1703854 (Refugee)

1703854 (Refugee) [2022] AATA 3170 (4 August 2022)
Corrigendum
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul Raymond O'Connor (MARN: 0854511)
CASE NUMBER:  1703854
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alison Murphy
DATE OF DECISION:  4 August 2022
DATE CORRIGENDUM
SIGNED:22 August 2022
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
·On the first page of the decision record and at paragraph 55 under the heading ‘Decision’, replace ‘s 36(2)(a)’ with ‘s 36(2)(aa)’ and replace ‘s 36(2)(b)(i)’ with ‘s 36(2)(c)(i)’;
·At paragraph 42 of the decision record, replace ‘s 36(a)’ with ‘s 36(2)(a)’;
·At paragraph 53 of the decision record, replace ‘s 36(2)(a)’ with ‘s 36(2)(aa)’.

Alison Murphy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul Raymond O'Connor (MARN: 0854511)
CASE NUMBER:  1703854
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alison Murphy
DATE:4 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 04 August 2022 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from money lenders or human traffickers – trafficked to work in sex industry in Australia to repay significant debt in Thailand – no work in that industry and no money repaid – work in another sector and period as unlawful non-citizen – agent’s report to AFP’s human trafficking team – country information – household debt and money lenders – not a member of a particular social group for refugee criterion – complementary protection – insufficient state protection available and relocation not reasonable – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J, 5L, 36(2)(a), (aa), (b)(i), (2A)(b), 65, 91R(1)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v MZYYL (2012) 207 FCR 211
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 dependants.
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 applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Thailand, applied for the visas on 10 March 2015. The delegate refused to grant the visas on the basis that the applicants were not owed protection by Australia.
The applicants appeared before the Tribunal on 13 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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, 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 any of the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The first and second named applicants travelled to Australia on apparently genuine Thai passports, copies of which are contained on the Departmental file. They have at all times stated that they are citizens of Thailand and they have been accepted as such by the Department. The third named applicant was born in Australia and a copy of her Australian birth certificate is contained on the Departmental file. Country information indicates that a person born to a Thai parent acquires Thai nationality by birth.[1]
[1] DFAT DFAT Country Information Report: Thailand 20 July 2020 at 5.35
The Tribunal finds the applicants are each nationals of Thailand and has assessed their claims against Thailand as the country of nationality and the receiving country.
The applicant’s personal background
The first named applicant is a [Age]-year-old woman from [Province], Thailand (the applicant mother). The second named applicant is her [Age]-year-old de facto partner (the applicant father). He is also from [Province], Thailand although he and the applicant met and commenced their relationship in Australia. The third named applicant is the eldest daughter of the first and second named applicants, born in Australia and aged [Age] at the time of the Tribunal hearing (the applicant daughter).
The applicant completed primary and high school in [Province] before undertaking a [Subject] degree at [University] which she completed in 2005. After completing her studies she moved to Bangkok to find work, obtaining employment at [Employer 1] in [District], Bangkok. She worked at that [Workplace] until she departed Thailand for Australia in 2009.
The applicant arrived in Australia [in] December 2009 as the holder of a student visa. Consistently with the applicant’s evidence, departmental records indicate that she never commenced any studies in Australia and her student visa was cancelled on 19 July 2012. The applicant remained in Australia without a visa until 10 March 2015, when she was granted a bridging visa associated with her protection visa application.
The applicant’s partner arrived in Australia [in] November 2007 as the holder of a tourist visa which expired [in] February 2008. He remained in Australia without a visa until 10 March 2015, when he was granted a bridging visa associated with the current protection visa application. At hearing he gave evidence that when he arrived in Australia he intended to return to Thailand but changed his mind after meeting other Thai people here who told him that he could work and send money back to Thailand.
As noted above, the applicant daughter was born in Australia. The applicant and her husband also have two younger children who are not included in the review application as they were not born at the time of the visa application.
I accept the above matters to be true.
The applicant’s claims for protection
Only the applicant mother makes claims for protection. The applicant father and daughter seek to be granted the protection visas on the basis that they are members of the applicant mother’s family unit.
The applicant lodged the visa application on 10 March 2015. In the Form 866C dated 11 March 2015 she states she developed an [illness] after arriving in Australia which doctors could not explain and that she could not return to Thailand because she faced persecution from Muslims as a Christian [Occupation 1] at a government [Workplace].
However shortly after making that application (and prior to any assessment of it by the Department) the applicant engaged another migration agent and sought to withdraw the application made 10 March 2015, stating that it had been lodged without her consent or knowledge by persons who had represented themselves to her as migration agents who said they would apply for protection and bridging visas on her behalf if she paid them $9,000. The applicant stated that the statements made in that visa application were false and do not reflect her situation.
New Forms 866B and 866Cs dated 23 April 2015 and containing new claims for protection were provided to the Department in respect of the applicant mother and applicant father. The delegate appears to have accepted the applicant’s explanation, making no reference to the original claims made 10 March 2015 in the decision record but rather assessing the applicants on the claims made in the later Forms 866B and 866C dated 23 April 2015.
At hearing before the Tribunal, the applicants relied on the claims made in the Forms 866B and 866C dated 23 April 2015 that were assessed by the delegate. The applicant’s representative relied on the documents and submissions lodged with the Department in respect of those claims. The Tribunal notes that as the claims on which the applicants seek to rely were raised before the delegate, the provisions of s 423A are not engaged.
In essence, the applicant mother claims she will be harmed or killed if she is returned to Thailand because she has escaped from a money lender in Bangkok after he arranged her travel to Australia for the purpose of working in the sex industry in Australia. The delegate made no adverse findings about the credibility of the applicant’s claims, rather he appears to have accepted her claims as to those events. The delegate considered the applicant did not meet the definition of a refugee because the harm she feared was not for reasons of her race, religion, nationality, membership of a particular social group or political opinion. In relation to complementary protection the delegate considered that effective protection measures are available to the applicant in Thailand because the Royal Thai Police could could provide her with protection, such that there would not be a real risk that she would suffer significant harm.
DFAT reports that Thailand’s household debt is among the highest in Asia, reaching 97.4 of GDP in June 2021. Borrowers seek out loans from unlicensed money lenders or loan sharks due to poverty, trends in consumerism, practical access to finance and financial literacy, the high levels of debt held by many Thai households, and a slowing national economy.[2]
[2] SCB Economic Intelligence Center (SCB EIC) and SCB Securities (SCBS), ‘Can Nano Finance unleash the grassroots from loan shark problems?’, 1 April 2015 >
The loans provided by loan sharks in Thailand tend to be short term in nature with high interest rates, taken out by individuals to cover short term repayments or daily living expenses. While Thailand’s Civil and Commercial Code limits the amount of interest that lenders can charge at 15% per annum, loan sharks frequently charge interest rates far in excess of this with interest rates of between 8% and 20% per month being common and local media reporting instances of borrowers paying up to 20% per day or 200% per month.[3]
[3] ‘Are loan sharks preying on Thais?’, The ASEAN Post, 2 December 2019, ’14 wealthy loan sharks taken in by Thai police as money lending menace and debt remain a big problem’, Thai Examiner, 10 February 2019, ‘Loan sharks now preying on salaried workers, Justice seminar told’, The Nation Thailand, 18 December 2012, >
As well, DFAT reports that Thailand is a destination, source and transit country for human trafficking.[4] Similarly the US State Department reports that human traffickers exploit Thai victims both in Thailand and abroad. Thai nationals are subjected to forced labor and sex trafficking using debt bondage, deceptive recruitment practices, the retention of identity documents and ATM cards and physical violence to compel them to remain in their jobs.[5]
[4] DFAT DFAT Country Information Report: Thailand at 2.57
[5] US Department of State Trafficking in Persons Report July 2022 at p 97 - 98
Debt bondage is focused on human trafficking crimes in which the traffickers’ primary means of coercion is debt manipulation. Traffickers target individuals with an initial debt assumed willingly as a condition of future employment and manipulate those debts as a means to compel labor or commercial sex. Human trafficking can take place even if the victim initially consented to providing labor, services or commercial sex acts, as trafficking is defined by the trafficker’s exploitative scheme rather than a victim’s consent. An adult victim’s initial willingness to engage in commercial sex acts is not relevant where a perpetrator subsequently uses force, fraud or coercion to exploit the victim into continuing engaging in the same acts.[6]
[6] US Department of State Trafficking in Persons Report July 2022 at p 34
Human traffickers exploit women and girls from countries including Thailand by assisting their migration to Australia to work legally or illegally in a number of sectors, including the commercial sex industry:
After their arrival, traffickers compel some of these women to enter or remain in commercial sex in both legal and illegal commercial sex establishments, as well as massage parlors and private apartments. Traffickers hold some foreign women—and sometimes girls—in captivity and exploit them through physical and sexual violence and intimidation, manipulate them through illegal drugs, and force them to pay off unexpected or inflated debts. Traffickers attempt to evade authorities by allowing victims to carry their passports while in commercial sex establishments and frequently moving the victims to different locations to prevent them from establishing relationships with civil society or other victims. Traffickers isolate foreign women and girls from Australian women to inhibit information sharing about rights, regulations, and work standards in commercial sex establishments; foreign women and girls are likely uninformed about legal commercial sex laws and regulations and are more vulnerable to exploitation.[7]
[7] US Department of State Trafficking in Persons Report July 2022 at p 97 - 98
At hearing the applicant was significantly distressed while giving evidence. The Tribunal observed she gave her evidence frankly and spontaneously and it was materially consistent with the claims and submissions made to the Department in 2015. It is also consistent with reports concerning human trafficking between Thailand and Australia in which debt-based coercion and fraudulent promises of well-paid employment are commonly used to exploit victims forced into sex and labour trafficking.[8]
[8] DFAT DFAT Country Information Report: Thailand at 2.57
The Tribunal accepts her to be a credible witness as to her experiences in Thailand and Australia and accepts the following matters to be true:
·The applicant comes from a poor farming family in [Province] in north eastern Thailand. After finishing her [Subject] degree, she was initially unable to find [Occupation 1] work and took any job available to her before obtaining [Occupation 1] work in a [Workplace] in Bangkok where she lived with her sister and friends to save money. Even while working as [an Occupation 1], the applicant was unable to cover her costs of living in Bangkok and repay her university fees and help support her family in [Province] who borrowed money each year in order to plant crops. As a result, the applicant fell further and further into debt. In making this assessment, I note that DFAT reports that Thailand experiences persistent high levels of household debt and that money lending and inability to pay debt is a major issue, particularly in rural agricultural areas where debt is very high.[9]
·In order to generate funds to meet her living costs and debt repayments, the applicant started a ‘money pool’ with about 10 other persons who all contributed about 10,000 baht to a pool which then lent the money to members of the group on a rotating basis on the basis that it would be paid back with interest and then available for borrowing by other members of the group. Some of the borrowers disappeared without paying back the money or interest and as the organiser, the applicant was responsible for repaying the other members of the pool with interest.
·Unable to repay the money pool members or keep up the payments on her other debts, the applicant approached a man she knew from her time as a student who was [an Occupation 2]. She hoped that he might be able to help her because he worked for the government and he said he would introduce her to someone who might be able to help her with another loan.
·At some point towards the end of 2009 she was introduced to a money lender by her friend who asked her how much money she wanted to borrow. She told him she needed about 500- 600,000 baht to pay off her debts (approximately $AU 20,000 – 25,000). He said he would pay off her debts if she agreed to work for him, telling her that he would apply for a visa for her to travel to Australia. He did not tell her exactly what sort of work she would be doing, but said that if she agreed he would pay off her debt. Believing she had no choice, she agreed to go and work for him in Australia. No loan documents were produced or signed.
·The money lender took her to the passport office to obtain a passport and applied for an Australian student visa on her behalf, accompanying her to the health check. Departmental records indicate that the application for the student visa was made on 10 November 2009 and the visa was granted on 26 November 2009. However the Department has advised the Tribunal that the supporting documents lodged with the student visa application are not in the Department’s file and cannot be located.
·The applicant continued to attend work and stay with her sister until her visa was granted. She was aware that the [Occupation 2] who had introduced her to the money lender was monitoring her movements, visiting her regularly up until her departure for Australia. She was financially unable to make any payments to the money lender and he did not ask her perform any work for him before she left Thailand. When the visa was granted in December 2011, the money lender and his associates picked her up and took her to the airport.
·At the airport the money lender explained to her that she had been sold to persons in the sex industry and that she would be met at the airport in Australia and taken to a brothel where she would start work as a prostitute. The applicant gave evidence she was terrified and didn’t know what to do. When the plane landed in Australia she sat and waited inside the airport for hours, not speaking English and not knowing who to ask for help. After several hours she thought the people who were supposed to meet her and take her to the brothel would have left, so she left the airport and went into the street outside. She stood in the street for a long time until a Thai woman approached her and asked her if she needed help. On hearing her story, that woman invited the applicant to stay with her. The applicant stayed with her for several weeks and that person introduced the applicant to someone who organised workers for [a work sector]. It was subsequently arranged that the applicant would work [in workplaces].
·In 2012, the applicant met her partner who was also working in the [work sector] and they moved around working [in workplaces] together. Their first child was born in [Year] and they have since had two further children. The applicant did not tell her partner about the circumstances in which she came to Australia until advised to do so by her current migration agent in 2015. At hearing the applicant’s husband (the second named applicant) confirmed this to be the case.
[9] DFAT DFAT Country Information Report: Thailand 20 July 2020 at 3.115

The experiences of the applicant have been reported to the Australian Federal Police’s Human Trafficking Team by the applicant’s migration agent, as evidenced by the correspondence and statutory declaration submitted to the Tribunal. I accept the evidence of the applicant and her agent to the effect that the applicant has been interviewed by the AFP in relation to her experience of being trafficked to Australia. I further accept that the applicant’s agent has made similar notifications in respect of a number of other clients who have arrived in Australia in similar circumstances.
Risk on return to Thailand
The applicant fears that if she is returned to Thailand, the loan shark to whom she owes money will find her and harm her. She told the Tribunal that her debt would now be far greater than when she left, as she had not fulfilled her obligations to pay of the loan by working in brothels in Australia. She feared being ‘disappeared’ by that person as well as the traffickers to whom she had been sold. She does not believe the police could or would protect her.
On the evidence before me, I accept there to be a real chance the applicant will be harmed by the loan shark who paid off her debts in Thailand. In making this assessment I note that the applicant’s debt was a significant sum when it was taken out in 2009 and is likely to be many times greater now. The person who introduced the applicant to the loan shark has known her for many years and was monitoring her activities before she left Thailand for Australia. DFAT reports that so-called ‘black helmets’ enforce debts for loan sharks and may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid. DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay it and may face a risk of actual or threatened physical violence. DFAT notes that there is a strong overlap between loan sharks and police in rural areas and borrowers are unlikely to be able to access protection from state authorities.[10]
[10] DFAT DFAT Country Information Report: Thailand 20 July 2020 at 3.115 – 3.117
I also accept there to be a real chance the applicant will be harmed by the traffickers to whom she was sold with the expectation that she would undertake sex work in brothels in Australia. In making that assessment I note that such traffickers operating in Thailand are known to use debt bondage as a means to compel labor or commercial sex, exploiting their victims both in Thailand and abroad. [11] In the applicant’s case they accompanied her to obtain her passport and Australian visa and had access to her identity documents and the details of her education history. I am satisfied they will be able to locate her through her sister and acquaintances in Bangkok and in her home area of [Province].
[11] US Department of State Trafficking in Persons Report July 2022 at p 34
The US State Department reports that the government of Thailand does not currently meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. Those efforts include increasing the number of trafficking investigations, finalising a national referral system and establishing a new trafficking identification centre. However the Thai government has been unable to meet the minimum standards in several key areas, conducting a decreased number of trafficking prosecutions in the current reporting period compared to the previous ones and providing limited protection for victims. While the Thai government operates some shelters for victims of trafficking, the US State Department reports there are significant gaps in the government’s provision of services to victims and corruption and insufficient interagency coordination and resources hinder the identification and referral to services of trafficking victims. Official complicity is also reported to impede anti-trafficking efforts.[12]
[12] US Department of State Trafficking in Persons Report July 2022 at 537 - 542
Similarly DFAT reports that corruption in Thailand continues to undermine anti-trafficking efforts, with some government officials and police directly complicit in trafficking crimes, including through accepting bribes or loans from business owners and brothels that exploit victims. Corrupt immigration officials reportedly protect brothels and other commercial sex venues. DFAT also reports that the requirement to stay in the government operated shelters has deterred some victims from cooperating with law enforcement, however the DFAT information suggests that the services to victims are directed primarily at victims who have been trafficked into Thailand, rather than Thai nationals returning to Thailand after being trafficked overseas.[13]
[13] DFAT DFAT Country Information Report: Thailand 20 July 2020 at 2.59
Earlier this month, the Deputy Director-General of the Department of Children and Youth, the son of a local politician and an official from a Shelter for Children and Families in Surat Thani surrendered to authorities after being accused of being involved in child sex trafficking ring operating at the shelter.[14]
[14] 'Govt official surrenders in abuse enquiry', Bangkok Post, 12 July 2022, 20220712095020;
In light of the Tribunal’s findings and the country information cited above I accept there to be a real chance that the applicant will face a threat to her life or liberty, significant physical harassment and/or ill-treatment if she returns to Thailand, now or in the reasonably foreseeable future and that such treatment is serious enough to constitute ‘serious harm’ for the purposes of 91R(1)(b) of the Act.
In considering whether such harm is for one of the five reasons set out in s5J(1)(a), it is not suggested that the harm will be inflicted upon the applicant for reasons of her race, religion, nationality or political opinion. The Tribunal notes that the applicant is a woman at risk of physical harm and forced sex work, however the Tribunal does not consider that the applicant’s gender is the essential and significant reason for the harm in this case. Rather the Tribunal considers that motivating reason for the harm is the debt she incurred to the loan shark in 2009 which was subsequently on-sold to the traffickers.
In considering whether ‘persons owing money to loan sharks in Thailand’ or ‘persons fearing harm from traffickers’ can constitute a particular social group, the Tribunal has had regard to s5L, which requires that the members of the particular social group share a characteristic that is innate or immutable or so fundamental to a member’s identity or conscience that she should not be forced to renounce it. The Tribunal is not satisfied the groups ‘persons owing money to loan sharks in Thailand’ or ‘persons fearing harm from traffickers’ are defined by such a characteristic, nor that the characteristic distinguishes the group from society other than as a shared fear of persecution. Consequently the Tribunal is not satisfied that there the harm feared by the applicant is for one of the five reasons set out in s5J(1)(a) and concludes that the applicant does not meet the requirements of s.36(a) of the Act.
In considering whether the applicant will be subjected to significant harm for the purposes of the complementary protection criteria, the Tribunal notes that ‘significant harm’ is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
For the reasons set out above the Tribunal has accepted that there is a real chance that the applicant will face harm including physical harassment and harm and forced prostitution if she returns to Thailand, now or in the reasonably foreseeable future. The Tribunal accepts that such treatment constitutes ‘significant harm’ for the purposes of s.36(2A). The Tribunal finds 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 she will suffer significant harm.
The Tribunal has considered if the applicant could obtain protection from the Thai authorities such that there would not be a real risk that he would suffer significant harm as per s.36(2B)(b). In MIAC v MZYYL[15] the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.
[15] MIAC v MZYYL (2012) 207 FCR 211 at [40]
Country information indicates that the Royal Thai Police (RTP) does take action against loan sharks, but the penalties for offenders are insufficient to deter the activity in any significant way:
Friday’s arrest in Bangkok of 14 loan sharks lending money at daily interest rate of up to 20% is a reminder that Thailand’s chronic personal debt problem has not gone away. This is despite nearly 5 years of genuine and substantial efforts by Thai authorities, including the regulation of casual lending and police enforcement against those who continue to abuse vulnerable Thai lenders. Thai police arrested 14 loan sharks in Bangkok this week for lending money at rates of up to 20% per day. Since it came to power in 2014, the current government and authorities have worked hard to take on the menace of illegal money lending which is also linked to other criminal abuses. While there has been a genuine effort to combat the problem, much remains to be done. At the end of last year, one survey found that nearly 78% of Bangkok households are currently in debt with over 53% falling behind on monthly repayments.[16]
[16] ‘Consumer police probe complains about loan sharks’, The Nation Thailand, 26 September 2017, al
Victims of loan sharks can lodge complaints with the RTP’s Consumer Protection Police Division, but media reports suggest that legal loopholes and the existence of relationships between loan sharks and state officials make favourable outcomes are difficult to achieve. There are some media reports of instances in which the Thai government intervened on behalf of debtors but such occurrences appear to be ad hoc and the sheer number of loan shark victims seeking assistance outstrips available government resources to assist.[17] Overall, DFAT assesses that borrowers are unlikely to be able to access protection from loan sharks from state authorities.[18]
[17] ‘Are loan sharks preying on Thais?’, The ASEAN Post, 2 December 2019, ‘Farmers search for a way out of deep debt’, Bangkok Post, 30 August 2015, deep-debt
[18] DFAT DFAT Country Information Report: Thailand 20 July 2020
In relation to state protection from traffickers, DFAT reports that corruption in Thailand continues to undermine anti-trafficking efforts, with some government officials and police directly complicit in trafficking crimes, including through accepting bribes or loans from business owners and brothels that exploit victims. Corrupt immigration officials reportedly protect brothels and other commercial sex venues. DFAT also reports that the requirement to stay in the government operated shelters has deterred some victims from cooperating with law enforcement, however the DFAT information suggests that the services to victims are directed primarily at victims who have been trafficked into Thailand, rather than Thai nationals returning to Thailand after being trafficked overseas.[19] Earlier this month, the Deputy Director-General of the Department of Children and Youth, the son of a local politician and an official from a Shelter for Children and Families in Surat Thani surrendered to authorities after being accused of being involved in child sex trafficking ring operating at the shelter.[20]
[19] DFAT DFAT Country Information Report: Thailand 20 July 2020 at 2.59
[20] 'Govt official surrenders in abuse enquiry', Bangkok Post, 12 July 2022, 20220712095020;
In view of the country information cited above, the Tribunal concludes that the applicant will be unable to obtain state protection from the Thai authorities such as would reduce the risk of significant harm to something less than a real one.
The Tribunal has considered whether it would be reasonable for the applicant to relocate to another part of Thailand, outside her home in [Province] or her most recent place of residence in Bangkok, where there would not be a real risk that she would suffer significant harm from the loan shark and traffickers. The Tribunal notes the applicant is now married and would have the support and protection of her husband. However they also have three young children and their families are not in a position to support them financially or with accommodation outside of [Province]. As the applicant provided her education and identity documents to the traffickers in order to obtain a passport and a visa, the Tribunal considers it possible that the traffickers may be able to locate her in other parts of Thailand. In these circumstances the Tribunal accepts relocation is not reasonable in the particular circumstances of the applicant.
The Tribunal is further satisfied that the significant harm the applicant faces is one faced by her personally, not by the population generally and that the applicant is not precluded from being owed protection by the operation of s.36(2B)(a), (b) or (c) of the Act.
There is no evidence before the Tribunal that the applicant has a right to enter and reside in any third country for the purposes of s.36(3) of the Act and accordingly the Tribunal accepts that she does not have any such right. The Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.
CONCLUSIONS
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
No claims are made on behalf of the other applicants and the Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants 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
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Alison Murphy
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.
…

'Youth dept chief tied to sex trafficking ring', Bangkok Post, 06 May 2022, 20220506113402

[2022] AATA 3170

4 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction