1705233 (Refugee)

1705233 (Refugee) [2022] AATA 5161 (15 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1705233
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Jason Pennell
DATE:15 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 December 2022 at 12.55pm

CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – person who fears the mafia in Thailand – claimed debt owed to mafia – promise of work in Australia – required to pay debt off by working in brothel – vague evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 February 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[The first applicant] and [the second applicant] (‘the applicants’) claim to be citizens of Thailand. The applicants made application for a protection visa on 29 April 2016. The delegate refused to grant the applicant’s a visa on the basis that he was not satisfied they were people to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Migration Act 1958 (the Act).
The applicants lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 19 March 2017 and provided the Tribunal with a copy of the delegate’s decision record.
The applicants were invited to appear before the Tribunal in-person on 14 June 2022 to give evidence and present arguments. On 31 May 2022, the Tribunal received from the applicants a completed hearing response form outlining that they would not participate in the hearing and would consent to the Tribunal deciding the application for review on the papers without taking further steps to allow her to appear. This was confirmed by the applicants via email on 31 May 2022, and as a result the hearing was cancelled. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. As such, the Tribunal is satisfied the applicants were given a fair opportunity to give evidence and present arguments.
The applicant was not represented in relation to the review.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANTS CLAIMS and evidence
Applicants’ identity and country of reference.

The first applicant claims that she was born [date] in Chiang Rai, Thailand.[1] The applicant claims to be a citizen of Thailand and does not hold any other citizenship and is not a national of any other country.
[1] Personal Particulars for assessment including character assessment dated 29 April 2016, Dept File No [number], f. 42
The second applicant claims that she was born on [date] in [District 1] Thailand.[2] The applicant claims to be a citizen of Thailand and does not hold any other citizenship and is not a national of any other country.
[2] Application for Protection dated 29 April 2016, Dept File No [number], f. 42
Each applicant provided the Department with a copy of their Thai passport biodata page that confirmed the date and place of their birth.[3] There is no evidence to suggest the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants, the Tribunal finds that they are citizens of Thailand and as such their protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.

Migration history
[3] First and Second Applicant’s passport, Dept File No [number], f. 151

The applicants each arrived in Australia on a Student visa (TU-570) [in] July 2015. They were then granted a Bridging Visa C on 19 May 2016, in association with their Protection visa applications made on 29 April 2016 as an onshore unlawful non-citizen. They have been subsequently granted several further Bridging Visas C with condition 8101 attached to them.
Prior to her arrival in Australia, the first applicant travelled to [country] between May 2001 and October 2002.

Member of the family unit

At the time of application of their applications for protection visas, it was claimed that the first applicant and the second applicants have been in a de facto relationship since 1 May 2013.[4] The second applicant is included in the first applicant’s application as a member of the family unit.[5] Based on the available evidence and with no information to the contrary, the Tribunal accepts the first and second applicants are in a genuine spousal relationship and that the second applicant satisfies clause 1.12(4)(a) of the Migration Regulations, as she has membership of the same family unit as the first applicant for the purposes of this application for review.

Applicants Claims for protection
[4] Application for Protection Visa dated 29 April 2016, Dept File No [number], f. 42
[5] Application for Protection Visa (part B) dated 23 April 2016, Dept File No [number], f. 19

The first and second applicants’ both claim that they will be harmed by the mafia if they are returned to Thailand. Their claims are detailed in their applications for a protection visa dated 29 April 2016. The first applicant’s claims are as follows[6]:
[6] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 24-26
I am seeking protection In Australia so that I do not have to return to
‘Thailand’
Why did you leave that country(s)?
‘My partner and I were encouraged to study English in Australia for 3 months. The man [Mr A] Promised us work in hotels and restaurants. This made us both excited to go. [Mr A] arranged our visas and applied for our course. Then he met us at the airport in Bangkok to give us our visas. He told us we could not leave without the visas. He also gave us instructions on what to do when we arrived in Australia at Sydney airport. In the morning we flew from Chiang Mai to Bangkok to meet him and he stayed with us until we went in. [Mr A] told us we would be met at the airport in Sydney and to look for our names on a boardheld by a perosn outside the exit from immigration. We had changed about $2,000 befoe we left our money cahnger so we had money when we arrived. When we arrived in Sydney a man and woman were there to meet us. Our name was on the board. We went with them to the car in the carpark. Something was not right, we felt it and when the told us we now owed them a lot of money and had to work to pay the bill. It was ridiculous $25,000 dollars each they said. The man said you will be working 7 days a week in our brothel until you pay the debt. somehow, we raised the courage instantly and ran off in a big hurry. When we got back in the terminal, we called a number we had of our friend’s husband, but he did not answer so we called his friend – we had his number as well, He was in [Town 1] Queensland said to come immediatly. We asked directions and were sent to the domestic terminal and bought a ticket to Brisbane then one to [Town 1]. We did not know what would happen to us and were scared they would find us. Our friend has kept us safe since. We moved a few times but were too scared to go out in public unless we were with a friend or friends. It is so scary and stressful worrying about who might be looking for us and we Just want to be safe. Thailand is not safe. They, the mafia, are so cruel there and pursue you forever if you owe them money.’
What do you think will happen to you if you return to that country(s)?
‘If I or we go back to Thailand they will take us and put us through such torture and suffering before they kill us. They want their money, or they kill you. There is no escape from them. It is so hard to think about what they will do.’
Did you experience harm in that country(s)?
‘No’
Did you move, or try to move, to another part of the country(s)?
‘No’
Do you think you will be harmed or mistreated if you return to that country(s)?
‘Yes.Thai mafia pay the police for protection. The police will seek us out and hand us to the mafia. They will torture us and when they are ready will kill us. Money is their god. They told us we owed them a lot of money and will never stop until we pay them or they find us and kill us.’
Do you think the authorities of that country(s) can and will protect you if you go back?
‘No. Police are working for the mafia. They are committed to the mafia who control the police. We cant rely on them to protect us. They will be the ones to hand us over to the mafia.’
Do you think you will be able to relocate within that country(s)?
‘No. There is nowhere to hide from the police or mafia in Thailand. They control all districts even the provinces.’
The second applicant’s claim for protection as detailed in her application for protection visa dated 29 April 2016 are as follows[7]:
[7] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 71
I am seeking protection In Australia so that I do not have to return to
‘Thailand’
Why did you leave that country(s)?
I was encouraged to study English in Australia for 23 months. The man ‘[Mr A]’ promised me and my partner we would have work in Australia while studying. The work was to be in hotels and restaurants, and we were excited to go. He arranged our visa and course and met us at the airport when we were leaving to give us our visa and instructions. We flew from Chiang Mai to Bangkok to meet him on the day we left. He told us we would be met at the airport in Sydney. Before we left, we changed Baht for about $2000 so we had some money when we arrived. When we arrived at Bangkok, [Mr A] was there. He gave us the visas, which he said we needed then told us to look for our names on a board with a person outside the arrival doors. When we arrived in Sydney there was a man and a woman to meet us. We went with then to the car in the carpark. Something did not seem right, so we were a little scared. When the lady told us we owed them lot of money now had to work for them 7 days per week to pay the debt we panicked more. Then the man made one comment about working in the brothel and we ran away quickly. We had the number of our friend’s husband, but he did not answer. So we called his other friend. He was in [Town 1] Queensland. We asked directions and caught the train from the international terminal to the domestic and booked a flight to Brisbane then to [Town 1]. We did not know what would happen to us and were scared they would find us. Our friend has kept us safe since. We moved a few times but were too scared to go out in public. It is frightening worrying about who might be looking for us. We just want to be safe. Thailand is not safe for us. They are so cruel of you owe money or the capture you.
What do you think will happen to you if you return to that country(s)?
If we return death s certain. With police looking for people the mafia want you to have nowhere to hid. Before we die, they will torture us. I can’t bear thinking about it the fear is so bad knowing what they will do.
Did you experience harm in that country(s)?
Physical beatings torture and death. The mafia is everywhere and supported by police. I can’t hide in Thailand.
Did you seek help within the country(s) after the harm?
No. I was in Australia when I realised. Then it was too late. But in Thailand the authorities, police, government ect are all being paid by the mafia protection and if I report it to the police, they will tell the mafia. I have no hope of support.
His name was ‘[Mr A]’ – he helped with the visa application and arranged tickets. Made sure we were on the plan.
Did you move or try to move to another part of that country(s) to seek safety?
Cannot. Doesn’t matter where the police will tell the mafia because they are paid to do it. The mafia is everywhere in Thailand.
There is nowhere to hide. The mafia and police work together. The mafia pay the police for protection to locate people. They have contacts all over Thailand.
Do you think you will be harmed or mistreated of you return to that country?
The police and the mafia will abuse me, rape me, beat me. Physically hurt me and then I will be killed when they are ready.
Do you think the authorities of that country(s) can and will protect you if you go back?
They cannot. The authorities are connected to the mafia and the mafia pays them to protect their interests. Bribery and payments keep the police on the side of the mafia and criminals.
Do you think you would be able to relocate within that country(s)?
No- it doesn’t matter where I am they have people all over Thailand and police report to the mafia to get money
The delegate summarised the applicant’s claims as follows:[8]
·      They were encouraged to study and work in Australia for three months by a man who arranged their visas and met them at the airport as they were leaving
·      They were met by a man and a woman in Sydney airport who told them that they owed a lot of money and would have to work in a brothel to pay it off, so they ran away
·      They had a friend in Queensland, so they brought train tickets and travelled there
·      If they return to Thailand, they will be tortured and killed by the gang they owe money to
·      The Thai mafia is supported by the police and there is nowhere to hide

Applicants supporting documentation

[8] Protection Visa Decision dated 27 February 2017. Dept File No [number] Doc ID: [number]

The applicants provided the following material in support of their application:
·Form 956 (x 2) engaging a Registered Migration Agent for the Protection visa application.[9]
[9] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 3-8
·Form 866B Application for a protection visa (part B) for the second applicant, dated 23 April 2016.[10]
[10] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 9-20
·Form 866C Application for a protection visa (part C) for the first applicant, dated 14 April 2016.[11]
[11] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 22-45
·Form 866C Application for a protection visa (part C) for the second applicant, dated 14 April 2016.[12]
[12] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 46-71
·Form 1005 Application for a Bridging visa C with work rights based on financial hardship for the first applicant, dated 20 April 2016.[13]
[13] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 72-78
·Form 80 Personal particulars for assessment including character assessment for the first applicant, dated 23 April 2016.[14]
[14] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 79-98
·Form 80 Personal particulars for assessment including character assessment for the second applicant, unsigned and undated[15]
[15] Application for Protection Visa dated 14 April 2016, Dept File No [number], f. 99-116
·Second applicant’s passport, expired [in] 2020.[16]
[16] Second Applicant’s passport, Dept File No [number], f. 117-136
·First visa applicant’s passport, expired [in] 2020.[17]
[17] First Applicant’s passport, Dept File No [number], f. 137-155
·Protection visa decision record dated 27 February 2017.[18]
·Form 956, appointing a Migration Agent for the Tribunal review[19] (appointment withdrawn on 31 May 2022[20])
·Second applicant’s passport, expired [in] 2020.[21]
·First applicant’s passport, expired [in] 2020.[22]
·Protection visa refusal notification letter, dated 28 February 2017.[23]
·Second applicant’s current passport with expiry date [2025].[24]
·First applicant’s current passport with expiry date [2025].[25]
·Completed hearing response form MR19, advising that the applicant will not appear and requesting a decision to be made on the papers.[26]

Applicant’s evidence
[18] AAT file No 1705233, doc ID 3338179
[19] AAT file No 1705233, doc ID 3338178
[20] AAT file No 1705233, change of contact details form (MR6), doc ID 9827434
[21] AAT file No 1705233, doc ID 3338180
[22] AAT file No 1705233, doc ID 3338181
[23] AAT file No 1705233, doc ID 3338182
[24] AAT file No 1705233, doc ID 9827434
[25] AAT file No 1705233, doc ID 9827434
[26] AAT file No 1705233, doc ID 9827434

The first applicant was born [date] in Chiang Rai, Thailand. She claims that she is a Buddhist[27] and that she speaks, reads and writes Thai.[28]
[27] Application for Protection Visa dated 29 April 2016, Dept File No [number], f.42
[28] ibid
The first applicant claims that she has a father mother a sister and a brother who continue to live in Thailand.[29] She indicated in her application that she matins contact with her family in Thailand via phone and text messages on a weekly basis.[30]
[29] Application for Protection Visa dated 29 April 2016, Dept File No [number], f. 40
[30] Application for Protection Visa dated 29 April 2016, Dept File No [number], f. 38
The applicant’s attended primary and high school in Thailand between March [year] and March [year].[31] The applicant lists her occupation ‘office and sales’.[32] She claims that at the time of application she was unemployed, but in Thailand worked for a number of companies in sales. Her most recently listed employment was in sales between May 2015 and June 2015 for [Employer 1] Thailand.[33]
[31] Application for Protection Visa dated 29 April 2016, Department File Number [number], f. 28
[32] Application for Protection Visa dated 29 April 2016, Department File Number [number], f. 42
[33] Application for Protection Visa dated 29 April 2016, Department File Number [number], f. 29
The second applicant claims that she was born on [date] in [District 1] Thailand.[34] She claims to be a Buddhist[35] and that she speaks, reads and writes Thai.[36] He claims that she has a mother, father and brother who continue to live in Thailand and with whom she maintains weekly contact by text message.
[34] Application for Protection dated 29 April 2016, Dept File No [number], f. 42
[35] Application for Protection Visa dated 29 April 2016, Dept File No [number], f.42
[36] ibid
The second applicant claims that she was educated in Thailand having attended primary and high school for [year] to [year]. The second applicant then attended [School 1] from [year] to [year] and then Bangkok [School 2] in [year]. The second applicant currently unemployed but in Thailand she initially worked as a [occupation] in 2012 for approximately three months and then in a sales position for a [Product 1] company and a [Product 1] retailer.[37] Her last position in Thailand was working in sales for [Employer 2] from April 2014 to June 2015.[38]
[37] ibid
[38] ibid
The applicant claims they have been in a de facto relationship since 1 May 2013. They claim that they engaged a person known as [Mr A] in Thailand to arrange their travel to Australia. When they arrived in Australia they were meet by a man and women who claimed that the applicants owed them $25,000.00 each. The applicants were told that they would be required to work in a brothel 7 days per week to repay the debt. The applicant’s claims that if they are returned to Thailand they will be harmed by the mafia.

COUNTRY INFORMATION

In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the latest DFAT report on Thailand dated 10 July 2020 (the DFAT Report)[39] marked as ‘Annexure A’ to this decision.
[39] DFAT Country Information Report Thailand dated 19 July 2020

CONSIDERATION OF Claims and evidence

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

When assessing claims the Tribunal must make findings of fact in relation to the claims. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant's case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[40]. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant[41].
[40] Section 5AAA, Migration Act 1958
[41] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v
MIEA (1985) 6 FCR 155 at 169-70
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility[42]. Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt[43]. However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
[42] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan
(1996) 40 ALD 445 per Foster J at p482
[43] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for
Determining Refugee Status, Geneva, 1992 at para 196
In this case both the applicant refused to appear before the Tribunal for the purpose of giving evidence and making submission in support of their claims for a protection visa. For the reasons expressed below, the applicants claim for protection and in particular their claims that they have a well-founded fear of persecution if they are returned to Thailand are vague and lacking in detail. Had the applicant appeared before the Tribunal it would have made further enquires of the applicants in relation to their claims including their relationship as a de facto couple and any threats they may have received from the mafia in Thailand.

Applicant’s refugee claim

Relevant grounds

The applicants did not specifically submit that they fell within the scope of s 5J(1)(a) of the Act. Nevertheless, it was open to them to claim that they have a well-founded fear of persecution within the scope s 5J(1) of the Act by reason of their membership of a particular social group (PSG) as a person who fears the mafia in Thailand.
Members of a PSG must be recognised (generally by the persecutor or persecutors) as sharing a connection or falling under some general classification.[44] When a person claims to fear being persecuted by reason of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L of the Act states:
[44]    Applicant S v MIMA (2004) 217 CLR 387
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.

The Tribunal has some difficulty accepting that the applicant, as a person who fears the mafia in Thailand, is a member of a particular social group pursuant to s 5L of the Act. The Tribunal is not convinced that the applicants fear of the mafia is a shared characteristic that can be considered innate and immutable. Nor is it a characteristic that is so fundamental to a member’s identity or conscience that he should not be forced to renounce it. Finally, the applicants fear of the mafia as claimed is not a characteristic that would be considered as distinguishing them or the group from the rest of society. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the applicants are members of a particular social group pursuant to s 5J(1)(a) of the Act.

Applicant’s well-founded fear

Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.
In Chan v MIEA[45] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[46]
[45] (1989) 169 CLR 379 at [396]
[46] (1989) 169 CLR 379 at [396]; see also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted if he returns to Thailand.
However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [47]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[47] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that: [48]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[48] MIEA v Guo (1997) 191 CLR 559 at [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293]
Having considered the available country information and the applicants’ claims and evidence as detailed in their protection visa applications and supporting documentation, for the reasons expressed below the Tribunal does not accept that they have a well-founded fear of persecution on either a subjective or an objective basis if they are returned to Thailand.

Applicants fear of the mafia in Thailand

The applicant claims that there is a real chance they will be seriously harmed if they are returned to Thailand by the mafia. The applicant’s claim that they travelled to Australia with the assistance of a person known as [Mr A]. [Mr A] had arranged for their tickets and visa to travel to Australia and had promised them work in hotels and restaurants while they studied English in Australia. The applicants claim that when they arrived in Australia they were met by a man and woman who demanded that they owed $25,000.00 each to the mafia and that they were required to pay the debt off by working in a brothel 7 days per week. They claim that with the help of a friend they are now in hiding and that they cannot return to Thailand out of fear of being harmed by the mafia due to the debt that is claimed they owe. They claim that they will not be protected in Thailand because the government and the police are corrupt and in partnership with the mafia.
The country information[49] reports that organized-crime groups exert significant influence over government officials in Thailand. As a result, state-embedded corruption is prolific, with many officials engaged in organized crime. It’s reported that criminal networks operate in Thailand and are involved in criminal activities including human smuggling and drug trafficking. Criminal networks involved with online scams are widespread throughout Thailand. Nevertheless, its reported[50] that there is no evidence to suggest the existence of native Thai mafia-style groups. Generally, criminal groups operating in the country are groups operating in the country are linked to foreign actors from other Asian countries and smaller groups from Europe. These foreign crime syndicates are involved in various criminal markets in Thailand, including drug trafficking, arms trafficking, human smuggling, wildlife trade, money laundering and cybercrime.[51]
[49] Global organised Crime Index. http:/ocindex.net/country/thailand
[50] ibid
[51] ibid
DFAT reports[52] that despite the existence of a strong legal framework and institutions there are high risks of corruption in most sectors of Thailand. It’s reported[53] that approximately 80 per cent of Thais believed that the police force was corrupt and approximately 50 per cent felt that most or all local government councillors were corrupt. Irregular payments are reportedly common when dealing with public services, with corruption among public officials fuelled by low wages and a cultural inclination towards giving and accepting gifts as a natural part of doing business.[54]
[52] DFAT report at p.12
[53] ibid
[54] ibid
In this case, the applicants appear to have voluntarily engaged the services of [Mr A] for the purposes of their travel to Australia and to secure employment when they arrived. They claim that he arranged their visa and the course in Australia. They claim he met them at the airport for the purposes of giving them their visas and instructions for their arrival in Australia. It’s not clear to the Tribunal if the applicants met the costs of their visa or paid money to [Mr A] for his services. In any event, they claim that upon their arrival in Australia they were informed by a man and woman who picked them up that they owed $25,000.00 and were required to work in a brothel to repay the debt. The applicant did not state who the money was owed to and how the $25,000.00 was calculated.
The country information[55] in the context of loan shark debts in Thailand reports that ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid. This can lead to debt moving around within communities. It’s reported[56] that the Black helmets may injure a borrower to ensure the debt is repaid but deaths are uncommon. It’s reported[57] that there is an overlap between the loan shark and police in rural areas. As such, borrowers are unlikely to receive police assistance in the event of being threatened. However, in this case there is no issue of the applicant shaving entered a person loan with a loan shark.
[55] DFAT report at p.44
[56] ibid
[57] ibid
In this case, the applicants engaged the services of a person to arrange their tickets and visa to travel to Australia on the basis they would be able to find work while studying. There was no evidence if the applicant’s paid money to [Mr A] in Thailand. However, the Tribunal assumes that [Mr A] would have demanded payment for any costs (including ticket and visa charges) and his services prior to the applicants departing the country. The applicant claims that the man and woman who met them at Sydney airport demanded that they owe $25,000.00 each and that they were required to work in a brothel to repay the debt. Despite having walked to the car with the man and woman, the applicants claim they were able to run away, back to the terminal and arrange for a flight to Brisbane to escape. There was no evidence of the applicants having been detained or perused by the man and woman on their return to the airport terminal. In addition, there is no evidence of any person having threatened them or harmed them since their arrival in Australia.
Nevertheless, the applicants claim that the mafia will harm them, and the police will not help them if they are returned to Thailand. However, the applicants do not identify who demanded the money and how the debt is calculated. These are issues that the Tribunal would have explored with the applicants had of appeared before the Tribunal. While the Tribunal accepts that it’s possible a demand for the money to have been made as claimed, the applicants’ evidence in relation to the demand for money is vague and lacking in detail. On the information provided it appears were able to ‘run away’ from the man and woman without difficulty. In addition, they appeared not to have been perused as they were able to return to the airport terminal, contact friends, and arrange a further flight to Brisbane for the purposes of traveling to [Town 1]. There is no evidence they have been perused or threatened at any time. Therefore, based on the available information provided by the applicants in their application for protection visa, the Tribunal does not accept that any demand for money was made as claimed. As such the Tribunal does not accept that they were threatened with having to be forced to work in a brothel as claimed. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed if they are returned to Thailand because the mafia demanded money from them upon their arrival in Australia as claimed.
In any event, if the mafia did demand money from the applicant’s as claimed (which the Tribunal has specifically found it did not), the Tribunal has considered if there is any effective protection available to the applicant in the event they are returned to Thailand. The country information reports[58] that the Royal Thai Police Force (RTP) has an estimated 220,000 to 230,000 members of which 90 percent are male. 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.[59] The PPD is divided into nine regions that cover all 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.[60]
[58] DFAT Report at p.53
[59] DFAT Report at p.53
[60] DFAT Report at p.53

It reported that the professionalism of the RTP varies considerably across its branches, nevertheless it generally provides a higher standard of law enforcement than other regional police services. Policing remains regionally focused with a response focus mentality rather than on prevention.[61] A culture of patronage and nepotism has led to some promotions and desirable postings going to those who can afford to ‘purchase’ them. Police at junior levels are low-paid and are required to provide much of their own equipment. As a result, they tend to supplement their income as security guards or through activities such as trafficking.^[62] As a result, corruption is an issue within the RTP.[63]
[61] DFAT Report at p.53
[62] DFAT Report at p.53
[63] DFAT Report at p.53
The country information[64] suggests that influential sources can sway the police. Nevertheless, this does not mean that they can engage in malpractice without consequences. It’s reported that ‘influential figures’, that is those in authority and/or privileged either at a local or national level can influence the police. As such any complaint that have connections with police will be taken more seriously. [65] Nevertheless, it’s also reported that authorities act against police misconduct. From October 2015 to August 2016 the RTP disciplinary branch reported over 3000 police officers to disciplinary actions.[66] The offences included misbehaviour dereliction of duty, harming people or suspects drug use gambling embezzlement and illegal weapon possession.[67] In addition, authorities have taken steps to investigate and punish officials who committed human rights abuses. Nevertheless, official impunity continues to be a problem.[68] However, authorities have arrested police officers and convicted them of corruption, drug offences and smuggling.[69]
[64] Policing and Society ‘A critique of the internal complaints system of the Thai police force’ Richard Young, Dhiyathad Prateeppornnarong University of Birmingham 25 July 2017
[65] ibid
[66] US State Department, ‘Thailand - Country Report on Human Rights Practices 2016, 2 March 2017;
[67] ibid
[68] US STATE DEPARTMENT, ‘2020 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: THAILAND
[69] US State Department, ‘Thailand - Country Report on Human Rights Practices 2016, 2 March 2017;
Therefore, based on the country information, while the Tribunal accepts that there is corruption in the Thailand police force, it does not accept that the applicants would not be afforded effective protection by the RTP. In this case, the applicants have not directly borrowed money from a loan shark or gang member for the purposes of personal loan. As referred to above, the applicants engaged [Mr A], to arrange their tickets, visas, and work in Australia. The demand for $25,000.00 each was made in Australia. There was no evidence that the applicant would be threatened or harmed upon being returned to Thailand. The applicants did not identify who claimed the money or how the debt was calculated. There is no evidence to suggest that the RTP were aquatinted with or involved with the applicants’ trip to Australia for the purposes of extorting money from them or to exploit them by forcing them to work in brothel in Australia. Therefore, in circumstances where there is no evidence of any connection between any organised criminal activity in Australia and the authorities in Thailand, there appears no reason why the applicants would not be afforded effective protection by the RTP upon their return to Thailand in the event they were threatened by mafia members. As such, the Tribunal finds the RTP will provide the applicants effective protection and as such there is no real chance, they will be seriously harmed if he is returned to Thailand.
Therefore, having considered the operation of s.5J(2) alongside the available country information, together with the applicants’ claims, the Tribunal is satisfied that, effective protection measures are available to the applicants in Thailand. The Tribunal finds that that the effective protection measures are available to the applicant by the State[70] and that the State is able and willing to provide such protection.[71] The applicant can access the available protection and the protection provided is durable.
[70] s.5LA(1)(a) of the Act
[71] S.5LA(1)(b) of the Act
From the available country information, the Tribunal finds that Thailand has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[72]Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as victim of gang members in Thailand as claimed or any related claim or any other reason.
[72] S.5LA(2)
Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicants as a victim of the mafia.

The applicants’ de facto relationship.

The applicant did not make any claim in respect of their relationship as a de facto couple. Both applicants note in their applications that they have been in a same sex de facto relationship since 1 May 2013. It was open to the applicant to claims that there is a real chance they will be seriously harmed if they are returned to Thailand by reason of their relationship as a same sex de facto couple.
The country information[73] reports that there are no laws in Thailand criminalising expression of sexual orientation or consensual same-sex sexual conduct. However, Thai law does not currently recognise same-sex marriages, civil unions or domestic partnerships. However, it’s reported[74] that a draft Life Partnership bill achieved Cabinet approval in December 2018 and was presented to the Council of State for consideration in February 2019. The Thailand parliament is yet to consider the issue.
[73] DFAT report at p.41
[74] ibid
The Gender Equality Act (2015[75]) prohibits discrimination ‘due to the fact that the person is male or female or of a different appearance than his or her own sex by birth’. It’s reported[76] that Thailand is the only country in Asia to advertise itself as a gay- and lesbian-friendly tourist destination, and tourist-focused destinations such as Bangkok, Chiang Mai, Pattaya and Phuket offer a wide range of gay-focused services such as bars, restaurants, massage parlours and saunas.
[75] ibid
[76] ibid
However, it’s reported that many Thais have limited societal understanding of the concept of a gender-conforming same-sex consensual relationship. Gender-divergence has traditionally had a far higher societal profile than homosexuality/bisexuality. As such, LGBTI is understood (particularly among the older generations) as referring predominantly to transgender women.[77] LGBTI advocacy groups exist and operate nationwide, providing support services to LGBTI individuals and working to build greater popular understanding of the diversity of the LGBTI community and its specific needs.[78] There is little official overt discrimination against LGBTI individuals and there is not any politically motivated anti-LGBTI movement. It’s reported[79] that homosexuals are not excluded for the civil service or the military. In addition, the police do not harass or raid LGBTI venues. Any enforcement procedures focus on closing hours, underage individuals, drugs and foreign sex workers. It’s reported that the police treat LGBTI victims of crime the same as other persons, although there is a tendency to downplay reports of sexual abuse or harassment.[80]
[77] ibid
[78] ibid
[79] ibid
[80] ibid
Therefore, based on the available country information, the Tribunal finds that there is no real chance that the applicants will be seriously harmed because of their relationship as a same sex de facto couple in the event they are returned to Thailand.
Accordingly, the Tribunal finds that the applicants would not face a real chance of serious harm arising from their economic circumstances for reasons mentioned in s 5J(1)(a) or any other claimed reasons, if they were to return to Thailand from Australia, now or in the reasonably foreseeable future.
Having assessed all the applicants’ claims individually and cumulatively, the Tribunal finds that they do not a real chance of serious harm, now or in the reasonably foreseeable future, for any reason. The applicants’ fear of persecution are not well-founded for any of the reasons mentioned in s 5J(1) of the Act if they are returned to Thailand and do not satisfy the criterion in s 36(2)(a).

Complementary protection

The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'.[81] The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
[81] MIAC v SZQRB [2013] FCAFC 33
The Tribunal has made earlier findings that the applicant does not face a real risk of serious harm arising from the applicants’ claim. As the ‘real risk’ test is the same as the ‘real chance’ standard, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment, for reasons based on the applicant’s economic circumstances.
The Tribunal has not accepted, for the reason detailed above, that the applicants have a real chance of serious harm because of members of the mafia having demanded money from each applicant and threatened them with having to work in a brothel. In addition, it has found that there is no real chance the applicants will be harmed because of their de facto relationship. As a result, for the reasons expressed under the applicants’ refugee claim, the Tribunal finds that there is no real risk they will be significantly harmed if they return to Thailand because of their claim that the government is corrupt and controlled by the military.
At no stage did the applicants advance any other reason in their written or oral claims that the applicants are owed Australia’s protection obligations. Therefore, the Tribunal finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, there is a real risk they will suffer significant harm as required by s 36(2)(aa).

CONCLUSION

For the reasons given above, the Tribunal is not satisfied that the applicants are people in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s 5J(1)(a). Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicants are people in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal accepts the first and second applicants are in a genuine spousal relationship and that the second applicant is therefore a member of the same family unit for the purposes of the sub-regulation of r.1.12(1)(a) as the first applicant. As such, the second applicant will not satisfy s.36(2)(b) or s.36(2)(c) of the Act on the basis that the first applicant, as a member of the same family unit, does not satisfy s.36(2)(a) or (aa) or who holds a protection visa.

DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.

Jason Pennell
Senior Member

Attachment - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Annexure A
Corruption
2.18 Thailand is a signatory to the United Nations Convention Against Corruption (CAC). Section 63 of the Constitution commits the State to educating citizens on the dangers resulting from dishonest acts and wrongful conduct in both public and private sectors, and to providing efficient measures and mechanisms to rigorously prevent and eliminate corruption. The Organic Act on Counter Corruption (1999), the Offences Relating to the Submission of Bids to State Agencies Act (1999), and the Criminal Code are the major legislative tools covering corruption offences. The Criminal Code criminalises embezzlement, trading in influence, and both active and passive bribery of public officials. Penalties for actively bribing an individual include imprisonment of up to five years and a maximum fine of THB10,000 (AUD 480). Passive bribery can (theoretically) incur the death penalty or life imprisonment, and/or a fine of up to THB40,000 (AUD1,920).
2.19 Chapter XII, Part 4 of the Constitution (Articles 232-237) outlines the composition, functions, and mandate of the National Anti-Corruption Commission (NACC). The NACC is empowered and mandated to investigate and prepare opinions into allegations of corruption against politicians, judges, or government officials. Financial disclosure laws and regulations require elected and appointed public officials to disclose assets and income according to standardised tests, although NCPO members were not required to comply with these rules during the period of military rule.
2.20 Despite the strong legal framework and institutions established to combat corruption, GAN Integrity analysts report that there are high risks of corruption in most sectors. A national survey in 2017 found that almost 80 per cent of Thais believed most or all of the police force was corrupt, while half of Thais felt that most or all local government councillors were corrupt. Irregular payments are reportedly common when dealing with public services, with corruption among public officials fuelled by low wages and a cultural inclination towards giving and accepting gifts as a natural part of doing business. International observers report that businesses and individuals commonly pay irregular payments and bribes in order to obtain favourable judicial decisions.
2.21 According to international and domestic observers, many Thais see recent high-level prosecutions against the Shinawatra family and the Thaksin and Yingluck administrations as being politically motivated. Thaksin Shinawatra, now in self-exile overseas, was convicted of corruption charges in 2008. In August 2017, the Supreme Court found 20 defendants guilty of corruption-related crimes, sentencing the former commerce minister to 42 years’ imprisonment for malfeasance in administering government-to-government deals involving Chinese companies. The same court subsequently found Yingluck guilty in absentia of dereliction of duty for failing to address the corruption of officials in her government, and sentenced her to five years in prison. Thailand continues to pursue Yingluck’s extradition from the United Kingdom. While enforcement of anti-corruption laws increased under the NCPO, corruption reportedly worsened during the period of military rule.
Trafficking of Persons
2.57 According to the US Department of State, Thailand is a destination, source, and transit country for human trafficking for both Thai nationals and foreigners. Traffickers reportedly subject victims to forced labour and sex trafficking in Thailand and abroad. Women, children, lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals, ethnic minorities and stateless persons are particularly vulnerable. Children from Thailand, Myanmar, Laos and Cambodia have been victims of sex trafficking in brothels, massage parlours, bars, karaoke lounges, hotels and private residences. Labour traffickers exploit migrant workers in commercial fishing and related industries, the poultry industry, manufacturing, construction, agriculture, domestic work and street begging. Labour traffickers often exploit migrants through debt-based coercion and fraudulent promises of well-paid employment, while some migrants are kidnapped and held for ransom. Traffickers use Thailand as a transit country for victims from a number of countries, including China, North Korea, Vietnam, Bangladesh, India and Myanmar. DFAT does not have any specific information in relation to migration routes of North Korean asylum seekers transiting through Thailand.
2.58 In upgrading Thailand from Tier 3 to Tier 2 in its 2018 Trafficking in Persons Report, the US Department of State reported that the government had increased its efforts to eliminate trafficking, including through identifying more victims, sentencing convicted traffickers and complicit officials to significant prison terms, and developing manuals in partnership with civil society to standardise anti-trafficking training and policies. Thailand retained its Tier 2 ranking in the US Department of State’s 2020 report. According to the Thai government, officials rescued a record 1,807 victims of human trafficking in 2019, an increase from 622 in 2018. Around half of those rescued in 2019 were women, most of whom had been labour trafficked. Nearly three-quarters were migrants from Myanmar bound for neighbouring Malaysia.
2.59 Government-operated shelters provide victims of trafficking access to counselling, legal assistance, medical care, civil compensation, financial aid, witness protection, education or vocational training, and employment. The government operates 76 short-stay shelters and nine long-term regional trafficking shelters, including four dedicated to adult male victims and families, four for female victims, and one for male child victims. Undocumented foreign victims of trafficking are reportedly required to remain in shelters while the government processes their applications for permits to stay and work in Thailand, and victims are not permitted to leave or carry personal communication devices without permission. Thai law permits foreign victims of trafficking and witnesses to stay and work in Thailand for up to two years upon the completion of legal proceedings against their traffickers. NGOs report, though, that the required shelter stays have deterred some victims from cooperating with law enforcement.
2.60 According to international observers, Corruption continues to undermine anti-trafficking efforts, with some government officials and police directly complicit in trafficking crimes, including through accepting bribes or loans from business owners and brothels that exploit victims. Corrupt immigration officials reportedly facilitate trafficking by accepting bribes from brokers and smugglers along Thai borders. Credible reports indicate that corrupt officials protect brothels, other commercial sex venues, and fishing vessel owners from raids and inspections, and collude with traffickers. Some government officials reportedly profit from bribes and direct involvement in extortion from and exploitation of migrants. While there have been an increasing number of prosecutions in trafficking cases, in-country sources report that it is common for a low-level functionary to be paid to bear responsibility for the real perpetrators.
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).
Sexual Orientation and Gender Identity
3.96 The Constitution does not specifically mention sexual orientation or gender identity. There are no laws criminalising expression of sexual orientation or consensual same-sex sexual conduct. Thai law does not currently recognise same-sex marriages, civil unions or domestic partnerships, although a draft Life Partnership bill achieved Cabinet approval in December 2018 and was presented to the Council of State for consideration in February 2019. The Bill was not approved by the National Legislative Assembly prior to the 2019 General Election and Thailand’s new parliament is yet to consider the issue. Thailand’s fourth national human rights plan, covering the period 2019-2023, is currently under revision by the Office of the National Economic and Social Development Board; the current 2014-2018 plan included steps for protecting the rights of ‘persons with different sexual orientation/gender identities.’ The Gender Equality Act (2015) prohibits discrimination ‘due to the fact that the person is male or female or of a different appearance than his or her own sex by birth’.
3.97 Thailand is the only country in Asia to advertise itself as a gay- and lesbian-friendly tourist destination, and tourist-focused destinations such as Bangkok, Chiang Mai, Pattaya and Phuket offer a wide range of gay-focused services such as bars, restaurants, massage parlours and saunas. Many Thais, however, have limited societal understanding of the concept of a gender-conforming same-sex consensual relationship. Gender-divergence has traditionally had a far higher societal profile than homosexuality/ bisexuality, and older Thai generations in particular understand LGBTI as referring predominantly to kathoey (transgender women). LGBTI advocacy groups exist and operate nationwide, providing support services to LGBTI individuals and working to build greater popular understanding of the diversity of the LGBTI community and its specific needs.
3.98 By regional standards, there is little official overt discrimination against LGBTI individuals. There has not been any pattern of anti-LGBTI political discourse, and the 2006 and 2014 coups did not have any implications directly relating to LGBTI issues. Although authorities refused permission for some LGBTI events (such as Pride marches) to take place following the 2014 coup, this was in line with a more general ban on public events at the time and public LGBTI events have subsequently resumed. There is no policy of exclusion of homosexuals from the civil service or the military, and gay males are not excluded from the Buddhist Sangha (all monks are required to be celibate). Police do not generally harass or raid LGBTI venues, and enforcement patterns are instead aimed at closing hours, underage individuals, drugs and foreign sex workers. LGBTI community advocates report that police generally treat LGBTI victims of crime the same as other persons, although there is a tendency to downplay reports of sexual abuse or harassment. In November 2018, the MOJ launched a handbook and training on sexual orientation and gender identity issues aimed at police attitudes and practices.
3.99 Joint adoption, including second partner adoption, is not available to same sex couples. Lesbian women or lesbian couples, however, often raise children conceived in a previous heterosexual relationship or sometimes placed with them by relatives through extended family patterns. In such cases, one of the partners may have legal custody. Information is not available on the access to assisted reproductive services for lesbian couples.
3.100 Human rights observers report that a number of laws discriminate against transgender individuals, including a law that requires that a person’s name indicates whether they are male or female. Prisoners are segregated on the basis of birth sex, although this practice is reportedly under review. The Ministry of Education requires that students wear sex-specific uniforms up to and including university studies, and crossdressing is specifically prohibited. If university or school uniform codes are not followed, students may be denied graduation documents, have their grades deducted, or both. In January 2018, the Gender Equality Act’s judicial committee ruled that Chiang Mai University had discriminated against transgender students by not allowing them to wear uniforms that correspond to their identified gender in graduation ceremonies. Following the committee’s ruling, the University allowed the individual students to wear uniforms that aligned with their identified gender, but the overall policy remained unchanged and in place.
3.101 Transgender individuals are unable to change the sex marker on their official documents, including in cases where there has been sexual reassignment surgery (SRS) and sustained presentation in the desired sex. This can lead to difficulties in travel (if the sex on an individual’s passport does not match their appearance), and presents practical difficulties in obtaining employment. Because they are officially designated as male, transgender women who have not undergone SRS are not exempt from reporting for the military draft at age 20 (see Military). Those who have undergone SRS are exempt, but are provided documents that outline the grounds for their exemption as being ‘gender identity disorder’, widely understood to be a form of mental illness. This can impact upon employment opportunities for affected individuals, as military conscription documents are regularly presented in employment situations.
3.102 Little information is available on the treatment or recognition of intersex individuals. However, intersex individuals are able to change the sex marker on their birth certificates to either male or female if they were diagnosed as intersex at birth and have subsequently undergone so-called genital ‘normalising’ surgery.
3.103 Thai society is generally tolerant of the LGBTI community, although some Muslim and Christian groups in the SBPs expressed opposition to the Life Partnership Bill. While there have been very few openly ‘out’ public figures, it is widely known within Thai society that a number of gay males have served in high positions, including as prime minister. Four openly LGBTI FFP candidates (two lesbians, one gay man, and one kathoey) were elected in the March 2019 elections, the first time any such candidates had even competed. DFAT is not aware of any pattern of societal violence against the LGBTI community or individuals in recent times. LGBTI advocates have complained, however, about media representations of LGBTI individuals in stereotypical and harmful ways.
3.104 In-country sources report that most gay men and lesbians would be unlikely to divulge their sexual orientation to their families or employers, and that family violence or expulsion in relation to sexuality is not common. The greater visibility of kathoeys, however, means that they may face greater difficulties in this regard: advocates report that most Thais would not want a kathoey in their family. It is difficult to assess the extent to which LGBTI individuals face discrimination in an employment situation. Given that the law prohibits discrimination on LGBTI grounds, most employers are unlikely to reject applicants expressly on the grounds of sexual orientation. Most LGBTI individuals would be unlikely to challenge a rejection, as this would require them to be open about their sexual orientation. A statistically reliable survey co-run by the UN Development Program in 2018 showed that businesses in Thailand routinely rejected applications from identifiably transgender candidates when making decisions on who to interview. There have been some cases in recent years in which transgender individuals have successfully used legal channels to regain their employment after having job offers revoked once the employer realised their status.
3.105 DFAT assesses that LGBTI individuals face a low risk of official discrimination in that a number of existing laws prevent them from being able to enjoy the full range of rights available to other citizens, including the rights to marry and adopt children. LGBTI individuals face a low risk of societal discrimination. Long-standing conservative norms may prohibit them from being open about their sexual identity in social, family, and employment situations. This discrimination is unlikely to include being subjected to physical violence. Transgender women face a moderate risk of discrimination in that their inability to change the sex marker on their official documents can restrict their ability to travel and to access employment, particularly if they have been exempted from military service on the grounds of ‘gender identity disorder’.
Victims of Loan Sharks
3.115 In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.
3.116 So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.
3.117 DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.
STATE PROTECTION
5.1 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.
Military
5.2 The Thai military is comprised of five branches – the Royal Thai Army, Royal Thai Navy, Royal Thai Air Force, Royal Thai Armed Forces (joint headquarters), and Ministry of Defence. The army is the largest and most prominent branch. The King is the official Head of the armed forces. While the military is overseen by the Minister of Defence, each branch is highly independent and autonomous. The military is responsible for: protecting the sovereignty and territorial integrity of Thailand; defending the monarchy against all foreign and domestic threats; ensuring public order; and assisting victims of national disasters. In 2019, the Thai military had an estimated force strength of 605,000 personnel, of which 360,000 were active and the remainder in reserve. More than one million Thais reach military age (21) annually. Global Firepower ranked Thailand’s military 23rd out of 137 countries in its annual military strength rankings.
5.3 The Ministry of Defence requires service members to receive human rights training. Routine training occurs at various levels, including for officers, non-commissioned officers, enlisted personnel and recruits. Military officers who deploy in support of counterinsurgency operations in the SBPs receive specific human rights training, including training for detailed, situation-specific contingencies. As noted in Insurgency in Southern Border Provinces (SBPs), however, despite numerous reports of the military and other state security forces committing serious human rights abuses in connection with the insurgency, no member of the state security forces has ever been held accountable as a result. Although there have been occasional convictions of military personnel, these have always been overturned on appeal. 5.4 As noted in Recent history, the military has regularly intervened in politics in Thailand and continues to play a prominent role in all aspects of national life. The military is a deeply conservative institution, and one traditionally closely associated with the monarchy.
5.5 Section 50 of the Constitution includes military service as a ‘national duty’. The Military Service Act (1954) mandates that men become eligible for military service at the age of 21, which takes place through a lottery system. Approximately 100,000 personnel are recruited each year through the system, with the length of time spent in the military varying. Those with university degrees normally serve for six months if they volunteer for service, but one year if drafted via lottery. Those who have completed secondary education will serve one year if they volunteer, or two years if drafted. Reports of bribery to avoid the draft or to leave the military early are common, although doing so carries a potential punishment of up to three years’ imprisonment.
Royal Thai Police (RTP)
5.6 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.
5.7 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.
5.8 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).
5.9 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.

5.10 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)
5.11 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.
Judiciary
5.12 Chapter X of the Constitution (Articles 188-214) sets out the roles and functions of the judiciary, and guarantees its independence. The judiciary consists of Courts of Justice, which deal with the majority of civil and criminal cases; Administrative Courts, which settle litigation between organs of state and private citizens; the Constitutional Court, which settles matters pertaining to the constitution; and Military Courts, which have the power to try and adjudicate cases involving offenders who are subject to their jurisdiction as provided by law. The King formally appoints all judges. The Courts of Justice hierarchy is the Supreme Court of Justice, Appeal Courts, and Courts of First Instance (including general courts, juvenile and family courts, and specialised courts).
5.13 The Constitution provides for the right to a fair and public trial and for the presumption of innocence. While most trials are public, courts may order closed trials in cases involving national security, the royal family, children, or sexual abuse. Defendants in ordinary criminal courts enjoy a broad range of legal rights, including access to a lawyer of their choosing, prompt and detailed information on the charges against them, free assistance of an interpreter as necessary, the right to be present at trial, and the right to adequate time and facilities to prepare a defence. They also have the rights to not be compelled to testify or to confess guilt, to confront witnesses, and to appeal. While these rights are generally respected, human rights observers report that in some cases authorities do not afford all of them to defendants, particularly in small or remote provinces.
5.14 Although the law provides for access to courts and administrative bodies to sue for damages for, or cessation of, a human rights violation, the emergency decree in place in the SBPs expressly excludes administrative court scrutiny or civil or criminal proceedings against government officials. Victims may instead seek compensation from a government agency.
5.15 Section 10 of the Criminal Code prohibits double jeopardy. The Section reads: ‘Whoever commits an offence outside the Kingdom shall not be punished again in the Kingdom for the doing of such an act if there has been a final judgement (sic) of a foreign court acquitting such person; or there has been a judgement (sic) of a foreign court convicting such person, and such person has already passed over the punishment’.
5.16 In a 2014 order, the NCPO redirected prosecutions for offences against the monarchy, insurrection, sedition, weapons offences, and violation of its orders from civilian criminal courts to military courts, which do not provide the same legal protections for civilian defendants as provided in civilian criminal courts. Military courts are systemically slow and expensive, and the ability of a defendant to obtain bail is more limited than in a civilian court. Those defendants who are granted bail are compelled to wear a bulky electronic ankle device that requires frequent charging – one defendant reportedly wore the device for over a year. In September 2016, the NCPO transferred jurisdiction over such cases to the civilian courts for any new offences, but many civilians continued to face trial in military courts for alleged crimes that occurred prior to the order being issued. A leading human rights NGO reported on 22 May 2019 that 2,408 individual civilians had been prosecuted in military courts in 1,892 cases, with a further 450 individuals still undergoing prosecution. In July 2019, Prime Minister Prayut ordered an end to all prosecutions of civilians in military courts, with ongoing cases being transferred to civilian courts. Those already convicted in military courts have no right of appeal.
5.17 In-country sources report that, although Thais continue to hold the judiciary in high regard compared to other institutions (particularly the Royal Thai Police (RTP)), general confidence in the judicial system has fallen since the May 2014 coup. There is a strong general perception that the institution has been politicised, including through the large number of judicial appointments made under the NCPO, the high number of cases brought against political opponents and other critics of the government, and the lack of fair and consistent judgments issued in these cases. There is also evidence to suggest that authorities apply pressure on judges to deliver the ‘right’ outcome in politically sensitive cases. In October 2019, a Thai judge delivered a speech broadcast live on Facebook from a Yala courtroom that strongly criticised the judicial system before non-fatally shooting himself. The judge delivered the speech after acquitting five Muslim men of murder and firearms offences. A statement understood to have been written by the judge and posted to Facebook stated that he had been pressured to find the men guilty despite lack of evidence. The judge reportedly died in March 2020 after shooting himself a second time.
5.18 DFAT assesses that individuals involved in politically sensitive cases are less likely to receive a fair trial than those involved in ordinary criminal or civil matters.
INTERNAL RELOCATION
5.24 Section 38 of the Constitution provides for freedom of internal movement, but allows for the restriction of this right by law in cases of national security, public order, public welfare, town or country planning, maintaining family status or for welfare of a minor. Thai citizens from all backgrounds can and do relocate internally for a variety of reasons. In particular, large numbers of Thais have relocated from rural areas to major cities in recent decades in search of employment opportunities.
5.25 The government restricts the free internal movement of Stateless Persons who are not citizens but who hold government-issued identity cards. Authorities prohibit holders of these cards from travelling outside their home districts without prior permission from the district office, or outside their home provinces without permission from the governor. Offenders are subject to fines or a jail term of 45 to 60 days. Persons without identity cards may not travel at all. According to human rights organisations, police at inland checkpoints often ask for bribes in exchange for allowing stateless persons to move from one district to another. In addition, two groups – former Chinese civil war belligerents and their descendants living in the country for several decades, and children of Vietnamese immigrants residing in 13 northeastern provinces – live under laws and regulations restricting their movement, residence, education, and access to employment. The Chinese group is restricted to residence in the northern provinces of Chiang Mai, Chiang Rai and Mae Hong Son.
5.26 As noted in Women, internal relocation may be more difficult for single women seeking to relocate with children. An individual facing adverse official attention, particularly prosecution in a politically sensitive case, is unlikely to be able to escape this through internal relocation. However, men facing adverse attention from non-state actors may be able to relocate internally successfully, depending on individual circumstances.

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction

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Citations

1705233 (Refugee) [2022] AATA 5161

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2022] AATA 5161

15 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction