1704450 (Refugee)

[2022] AATA 4559

1704450 (Refugee) [2022] AATA 4559 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Paul Raymond O'Connor (MARN: 0854511)

CASE NUMBER:  1704450

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Alison Murphy

DATE:15 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 15 November 2022 at 3:39pm

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from loan shark – borrowed to repay personal loans from banks – credibility – claimed interest rates by banks – borrowed at higher rate to repay loans at lower rates – remained in home country despite not making full interest payment – continued work despite claim of living in hiding or moving around – country information – financial laws and enforcement – requirement of security by loan sharks – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Thailand, applied for the visa on 7 January 2016. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is 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.

3. The applicant appeared before the Tribunal on 28 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. At the conclusion of the hearing the Tribunal adjourned the review for 14 days to give the applicant a further opportunity to provide documents or further submissions.

4. The applicant was represented in relation to the review.

   Criteria for a protection visa

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

12. The applicant travelled to Australia on an apparently genuine Thai passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Thailand and she has been accepted as such by the Department. The Tribunal finds the applicant is a national of Thailand and has assessed her claims against Thailand as the country of nationality and the receiving country.

    The applicant’s personal background

13. The applicant is a [Age]-year-old female from Nakwan Sawan in Thailand. In her visa application she stated that her parents and brother remain living in Thailand and at hearing she confirmed they continue to live in the same house she grew up in.

14. Consistently with the information in her visa application, the applicant stated that she finished school before undertaking a bachelor’s degree in [Subject] at [University] in Samut Prakan near Bangkok.

15. After finishing university, the applicant worked at [Employer] in a [workplace doing a job task]. She held that job for four years before travelling to Australia.

16. The applicant arrived in Australia [in] December 2013 as the holder of a visitor visa.

17. The Tribunal accepts the above matters to be true.

    Claims for protection

18. In the protection visa application lodged on 7 January 2016, the applicant states she is not confident in returning to Thailand because she had a problem with those who called themselves the mogul. She borrowed money but did not know the interest was very high, she could not repay the money and thinks that if she returns there will be mayhem, amputation, detention and forced prostitution.

19. In response to a question asking if she experienced harm in that country, she stated no. In response to a question asking if she had moved, or tried to move, to another part of the country to seek safety, she said she had to run away and hide somewhere but she is not out of the hunt because there was a lot of networking. She stated that she thought the Thai authorities would not protect her because nowhere was as safe as she is now and a large group of people in Thailand put themselves above the law.

20. At hearing, the applicant gave evidence that a person called [Mr A] had asked her if she wanted to apply for a protection visa and she had given him money but did not know what he had written in the visa application. She gave evidence that she did not know who the mogul is and did not hold a fear of mayhem, amputation, detention and forced prostitution. Rather she claimed her real reason for claiming protection is that she feared harm from a female loan shark called [Ms B] in relation to a loan she had taken out in May 2012.

21. The applicant gave evidence that in January 2012, prior to taking out the loan from the loan shark, she borrowed a total of 700,000 baht from [Bank 1], [Bank 2] and [Bank 3] at an interest rate of 5% per month. These loans were used to buy a car (200,000 baht), [livestock] and equipment for a [livestock] farm on land owned by her family (100,000 baht) and to undertake renovations on her mother’s house (400,000 baht).

22. She stated that she quickly realised that she was not able to make the repayments on those loans so four months later in May 2012 she borrowed 900,000 baht from [Ms B] at an interest rate of 20% per month after being introduced to [Ms B] by her friend and colleague [C]. She used the 900,000 baht to pay out the bank loans and credit cards but was unable to make the monthly interest payments of 180,000 baht to the loan shark. Rather she paid smaller amounts of 1000 baht or 10,000 baht when she could and after three or four months paid less and less. When asked if the loan was documented she said that it was, but that she destroyed the documents when she came to Australia.

23. She stated that after around about the start of 2013, the loan shark sent someone around to her rented property to ask for the repayments. After they had visited 3 or 4 times she felt unsafe at her rental property so she started moving around to different places. After that there was no further contact with the loan shark until after she had arrived in Australia, when her mother told her the loan shark came looking for her at the family home in Nakwan Sawan three months after she left Thailand. Since then her mother has told her that the loan sharks had been returning to the family home each month or two months, leaving a message with the neighbours if her mother was not home.

24. At the conclusion of the hearing the applicant’s representative sought an adjournment to see if were possible to obtain bank records showing the applicant had paid out her bank loans around the time of the loan from the loan shark and a witness statement from the applicant’s former colleague [C] as to the loan from [Ms B]. The Tribunal granted that request and adjourned the review for 14 days.

25. As at the date of the Tribunal’s decision, the Tribunal has not received any further documents or submissions nor any request for further time to provide them.

    Analysis of claims

26. DFAT reports that many individuals in Thailand who have difficulty obtaining credit or loans borrow money from informal money-lenders or loan sharks. Loan periods tend to be very short loans of a ‘tide-over’ nature and security may be the person’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately. Persons known as ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security.[1] The Tribunal has had regard also to the country information submitted by the applicant’s representative, which it considers to be broadly consistent with the DFAT information referred to above.

    [1] DFAT DFAT Country Information Report: Thailand 10 July 2020 at 3.115 – 3.117

27. However, the fact that loan sharks operate in Thailand in the manner described by the country information does not on its own indicate that the applicant is at risk of harm from loan sharks if she returns. In this case, the Tribunal has serious concerns about the credibility of the applicant’s evidence.  Ultimately, these concerns cause the Tribunal to conclude that her claims to have borrowed money from a loan shark should not be accepted.

28. Firstly, country information indicates that Thailand’s Civil and Commercial Code limits the amount of interest that lenders can charge to 15% per annum. In those circumstances the Tribunal has difficulty accepting the applicant’s evidence that the loans she took out from big commercial banks in Thailand ([Bank 1], [Bank 2] and [Bank 3]) attracted an interest rate of 5% per month or 60% a year. When I discussed this with the applicant at hearing, she said that she thought there were some kinds of loans that allowed interest rates higher than 15% per annum. However country information submitted by the applicant confirms that the maximum annual interest rate on a loan is set by law at 15%, that the maximum annual interest rate operates retrospectively and that the police seek to enforce those laws.[2] In these circumstances the Tribunal does not accept the applicant’s account of her loans from the banks.

    [2] Call the police on loan sharks says Big Joke - Thai Examiner as provided in the applicant’s submissions dated 27 October 2022

29. Secondly, the applicant claims that she quickly realised that she could not make the interest repayments on the bank loans at a rate of 5% per month or 60% per annum, so she repaid them by borrowing money from the loan shark a few months later at an interest rate of 20% per month or 240% per annum. At hearing I asked her why she would choose to refinance her bank loans using a loan shark at four times the cost of the bank loans, given she had already found herself unable to make the much lower interest repayments to the banks. The applicant gave evidence that she thought it would be easier to manage if she only had one debt. The Tribunal does not accept that explanation, considering it would have been readily apparent to the applicant that she would unable to make the interest payments at the much higher interest rate.

30. Thirdly, the applicant claims to have never made a full interest payment to the loan sharks yet she remained in Thailand without harm for 19 months after taking that loan out in May 2012. Further in her statutory declaration made 25 October 2022, she states that she was granted the Australian visa on 18 October 2013 but didn’t leave Thailand until 14 December 2013. At hearing the applicant stated that she avoided the loan sharks between May 2012 and December 2013 by moving regularly and escaping from place to place. When I asked her why she had delayed leaving after being granted the visa, she said that she had to move her stuff back home and she also had to continue working to get money to buy her ticket. The applicant’s earlier evidence is that she worked in the same job at [Employer] for four years up to the time she travelled to Australia and the Tribunal considers that her ability to continue her work during the year that she claims the loan sharks were looking for her is inconsistent with her claims to be living in hiding and moving around from place to place.

31. Fourthly, the applicant’s evidence about her borrowings from the loan shark is not consistent with country information about those kinds of loans. DFAT advises that loan sharks will take security for even very short loans of a ‘tide-over’ nature, such as the individual’s bankbook or their ATM card and pin number. For larger and longer-term loans, DFAT advises that security may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.[3]

    [3] DFAT DFAT Country Information Report: Thailand 10 July 2020 at 3.115

32. In this case the applicant claims to have taken out a very large loan of 900,000 baht with a monthly interest rate of 20% and no fixed term. At hearing she initially gave evidence that the loan sharks did not ask for any security, rather they took her identity cards and household registration. However when I later discussed with her the DFAT information indicating that loan sharks required security even for much smaller loans, she said that her colleague [C] had to sign the contract as the guarantor for the loan. She said that she was in touch with [C] once in a while and [C] had told her people come and talk to [C] in the office about where the applicant is.

33. The Tribunal does not accept this to be true, noting that the applicant’s evidence is that she has now been in default of the claimed loan for more than nine years. The Tribunal considers that if [C] was actually a guarantor on a large loan as claimed, the loan sharks would have sought to recover the money owed from [C] long ago. Further the applicant gave evidence that her parents and brothers remain living in the family and she does not suggest the loan sharks have sought to harm them or recover money from them in the nine years since she defaulted on the loan.

34. For these reasons, the Tribunal does not accept the applicant borrowed money from a loan shark in May 2012 as claimed. It follows that the Tribunal does not accept there to be a real chance the applicant will be harmed by loan sharks or mafia if she returns to Thailand, now or in the foreseeable future. Therefore she does not have a well-founded fear of persecution and she does not come within the definition of a refugee in s 5H.

35. For the same reasons, the Tribunal does not accept there to be a real risk she will face significant harm from loan sharks or mafia as a necessary and foreseeable consequence of being removed from Australia to Thailand. Therefore she does not meet the criteria set out in s 36(2(aa).

    CONCLUSIONS

36. 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).

37. 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).

38. 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

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

    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.

    …