept that the applicant was tortured by her ex-husband. The Tribunal does not accept that he came to her house regularly and beat and threatened her. The Tribunal does not accept that he sent a gang of thugs to her house to threaten her and her children. The Tribunal does not accept that he sought to force her into prostitution. Accordingly, the Tribunal does not accept that there is a real chance the applicant will suffer persecution involving serious harm from her ex-husband or gangsters operating on his instructions, should she return to Thailand.
Does the applicant have a well-founded fear of persecution if she returned to Thailand?
Having considered the applicant’s claims, for the reasons given above, the Tribunal does not accept that there is a real chance she will suffer persecution involving serious harm from her ex-husband, gangsters operating on his behalf, corrupt police, or any other organisation, agency, group or individual, for one or more of the five reasons mentioned at s.5J(1)(a), if she was to return to Thailand, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to Thailand, the Tribunal has noted that in MIAC v SZQRB, 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 relation to the ‘refugee’ criterion.[5]
[5] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from her ex-husband, gangsters operating on his behalf, corrupt police, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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, she does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor

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.
…

[2022] AATA 2359

8 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Standing