1703907 (Refugee)

[2021] AATA 5272

1703907 (Refugee) [2021] AATA 5272 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703907

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Christine Cody

DATE:9 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 November 2021 at 4:55pm

CATCHWORDS

REFUGEE – Protection visa – Thailand – ex-boyfriend policeman – applicant had been involved in “the red shirts” – 2 different sets of written claims – applicant is not a witness of truth in relation to her claims of past harm and future fears – delay in lodging the visa application – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 February 2016 to refuse to grant the applicant, who claims to be a citizen of Thailand, a protection visa under s 65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A.

   Migration history

2. The applicant arrived in Australia on [date] November 2015 with a visitor visa. She applied for a protection visa on 30 May 2016, after having been unlawfully present for 3 months.[1]

   [1] Sourced from the applicant’s visa application form, her evidence at hearing, and the delegate’s decision record that she provided to the Tribunal.

   The Departmental file

3. The applicant submitted a protection visa application form with handwritten information as well as a copy of her passport identification page issued [in] 2015.

   Application form

4. According to her application form, the applicant is aged [age] years. She was born in Thailand.  Her religion is Buddhism. She never married. She worked in Bangkok (occupation unspecified).  She has parents and a sister in Thailand; she is in contact with them by phone.

5. The “protection visa application claims”: When asked the reasons why she left her country, she stated that she is not confident to return to Thailand because she has a problem with a person who calls himself “[Mr A]”. She borrowed money but she did not know that the interest was very high and she cannot repay the money. This is why she dares not to return to Thailand. She fears being hit and taken to an unknown place and to suffer while detained. She could face forced prostitution. There is a lot of networking, so she did not try to move. She then stated, however, that she had had to run and hide “somewhere”. She cannot seek protection as he is above the law.

   The delegate’s refusal of the application

6. The delegate considered that the country evidence indicated that there would be state protection available and that the applicant is thus not a refugee or entitled to complementary protection.

7. There are no non-disclosure certificates on file.

   The Tribunal

8. The applicant applied to the Tribunal for review, providing a copy of the delegate’s decision record. She was requested to provide any relevant documents or information to the Tribunal as soon as possible.

9. The Tribunal considered it was reasonable to conduct the hearing by MS Teams videoconference during the period of the COVID-19 pandemic restrictions in NSW in November 2021 and the applicant agreed to the hearing taking place in this manner.

10. On 21 October 2021 the Tribunal was provided with a Response to Hearing Invitation attaching a single page from a protection visa application form (questions 74–77) containing typed responses (“the pre-hearing claims”) as well as print outs (source unknown) referring to country information.

11. The applicant gave her evidence with the assistance of an interpreter in the Thai language. The Tribunal was satisfied that the applicant understood the proceedings and was able to give evidence and present arguments.

12. The Tribunal put to the applicant at hearing that, although it had not made up its mind, it has concerns with the credibility of her claims. Further relevant evidence is referred to below.

    CONSIDERATION OF CLAIMS

    Country of reference

13. The applicant produced a passport to the Department which shows that she is a Thai citizen. The Tribunal accepts that the applicant is a national of Thailand, and that the appropriate country of reference for the assessment of her refugee claims and the receiving country for the purposes of her complementary protection claims, is Thailand.

14. The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Concerns as to the credibility of the applicant’s claims

    Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims

15. 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 the 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.

16. Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

17. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70]).

18. As Kirby J observed in Dranichnikov v MIMA:[2]

    The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[3]

    [2] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at [1100].

    [3] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].

19. The Tribunal has a number of concerns with the case that this applicant has advanced on the basis of inconsistent, changing and vague evidence. The Tribunal’s concerns are set out below.

    The applicant’s inconsistent claims

20. The Tribunal expressed concerns that the applicant’s claims changed significantly between her application form, her new claims produced before the hearing, and her evidence at hearing.

21. The first claims (the protection visa application claims):  As noted above, her written claims were concerned with the debt she owed to a person called [Mr A].

22. The difficulty with the protection visa application claims, however, is that the applicant did not repeat them again, in either her pre-hearing claims nor at hearing. Further, when the Tribunal put these claims to her, she said she didn’t know about these claims, and she did not suggest that she owed any money to anyone.

23. A further concern resulted from her changing evidence as to how those claims were submitted to the Department:

    ·   When the Tribunal asked the applicant if her application form was true and correct, she said yes.

    ·   Her evidence then changed, and she said she “thinks” that the person who completed the form for her wrote what she told them to. She said her English was not very good (she described it as: quite basic; she had learned it at school and it has improved “a lot”; she then said “it has gone up a bit”; she estimated that she understood 20%). She had asked a person whom she had known for one day to write her application for her. She doesn’t know the person’s name, only their nickname, [name deleted]. The Tribunal put to the applicant that this was an important document containing her protection claims, submitted to the Department. If she was unsure if the document was correct, she has had plenty of time to have someone check the document for her. She agreed but explained that she couldn’t have anyone check it because none of her friends know English, [this named person] was the only person who knows English.

    ·   Later however she gave evidence inconsistent with this assertion: she told the Tribunal that 4 years earlier she met a person called “[Mr B]” (nickname, she does not know his actual name), she has known him now for 4 years, he understands English and he helped her do an application to obtain work rights, he also helped her with her pre-hearing claims). The Tribunal put to the applicant this was contrary to her explanation; and she could have asked [Mr B] to check her original claims. She responded that “[Mr B]” didn’t tell her she could check her original claims and she didn’t ask immigration as she was worried that if she contacted them, she has poor English and they may catch her as an illegal migrant and they will send her back. The Tribunal put to her that as she had obtained work rights, she would have known she had the right to remain here while her application was being processed. She said she didn’t know her rights and she was just told she could get a job.

    ·   The Tribunal is concerned that the applicant gave inconsistent evidence as to why she claims she did not check the claims made in her protection visa application form; firstly she knew no one else who understood English, but this evidence changed when the Tribunal noted her contradictory evidence, now saying that she didn’t know she could check her claims (because [Mr B] didn’t tell this).

24. In addition to the concerns with the applicant’s claims that she did not know, and had no way of knowing, what her protection visa application claims were, as put to the applicant at hearing, she had received from the Department, and then produced to the Tribunal, the delegate’s decision record where those protection visa application claims were simply recorded and summarised:  

    ·     “She is afraid to return to Thailand because she has borrowed money that she cannot repay from [Mr A].

    ·     If she returns she’ll be beaten, cut up and/or kidnapped. She may also be forced into prostitution or killed.

    ·     There is no state protection – he is above the law and has networks everywhere”.

25. Given the applicant has some English and she had access to at least 1 other person who understood English, and given her claims were refused by the delegate, the Tribunal considers it reasonable for the applicant to check what her claims were and why they were refused, noting that she had the delegate’s decision record in her possession.

26. The Tribunal dos not consider her evidence relating to her protection visa application claims to be persuasive.  

27. The second claims (the pre-hearing claims): Just prior to the hearing, the applicant produced a completely new set of claims:

    76       Why did you leave that country/those countries'? Provide specific details

    Since 2014 military coup d'etat by military use force to kick ting-luck out of Thailand priminister. Even now after election it's still controlled by military government its was unfair elections the whole are knew !! It's most selected by junta alliance that's why priminister. pra yut chan o-cha he's still won the election and still become a priminister... After the election ot long on the 2nd of August 2019 it's was three bombs has exploded in bangkak areas they believe it's just because of unfair election most of people they don't like prayut-chan o cha to become a priminister again...I hate this government and military rulers the corruption ,I'm strongly against military it's dictatorship government this government obtaied force. This government will crack down any person who's criticizing or opposition I'm ordinary person who have the right the speech and have the right to select good priminister as everyone in Thailand as well. Thailand is getting worse now bad economic, no investors who's to do any business in Thailand just because of military rule and under military control. Right now just on the 17/10/2020 all the students and most Thai people's who's have been forced to live under the control of junta government ( military dictatorship) :They all come out everywhere on the street every state in Thailand to fight for they right and to fight for democracy and to force this military government because they have enough of Junta and military control. The military government has been exercising extreme and incontestable state power to silience and control Thai people's for 6 long years every things is getting worst more poor people's the economy is gone down no one will want to invest in Thailand anymore..

    77        What do you think will happen to you if you return to that country/those countries?

    Anyone who criticized the military will be arrested and send to jail, if i returns they will detainme to jail and will don't know for how long? it's might be for life.”

28. However, her evidence to the Tribunal about these claims indicated that these were not her claims. Additionally, her evidence as to how the claims were drafted was somewhat changing:

    ·   The Tribunal noted that she had indicated that she typed claims, as these were the only typed claims she had provided, it asked her if she had typed the pre-hearing claims and she said yes.

    ·   She then changed her evidence and said that another person helped, she didn’t type the claims. When asked who, she said she did not know their name, only their nickname, [Mr B] (as mentioned above). The Tribunal asked her what she told [Mr B] to write in the application form that she had submitted to the Tribunal and she said she told him to write that she belongs to the red people group and she needs to run away because she belongs to the red people. The Tribunal asked if she had told him anything else to write down and her evidence was evasive. The Tribunal asked her 2 more times if she had asked him to write anything else in her pre-hearing claims and she finally said no.

29. The Tribunal put to her that a significant amount more was included in what had been produced to the Tribunal. The applicant was not able to tell the Tribunal what was in the pre-hearing claims other than “she belongs to the red people group and she needs to run away because she belongs to the red people”. Although the pre-hearing claims contain general information about political history, and imply that she has criticised the government, it is not stated that she  “belongs” to the “red people” (“red shirts”). Further, the applicant’s lack of knowledge or recollection of the detail of the claims made just before the hearing was difficult to understand.  The Tribunal put to her that one reason could be that the pre-hearing claims were drafted by another person (perhaps [Mr B]) and were not truthful claims (her response to these concerns is set out in paragraphs 32 and 33 below when discussing the third, different set of claims made at hearing).

30. The third claims (made at hearing): A summary of the applicant’s claims at hearing is that she and her father had been involved in “the red shirts”,[4] her father was a guard for the red shirts, and she had a policeman boyfriend who threatened her because she was going to leave him, so she had stayed with him against her will (for 18 months) so that he would not expose her and her family for their political involvement attending protests between 2010–2012.

    [4] Background information on the red shirts is provided in the DFAT Report and extracted at Annexure B.

31. The Tribunal had concerns with these new claims including that:

    ·   The Tribunal noted that this claim was different to what she says she told [Mr B] to write which was only “I belong red group and I need run away because I belong to red people”. She did not claim to have told [Mr B] to write that the source of her fear was a policeman ex-boyfriend who threatened her for reasons of personal motivation and revenge because she and her father supported the red shirts and her father was a guard and she had attended demonstrations between 2010 and 2012.

    ·   The omission to include reference to the ex-boyfriend policeman, was significant because of her evidence was about him.  Although she initially only said that he didn’t want her to leave him and he used evidence of her attending protests to force her to stay, she later claimed that he was a very dangerous person, he was the kind of person who would use acid or guns and she was fearful of him for this reason. The Tribunal considers that if these claims about his character were true, she would have told this to the Tribunal at the first opportunity during the hearing; she would have told [Mr B] to write this in her pre-hearing claims; and in the protection visa application claims.

32. The Tribunal put to the applicant that she didn’t know what these pre-hearing claims were, and it is concerned that there are 2 different sets of written claims, which are also different to what she claims she told [Mr B] to write, and they are different to the claims she made at the hearing. Her response was, since the coup, her father tried to destroy evidence he is involved in the red shirts, and about the boyfriend, since she left Thailand she wants to forget everything negative in her life. The Tribunal does not accept her explanations for the significant differences in her claims, and the Tribunal considers that this evidence undermines her credibility.

33. The Tribunal also specifically referred to s 423A of the Act, explaining that the Tribunal is required to draw an adverse inference about new claims or evidence if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, if it is not satisfied that the applicant has a reasonable explanation as to why the claim was not made or evidence not presented before the primary decision was made. The applicant said that maybe she has poor English, she is very scared that if she has to deal with documents, and if she made a wrong application, she was concerned that would impact her situation.

34. The Tribunal is not satisfied that there is a reasonable explanation as to why the applicant did not raise the new claims she raised at hearing before the primary decision was made. Therefore, the Tribunal draws an adverse inference about the credibility of these new claims.

35. Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of these claims because the applicant only made these claims after her application was refused by the Department, her claims change at every stage, and because of concerns with the evidence given in relation to these claims, which is discussed further below.

    Additional concerns with the claims made at hearing

1. There were additional concerns with her new claims at hearing because the applicant gave changing, inconsistent and not credible evidence about aspects of these claims, set out as follows:

2. Her reason for needing to flee Thailand and the reasons for her delay in doing so: The applicant was asked when she believed that she had to leave Thailand and couldn’t stay any longer. She said this was on the day of the coup in May 2014.  When asked what happened that made her believe she had to flee Thailand, she said at that time she had a boyfriend who was a policeman and “he got all the evidence I joined the red group”. When asked what evidence, she said “He got a picture and video of when I joined a meeting with “[a named person]”. When asked if there was any other evidence he obtained, she repeated “a picture, a video”. When asked what he said to her at the time, she said that at that time she planned to split up with him, and he said to her that he will show the evidence of this picture to the soldiers if she leaves him.

3. The Tribunal put to the applicant that she delayed significantly in leaving the country once she had decided that she needed to flee and could not stay any longer. She had waited 18 months to leave. She said that she needed to have a “good plan” to escape. The Tribunal put to her that she delayed for one year (from May 2014 to May 2015) in obtaining a passport. She said she had to plan everything and how to process everything. The Tribunal put to her that it was difficult to accept that she had stayed in a relationship she did not want to be in for 18 months. In response she said that she got a visa and left straight away. She then corrected herself and said that she didn’t leave straight after getting the visa, instead she had the visa for about 3 months and she left after she had the visa for about 3 months because she was “planning”.

4. The Tribunal put to her that it was difficult to accept that it took her 18 months to plan, including obtaining a passport and visa. She said this is because she had no money nor evidence of working, because the only evidence of work she had was that carried out for her father. So she obtained another job where she worked for a [company]; she said that she worked with them for more than one year. The Tribunal put to her that the difficulty with this explanation is that she previously clearly told the Tribunal that she only had two jobs when she was in Thailand, firstly working for a [business], and secondly working for her father’s business. She had never claimed to have worked in [a] sales company for one year. The applicant’s only response to this was to say yes that was right.

5. The Tribunal is not persuaded by the applicant’s explanations for her delay in leaving Thailand once she claimed she knew she had to leave and could stay no longer, one of which was undermined by her own evidence to the Tribunal.

6. Concerns with the applicant’s evidence about her political activity: When asked what she would do if she went back, she said that she would probably have to live with her parents in a remote area in the north, she probably can’t live in Bangkok, “because I wasn’t sure that attending all the activity of red shirt in the past, if that would have any consequence for me if I return”. When the Tribunal asked what activities she was referring to, she said she “always” attended meetings when they had a public petition and her father was working as a guard and she “keeps an eye” to help him.

7. When asked what happened at the meetings she attended, she said quite often there is a fight and sometimes there is a gunshot or shooting. Sometimes she doesn’t see it. She said that she had attended 5–6 big meetings between 2010–2012 and she had also attended some smaller meetings that were not very big, in 2010. The Tribunal sought her confirmation that the only time she attended any political activities was between 2010–2012 and she confirmed this. When asked whether she had come to the attention of the authorities in Thailand, she said no, they did not do anything specific to her because she never did anything wrong.

8. The Tribunal put to the applicant that she had claimed that she had attended demonstrations around the time of the coup in May 2014 and that her ex-boyfriend had evidence of these attendances which he used to stop her from leaving him. This could not be the case if she had last attended a demonstration in 2012. She then said the policeman’s evidence was actually from her and her family attending the 2010–2012 protests. If this was the only difficulty with her evidence, the Tribunal may have been prepared to accept that the policeman only told her in 2014 that he had compromising evidence from 2012; in the circumstances however it is not prepared to accept this. The Tribunal considers that her evidence as to when she last attended political activity was changing.   

9. The applicant told the Tribunal that apart from working, she has been doing nothing in Australia. The Tribunal put to her that this indicates that she had not undertaken any political activity in Australia, and when this is considered, along with her lack of political activity in Thailand since 2012 (for a 3 year period before she left Thailand), this indicates that she had not been politically interested or involved as claimed. She responded that she and her father had been told to cease their activity, so they did. Although this is plausible, given the other concerns the Tribunal is not prepared to accept this explanation.

10. The Tribunal considered that the applicant’s political knowledge appeared vague and basic. She said that she really wants Thailand to become a democracy. If possible, she wants the King to be under the constitutional law, at the moment he is not. When asked however why she wants the King to be under constitutional law she was not able to explain except to say she wants democracy and everyone is a human being and he should not control the country. It is unfair to the population. She then said under constitutional law 112 the majority of the population cannot scrutinise the King. When the Tribunal asked if that is the wording, she said yes one cannot really check on him or give an opinion to do with the King himself. The Tribunal gave her the opportunity to tell the Tribunal more about her political knowledge, however she said she does not know what to say. While the Tribunal accepts that she did have some knowledge of the political situation,[5] the Tribunal is not satisfied that this level of knowledge supports her claims of actual political involvement.  

    [5] Some of the matters raised by the applicant are referred to in the DFAT Report at Annexure C.

11. When the Tribunal put to the applicant, towards the end of the hearing, that it had concerns with the credibility of these claims, she made a further new claim: that she had to keep silent since 2012 as there was an accident where her father the guard was hit in the back so they had a family meeting to decide they would withdraw out of political activities. It was of concern that she only made this claim after the Tribunal had put to her that it had concerns with the credibility of her claims. A further additional claim made at hearing was that she is worried about the consequences (from the authorities) of having attended red shirt meetings between 2010–2012; “they” may use the old material to harm red shirt supporters. The Tribunal noted the applicant’s evidence that she had lived in the same house and had the same job before she left Thailand, and she had ceased political activities for a 3-year period and she said that no harm had ever come to her from the authorities. There had been plenty of opportunity for her to be the subject of adverse attention and harm in Thailand, but this had not occurred.  

12. A further claim was made after the Tribunal asked her what she was concerned or worried about if she went back to Thailand. Her initial response was to say she would be worried her policeman ex-boyfriend might again threaten her if he sees her back in Thailand. When asked if there was anything else that she fears or worries about if she returns to Thailand, she said no. This changed however after a break, when she made the claim that if she returns to Thailand her father will have a lot of problems because he is in hiding.

13. The Tribunal notes that none of these new claims was referred to in her protection visa claims or her pre-hearing claims, and considers that if they were true, she had the opportunity to make these claims earlier.

    The applicant’s delay in claiming protection

14. The Tribunal put to the applicant that there were concerns with her delay in claiming protection. It put to her that she arrived in Australia on [date] November 2015, and although this was a foreign country where she speaks minimal English, she was able to organise her affairs such that she organised accommodation, and on her evidence, she organised to work immediately: she did [certain work], and later she has worked for [a company]. The Tribunal put to her that she was resourceful, and it would think that she would have been resourceful enough to find out how to claim protection. The Tribunal referred to her evidence that she was unlawfully present after her visitor visa expired for 3 months before claiming protection. The applicant’s response was that she was “told” by people in the community that she can request protection after her visa expired (not before). The Tribunal noted that even if this was the case, she still delayed 3 months while unlawfully present. In response she said she didn’t know how long she would have to wait, some people even said 12 months. The Tribunal put to her that she could have sought advice from a migration agent; all she had to do was to ask someone in the community for a referral. She said at that time she was so scared because she doesn’t know the law and she worries about being sent home and being deported to Thailand. The Tribunal put to her that such concerns would arise because she was present illegally and had no visa. The applicant then admitted this was the case, and added that “at that time I need time to consider the case and time is needed to try decide what to do”. The Tribunal does not find the applicant’s explanations to be persuasive. It considers that if the applicant considered that she faced serious or significant harm in Thailand when she first came to Australia, she could have taken steps to obtain advice, and lodge a protection visa application earlier.

15. On the basis of the above concerns, the Tribunal does not accept that the applicant is a witness of truth in relation to her claims of past harm and future fears.

16. Other matters: The Tribunal has considered whether the applicant may have been nervous at hearing, that she was giving evidence through an interpreter, and her claim not to have understood much English in Australia.  The Tribunal is not satisfied that these matters can explain the difficulties with her evidence.

17. The Tribunal also notes that the applicant had produced country information with her pre-hearing claims, as well as the biodata page of her newly issued passport ([2020], valid to 2025). However, although she was aware she had produced the passport page, when the Tribunal asked her what else she had produced recently to the Tribunal, she said she could not remember. The Tribunal put to her that this may indicate that what she produced is not important. She said “they are important but… I don’t recall”. The Tribunal put to her that the additional documents arrived with the pre-hearing claims that she said [Mr B] produced, that she did not know the contents of, so perhaps [Mr B] produced these documents without her knowledge. She said she doesn’t know about this. The Tribunal put to her that the documents were printouts relating to democracy, corruption and protesting; she said that she doesn’t know what these documents are. The Tribunal notes that they are documents providing the views of those opposed to the government and it suggests that there are still numerous people opposed to the government and its methods; the Tribunal accepts that is the case, however it does not place weight on these documents as supporting the applicant’s claims of political involvement.

    Findings as to the applicant’s claims

18. On the basis of the adverse credibility finding the Tribunal does not accept that the applicant was involved politically in Thailand. It does not accept that she “belonged” or was part of the red shirts, that her father was a guard for the red shirts, or that she or anyone in her family was involved in the red shirts or was targeted or imputed to have been involved. It does not accept that she fled to Australia nor that her parents moved after she left because they had received a warning or adverse attention. The Tribunal does not accept that she or her family members attracted adverse attention from anyone, including it does not accept that she had an ex-boyfriend policeman who threatened her. The Tribunal does not accept claims that flow from these claims. The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Thailand. The Tribunal does not accept that there has been any adverse interest in the applicant since she came to Australia.

19. The Tribunal accepts that the applicant came to Australia holding a visitor visa, that she started working straight away, that she did not have any political involvement while in Australia, and that she did not claim protection until after she had been in Australia for 6 months, having remained unlawfully present for 3 months. It does not accept that she did not know she could claim protection earlier and it finds that she did not do so because she does not have a fear of returning to Thailand. The applicant did not maintain the claims in her protection visa application and it finds that she does not face a real chance of any serious harm or a real risk of significant harm for the reasons listed in those claims including owing a debt.

20. The Tribunal also does not accept that she came to Australia or fears returning to Thailand for the reasons set out in her pre-hearing claims including a lack of democracy, general violence, unfair elections, corruption, the right to free speech, downturn in the economy, violence, or that she faces jail for any reason.

21. The Tribunal does not accept the applicant’s claims of her or her family’s past political involvement and it does not accept that there is a real chance or real risk of the applicant becoming involved in any way in political matters in Thailand nor of being imputed with such involvement leading to adverse interest and/or a real chance of serious harm or a real risk of significant harm in Thailand. While the Tribunal accepts that demonstrations in Thailand have led to violence and crackdowns, it finds that the applicant has never previously been affected by this and it is not satisfied on the evidence before it that she faces a real chance of serious harm or a real risk of significant harm from any general violence. The Tribunal noted that it is required to have regard to the Department of Foreign Affairs (DFAT) Report which provides information as to the country conditions in Thailand. The Tribunal put to the applicant that if it did not accept her claims, then having regard to the country conditions it did not appear that she faces a real chance of serious harm or a real risk of significant harm. The applicant said that she acknowledges that, and she wondered if there was any way to “fix the situation”.  

22. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above. The Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by her or on her behalf.

    Complementary protection

23. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

24. The Tribunal has not accepted any of the applicant’s claims made orally or in writing as to past political or other involvement leading to past harm or adverse attention, nor has it accepted her claims as to why she may face a real risk of significant harm in the future. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for the reasons stated in her application form, her pre-hearing claims, or her claims at hearing, including the coup, human rights, political freedom, free speech, democracy, liberty, the economy, an ex-boyfriend policeman, her family, or involvement or imputed involvement in the red shirts, or general violence.

25. The Tribunal does not accept that the applicant or her family have experienced any adverse interest as claimed or that she or her family have the political profile or involvement as claimed. It thus does not accept that she (or her family) has or will come to adverse attention for such reasons nor is it satisfied that the applicant seeks to or would like to engage in expression of political views. The Tribunal has found that the applicant is not a witness of truth concerning her claims that she faces a real risk of significant harm.

26. The Tribunal is not satisfied that she faces a real risk of experiencing significant harm for any reason.

27. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Thailand, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Conclusion

28. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

29. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

30. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Christine Cody
    Member

    
    

    ANNEXURE A - CRITERIA FOR A PROTECTION VISA

32. 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.

33. 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.

34. 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).

1. 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 below.

2. 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 below.

   Mandatory considerations

3. 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.

   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.

   …

   Annexure B accessed from DFAT report

   Contemporary Thai politics has been characterised by divisions between supporters (‘red-shirts’) and opponents (‘yellow-shirts’) of Thaksin Shinawatra, who became Prime Minister in 2001. Although popular with Thailand’s urban and rural poor for his social programs, opponents criticised his perceived authoritarian style, the increase in human rights abuses and corruption that occurred during his time in power and – according to some detractors – his disrespect for the monarchy. The military removed Thaksin from power in
   a bloodless coup in September 2006, but his party won the next general election in December 2007 (Thaksin himself went into exile after the 2006 coup and remains abroad). Political polarisation between Thaksin supporters and opponents led to protracted protests, occasional deadly clashes, and political paralysis in the years following (see Protesters and Demonstrators). Elections in July 2011 returned the pro-Thaksin forces to power under the leadership of his sister Yingluck, but mass protests and street battles broke out again in 2013. The military staged a bloodless coup in May 2014, bringing to power a military junta known as the National Council for Peace and Order (NCPO) headed by General Prayut Chan-ocha.
   Elections in July 2011 returned the pro-Thaksin forces to power under the leadership of his sister Yingluck, but mass protests and street battles broke out again in 2013. The military staged a bloodless coup in May 2014, bringing to power a military junta known as the National Council for Peace and Order (NCPO) headed by General Prayut Chan-ocha.
   The NCPO remained in power for five years before being formally dissolved on 17 July 2019
   following the 2019 General Election. While the widespread demonstrations, political instability and society remain deeply polarised. Further political and social uncertainty has resulted from the ascension of a new monarch, King Vajiralongkorn (Rama X), whose governing style differs from that of his associated political violence that had characterised the preceding years largely ceased under NCPO rule, the NCPO period also saw reductions in political and social freedoms. Despite the nominal return to civilian rule following the 2019 elections, Prime Minister Prayut and other ex-NCPO figures remain in power and Thai politics and society remain deeply polarised. Further political and social uncertainty has resulted from the ascension of a new monarch, King Vajiralongkorn (Rama X), whose governing style differs from that of his long-serving father (see Critics of the Monarchy).

   Annexure C accessed from DFAT Report

   DFAT assesses that, notwithstanding the existence of constitutional protections guaranteeing the freedoms of expression, opinion and assembly, the ability of Thai citizens to criticise the government and express dissent publicly (either individually or collectively) is circumscribed in practice. Authorities have demonstrated a willingness to use broad interpretations of national security legislation, or the threat of prosecution under such legislation, to prevent political demonstrations from occurring or to discourage the expression of matters of public interest online. The criminalisation of defamation, and placing of the burden of proof upon the defendant, also acts as a significant deterrent to those wishing to exercise their freedom of expression….
   Section 112 of the Criminal Code (widely known as the ‘lèse-majesté law’) provides for a penalty of up to 15 years’ imprisonment for anyone who ‘defames, insults, or threatens the King, the Queen, the Heirapparent, or the Regent’. The law does not provide a definition as to what constitutes an insult to the monarchy, which has given authorities leeway to interpret it in a very broad way. The law permits citizens to file lèse-majesté complaints against each other.