1704116 (Refugee)

1704116 (Refugee) [2021] AATA 4633 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704116
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Tania Flood
DATE:30 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 September 2021 at 20.24pm
CATCHWORDS
REFUGEE – Protection visa – Thailand – false claims – involvement with Red Shirt group – participation in rally – persecution – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa on 30 August 2016. The delegate refused to grant the visa as the delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Thailand, for reasons relating to her anti-government political opinion.
The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant agreed to appear before the Tribunal by telephone on 23 August 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to her during the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if she returns to Thailand for reason of her race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that there is a real risk she will suffer significant harm if returned from Australia to Thailand.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in her protection visa application forms, the applicant is [an age]-year-old citizen of Thailand. She was born in [Bangkok], Thailand. She did not provide any previous addresses in Thailand. Her parents and sister reside in Thailand, and her brother resides in Australia. She completed primary school, high school, and a Diploma in Thailand. Before coming to Australia, she was employed at [a company] where she [worked] from 2003 to 2012. She has been employed [in] Australia since July 2015.
The applicant arrived in Australia [in] May 2015 as the holder of a Student [visa]. She lodged an application for a protection visa on 30 August 2016. On 22 February 2017 a delegate of the Minister refused her protection visa application.
The applicant made the following claims on her protection visa application form:
She was involved in a rally against the Thai government and was ‘one of the many’ that got arrested, beaten, and later released without charge. She received continuous threats from the government and fears that she will suffer the same treatment if she returns to Thailand.
Her extended family were also threatened. She did not seek help because she was afraid that her family will be killed if she ‘make[s] any move against the authority.
She did not move to another part of the country as she was warned by the authority not to live elsewhere. If she returns to Thailand, they will find her.
Protection visa interview
The applicant was not invited to attend an interview with the Department.
Documents submitted to the Department
The applicant made a submission to the Department dated 26 August 2016. The submission states that the applicant was involved in a social group called ‘Red Shirt’ and was singled out for persecution due to her involvement in a rally against the government. It was submitted that the applicant ‘suffered over a considerable period of time’ before she left Thailand and ‘there is no reason to believe that things have changed since she left’.
Documents submitted to the Tribunal
On 28 July 2021 the applicant made a submission to the Tribunal in support of her review application. She stated that she does not wish to return to Thailand as the country has gotten ‘even worse over time’ since the 2014 military coup d’état. She is strongly against the military and its dictatorship government and believes that she has the right to speak and elect the prime minister. She stated that the economy is ‘bad’ as investors do not want to do business in Thailand. She stated that a student led anti-monarchy protest movement was held in Thailand in July, with several rallies per week. She claims that students were arrested for attending these ‘anti-coup rallies’ and are currently being held, due to face the military court. She further stated that they have protested peacefully, however, the police have retaliated with aggression and hostility. The Thai authorities have been silencing them and have restricted gatherings of more than five to end Bangkok protests.
The applicant also submitted the following documents:
·Copy of her Thai passport issued in 2019.
·Copy of a news article published by ABC News on 19 September 2020 and titled ‘Thousands of protestors gather in Thailand for ‘largest rally in years’ against the Government and monarchy’.
·Extract from a news article published by CNN on 25 February 2014 and titled ‘Thailand army chief says military will not step into political crisis’.
FINDINGS AND REASONS
Country of reference
The applicant has produced a copy of her Thai passport which verifies her claimed identify and nationality. Based on this and in the absence of any information to the contrary the Tribunal accepts the applicant is a citizen of Thailand.
Fear of harm for reason of past political involvement
In her written claims the applicant claims that she is opposed to the military and the government and in the past was involved with the Red Shirt movement. She claims she attended a political rally and was beaten, arrested, continually threatened and warned by the government not to move elsewhere in the country. She claims she endured suffering for a considerable period of time before she departed Thailand.
In contrast, the applicant informed the Tribunal during the hearing that she was not personally involved with the Red Shirt movement; never attended any protests and was never harmed in anyway prior to her departure from Thailand. When the Tribunal pointed out the obvious discrepancies in her evidence, she said that a friend had helped her to prepare her application. She said her friend just wanted to help and that she only said she was involved with the Red Shirts.
The Tribunal has considered the available information and the explanation provided for the discrepancies in the evidence. The Tribunal has concluded that the truthful account of events is that which was provided by the applicant during the hearing.
The Tribunal accepts the applicant is opposed to the military and the government as it is currently constituted but does not accept she was ever personally involved in the Red Shirt movement or attended political protests or was beaten and arrested by the authorities on account of her political opinions. Nor does the Tribunal accept that she was continually threatened by the authorities in Thailand prior to her departure to Australia. The Tribunal concludes that the applicant was not a person of adverse interest to the Thai authorities prior to her leaving the country. In the Tribunal’s view this finding is supported by the fact the applicant claims not to have encountered any difficulties obtaining a passport in December 2014 nor when existing customs.
The Tribunal is satisfied that there is not a real chance or a real risk the applicant will suffer serious or significant harm if she returns to Thailand on account of any past political activity against the Thai authorities.
Future harm on account of political opinions
During the hearing the applicant stated that her heart is with the Red Shirts and that she wants to see democracy restored in Thailand. That said, she confirmed she has not engaged in any political activism during the years she has lived in Australia but said she fears she will become involved in the protest movement if she returns to Thailand. On the other hand, she indicated during the hearing that she fears there will be large protests in Thailand in the future and relevantly, she said she doesn’t want to be involved in any clashes.
While the Tribunal accepts the applicant is opposed to the military and the current government, based on the available information, it is not persuaded that she will join the Red Shirts or participate in any future political demonstrations. Indeed, the Tribunal considers her oral evidence indicates a reluctance and/or unwillingness to do so.
Having considered the available evidence, the Tribunal does not accept that there is a real chance or a real risk that the applicant will suffer any harm in the future on account of her political opinions or activities.
The applicant did not voice any other reason to fear returning to Thailand.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons articulated above the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if she is removed from Australia to Thailand. Therefore, the Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…

[2021] AATA 4633

30 September 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies