1704872 (Refugee)

1704872 (Refugee) [2021] AATA 1103 (1 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704872
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alison Mercer
DATE:1 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 February 2021 at 9:29am

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of being killed or harmed by ex-husband – Red Shirts supporter – threatened by Yellow Shirts supporters – new claims raised – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
AZAEH v MIBP [2015] FCA 414
MIAC v MZYYL (2012) 207 FCR 211
MZZIA v MIBP [2014] FCCA 717
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 1 March 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 4 December 2015. The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations.
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 LAW, CLAIMS AND EVIDENCE
Protection Visa Application
The Department’s records indicate that the applicant made her protection visa application on 4 December 2015, in which she indicated that she was a Thai national, of Thai ethnicity and a Buddhist, born in [year] in Tak province, Thailand. She stated that she spoke, read and wrote Thai and read and wrote English. The applicant stated that she was married in Thailand in [year]. She stated that she was currently unemployed and had previously worked in [field] in Thailand between 2002 and 2009. She indicated that her parents resided in Thailand but did not give details of any siblings.
The applicant stated that she arrived in Australia as the holder of a visitor visa [sic – the Department’s records indicate that she arrived holding a [student] visa] in [February] 2014, on a validly issued Thai passport. The applicant stated that she was seeking protection in Australia so as not to have to return to Thailand and gave the following reasons (in summary):
·she came to Australia due to pressure from the 2 groups, the red shirts (government supporters) and the yellow shirts (anti-government supporters), both of whom pressured her to join them, though she abstained. She was afraid she would be hurt by one or other or these groups if she refused;
·if she returned now, some supporters might bear a grudge against her. She had been hurt in the past due to her stance. She did not seek help from the authorities in Thailand as the government supporters (red shirts) held sway with the police;
·she did not try to move elsewhere within Thailand before departing, as the red shirt and yellow shirt supporters were present throughout the country; and
·the authorities would not protect her if she returned as they just looked on during conflicts. Similarly, relocation would not protect her as she would not be safe from these 2 groups anywhere in Thailand.
Department decision of 1 March 2017
The delegate accepted the applicant was a Thai national, and that she had arrived as the holder of a [student] visa [in] February 2014 which was valid until 23 December 2015. The delegate found that the applicant was granted a bridging visa on the lodgement of her protection visa application, which came into effect on the expiry of her student visa.
The delegate noted the written claims made by the applicant but concluded that the applicant had provided no evidence at all to indicate that she had a political profile of any sort. Further, the delegate found that the applicant’s claims were vague, confused and brief, and that the applicant appeared to think that the yellow shirts were anti-government and the red shirts were government supporters, when in fact the yellow shirts supported the current military junta government. The delegate found that although the country information supported a conclusion that some opposition political activists might be at risk of being persecuted by the Thai authorities, the applicant had not demonstrated that she had a political profile, or that her claims were genuine. He did not accept that the applicant faced a real chance of harm if she returned to Thailand.
The delegate therefore found that the applicant did not satisfy the refugee definition or the definition of complementary protection. Given these findings, the delegate concluded that the applicant was not entitled to a protection visa.
Tribunal review application
As noted above, the applicant sought review of the above decision with the Tribunal on 22 March 2017. She provided a copy of the delegate’s decision with her application.
On 17 July 2020, the Tribunal wrote to the applicant via her agent to invite her attend a hearing by teleconference on 13 August 2020. She was requested to provide any written submissions and/or supporting material to the Tribunal by 6 August 2020.
On 10 August 2020, the Tribunal received a request from the applicant’s agent to have the hearing postponed on the basis that he was in lockdown in Melbourne while the applicant was in [City 1] (regional Victoria), and that after checking the Victorian Government website and calling the hotline, he was told the rules prevented him from travelling to meet with her or her to meet with him as he was restricted to 5kms from his home. The agent stated that in order to represent his client who had just appointed him, he would need time to prepare submissions to the Tribunal and to do this, he would need to meet with the applicant to determine the full details and prepare relevant statutory declarations and resource the evidence. However, she could not come to Melbourne to meet with the agent until the lockdown ended and travel rights were restored. He therefore requested a rescheduling of the hearing to a date in the future where he could attend the hearing with the applicant and to enable him to travel to [City 1] to meet her.
On the same date, the Tribunal emailed the applicant’s agent to advise that the Presiding Member agreed to reschedule the hearing, but did not agree to defer it until after the lockdown is concluded, given that there was no clear indication of when this would occur and that it was not appropriate for the Tribunal to defer matters indefinitely. While the Presiding Member acknowledged there were logistical difficulties in taking instructions in person given his and his client’s respective locations, there appeared no reason why he could not do so via telephone and/or a platform such as Zoom, Facetime, Skype or MS Teams. Accordingly, the Tribunal indicated that it would reschedule the hearing for a date to take place in the next 2 to 4 weeks.
On 2 September 2020, the Tribunal wrote to the applicant via her agent to invite her to attend a hearing on 29 September 2020 to be conducted by teleconference.
On 14 September 2020, the applicant’s agent requested that the hearing date be postponed until the hearing could be conducted in person, on the basis that a telephone hearing lacked the normal communication indicators from face to face hearings, including facial expressions, body language, demeanor and the general nature of the appellant. The agent stated that relying solely on a verbal communication delivered by the interpreter would not be sufficient, and similarly, a video conference hearing would involve similar issues.
On the same date, the Tribunal sent an email to the applicant’s agent advising that the Presiding Member had considered the request to have the applicant’s hearing conducted in person, but that the Melbourne Registry was unable to conduct in person hearings at present, and for the indefinite future, due to the COVID19 pandemic restrictions. The Tribunal drew to the agent’s attention the President’s COVID-19 Special Measures Practice Direction – Migration and Refugee Division ( issued 27 April 2020, which remained current and which overrode previous Hearing Directions for the Migration Refugee Division (MRD). In particular, the Tribunal asked the agent to please note the following sections:
Application
1.1 This Direction applies to the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT) during the
COVID-19 pandemic.
1.2 The purpose of this Direction is to modify the operations and procedures of the AAT, where appropriate and
necessary, to enable us to continue to review decisions during the pandemic. In implementing these changes: (a) the
health and wellbeing of members, staff, applicants, representatives and other persons involved in AAT processes is our
priority; and (b) we are mindful that the pandemic may affect the capacity of the AAT and other persons to take steps to
progress applications.
1.3 This Direction has effect from 29 April 2020. It applies to all applications, whether lodged before or after this date, and
remains in effect until it is superseded or revoked.
…
2.1 You must comply with the directions set out in this Direction unless we notify you that we have altered the procedure.
2.2 We expect you to use your best endeavours to assist the AAT to fulfil our objective in section 2A of the AAT Act. Note:
The AAT must pursue the objective of providing a mechanism of review that is fair, just economical, informal, quick and is
proportionate to the importance and complexity of the matter.
…
6. Hearings
6.1 The AAT will not hold any hearing in person, except in exceptional circumstances. Hearings will be conducted: (a) by
telephone; (b) by video; or (c) by a combination of telephone and video.
…
6.5 If you believe that: (a) you or another person will experience difficulty participating in the hearing by telephone or
video; or (b) the hearing cannot be conducted by telephone or video; you must explain why in the form or in a separate
document sent to us with the form
The Tribunal noted that the Presiding Member had considered the submissions the agent had provided as to why his client would prefer an in person hearing but did not consider that they constituted ‘exceptional circumstances,’ given they could elect to have a video hearing at which the parties can see each other, including the interpreter. The Tribunal advised that if they preferred a video hearing to the currently scheduled telephone hearing, they should please advise the Tribunal as soon as possible so that the required technical checks could be carried out.
On 15 September 2020, the Tribunal received a further request from the applicant’s agent, stating that if there was no choice then a phone interview would not protect his client’s interest in a fair hearing. He noted that a video conference could work but that the applicant did not have a laptop or computer. He reiterated that the applicant lived in [City 1] and could come to the agent’s office in Melbourne to utilise his computer, but due to the COVID19 lockdown, this was not currently possible.
On the same date, the Tribunal sent an email to the agent advising that the Presiding Member had read his advice that the applicant did not have access to a laptop or computer, and his request that the hearing therefore be rescheduled to a date on which he could travel to her or vice versa. The Tribunal stated that before that would be considered, they should please whether the applicant had a smart phone, as this was also a potential medium for a video hearing via MS Teams. They were asked to please advise as a matter of urgency whether the applicant the capacity to participate in a video hearing using a smartphone with webcam, and that the Presiding Member would carefully consider their response and will advise as soon as possible whether the existing hearing would be rescheduled.
On 21 September 2020, the applicant’s agent wrote again to request that the hearing be postponed due to his inability to attend due to ill health. He was requested to provide medical evidence and did so on 30 September 2020, indicating that he had been diagnosed with a medical condition on 29 September 2020 that was expected to last until 2 October 2020.
On 6 October 2020, the Tribunal wrote again to the applicant via her agent to invite her to attend a videoconference hearing on 28 October 2020.
On 21 October 2020, the Tribunal received a further hearing postponement request from the applicant’s agent, due to his ill health, with medical evidence. He subsequently provided additional medical information indicating that he was unable to participate in a hearing until 18 November 2020.
Accordingly, on 2 November 2020, the hearing was rescheduled to 1 December 2020, to be conducted by videoconference. The applicant and her agent were requested to provide any additional submissions and/or documents in support of the case 1 week prior to the hearing.
On 29 and 30 November 2020, the Tribunal received additional material from the applicant’s agent, being:
·statutory declaration from the applicant dated 29 November 2020;
·screen shot of what is stated to be the applicant’s telephone displaying a [Social Media 1] message from her (ex) husband, in Thai, untranslated;
·statement from applicant’s mother in law, 29 August 2020, in Thai, with English translation.
The contents of the applicant’s statutory declaration are as follows:
1.I am married and have 2 children with the 1^st husband.
2.I have 2 children in Thailand and 1 in Australia.
3.My mother in law and her daughter, my children’s aunty, in Thailand takes care of my 2 children there.
4.I came to Australia with my husband on a student visa.
5.I left Thailand because I cannot live in Thailand because of concern about the insecurity of my own life due to I was being threatened politically.
6.I was involved in a protest against the Yellow Shirts and the PDRC. Yellow shirts are the government.
7.I was a red shirts supporter and actively involved in protests and support for the Red shirts organisation.
8.I attended many protests and actively recruited people to attend the protests.
9.Protests were in [District 1] – I attended 7 protests in 6 months May to December 2013.
10.My friends asked me to join the group because they were angry about the election.
11.I was a Taksin supporter, Red Shirts, and so were my friends.
12.Taksin the Red Shirts leader had a sister as well and she was elected.
13.Yellow shirt came to fight with the Red Shirt – army and police were under the yellow shirt control and direction.
14.Yellow shirts direct Red shirts to check points to stop people to going to the protests.
15.Because I think differently from those people and give full support to the Red Shirt cause. Therefore I was being threatened continuously by Yellow Shirts and also fighting with my husband who supports Yellow Shirts.
16.There were phone calls to me to continue threatening harm to me if I did not stop supporting the Red Shirts.
17.During the phone call he would say you stop. You don’t stop we will hurt you. Maybe you will die. He called many times.
18.My husband was yellow shirts and he was angry with me also. He want me to stop supporting Red shirts.
19.My husband disagreed and disapproved with my involvement with the Red shirts. We argued many times and every day about this.
20.My relationship with my husband became very bad at that time.
21.My husband was with the Yellow shirts party, the ruling party (government) and we had an argument so many times. He argue and threaten to hurt me, my body often.
22.Every time I talk about the Red shirts he argue with me and want to hit me.
23.My husband took drugs – methamphetamine and white powder all along, if my husband is mad at drugs, he will use a gun to threaten death to me.
24.He will point gun at me and tell me ‘If you go join the Red shirts when you come home I will kill you.’ I fight back because he take the drugs. But I know if he is too angry he will kill me if I don’t stop with yellow shirts.
25.First time he put a gun to my head he was jealous. He thought I had another man. I was working, he was taking my money for gambling and drugs. He put gun to my head and he say he want to kill me and I cry and give me a big lecture for 5 minutes. Then he slapped my face hard with his right hand. He put the gun away before he slapped me.
26.The first time he said he will kill me I just cried and panicked and hoped he would not pull the trigger.
27.After this he broke the cupboard because he punch it hard and he go join with a friend outside the house. I then called his mother so she know because I told her and she cannot go out as he might kill her too.
28.My mother left when I was 2 years old and my grandmother brought me up. She died 2009. I had no one else in the world to speak to. I have other brothers and sister but don’t know much about them because they are children of my father who left me with my grandmother. I do not have contact with these siblings.
29.My mother in law she cannot help me, she is also scared of her son.
30.I went back to Red shirts again with my friends, hoping my husband would not find out. I came home and then my husband came home and put a gun to my head again. Because me angry about me going again. He told me I don’t like you do that. Why you go this once again. You want to die? Red shirts trying to stop the Government and he does not like that.
31.I answered him, I’m sorry if you not want me to join like that you stop your drugs for me also. This become big problem.
32.I received many phone calls saying that they will shoot me if I continue with the Red shirts. He want me to promise I will not do again. I tried but cannot stop because this was too important to me.
33.I asked my mother in law and talk about Australia and she agreed we should go and be away from the problem so it will stop for good.
34.She agreed because too many call and threatening me. I want to stop drugs for him too. If we go to Australia we can have a new life. No more drugs (yaba) and he no more become crazy. I think there are no drugs in Australia like Thailand.
35.My mother in law she spoke to my father in law they both support me with plan to leave for safety. I tell the no money how can you help. I want him to stop yaba. How can I do. Many Red Shirts already killed by Yellow Shirts. I know so many red shirts were killed. All my friends had phone calls. One friend accident and we all suspect yellow shirt. Some in my group knew others who were killed so it was not safe for me to stay.
36.I told my husband that we should go to Australia to stop me being with the Red shirts and no more drugs and have happy life. He say yes and he promised to stop drugs when we came to Australia and I was now happy we would be safe.
37.He agreed and we applied for a Student visa.
38.We borrowed from his father who used his land for the loan and on land certificate.
39.We borrowed from the private lender (Mafia). His name was [name deleted]. He was a contact of my father in law.
40.My husband is a member of Mafia in Thailand. But he goes to sell drugs and is a drug dealer also.
41.Now we have a passport we have the money ready before the passport. Then go with father in law and apply for visa for both myself and husband. The children were to be left with aunty and mother in law.
42.When we have to go get passport we put on mask. I was asked why I came to the passport office. I tell them we want passport. Man at gate say no, you go away. He closed the gate and sent us away.
43.I had to go another time for passport 2 weeks later. We went in the afternoon. I travelled from [District 1] at 9am to Phitsanulok and arrived 2pm. This time I was let in to apply for my passport. Different man on gate.
44.It took less than 15 minutes to apply my passport then they post the passport. After one week I have the passport and my husband too.
45.My husband he put gun to my head in Thailand and then when we came in Australia he fight and threaten me with a kitchen knife. He threatened me with the knife 2 times in Australia. He put the knife to my neck and said if you talk too much I will kill you.
46.Now I am in Australia and still not safe from my husband.
47.My husband’s friends all mafia gang. All take drugs and sell drugs and distribute the drugs for mafia boss.
48.The agreement with my father in law’s friend. My father in law spoke to him and guaranteed me so he lent me the money. I knew if I did not pay the money back they would take my father in law’s land and then they kill the people for not paying. I had no choice. No choice, had to pay. If not the land is gone and my father in law has no property and income and then they are fear of death as this is the normal for Thailand if you borrow and do not repay. They take the land and kill the family.
49.The loan was BHT [amount] and interest 3% per month = [amount] BHT per month. This loan was from a friend of the father in law so I have a low interest rate. I was expecting 10% per month.
50.We applied for our visa in December 2013. [Ms A] applied for our visas. She live in Sydney.
51.Our visas were granted 18 January 2014.
52.We arrived in Australia [in] February 2014 (left Thailand on [date] February 2014).
53.Student visa was not cancelled: when student visa was nearly finished my friend named [Ms B] I met in Australia and she is from [Country 1], talk to me about my visa and I agree to let her help me apply for protection visa. We started in December 2015 and the letter from immigration came with a date of 1 February 2016 for protection student visa not expired so on bridging visa A.
54.I thought I could not apply while I was on a student visa so I did not apply for protection earlier. I was waiting for my visa to be expiring before I would submit. I met [Ms B] in a restaurant because a friend ‘[Mr C]’ gave me her contact number and tell me she could help.
55.Why wait for so long to apply for protection – because don’t know how and thought I had to wait until the student visa expired to apply. I talked to Thai people friend [Mr C] and he told me this person know what to do so I go to her.
56.Agency for student visa: [Ms A] – Sydney – I know her because her big sister [Ms D], lives in my area. She look like my aunty. She know [Ms A] because she is her sister.
57.I meet the sister to get to know her. I know [Ms A] from [Ms D], her sister. Sister contacted [Ms A] and [Ms D] confirm can fix and give [Social Media 1] and contact of [Ms A] on [Social Media 1]. [Ms A] sister live in my area and I know her house. I went to her house to see her. She stay in same suburb/area. She tell me how she know [Ms A] can do the visa for me.
58.For documents I email documents to [Ms A] from the shop. The shop is a long way 15 minutes by car so go to the shop to email the documents to [Ms A]. Email from the shop so I don’t have copies of the emails and I didn’t have email address then.
59.[Ms A] sent the photo of the visa grant to her sister and she gave to me copy of the grant. [Ms A] gave email to her sister and sister email friend to print for me. Then she gave me copy of the grant. I collect from [Ms D]… after she had it printed.
60.I came to study: English. Did not study because I wanted to protect myself.
61.I applied for Protection on 4 December 2015 with [Ms B]. I then have confirmation dated 1 February 2016. I only applied for myself.
62.At this time I am still with my husband but he applied also. [Ms B] did two applications, one each. My husband was still taking drugs then. I separate from my husband in May 2016. He left Australia in 2019 January.
63.After I left my husband I met [Mr E] at work in 2015. After I separated I got together with my current husband [Mr E] in June 2016.
64.My ex husband always fight with me and threaten me. He still say he will kill me and put knife to my in January 2016 and 2015 November. He put the knife to my neck and hold the knife to my skin like he was going to cut my throat. I cannot tell people because I was thinking about my son. If he go back and I do like that he can kill my son in Thailand because his father was helping to take care of my son.
65.After I left my husband in May 2016, I lived with a friend, [Mr F], [Address 1]. [Mr E] was living at this address and over the next month, we became a couple.
66.I have not divorced my ex husband yet and am in a defacto relationship with [Mr E] then.
67.We have a child born [date]. My baby’s name is [Child G]. Australia Birth Certificate and the baby is both Thai and [Country 2] citizen and is on the father’s visa application as his child. Father is on CHEV 790 visa.
68.We have been living together since June 2016 as a couple.
69.Before my husband left Australia he constantly would remind me if I went to Thailand I would die the day I arrived. He said “You come back to Thailand you cannot get your life more.’ This means he will kill me in the Thai English version.
70.The last time my ex husband called me was before he went to Thailand. He told me after I go to Thailand you go here no more. If you come here you will be no more. You die. I saw on [Social Media 1] he was back in Thailand. Then I called him and then he told me. How I call him I called my son and he was there that day. So I spoke to him. He say you not need to know about me. Don’t come back remember you can’t come here anymore I will kill you if you do. You know I will.
71.Before he left he threatened you many times. Last time he contact me in Australia. He came to my home and knock the door. I am scared and am not open. I don’t want to talk to him. He threaten me many times and I fear him. If in front of others he not threaten me.
72.I ask him how he buy his ticket to Thailand. He tell me you stop talking and don’t come back if you want to live.
73.Before I move to [Address 2]. Then move to [Address 3] until I left my husband. Then I moved to [Address 1]…
74.I worked on farms while here and I was able to pay the loan so my father in law kept his farm. My husband helped out a little with repaying the loan.
75.Everyone worked together on the farm, same workplace and talk was friendly and husband was jealous. I don’t know what wrong. Then talk with current husband and my ex would go home and very upset.
76.My new husband [Mr E] said no worry come with me and we can live together.
77.Then I separated and went to live with [Mr E] at [Address 1] in June 2016.
78.We moved to [City 1]: July 2018 advised immigration of new address…
79.I pay money for my sister in law (aunty of my children) to take care of the children in Thailand. Their father does not help with the children.
80.I have to take care of the children. Every month I send 20,000 BHT ($1,000) for the children.
81.I am happy I was able to repay the loan which is paid in full no more debt so family safe from harm.
82.Husband threat if I go back to Thailand he will kill me and will kill my daughter as well if I bring her there.
83.Once you are in Thailand I will find you and I will kill you and maybe you bring your new husband with you, you are gone. I will make sure you die.
84.Mother in law has access to the children grandchildren. Children live with aunty (ex husband’s sister).
85.Mother in law comes to see the children in the holidays because she is in Bangkok.
86.She works in Bangkok and takes a break every month or so to come see the children and she works as a cleaner for homes.
87.Father in law works the farm. Visits grandchildren and keeps separate to them so father of the children does not have constant access to them.
88.How many times if you go to Thailand.
89.Many times did husband threaten to kill. Every time I contact him about the children. He hit the children and talk bad to the children and make them upset.
90.Call to tell him not to do this and he keep threating he will kill me if I come back. Fighting with everyone.
91.We have a call in a year 5 times 2019 and 2020 many more times because he has no work now he makes trouble often.
92.His sister looks after him with meals etc but he lives in a separate house. This sister is the aunty that is taking care of the children. This is also a big worry for me when he is there for fear of harm to my children. I can do nothing but hope that he does not hurt them badly.
93.I am married with my second husband now and we have 1 child together.
94.My ex husband always threatened if I returned to Thailand when you go home you must die that day.
95.Therefore I have a very strong fear and concern of the insecurity of my life and safety if I go to Thailand and a child with a new husband that is also threatened.
…

In her statement, the applicant’s mother in law identifies herself as [name], and essentially reiterates the claims made by the applicant, as well as expressing the opinion that the police would not stop her son from killing the applicant if she returned to Thailand as they are also involved in drug dealing and the mafia, as her son is.
Hearing of 1 December 2020
As noted above, the hearing was conducted by videoconference due to ongoing COVID19 restrictions affecting the Tribunal’s ability to undertake in person hearings. The applicant and her agent gave oral evidence and submissions, respectively. The applicant’s husband, Mr [Mr E], was also available to give evidence but was ultimately not required to do so. The Tribunal and applicant were assisted by the services of an interpreter in the Thai and English languages, who participated by conference telephone.
The applicant confirmed the contents of her statutory declaration to the effect that a [Country 1] woman called [Ms B] assisted her to make her protection visa application in December 2015. The applicant said that she was introduced to [Ms B] by [Mr C], a Thai friend. In response to the Tribunal’s query, the applicant said that she wrote down her claims in Thai, and gave them to [Mr C], and he translated them to [Ms B] and she put them in the protection visa application for the applicant. The applicant said that she believed that the claims that she wrote in Thai were as detailed as the ones she outlined in her statutory declaration to the Tribunal, but she did not keep a copy of them, and she was never given a copy of her protection visa application. In response to the Tribunal noting that the written claims in her protection visa were very general (in particular, they did not mention her active involvement with the Red Shirts, or the threats of violence by her husband), the applicant said that she could not explain this, except to say that [Ms B] and/or [Mr C] must not have put her full claims down. When asked if she knew of any reason that they would not put down what she wrote in full, the applicant said that she did not know, and was unaware of any discrepancy between the 2 sets of claims until the Tribunal raised it with her at the hearing. The Tribunal advised that it had to consider s.423A of the Act, which requires the Tribunal to draw an adverse inference about an applicant’s credibility where they raise claims or evidence that was not raised in their original protection visa application, where the Tribunal considers that there is no reasonable explanation for them doing so. The applicant reiterated that she did not know why her full claims had not been put in the protection visa application. Her agent suggested that this was the fault of [Ms B] and/or [Mr C], neither of whom were registered migration agents, who may not have taken as full instructions as he did when he prepared the applicant’s statutory declaration.
The applicant confirmed that she was brought up by her paternal grandmother after her mother left the family when the applicant was young. Her grandmother died in 2009. The applicant said that she has very little contact with her mother, or her father, particularly after the latter remarried. She confirmed that she has half-siblings from her father’s remarriage but she had little contact with them or her parents. The applicant said that she married her first husband when she was 18 (in [year]) and had just finished high school. They had gone to the same high school and he was 2 years older than her. At that time, he was working for the [government] in an administrative role. The applicant confirmed that she had 2 children with her first husband, a son who is now [age], and another son who is now [age] years old. She told the Tribunal that her older son has now left school and is working as a [occupation]. He lives in the same house as his father but has his own room. Her younger son is still living with his aunt, the applicant’s sister in law, and is still at school.
The Tribunal asked the applicant about her involvement with the Red Shirts. She responded that she became involved in 2013. At that time, Thaksin had been exiled and his sister Yingluck was elected but she was being undermined by the Yellow Shirts. The applicant said that she felt that Yingluck and Thaksin had the right policies and she wanted to defend them against the Yellow Shirts. When asked what policies of Thaksin and/or Yingluck she agreed with, the applicant said that the major issue was that the Yellow Shirts were very conservative and had staged a coup, and she did not agree with this. In particular, at that time, Yingluck was trying to amend the Constitution to enable Thaksin to return from exile but the Yellow Shirts opposed this, and she opposed them. When asked what it was about Thaksin’s policies that originally attracted her, the applicant said that he was strongly anti-drugs, which she agreed with, and also he had good policies to help the poor, and she agreed with his solutions to the country’s economic problems. The Tribunal queried why the applicant only became involved with these issues in 2013, when Thaksin was deposed and exiled from the Prime Ministership in 2006 or 2007. The applicant said that she did support Thaksin when he was in power but didn’t get involved at that time as she had young children. The attacks on Yingluck in 2013 galvanised her to become an active supporter of the Red Shirts.
In response to the Tribunal’s query, the applicant said that her involvement consisted of attending local meetings of Red Shirts in her home area. She said that she was not a leader but went to meetings when she could. At these meetings, she and other Red Shirt supporters talked about fixing the constitution to get Thaksin back. In her local village, she also expressed her opposition to a conservative party, Pachatipat, which was aligned with the Yellow Shirts. The applicant said that the local Red Shirts meetings usually involved 300 to 400 people in the local square. She also attended several bigger rallies in the main square in Bangkok in the second half of 2013. She said that she remembered one because she was pregnant at the time. She then retracted this statement and said that she was not pregnant when she attended any of the Bangkok demonstrations. When asked if anything happened to her at the local meetings or Bangkok protests, the applicant said that she and others were sprayed with gas at one of the Bangkok demonstrations. The local meetings were patrolled by police and soldiers but there were no real problems at them. The applicant said that she also received 2 text messages from an unknown caller telling to stop her involvement with the Red Shirts, and that if she did not listen, she would lose her head. The applicant said that she did not think these were from her husband, who did oppose her involvement, but were from someone else.
The Tribunal noted that the applicant had said in her statutory declaration that she knew many Red Shirts who had been killed. The applicant clarified that she knew of Red Shirt supporters who were killed, and had witnessed a Red Shirt supporter get shot at a demonstration in Bangkok in 2013, but she did not personally know anyone who was killed.
The Tribunal asked the applicant whether she would resume her political involvement if she had to return to Thailand now. She responded that she had changed her mind: as a mother of 3 children, she would not get involved again. She said that she did not fear harm on that basis if she had to return to Thailand now.
The applicant said that she consulted her mother in law about what she should do when she received the threatening texts, and also because she and her husband were having problems in their marriage due to his support of the Yellow Shirts and disapproval of her involvement with the Red Shirts, and also because of his drug usage. The applicant said that her mother in law said that she should stop her involvement with the Red Shirts because she was in danger. Her mother in law also wanted to stop her son’s involvement in drugs, so she suggested to the applicant that she and her husband go to Australia to get away from the politics and drug scenes in Thailand. In response to the Tribunal’s query, the applicant said that her husband had been involved in drugs since they were in high school but it had got worse during their marriage. She gave an example of a family in their village, who dealt in drugs, being killed, which caused a lot of local people to support Thaksin’s anti-drug policy. The applicant conceded that her husband was a drug dealer when she married him but said that she could tolerate it initially. However, his increasing involvement caused him to lose his reason and become violent and threatening. He was also involved in the mafia.
The applicant said that her main fear about returning to Thailand was that she would be killed or harmed by her ex-husband. He had threatened her because she had remarried, and because he was on drugs. He had even threatened to harm her daughter from her current relationship with [Mr E].
In response to the Tribunal’s query, the applicant said that she was not formally divorced from her first husband. They separated in May 2016 in Australia and she made an appointment for them to formally apply for a divorce, but her husband did not attend. Since then, she had formed a de facto relationship with [Mr E], with whom she had lived since mid-2016, and with whom she had a daughter, [Child A], born in [year]. The Tribunal noted that the applicant separated from her first husband in May 2016, and he returned to Thailand in January 2019, during which time he had not harmed her, and queried why he would be motivated to harm her now if she returned to Thailand. The applicant said that he would be motivated by revenge, because she left him and had formed a new relationship. He was on drugs and all of his friends were into drugs and gambling. He didn’t get along with his own family any longer. The Tribunal noted that they separated 4.5 years ago, and that the mere fact that her ex-husband was a drug user did not indicate in and of itself indicate that he would be likely to try to harm her, or that he would be able to do so if she returned to somewhere other than her home area in Thailand (for instance, Bangkok). The applicant said that her ex husband was very jealous and still regarded her as his wife. She noted that he had been violent to her in Thailand, where he threatened her with a gun on more than one occasion, and had threatened her with a knife on 2 occasions when they were still together in Australia. When they had separated, he once came to where she was living on her own and knocked on the door at night. She was afraid to let him in, and after 10 minutes or so, he went away. She said that her home in Thailand was in the same village and he had threatened to kill her. The applicant said that it was not that easy for her to relocate to somewhere like Bangkok, as it was expensive to live there. She added that as her ex husband was involved in drug trafficking, his network would extend throughout the whole country and he would be able to track her down anywhere. The Tribunal indicated that it did not find this plausible. The applicant reiterated that her ex husband was still motivated to harm her, and would be able to find her anywhere in Thailand due to his drug connections. Also, guns could be bought by anyone in Thailand. She would not feel safe if she had to return.
In response to the Tribunal’s query, the applicant said that she did not report her husband to the police in Thailand or Australia for threatening to her. While they were together, she said that she still loved him and did not want him to go to jail. She said that she had no faith in the Thai police or justice system, as the police were involved in drug dealing and other criminal activities. They also only assisted those who could pay them. There was no way they could protect her 24 hours a day. The applicant said that she had more faith in the Australian criminal justice system to protect her.
The Tribunal queried why the applicant and her first husband made separate protection visa applications in 2015, when at that time they had not separated. The applicant said that her husband wanted to return to Thailand at that time, but she did not. She made her protection visa application with [Ms B]’s assistance, and later he copied her by making his own application.
In response to the Tribunal’s query, the applicant confirmed that the loan her father in law took out to fund her and her husband’s travel to Australia had been completely repaid and she did not have any fears of returning to Thailand on that basis. The applicant confirmed that any earnings she makes now in Australia goes to support herself and her family in Australia, and her children in Thailand, although her older son is now working. However, she recently assisted him financially to get a loan to buy a motorbike. What could she send varied depending on her earnings and the children’s needs.
The Tribunal discussed with the applicant the parts of the recent Department of Foreign Affairs and Trade (DFAT) Country Report on Thailand dealing with domestic violence and the efforts of the Thai government to address it and to improve services for victims, as well as strengthening criminal sanctions for perpetrators. The applicant said that these would be of no use to her if she was dead. The Tribunal discussed with the applicant and her agent the fact that it did not have to be satisfied that state protection was 100% effective, but rather that it existed, would not be withheld discriminatorily and was reasonably effective. The applicant reiterated that she had no faith that she would be protected by the Thai authorities as they only worked for the rich. She also noted that there were constant reports of husbands killing their wives in Thailand. While she had some confidence in the Australian authorities to protect people subjected to domestic violence, she did not have the same confidence in the Thai authorities and did not trust the system there.
The Tribunal noted that the alleged threat posted by her ex husband on [Social Media 1] was not translated, and therefore it could give it little, if any weight. The applicant’s agent undertook to provide a translation after the hearing, together with additional legal submissions. The Tribunal indicated that it would not make a decision before 15 December 2020 to enable the agent to do so, and that he could request an extension of time to do so if he were unable to do so by that date.
The Tribunal discussed what evidence [Mr E] (the applicant’s current husband) could provide with the agent and the applicant, and they confirmed that he could speak about his relationship with the applicant, and what he knew of her ex-husband from what the applicant had told him. The Tribunal advised that, under the circumstances, it felt that the best evidence on these issues was that of the applicant herself, and therefore indicated that it did not feel that it was necessary to take oral evidence from [Mr E]. It indicated that they could submit a written statement from him after the hearing if they wished to do so.
The applicant’s agent noted that the applicant’s family was in an unusual situation in relation to their immigration status. He said that the applicant was on a bridging visa A pending the outcome of her protection visa application, and [Mr E] held a subclass 790 temporary SHEV visa, but the conditions of that visa did not allow him to add the applicant as his spouse. However, their daughter, who was born in Australia in March 2017, had been added to his application, apparently because the view of the Department was that she should be assigned the more favourable visa status of her parents. The agent said that he thought that [Mr E]’s subclass 790 visa was valid for another 3 years or so, and that he was working for an employer in [City 1], who might be willing to sponsor him for permanent residence in due course. The agent noted that there was a potential issue with the UN Convention of the Rights of The Child (CROC) that arose as a consequence, as it might be that the applicant’s daughter would be separated from her mother if she obtained temporary or permanent residence via [Mr E], but the applicant had to return to Thailand. Alternatively, their daughter might be separated from her father, [Mr E], if she had to return to Thailand with the applicant.
The Tribunal indicated that once it received additional submissions, it anticipated it would be likely to make its decision no earlier than January 2021.
On 15 December 2020, the Tribunal received a request for an extension of time from the agent to provide additional submissions, on the grounds that he had been ill. This was granted, and on 30 December 2020, the Tribunal received additional submissions consisting of copies of the UN Convention on the Rights of the Child (CROC), the Preamble to the Refugee Convention and the Convention Against Torture. Also provided were a further legal submissions from the agent and a translation of message(s) sent to the applicant by her ex-husband.
The translated document shows an apparent [Social Media 1] exchange between the applicant and a [Mr H] on 8 October (year not given) in which [Mr H] states ‘[applicant name], YOU FUCKING BITCH. WHENEVER YOU COME BACK TO THAILAND, I’LL KILL YOU.’
The agent’s submissions were as follows:
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[The applicant] is a partner to [Mr E] She has a child [Child G]- aged [age] years They have been together for more than 4 years [the applicant] is an applicant for a SC 866 visa [Mr E] holds a 790 CHEV visa [the applicant] cannot be added to [Mr E]’s 790 Visa
Schedule 1
Item 1404    Safe Haven Enterprise (Class XE)
(3) Other:
(a)An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(b)        Applicant must be in Australia.
(c)Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection (Class XA) visa may be made at the same time and place as, and combined with, the application by that person.
(d)An application by a person for a Protection (Class XA) visa is valid only if the person:
(i)does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; and
(ia)does not hold, and has not ever held, a Safe Haven Enterprise (Class XE) visa; and
(ii)does not hold, and has not ever held, a Temporary Safe Haven (Class UJ) visa; and
(iii)does not hold, and has not ever held, a Temporary (Humanitarian Concern) (Class UO) visa; and
(iv)held a visa that was in effect on the person’s last entry into Australia; and
(v)        is not an unauthorised maritime arrival; and
(vi)was immigration cleared on the person’s last entry into Australia.
The visa has been submitted and there is no provision to add the subsequent partner to the application or visa grant.
Schedule 2 SHEV 790 Visa
790.21 Criteria to be satisfied at time of application
790.211
(1)        Subclause (2) or (3) is satisfied.
(2)        The applicant:
(a)claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and
(b)        makes specific claims as to why that criterion is satisfied.
Note:    Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to(3) The applicant claims to be a member of the same family unit as a person:
(3) The applicant claims to be a member of the same family unit as a person:
(a)        to whom subclause (2) applies; and
(b)who is an applicant for a Subclass 790 (Safe Haven Enterprise) visa. Note:    See paragraphs 36(2)(b) and (c) of the Act.
790.3 Secondary criteria
Note:    All applicants must satisfy the primary criteria.
Since the primary criteria is not satisfied by [the applicant] for inclusion in the 790 Visa grant she cannot be added to [Mr E]’s SC 790 Visa now.
Being a member of the family unit is a time of application criteria and this cannot be met by [the applicant].
At the time (Name) applied for his SHEV visa [the applicant] was not included as his partner.
SC 866
Name) cannot be added to [the applicant]’s visa SC 866
866.2 Primary criteria
Note:    All applicants must satisfy the primary criteria.
866.227
(1) The applicant meets the requirements of subclause (2) or (3).
(2) The applicant meets the requirements of this subclause if the applicant, or a member of the family unit of the applicant, is not a person who has been offered a temporary stay in Australia by the Australian Government for the purpose of an application for a Temporary Safe Haven (Class UJ) visa as provided for in regulation 2.07AC.
(3) The applicant meets the requirements of this subclause if section 91K of the Act does not apply to the applicant's application because of a determination made by the Minister under subsection 91L(1) of the Act.
If [the applicant] is returned to Thailand either [the applicant] or [Mr E] will be separated from their child. [The applicant] has no way to return to Australia.
One or the other parent will be deprived access and parenting responsibilities for the child
The Child [Child G] is both a [Country 2] and Thai Citizen
[The applicant] has a partner in Thailand who is associated with and member of the Thai Mafia
He is a drug user and dealer.
Has threatened to Kill both [the applicant] and [Child G] If they come back to Thailand
[The applicant] has no one to go to in Thailand other than her mother in law and sister in law.
The mother in law is in Bangkok and the Ex husband lives with the sister in law, his sister, who takes care of [the applicant]’s children in Thailand.
With all the treats and putting a gun to her head multiple times and a knife to her throat also more than one, it is only a matter of time before she is killed by this man whom she has now separated.
Complimentary protection allows Australia to protect people like [the applicant] from torture, harm and death. In this case there is evidence to show the intention of the ex husband to kill her.
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[The applicant]’s child, [Child G] is [age] year old born [date]
Article 3 [of Convention on the Rights of the Child]
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[The applicant] has a child, [Child G] and the obligations of the UN Convention on the Rights of the child specify the best interests of the child shall be the primary consideration. If [the applicant] is sent to Thailand and leaves her child in the care of her Husband, the father of the child, the separation of mother from Child is not in the best interests of the child.
If [the applicant] takes the child with her to Thailand that also is not in the best interests of the child since she will be separated from her father and exposed to the threat of death from the ex Husband of [the applicant].
If [the applicant] is granted Complimentary Protection the option for [Child G] to spend her life with her parents and be raised by them is present. Since the father is close to completion of the required 3.5 years living and working in a regional area the outcome presents an opportunity to apply for a partner visa once [the applicant] is granted the SC 866 visa.
This is significant in the life of the child, [Child G] and ensures compliance with the UN Convention.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
Granting a Complimentary Protection visa will meet the obligations of this article in protecting the child.
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Article 6
1. States Parties recognize that every child has the inherent right to life.
[Child G] is at threat of death if she is returned to Thailand and if sent there could and most likely would result in loss of life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Granting the SC 866 to the mother is the way to meet the obligations under this article 6 of the convention. With both parents together, the child is protected, cared for, and loved. his is the fundamental concept underlying the Convention on the Rights of the Child.
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
This article 9 is critical to compliance with Australia’s obligations under the Convention on the Rights of the child. If [the applicant] is sent to Thailand [Child G] will be separated from one or the other of the parents. This separation would not be in the best interests of the child.
There is no abuse or neglect from either parent and the child [Child G] is happy, contented and safe in the hands of her parents.
Choosing to send the child to Thailand would place her at extreme risk of death at the hands of the ex Husband. Once he knew they were there, it would be impossible to protect either the child or [the applicant].
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
Maintaining direct contract with both parents will be impossible if [the applicant] is sent to Thailand. Separating the parents is not in the best interests of the child. Both parents are loving and kind to the child and provide excellent support and care to [Child G].
Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
Parental responsibilities and primary care responsibilities cannot be forthcoming if the child is separated from two loving parents. The two parents, both legal guardians of [Child G], must be kept together to provide the necessary direction and upbringing she needs.
The convention is clear. The best interests of the child are the basic and the singular priority when a child is concerned.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.
IF not living together the child is deprived of this right: If [the applicant] is denied a Complimentary protection visa then she will be removed from Australia, and if the child [Child G] is left with the father he will lose the capacity to work or will incur extreme costs for child care and funding his wife in Thailand. Thus depriving the child of essential care and financial support.
If the father works the child will have little time with him and will be spending working hours away from the child. The father has a job that involves shift work in a factory and this would leave the [age] year old daughter in a difficult position. Child care is not available during the nights and early morning shift and it is not certain [Mr E] will be able to find a sitter to be with [Child G] through the night. If he is unable to do this he loses all chance of Permanent residence on the CHEV pathway.
He is required to work full time for 3.5 years to qualify to apply for permanent residency.
Article 19
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
If [Child G] is sent home with [the applicant] then she will be subjected to violence and death and my be exposed to watching the death of her mother first. If not sent then the father,
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
The ex husband of [the applicant] has threatened to kill this child, [Child G] if she is brought to Thailand.
Article 22
1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the present Convention.
The child was not added to the mother’s application because she was automatically granted the father’s visa SC 790
Article 41
Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:
(a) The law of a State party; or
(b) International law in force for that State.
The option exists for Immigration and the AAT to grant the mother’s visa SC 866 enabling her to migrate as permanent residents both her child and husband.
The option exists for a partner visa application to include the husband, [Mr E], and child [Child G], once the 866 is granted for [the applicant].
Complimentary protection:
Complementary protection is protection for those who are not refugees according to the Act, but who can't return to their home country because they will suffer certain types of harm which engage Australia's other protection obligations.
These obligations come from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR) and have been incorporated into the Act.
A person can be granted a protection visa on the basis of complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they were removed from Australia to their home country.
Significant harm
Significant harm is different to serious harm. It is defined as:
·arbitrary deprivation of life
·the death penalty
·torture
·cruel or inhuman treatment or punishment, or
·degrading treatment or punishment.
It is not considered to be a real risk that a person will suffer significant harm if:
·it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm
·they could obtain protection from the authority of the country so that there would they could obtain protection from the authority of the country so that there would not be a real risk that they will suffer significant harm,
·or the real risk is one faced by the population of the country generally and is not faced by them personally.
[The applicant], was a child brought up by her grandmother, since deceased and has no other family in Thailand other than her 2 children. He ex husband, lives with the children at his sister’s home. The Children’s aunty take care of the children funded by money [the applicant] sends to them monthly.
The Ex Husband is a drug addict and dealer associated with the mafia.
He has threatened [the applicant] on more than one occasion putting a gun to her head and a knife to her throat. This was all before she left him for fear of her life and to escape his abuse.
He Ex Husband has since threatened her life (see post on social media chat) where he clearly told her if you come back to Thailand I will kill you and your child and husband.
[The applicant] has nowhere to go in Thailand. No family or friends to support her if she was to return. He life would be at high risk and the prospect or torture is significant.
A woman, on her own in her country with a husband hell bent on revenge and killing her is significant in this situation.
Having no one to support her where she can be safe places her at high risk
She cannot take the Child, [Child G] to Thailand because of the threat of death to her by her Ex Husband.
[The applicant]’s current partner, [Mr E] also cannot go to Thailand with her due to the threats on his life. He currently is on a SC790 visa and is close to completing the required 3.5 years employment in Regional Australia which will qualify him for the Permanent pathway.
Unfortunately, he cannot sponsor [the applicant] on the permanent visa due to visa restrictions on Applicants gaining PR visa the CHEV pathway.
[The applicant] qualifies for Complimentary Protection due to the High Risk of death if sent back to Thailand. The Child [Child G] is also at high risk of death. We know the ex husband has a gun and has threatened [the applicant] with it before.
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Country information

The Tribunal had regard to the following sections of the Australian Department of Foreign Affairs and Trade’s Country Report on Thailand (issued 10 July 2020):
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Women
3.85 Thailand is a State Party to CEDAW (see Human Rights Framework). Section 27 of the Constitution guarantees equal rights for men and women, and prohibits discrimination against a person on the grounds of sex. Various other constitutional articles specifically commit the State to protecting and promoting women’s rights. The Gender Equality Act (2015) mandates non-discrimination based on gender and sexual identity in policy, rule, regulation, notification, project and procedures by government, private organisations and any individual, but makes exceptions in the cases of religious principles and national security. The law imposes a maximum prison term of six months or a maximum fine of THB20,000 (AUD965) or both for any person convicted of gender discrimination. Between 2015 and 2018, the Ministry of Social Development and Human Security received more than 41 complaints and issued judgment in 24 cases. Most complaints received reportedly related to transgender individuals alleging discrimination (see Sexual Orientation and Gender Identity).
3.86 Thailand has reached gender parity in primary school enrolment, and female students outnumber their male peers in secondary and tertiary education. Thailand reportedly ranks first in the world for women’s enrolment in higher education, with 1.41 women attending a university for every man. The labour market is open, and women participate actively in the agriculture and non-agriculture sectors. Women in Thailand score well in nearly all measures of leadership in the corporate sphere, far surpassing most other Asian countries and enjoying a good position globally. Thai women are prominent in business across many industries and companies, making up 40 per cent of Chief Executive Officers and 34 per cent of Chief Financial Officers. However, the overall participation of women in the labour market and their representation in public decision making and governance structures remain lower than those of men. Disparities are significant between urban and rural areas, regions and groups, with unequal access to resources and social services. Ethnic minority women, women migrants and those living in border areas are particularly vulnerable. Thailand ranked 52nd out of 129 countries in the 2019 Sustainable Development Goals Gender Index with a score of 70.3 (considered ‘Fair’), compared to 67.5 for Malaysia, and 67.2 for Vietnam (Australia’s score was 85.2).
3.87 Thailand has long had one of the world’s lowest rates of female parliamentary representation. Although there are no specific restrictions, in-country sources report that women are unlikely to engage in political life unless they belong to an established political family. Attempts by women’s advocates to introduce parliamentary gender quotas have so far failed to gain traction. Only 13 women were appointed to the 250-seat parliament during the five years of military government, representing just 5.2 per cent of the military-appointed legislature; while only two women were selected to sit on the 21-member Constitutional Drafting Committee which drafted the 2017 Constitution. The proportion of female candidates in the March 2019 elections was around 22 per cent for both parliamentary constituencies (2,466 women out of 11,181 candidates overall) and the party-list system (622 out of 2,917). Eighty-one women were elected to parliament out of 500 members overall, a rate of 16.2 per cent of lower house membership.
3.88 Female participation in national security bodies is also very low. Women comprise approximately 9 per cent of Thailand’s military personnel overall (see Military). Ministry of Defence policy limits the percentage of female officers to not more than 25 per cent in most units, with specialised hospital/medical, budgetary and finance units permitted up to 35 per cent. With the exception of the nursing academy, military academies do not admit female students, although a significant number of instructors are women. In August 2018, the Royal Thai Police (RTP) unexpectedly announced that women would no longer be permitted to apply to the Royal Thai Police Academy, thereby preventing them from achieving senior ranks. Although the RTP did not provide an explanation at the time of the announcement, in subsequent media reports the RTP reportedly claimed that the change was necessary given that ‘police investigations require hard work’, and that ‘female officers take frequent sick leave or abruptly resign’. The RTP also separately listed ‘being a male’ as a requirement in an employment announcement for new police investigators. The NHRCT and the Association of Female Police Investigators both publicly objected to the decision. Activists criticised the move as being contrary to the aims of the Gender Equality Act, and formally petitioned the Office of the Ombudsman to urge the decision be revisited. To DFAT’s knowledge, there have been no moves to reverse this decision.
3.89 The Sangha Supreme Council (see Religion) prohibits women from being ordained as Buddhist monks, and women wishing to do so usually travel to Sri Lanka. Less than 0.06 per cent of monks in Thailand are female. Gender equality legislation allows exemptions for cases involving ‘compliance with religious principles’, meaning that female monks are excluded from government gender equality protections. International observers have reported cases of public verbal and physical attacks on female monks, including by male monks. Officials do not prevent female monks from practising and establishing monasteries and temples, but do not grant female-led monasteries and temples official recognition. This means that these institutions are ineligible for any of the government benefits received by other sanctioned temples, primarily tax exemptions, free medical care, and subsidies for building construction and running social welfare programs. Despite ongoing activism by female monks to amend the law to recognise them, there has been no government action to date.
3.90 Article 27 of the Criminal Code specifies penalties for conviction of rape or forcible sexual assault ranging from four years’ imprisonment to the death penalty, as well as fines. The article permits authorities to prosecute cases of spousal rape, and prosecutions have occurred. NGOs claim that victims have underreported rapes and domestic assaults, in part due to a lack of understanding by authorities that has impeded effective implementation of the law, and due to a perception by victims that police are incapable of bringing perpetrators to justice. In May 2019, the government amended the law to prescribe harsher punishments against perpetrators in rape and sexual assault cases, and to recognise new forms of the crime. Among the changes were the provision of the use of the death penalty in cases where the victim dies after being raped, the introduction of penalties for perpetrators who record their assault for exploitation, and recognition of crimes for sexual assault against men and against corpses. NGOs have reportedly welcomed the recent removal from the Penal Code of a provision that had allowed offenders younger than 18 years to avoid prosecution by marrying their victims.
3.91 Domestic, family, and/or gender-based violence is a significant problem in Thailand. While it affects all sections of Thai society, it is reportedly particularly prevalent among ethnic minority groups. The number of reported cases of domestic violence have increased in recent years, although advocates attribute this as being due to an increasing willingness of survivors to report than was previously the case. The government operates shelters in each province for those who have experienced domestic violence, while all state-run hospitals include crisis centres that care for abused women and children. The Ministry of Public Health operates one-stop crisis centres nationwide that provide information and services, while the Ministry of Social Development and Human Security runs a community-based system that focuses on training community representatives on women’s rights and abuse prevention. According to government representatives, if a person who has experienced domestic violence asks to relocate, officials will try to facilitate their move to another province. Successfully doing so is more difficult for women with children.
3.92 The Family Institute Protection Act (2019) came into force in August 2019. The new law standardises definitions of family violence (which previously differed across different ministries), aims to improve coordination between relevant agencies, and generally includes stronger measures to protect victims and to make perpetrators accountable for their actions than the earlier Victims of Domestic Violence Protection Act (2007). The new law allows third parties to report cases of domestic violence (rather than just the victim), makes family violence a criminal offence and mandates prosecution, and allows officials of the Ministry of Social Development and Human Security to impose a 48-hour restraining order, even without a court order, against those who have allegedly committed domestic abuse against a spouse. In addition to making financial support and other assistance available for victims of violence, the new law gives victims a voice in whether to pursue a criminal justice or restorative justice path. It also covers the conduct of the perpetrator, including through providing services and provisions to help prevent recurrence. Where relevant, perpetrators may be required to undergo behavioural adjustment, such as substance abuse treatment.
3.93 A number of laws criminalise sexual harassment in both the public and private sectors. Those convicted of sexual harassment face a maximum fine of THB20,000 (AUD965), while abuse characterised as an indecent act may result in a maximum 15 years’ imprisonment and a maximum fine of THB30,000 (AUD1,450). The Civil Service Act (2008) also specifically prohibits sexual harassment and stipulates five levels of punishment: probation, docked wages, salary reduction, suspension and termination. NGOs report, however, that enforcement of the law has been ineffective due to a vague legal definition of sexual harassment and difficulties in prosecuting harassment claims.
3.94 No specific law prohibits female genital mutilation/cutting (FGM/C), and DFAT is unaware of any governmental efforts to prevent or address the practice. NGOs have reported that cases of FGM/C have occurred in the SBPs, although no statistical information is available regarding its prevalence.
3.95 While Thailand is a relatively tolerant society in relation to gender roles, and notwithstanding constitutional and legislative protections, DFAT assesses that long-standing conservative societal norms and regressive policies continue to restrict the ability of women to participate fully in all facets of life in Thailand, particularly in the economic, political, religious, and national security spheres. DFAT assesses that women in Thailand, particularly members of ethnic minority groups, face a moderate risk of being subjected to gender-based violence (including intimate partner violence).
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STATE PROTECTION
In-country sources report that the independence of state protection bodies has eroded over the past two decades, under both civilian and military rule, and that most Thais have limited confidence in their ability to access justice through them. Human rights observers report that state protection bodies are heavily politicised, and that politically motivated appointments and problematic management have negatively affected their overall performance. As earlier described, the NCPO routinely used state authorities to restrict the activities of political opponents. Human rights groups have consistently raised concerns that impunity for abuses committed by security authorities and other official bodies remains the norm, particularly in the SBPs. All state protection institutions are significantly subject to and affected by Corruption, particularly the police.
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Royal Thai Police (RTP)
The Royal Thai Police (RTP) is the national police force of Thailand. The RTP has an estimated force strength of between 220,000-230,000, of whom more than 90 per cent are male. Headquartered in Bangkok, the RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility. The PPD is divided into nine regions that cover all of the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas). Other RTP bodies include the Central Investigation Bureau (CIB), which assists the RTP’s provincial and metropolitan components in preventing and suppressing criminal activity and in minimising threats to national security; the Narcotics Suppression Bureau; the Police Education Bureau; the Tourist Police Bureau; and the Immigration Bureau.
In October 2018, a new 1,600-strong police unit was created to provide security to the royal family, carry out the king’s ‘royal wishes’, and collect information on ‘individuals and groups whose behaviours pose a threat to national security and the monarchy’. Initially known as the Special Service Division, the new unit’s name was changed in January 2019 to the Ratchawallop Police Retainers, King’s Guards 904.
In-country sources report that the professionalism of the RTP varies considerably across its various branches, but that in general the RTP provides a higher standard of law enforcement than other regional police services. The CIB has reportedly improved considerably in relation to crime scene preservation, forensics and disaster victim identification; while other branches have performed well in relation to combating child exploitation and human trafficking (see relevant sections).
A number of factors combine to limit the RTP’s performance, however. Historical mistrust between the military and police was a contributing factor in the NCPO’s decision to grant the RTA policing powers (see previous section), which has weakened the RTP’s authority. Policing remains very regionally focused and there is no national database or central registry for court results. Changes in laws and procedures are not always communicated to officers on the ground. There remains a ‘response’-focused mentality towards investigating crimes that have already occurred, rather than implementing robust preventative measures. A culture of patronage and nepotism results in some promotions and desirable postings going to those who can afford to ‘purchase’ them. Police at junior levels are low-paid and have to provide much of their own equipment, including their own guns. Some therefore supplement their income through ‘moonlighting’ as security for bars, while some become involved in activities such as trafficking. The mandatory retirement age of 60 increases the incentive for officers to make money from their position while they are able to do so.
There have been a large number of high-profile Corruption prosecutions against serving police officers, and frequent reports of abuse by police against prisoners and detainees, generally with impunity. Human rights observers report that most Thais do not hold the RTP in high esteem as an institution.
Individuals can file complaints of police abuse directly with the superior of the accused police officer, with the Office of the Inspector General, or with the police commissioner general. The NHRCT, the Lawyers’ Council of Thailand, the Office of the National Anticorruption Commission, the Supreme Court of Justice, the MOJ, the Office of the Prime Minister, and the Office of the Ombudsman also accept complaints of police abuse and corruption. Human rights observers report that few complaints alleging police abuse result in punishment of alleged offenders, however, and there have been numerous examples of investigations lasting years without resolution. Human rights groups have criticised in particular the superficial nature of police and judicial investigations into incidents of alleged Torture and other mistreatment by security forces, and reported deficiencies in official investigations into Deaths in Custody. In-country sources also report that they are seeing a pattern in which police who have been accused of abuses have responded by bringing defamation charges against the victims (see also Torture).
Department of Special Investigation (DSI)
Formed in 2002, the Department of Special Investigation (DSI) is a 1,600-strong investigative unit that sits within the MOJ and operates independently of the RTP. The DSI has a statutory remit to investigate serious crimes in the public interest, including complex criminal cases, those affecting national security, those involving organised crime, and those potentially implicating high-ranking government officials or police officers. It is empowered to instigate its own enquiries. The DSI is reportedly a well-funded and highly capable organisation. There is a public perception that its work in politically sensitive cases has been subject to political interference.
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Findings and Reasons
Identity
The Tribunal accepts from the documentary and oral evidence provided that the applicant is a citizen of Thailand, that she is of Thai ethnicity and that her biodata and family composition is as claimed. It finds that Thailand is the appropriate country of reference against which to assess her refugee and complementary protection claims.
Summary of Claims
The applicant initially claimed that she could not return to Thailand due to conflict between political opponents (the Red Shirts and Yellow Shirts) in which she claimed she would be caught up. However, after the refusal of her protection visa by the Department, she made expanded claims to the Tribunal, prior to the Tribunal hearing, that she was afraid to return to Thailand as she actively supported the Red Shirts and would be at risk because of this, and that she faced harm from her ex husband, who had been violent to her in Thailand and Australia. She indicated that he wished to harm her because of her support for the Red Shirts and because he was on drugs. She subsequently indicated that her ex husband did not accept their separation and wished to harm her due to her having formed a new relationship in Australia with another man with whom she had had a child.
At the Tribunal hearing, the applicant indicated that she no longer feared harm for having supported the Red Shirts and would not be politically active if she now returned to Thailand. She also noted that a loan taken out by her parents-in-law to finance her and her ex husband’s travel to Australia had now been repaid and she did not fear any harm in relation to this. The applicant maintained her claim that her ex-husband wished to harm her because of previous disagreements and because she had formed a new relationship in Australia with another man and had a child with him. She maintained that the authorities in Thailand would not be able to protect her from this harm, and that there was nowhere in Thailand that she could relocate to avoid harm from her ex-husband.
Post hearing, the applicant’s agent submitted further claims to the effect that the CROC would be breached if the applicant were not granted protection and allowed to remain in Australia with her [age] year old daughter and her de facto partner.
Credibility
As discussed with the applicant at the hearing, her failure to raise the claims relating to being actively involved with the Red Shirts, and to fear her ex-husband due to political and marital conflict with him in Thailand, in her protection visa application raises the question of whether the applicant fabricated these claims after her original claims were rejected by the delegate. The Tribunal notes that s.423A of the Act provides that if an applicant raises new claims and/or evidence after the primary decision is made, then the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

The explanation provided by the applicant and her agent at the hearing is that the persons who assisted the applicant to make her protection visa application must not have put all of her claims of involvement with the Red Shirts, and her conflict with her husband over this issue, and his drug usage, even though the applicant gave full details to these friends at the time that they assisted her to make the protection visa application. The applicant claimed not to be aware of any discrepancies between her original written claims and subsequent written claims to the Tribunal until the issue was raised at the Tribunal hearing that the claims in her protection visa were general in nature, compared to the statutory declaration and oral evidence she provided to the Tribunal.
The Tribunal has considered this explanation but does not find it plausible. The applicant was not able to explain why the friends who assisted her with the visa application would have any interest in truncating or editing her claims, and the Tribunal is not persuaded that they did so. This is particularly since the original claims specifically mention conflict between the Red Shirts and Yellow Shirts but portray the applicant as not involved in either group. There is no plausible explanation that the Tribunal can see for why the friends would not simply have indicated that the applicant was a Red Shirts supporter at this time, even if they did not put down the full details of her involvement. The Tribunal does not consider that the applicant has a reasonable explanation for why she did not raise her claim to have been actively involved in the Red Shirts movement, and to have had conflict with her husband and others over this issue prior to the primary decision being made. It therefore draws an adverse inference in relation to her credibility about these claims, pursuant to s.423A.
In relation to the claims about her ex-husband being a drug addict and dealer, a member of the Mafia, and is motivated to harm her due to their separation and her new relationship and daughter in Australia, the Tribunal notes that the applicant’s oral and written evidence to the Tribunal was that although her husband had been violent on occasions to her in Thailand and in Australia, they did not separate until May 2016, after she had lodged her protection visa application on 4 December 2015. However, the Tribunal also notes that the applicant did not provide any details to the Department about her fears concerning her husband after their separation, up until the time that the Department refusal decision was made on 1 March 2017. The applicant’s agent submitted that she only made full and detailed claims after he began assisting her, after the lodgement of her review application to the Tribunal.
After some consideration, the Tribunal accepts that the applicant has a reasonable explanation for why she did not raise her claims about her ex husband prior to the primary decision being made; namely that they had not separated at that time, and that it may not have been clear to her that it was in her interests to add these claims to her application after it was made and she separated from her ex husband. It therefore does not draw an automatic adverse inference in relation to her credibility about these claims pursuant to s.423A. However, the Tribunal retains concerns about these claims, which it will discuss further below.
Red Shirt and Yellow Shirt claims
As noted above, pursuant to s.423A of the Act, the Tribunal draws an adverse inference about the credibility of the applicant’s claims to have been actively involved in the Red Shirts movement at any time in Thailand, and to have faced harm from her husband or any other person or organisation for that reason. The Tribunal does not accept that the applicant was actively involved in the Red Shirts movement at any time in Thailand, or that she faced harm from her husband or any other person or organisation for that reason.
The Tribunal notes that the August 2020 written statement from a person claiming to be the applicant’s ex mother in law also raises these claims as one of the reasons for marital discord between the applicant and her ex husband. The Tribunal gives this statement little weight as it considers that the applicant’s ex mother in law may be motivated to assist the applicant to stay in Australia, given the applicant sends money back to her ex sister in law, her ex mother in law’s daughter, to assist them to bring up the applicant’s children with her first husband. The Tribunal concludes that the applicant’s ex- mother in law has colluded with the applicant to assist the applicant in her protection visa application.
The Tribunal therefore does not accept that the applicant faces a real chance of harm for this reason if she returned to Thailand now or in the foreseeable future. This is particularly since the applicant told the Tribunal at hearing that she no longer fears harm due to her past political activities (mentioned at [37] and [56]).
Claims relating to ex-husband
Having considered the totality of the evidence, the Tribunal finds that it is implausible that the applicant would now face harm from her ex-husband some 2.5 years after he left Australia to return to Thailand.
As noted above, the Tribunal has concerns about the applicant’s credibility in relation to the claims about her ex husband. As set out above, the Tribunal does not accept that the applicant supported the Red Shirts movement while living with her ex husband in Thailand, and it finds that she manufactured claims about the conflict between herself and her ex-husband being due to political differences. It has further found, as set out above, that the applicant’s ex mother in law’s written claims to this effect were fabricated to support the applicant’s protection visa application.
The applicant gave written and oral evidence to the Tribunal that her husband uses and deals drugs, and had done so since the time she married him in 2000. She claimed that he was violent due to this and was motivated to harm her because of this. She said that he had threatened her with a gun in Thailand and with a knife in Australia before they separated in May 2016. She further claimed that after they separated, he came to her house one night in Australia, but went away when she did not answer the door. He returned to Thailand in January 2019 and since then she had received a threat to kill her if she returned to Thailand, which her ex husband used [Social Media 1] to make. The screen shot provided of the threat does not give the year, but the Tribunal accepts this must have occurred between January 2019 (when the applicant’s ex husband returned to Thailand) and November 2020 (when the Tribunal hearing was held). The applicant claimed that her ex-husband still considered her to be his wife and did not accept her new relationship with [Mr E], and the fact that she and [Mr E] now had a daughter in Australia. As noted above, the applicant’s ex mother in law provided written evidence stating that her son was violent towards the applicant in the past and that she feared that he would kill the applicant if she returned to Thailand.
As discussed with the applicant at the hearing, the Tribunal does not accept that it automatically follows that the applicant’s ex husband using drugs (and even dealing) drugs means that he is motivated to harm her if she were now or in the foreseeable future to return to Thailand. Nor does it accept that it follows that he is a member of the (or any) Thai mafia simply because he uses and/or deals drugs. The Tribunal also considers it implausible that the applicant apparently had no issues with marrying someone she knew to be a drug user and dealer, nor with travelling with that person to Australia even after he had allegedly threatened her with a gun in Thailand, yet now claims to be afraid that he would kill her. The Tribunal accepts that the applicant’s ex husband may be a drug user and may have dealt drugs. However, it does not accept that there is a real chance that he would now harm her because of this, and/or because he does not accept that she has repartnered and had a new family. In the Tribunal’s view, the fact that the applicant’s ex husband did not physically harm her in Australia after they separated in May 2016, and that he voluntarily returned to Thailand in January 2019, suggests that he ultimately accepted the separation and moved on. Even allowing for the fact that he might have initially beem unhappy or jealous that his ex wife had repartnered and started a new family, there is, in the Tribunal’s view, no credible motivation for him to now wish to seriously harm or kill the applicant or any members of her family some 4.5 years after their separation.
To the extent that the written statement provided in August 2020 by the applicant’s ex-mother in law suggests otherwise, the Tribunal forms the same conclusion as it did regarding the mother in law’s claims that there was political conflict between the applicant and her ex husband: it considers that the applicant’s ex mother in law has colluded with the applicant to support her protection visa application, given that the applicant has been financially contributing to her children’s support (the ex mother in law’s grandchildren) to a greater degree than she would be able to do in Thailand. The Tribunal therefore does not give this statement any weight.
In relation to the [Social Media 1] threat, the Tribunal has similar concerns that this may have been fabricated to enhance the applicant’s protection visa claims. However, even if it is genuine, the Tribunal does not consider that one threat made over [Social Media 1] suggests that there is a serious intention on the part of the applicant’s ex husband to harm her if she returns to Thailand. As discussed with the applicant at the hearing, the Tribunal accepts that there may be animosity between ex-spouses but it does not accept that this would be translated into action in the form of serious harm of the kind listed in the examples set out in s.5J, such as a threat to her life or liberty, significant physical harassment or ill-treatment, significant economic hardship, and/or denial of basis services where her capacity to subsist is threatened.
Moreover, the Tribunal does not accept that any risk (if there is one) from the applicant’s ex husband would be present throughout Thailand. It does not accept the applicant’s claim that her husband is involved in the mafia in Thailand and could thus track her down anywhere in the country. It considers that the applicant’s ex husband would not have the capacity or connections to locate the applicant if she were to return to an area other than her home area in Thailand (such as Bangkok). It does not accept that the applicant’s ex husband would know if the applicant had returned to Thailand other than to her home area, or be able to locate her there if she returned now. The applicant has demonstrated, through her travel to Australia and her finding work and accommodation here, that she is adaptable and resourceful. The Tribunal considers that she would be able to relocate to another area of Thailand outside her home area to avoid the harm she claims to fear. The Tribunal acknowledges that the applicant’s 2 sons from her marriage to her ex husband still reside in her home area, but notes that her older son is now an adult. The Tribunal considers it understandable that she would want to see her younger son but notes that she has been voluntarily separated from him since the start of 2014. It also notes that as her ex mother in law lives in Bangkok, the applicant may be able to see 1 or both sons when they visit her, without her ex husband having to know about this.
Finally, the Tribunal is satisfied that the applicant would be able to access effective protection measures should she return to Thailand and receive threats from her ex-husband. While the Tribunal acknowledges that the 2019 DFAT report identifies some problems with Thai Police force, particularly in relation to corruption, it notes that the DFAT report refers to the fact that since August 2019, measures to support women who are victims of domestic violence have been strengthened, including intervention orders and assisted relocation for women and compulsory treatment orders for offenders. The Tribunal considers that this meets the requirements in relation to s.5LA(2) regarding effective state protection being taken to be available where a person can access protection, that protection is durable, and in the case of protection provided by the relevant state, that protection consists of an appropriate criminal law (specifically, legislation addressing domestic violence), and a reasonably effective police force.
The Tribunal finds that the applicant does not have a well founded fear persecution from her ex husband if she returned to Thailand now, or for the reasonably foreseeable future.
Claims relating to family situation in Australia
The Tribunal accepts that the applicant formed a de facto relationship with [Mr E], a non-Australian who holds a subclass 792 visa, in Australia in 2016, and that their daughter [Child G] was born in Australia in [year]. The Tribunal further accepts that [Child G] is not an Australian permanent resident or citizen and does not hold a subclass 792 visa but appears to have been granted a bridging visa A on the basis of her father’s visa.
The applicant’s agent has submitted that the applicant cannot be added to [Mr E]’s subclass 792 visa, as this could only have done at the time it was made, which was prior to the applicant meeting [Mr E]. The applicant’s agent further submits that [Mr E] cannot be added to the applicant’s protection visa application for the same reason, and indicates that [Child G] cannot be added to either of her parent’s visa applications.
The agent further submits that it would therefore be a breach of the CROC if the applicant is not granted a protection visa, as this means that she would have to depart Australia and either (a) [Child G] would remain in Australia with her father but would be separated from her mother, or (b) [Child G] would depart Australia with her mother but would be separated from her father, and would be at risk of being harmed by the applicant’s ex-husband in Thailand.
The Tribunal finds that neither [Mr E] or [Child G] are included in the applicant’s protection visa application, and therefore, the consequential effects on them of the applicant not being granted protection are therefore outside the scope of the Tribunal’s assessment of whether Australia owes the applicant protection.
Specifically, the Tribunal finds that it is not required to consider the CROC in its assessment of whether it owes protection obligations to the applicant as the CROC an international treaty that does not form part of Australia’s domestic law and cannot operate as a direct source of individual rights and obligations. The Tribunal notes that there are a number of legal decisions that support this view: in MZZIA v MIBP [2014] FCCA 717, the Federal Circuit Court of Australia rejected a submission that the Tribunal was required to consider the terms of the CROC, and held it would be an error to do so as it was not expressly adopted in the Migration Act and this would effectively allow the Convention to override an express Australian legislative provision: at [39].
Similarly, the Federal Court in AZAEH v MIBP [2015] FCA 414 confirmed that the ‘best interests of the child’ principle in CROC has no application to the determination of protection visas: at [31]–[33]. Also similar to this review, in AZAEH, the Court held that to require that consideration of the best interests of children who are not applicants for protection is to focus on the wrong person.
Residual claims
As noted above, the applicant’s statutory declaration provided to the Tribunal prior to the hearing referred (in part) to a debt owed by her parents in law to a local lender, the funds from which were used to pay for the applicant and her ex husband’s visas and travel to Australia in 2014. At hearing, the applicant confirmed that this debt has been fully repaid and that she did not have any fear of harm related to it.
The Tribunal finds that there is not a real chance that the applicant would face serious harm amounting to persecution from this source if she returned to Thailand now, or for the reasonably foreseeable future.
Refugee Claims
Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that she has a well founded fear of persecution involving serious harm from her ex husband or any other party for one or more of the five reasons mentioned at s.5J(1)(a), if she was to return to Thailand, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Considering the applicant’s circumstances individually and cumulatively, and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Thailand, there is a real risk that she will suffer significant harm as set out in s.36(2A) from her ex husband, or anyone else.
The Tribunal is satisfied that, if any risk from her ex husband exists, it would be reasonable for the applicant to relocate to an area of the country (such as Bangkok) where there would not be a real risk that she would suffer significant harm. In concluding that relocation is reasonable, the Tribunal takes into account the applicant’s ability to relocate and adapt in Australia, including her work history here. It considers that her older son in Thailand is now independent, while there appears no reason that her younger son cannot continue to reside with her ex sister in law, as he has done for the last 6 years.
As set out above at paragraph 73, the Tribunal has found that the applicant could obtain protection from the Thai authorities such that there would not be a real risk that she would suffer significant harm. Under the complementary protection criteria, s.36(2B)(b) provides that the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one to remove the risk – see MIAC v MZYYL (2012) 207 FCR 211 at [40]. In essence, the Tribunal must be satisfied that the protection available is more than ‘reasonable’ protection. Having regard to the available country information, the Tribunal is satisfied that it supports the fact that the protection available from the Thai authorities is more than ‘reasonable’ and removes the real risk; in particular, since the legal reforms of August 2019 referred to above. In this regard, the Tribunal notes that the protection offered by the authorities in a given country is not required to be absolute or infallible.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, she does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Mercer
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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 1103

1 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies