1705270 (Refugee)

[2020] AATA 5352

1705270 (Refugee) [2020] AATA 5352 (16 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705270

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Alison Mercer

DATE:16 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 December 2020 at 1:48pm

CATCHWORDS

REFUGEE – protection visa – Thailand – imputed political opinion – supporter of political party – employer sent to jail, applicant attacked and threatened – refusal to answer many questions without explanation – evidence contradicted country information – credibility – vague and inconsistent claims and evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Thailand, applied for the visas on 14 October 2016. The delegate refused to grant the visas on the basis that Australia did not owe the applicants protection.

3. The Tribunal received a review application from the applicants on 15 March 2017.

4. On  6 October 2020, the Tribunal wrote to the applicants to invite them to attend a hearing via telephone on 22 October 2020.

5. The Tribunal exercised its discretion to hold the hearing by telephone given that the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants – namely, the relatively confined nature of their claims and the inability of the Tribunal to hold in person hearings at that time due to COVID19-related restrictions. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments and notes that they raised no objections to giving evidence by telephone.

6. The applicants attended a telephone hearing on 22 October 2020, at which the Tribunal was assisted by the services of an interpreter in the Thai and English languages, who also participated by telephone.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. 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.

9. 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).

10. 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.

11. 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

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Protection visa application

13. As noted above, the applicants made a protection visa application on 17 October 2016. 

14. The first applicant indicated in that application that he was born in Nakhon Phanom (north eastern province), Thailand in [year], that he was of Thai ethnicity and a Buddhist. He further indicated that he completed high school in [year] and then [worked] on a farm between January 1995 and April 2014. He did not provide details of any prior employment, nor did he provide any details of any family members, except for his wife (the second named applicant), whom he married in 2008.

15. The first named applicant indicated that he arrived in Australia [in] November 2014 on a validly issued Thai passport, as the holder of an Australian student visa.

16. The first named applicant indicated that he sought protection from having to return to Thailand for the following reasons (in summary):

    ·he was accused by the government of being the enemy, as his boss at work was some kind of campaigner for the Pheu Thai Party, which won the 2011 election under Yingluck, but which was deposed in a military coup in 2014. The first named applicant’s boss was sent to jail after the coup, and the army kept an eye on the first named applicant since his boss was convicted. They searched his house and beat him. They also threatened him with being jailed for life or killed, so his colleagues suggested that he escape to Australia;

    ·if he went back to Thailand, the Army would convict him because they think he has run away because he is guilty;

    ·he experienced harm in Thailand in the form of the Army ransacking his house and beating him a lot and threatening him; and

    ·he could not get help from anybody as the whole continent was under the Army’s control and he would be locked in prison for sure. He was too afraid to go back while the Army still controlled the nation.

17. The second named applicant was included in the protection visa application, and indicated that she was born in Phayao, Thailand in [year], was of Thai ethnicity and a Buddhist. She said that she completed secondary school and university in Thailand before working in administration at a [workplace] between January 2009 and April 2014. The second named applicant did not list any family members other than her husband, the first named applicant.

18. The second named applicant indicated that she arrived in Australia [in] November 2014 on a validly issued Thai passport, as the holder of an Australian student visa. She did not make any protection claims of her own.

    Department decision of 3 March 2017

19. The delegate accepted that the applicants’ identities were as claimed. He considered the first named applicant’s claims but found that they were brief, vague and lacking in detail. He found that there was absolutely no evidence to support the applicant’s claim that he had a political profile of any sort. The delegate concluded that, while country information indicated that political activists may be persecuted by the Thai authorities, he was not convinced on the evidence (or lack of) before him that the first named applicant had a political profile of any sort or that his claims were genuine. The delegate was not satisfied that the applicant was a refugee as defined by s.5H(1) of the Act nor was he satisfied that, as a reasonably foreseeable consequence of the first named applicant being removed to Thailand, he would be at real risk of suffering significant harm, and therefore he did not meet the complementary protection criteria. Accordingly, Australia did not owe the first named applicant protection.

20. The delegate further found that Australia did not owe protection to the second named applicant as she was not the member of the family unit of a person who held a protection visa, and there was no evidence that she had made claims of her own to fear harm on a separate basis to the first named applicant.

    Tribunal review application

21. The Tribunal received a review application from the applicants on 20 March 2017, which was accompanied by a copy of the delegate’s decision.

22. On 6 October 2020, the Tribunal wrote to the applicants to invite them to a hearing to be held by teleconference. The Tribunal exercised its discretion to hold the hearing by telephone as the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

23. The applicant told the Tribunal that his wife did not have separate claims from him, and that they were in the same situation. The second named applicant confirmed this. The Tribunal clarified with them that they meant that the second named applicant feared harm due to her association with the first named applicant, and because she had attended some political rallies with him.

24. The applicant confirmed that he completed his protection visa application himself and was satisfied that the claims he wrote in the application were correct. In particular he confirmed the biographical details of his birthdate and place, ethnicity and religion. He further advised that his father was dead, and his widowed mother and adult siblings lived in Thailand. The applicant said that he had [older brothers], 1 older sister and [younger brothers] in Thailand, all of whom were married, and some of whom had children. His widowed mother lived with his older sister. The applicant confirmed that his work history as written was correct: that he [worked] on a farm to April 2014 but ceased work at that point and did not have another job in Thailand until he left Thailand in November 2014. The applicant said that between April and November 2014, he changed his address a lot. He then questioned whether the Tribunal had asked about his employment experience in Thailand or since he came to Australia. The Tribunal clarified that it had asked about his employment experience in Thailand. The applicant said that he wished to make no comment, and that he did not wish anyone to know about this. The Tribunal noted that he had written in his protection visa application that he worked as a farm [worker] in Thailand until April 2014, and it also stressed that the Tribunal review process was confidential, so his claims would not be disclosed outside the hearing. The applicant reiterated that he had no comment about his work history in Thailand.

25. The applicant confirmed that he and his wife (the second named applicant) were granted [student visas] Australia in October 2014 and they arrived in Australia in November 2014. In response to the Tribunal’s query, the applicant said that they used an agent in Thailand to obtain the student visas. When asked what course he intended to study, the applicant said that it was a basic course, at University, to be arranged from Thailand by the agent. The applicant said that the main thing was to get out of Thailand as soon as possible, so it was whatever course could be arranged quickly. In response to the Tribunal’s query, the applicant said that he did not undertake any study in Australia, and that he did not intend to do so, and that the student visas were a pretext to get out of Thailand. The applicant said that the student visas were valid for 1 year and 8 months. He told the Tribunal that when he and his wife arrived in Australia, he looked for work as he did not have any money.  He looked for farming work but it took some time to find such work and to get to locations where it was available. He explained that they arrived in Sydney and then went to [town] to pick fruit. They moved around a lot doing similar agricultural work but the applicant said that he began to look for different work as farm work was physically demanding and was often underpaid or not paid at all. The applicant said that he and his wife now lived in rental accommodation in Melbourne and they both worked on farms outside Melbourne.

26. In response to the Tribunal’s query, the applicant said that he forgot what the expiry date of his student visa was, and that was why he and his wife lodged their protection visa applications after their student visas expired. He and his wife applied for protection visas because they wanted to continue to live in Australia because they could not go back to Thailand.

27. The applicant told the Tribunal that at the time they left Thailand, people were looking for him. He said that Thaksin was the Prime Minister but in 2014, the military took over the government and they put pressure on people. When asked what he meant by this, the applicant said that they intimidated anyone connected with Thaksin and/or the Red Shirts, who were pro-Thaksin. The applicant told the Tribunal that at the time, he was a supporter of the Red Shirts, so he was considered an enemy of the government because he was in a large group that was opposed to a military government. In response to the Tribunal’s query, the applicant said that he was involved since 2011, when he sided with Thaksin to oppose authoritarian rule. When asked why he supported Thaksin, the applicant said that Thaksin had helped the common people. He said that Thaksin was the Prime Minister in 2011 when the applicant became involved with the Red Shirts. He joined them because they were a pro-democracy group. He also tried to get others to join. He described himself as a bit of a leader and said that he participated in activities. When asked what kind of activities, the applicant said that he helped to provide benefits for people who came to join in, and he tried to change the system. When asked about specific activities that he undertook, the applicant said that he helped the Red Shirts to call for the rights of the people.  He helped to block roads and marched in protests on the Royal Parade in Bangkok. When asked where he was living at the time, the applicant said ‘no comment.’ When asked why he did not wish to answer that question, the applicant responded ‘no comment.’ When asked whether he was living in Bangkok or outside Bangkok at this time, the applicant said that he was living about [distance] outside Bangkok and travelled to Bangkok to attend protests. When asked how often he did so – approximately – the applicant said that he went every time there was one. He estimated this was maybe once a week. This went on for a period of about 2 years, from 2011 to late 2013. The applicant said that there was constant intimidation each year, and this went on until he could not continue any longer. When asked what happened, the applicant said that he received verbal threats that he would be harmed or killed. This was from soldiers in Bangkok. In response to the Tribunal’s query, the applicant said that he was physically harmed, when soldiers came to his house and threatened him and punched him. The applicant said that the soldiers travelled to where he was living, outside Bangkok, as they travelled outside Bangkok to track down Red Shirt supporters.

28. The applicant said that this happened at the end of 2013, at which time the military were in the process of becoming the government. The soldiers who came to his house wanted him to stop going to protests and to join the government side. The Tribunal queried whether the applicant was not already on the government side at this time, as a government sympathetic to the Red Shirts was in power at that time. The applicant agreed but said that the military was beginning to take over. The applicant said that after the incident when he was visited by the soldiers, he moved house so that they would not be able to find him again. The applicant asserted that the soldiers were keeping tabs on Red Shirts supporters.

29. In response to the Tribunal’s query, the applicant said that he did not have any formal membership of a political party or a membership card. The Tribunal asked the applicant whether anyone else from his home area or work place was involved in the Red Shirt movement. The applicant responded ‘no comment.’ In response to the Tribunal asking why he did not wish to comment, the applicant again responded ‘no comment.’ The Tribunal asked the applicant whether he sought police protection after the incident where the soldiers came to his house. The applicant responded ‘no comment.’ When asked why he did not wish to comment on this, the applicant again responded ‘no comment.’ The Tribunal asked the applicant whether he was responding ‘no comment’ to particular questions was on the advice of someone else, or whether it was a decision of his. The applicant said that it was his decision.

30. In response to the Tribunal’s query, the applicant said that his wife was with him, while they moved around between April and November 2014, and neither of them were working. They were able to survive on savings. The applicant said that soldiers were looking for any Red Shirts supporters during this period.  When asked how he knew this, the applicant said that it was in the news, and people told him.

31. The Tribunal asked the applicant about how he was able to pay for the student visas for himself and his wife.  He said that the agent who arranged these visas paid the costs ([amount] baht) and required the applicant to repay him once he got to Australia via instalments. The applicant said that he had been paying instalments since coming to Australia but he still owed a bit of money to the agent.

1. The Tribunal asked the applicant what he thought would happen if he and his wife returned to Thailand now. The applicant responded that things had sparked off in Thai politics, with big protests happening calling for democracy. The Tribunal asked the applicant who was protesting and what their demands were at present. The applicant responded ‘no comment.’ When asked why he did not wish to comment on this, he again responded ‘no comment.’ The Tribunal noted that it might assume that the applicant was refusing to answer because he did not know the answer, and it again queried with him whether he was refusing to comment because of concerns about the confidentiality of the Tribunal hearing and/or because he did not wish to implicate others. The applicant said that he did not wish to comment for both those reasons. The Tribunal again emphasised that the Tribunal review process was confidential.  It also noted that he could respond generally, without mentioning specific individuals, if he wished. The applicant responded ‘no comment.’

2. The applicant said that the way things were in Thailand at the moment, he could not go back. There were a number of problems. The government was still following up on him, because of what had happened with him in the past. He therefore could not go back. He feared going back. When asked if his wife had any separate claims besides the ones that he had told the Tribunal, the applicant said that her fear is because she is associated with him. He described he and his wife as ‘walking the same path,’ in that she would be assumed to share his views. In response to the Tribunal’s query, the applicant said that his wife did accompany him to some protests sometimes.

3. The Tribunal queried whether the applicant thought that he could ask for protection from the Royal Thai Police if he was harassed by soldiers (or others, such as political opponents) if he returned to Thailand. The applicant said that he was not willing to seek protection from the police. When asked why he was unwilling to do so, he said he had no reason.

4. The Tribunal asked the applicant whether he would participate in protests if he went back to Thailand. The applicant said that he would avoid protests, as he would be too afraid to resume such activities again after his past experiences. The Tribunal asked the applicant what he thought should happen in relation to Thai politics, given the current circumstances. The applicant said that he wanted his home country to be peaceful but the current news reports indicated that this was not the case.

5. The Tribunal asked the applicant whether he thought he and his wife could relocate to another part of Thailand (aside from Bangkok and his home area) to avoid adverse attention from the soldiers or political opponents. The applicant said that if the country achieved peace, he could perhaps return, but not at the moment. The Tribunal noted that the applicant moved around to different areas for approximately 5 months before he came to Australia in November 2014, during which time he was not harmed. The applicant said that all of Thailand was not safe at the moment. The Tribunal noted that most current news reports focussed on protests in Bangkok. The applicant said that there were other reports of protests in rural provinces and other cities as well. They might be smaller but they were happening.

6. In response to the Tribunal’s query about whether she wished to make any claims on her own behalf, the second named applicant said that she had nothing further to add to the claims made by her husband.

7. The Tribunal discussed some of its concerns about aspects of the applicant’s written and oral claims. It noted that the applicant did not mention his boss’ involvement in the Pheu Thai Party (PTP) at the hearing at all, yet in his written claims in the protection visa application, he did not refer to his own political activities but stated that he was assumed to be against the government because his boss was associated with the PTP and was arrested after the military coup in 2014. The applicant responded that he had said from the start that Thaksin was in the PTP, and that this was the same as the Red Shirts, as the Red Shirts supported Thaksin and the PTP. The Tribunal noted that the applicant had not specifically mentioned his boss or the PTP at all at the hearing. The applicant stated that what he had written about his boss being in the PTP and being arrested was correct and that he did mention it at the beginning of the hearing. The Tribunal reiterated that it did not recall him mentioning the PTP or his boss’ experience. The applicant responded that the Tribunal had only asked him about his own activities. The Tribunal noted that it had specifically asked the applicant about whether anyone he worked with, or from his home area, were involved in similar activities to him but that the applicant had refused to comment. The Tribunal noted that it might draw an adverse inference about his credibility from his failure to comment and/or mention his boss and the PTP. The applicant reiterated that what happened to his boss was true, although he said that he did not know where his boss was now, as they had gone their separate ways.

8. The Tribunal noted that it was also concerned that the applicant had to be prompted several times to give anything other than vague responses to what he actually did as a Red Shirt supporter, which raised the possibility that he was either not involved at all, or not involved in any significant way. The applicant responded that he did not understand the Tribunal’s questions previously. The Tribunal noted that it asked the applicant several times what exactly he had done as a Red Shirt supporter, and it believed that the questions were reasonably clear.

9. The Tribunal further noted that it had concerns that the applicant’s account of events appeared to be significantly at odds with the chronology of political events in Thailand. In particular, it noted that he described Thaksin being Prime Minister in 2011, when Thaksin went into exile some years before that and that the Prime Minister in 2011 to 2014 was Thaksin’s sister, Yingluck Shinawatra. Moreover, it appeared inconsistent that he was claiming to attend pro-democracy protests against the military in the period 2011 to 2013, when Yingluck’s party was in power at this time, and was supported by the Red Shirts. The applicant responded that it was correct that Yingluck and the PTP were in power from 2011 to 2014 but said that he and his fellow Red Shirts were not protesting about the Prime Minister but rather about the government. He then said that he was actually against the Yellow Shirts. When asked who the Yellow Shirts were, the applicant said that they were people who were against the PTP, Thaksin and Yingluck. He and other Red Shirt supporters protested against the Yellow Shirts. He said that Thaksin and Yingluck were trying to stamp out corruption and drug trafficking in Thailand and trying to bring benefit the common people, and that the Yellow Shirts did not agree with this. They did not want any anti-corruption activity because their side was involved in corrupt activities.

10. The Tribunal then discussed with the applicant sections of the most recent Australian Department of Foreign Affairs and Trade (DFAT) Country Report on Thailand (published in October 2020), particularly the section on the Red Shirts, which indicated that low level supporters were not assessed to be at risk of harm. The applicant responded that, ultimately, he wanted Thailand to be peaceful. He said that he had no comment on the country information, other to assert that he was afraid to return to Thailand.

11. Finally, the Tribunal observed that most of the current reporting of the protests in Thailand suggested that they were largely galvanised by university students who wanted reform of the constitution and the monarchy, and that they did not appear to be characterised as ‘Red Shirts’ versus ‘Yellow Shirts’ as with past protests. The applicant said that he had no comment on this observation.

12. The Tribunal clarified with the applicant and his wife that they had nothing else that they wished to raise and advised that it expected to be able to make its decision in 4 to 8 weeks.

    Country information

13. The Tribunal had regard to the following information from the most recent Australian Department of Foreign Affairs and Trade (DFAT) Country Report (issued 11 October 2020):

    …

    RECENT HISTORY

    2.1 Formerly known as Siam, Thailand is the only Southeast Asian country never to have been colonised by a foreign power. The origins of contemporary Thailand date back to 1932, when a revolution saw the country transition from an absolute monarchy to a constitutional monarchy with a parliamentary government. In 1946 King Bhumibol (Rama IX), who reigned until his death in October 2016, ascended to the throne, and the country’s first democratic elections took place the same year. The military seized power in 1947 and has played a central role in Thai politics off and on since (Thailand has had 12 military coups since 1932).

    2.2 Thailand experienced rapid economic and social development under military rule, particularly during the 1960s. A Western ally, Thailand participated militarily in the Vietnam War and hosted a number of American military bases and recreational facilities. US military spending helped fuel the rapid growth of Thailand’s economy, particularly its service, transportation and construction industries, and Thailand’s population grew considerably as the standard of living rose. Economic development was unevenly distributed across the country, and large numbers of rural Thais migrated to Bangkok and other cities in search of economic opportunity during this period. The lack of political freedoms under military rule led to political unrest, with a student-centred opposition movement demanding a constitution and return to civilian rule. In October 1973, the military suppressed a large demonstration in Bangkok, killing 77 and injuring more than 800. King Bhumibol withdrew his support for Thailand’s military rulers in the aftermath, resulting in them leaving the country. Military rule resumed in 1976 following the killing of student protestors at Thammasat University, and continued throughout the 1980s. A civilian government was elected in 1988, only to be overthrown by a military coup in 1991. Mass demonstrations in Bangkok in 1992 – and their violent suppression by security forces – led to the resignations of the coup leaders, and the restoration of civilian government, which lasted throughout the 1990s.

    2.3 Contemporary Thai politics has been characterised by divisions between supporters (‘red-shirts’) and opponents (‘yellow-shirts’) of Thaksin Shinawatra, who became Prime Minister in 2001. Although popular with Thailand’s urban and rural poor for his social programs, opponents criticised his perceived authoritarian style, the increase in human rights abuses and corruption that occurred during his time in power and – according to some detractors – his disrespect for the monarchy. The military removed Thaksin from power in a bloodless coup in September 2006, but his party won the next general election in December 2007 (Thaksin himself went into exile after the 2006 coup and remains abroad). Political polarisation between Thaksin supporters and opponents led to protracted protests, occasional deadly clashes, and political paralysis in the years following (see Protesters and Demonstrators). Elections in July 2011 returned the pro-Thaksin forces to power under the leadership of his sister Yingluck, but mass protests and street battles broke out again in 2013. The military staged a bloodless coup in May 2014, bringing to power a military junta known as the National Council for Peace and Order (NCPO) headed by General Prayut Chan-ocha.

    2.4 The NCPO remained in power for five years before being formally dissolved on 17 July 2019 following the 2019 General Election. While the widespread demonstrations, political instability and associated political violence that had characterised the preceding years largely ceased under NCPO rule, the NCPO period also saw reductions in political and social freedoms. Despite the nominal return to civilian rule following the 2019 elections, Prime Minister Prayut and other ex-NCPO figures remain in power and Thai politics and society remain deeply polarised. Further political and social uncertainty has resulted from the ascension of a new monarch, King Vajiralongkorn (Rama X), whose governing style differs from that of his long-serving father (see Critics of the Monarchy).

    ECONOMIC OVERVIEW

    2.12 Thailand has experienced rapid economic and social development in recent decades. The World Bank has classified Thailand as an upper-middle income economy since 2011, recognising its achievements in increasing Gross National Income per capita, significantly reducing poverty (from 67 per cent in 1986 to 7.8 per cent in 2017, as measured by the upper-middle income class poverty line of USD5.50 per day), and successfully withstanding the 2008 Global Financial Crisis. Thailand has the second largest economy in Southeast Asia, behind only Indonesia.

    2.13 The major economic sectors are services, manufacturing and agriculture. The services sector continues to expand, contributing 56.3 per cent of Gross Domestic Product (GDP) in 2018. Tourism is a major industry, and is the main source of foreign currency. According to official statistics, 38.28 million tourists visited Thailand in 2018, making the country one of the world’s top 10 travel destinations. China provides the largest number of tourists of any single country (27.5 per cent). The manufacturing sector accounts for 35 per cent of GDP and is well-diversified. The main industries are electronics, steel and automotive, with Thailand being an assembly hub for international car brands. Electrical components and appliances, computers, cement production, furniture and plastic products are also important sectors. The textile sector has declined in importance but remains significant. Although agriculture’s contribution to GDP is declining (8.7 per cent in 2018), it continues to employ around one-third of the labour force (see Employment). Thailand is one of the leading producers and exporters of rice, with other major crops including rubber, sugar, corn, jute, cotton and tobacco. Fishing also constitutes an important activity, and Thailand is a major exporter of farmed shrimp.

    2.14 Despite Thailand’s considerable economic achievements, there are a number of points of vulnerability. Ongoing bilateral trade disputes between the United States and China have affected overall trade levels, including those flowing through regional supply chains. The ongoing influence of the military in the recently-elected government, and political uncertainty, continue to dampen business confidence. Thailand has deep-rooted structural problems around human capital and competition, and many observers have called for reform to the Education system to address the workforce skills deficit. The economy’s dependence on tourism means that any dip in tourist numbers represents a key economic vulnerability. Border closures and lockdowns associated with the 2020 novel coronavirus (COVID-19) pandemic have flattened Thailand’s tourist trade. Another risk comes from persistent high levels of household debt, equating to 78 per cent of GDP, with some analysts concerned that anaemic wage growth will curtail consumers’ ability to repay debt. A slowing economy (just 2.4 per cent growth in the 3rd quarter of 2019, and a reduced forecast from 3.3 per cent to 2.8 per cent for 2019 overall) risks Thailand’s appeal as an investment destination. Gross foreign flows were USD28.9 billion in the first half of 2019, compared to USD30.4 billion in the same period in 2018. These economic projections pre-dated COVID-19. Thailand’s economy is acutely vulnerable to the effects of COVID-19, given its reliance on external markets and tourism (the latter accounting for over 20 per cent of Thailand’s GDP in normal times). COVID-related restrictions and reduced global demand have impacted negatively on the country’s main economic growth drivers, and the IMF has forecast that Thailand’s economy may contract by 6.7 per cent in 2020, the worst of any of its ASEAN peers.

    2.15 The current government was elected in March 2019 on an economic platform that included pledges to increase welfare, raise the minimum wage, improve healthcare, assist agriculture workers, boost education and introduce minor tax reform. Special stimulus measures in response to the COVID-19 pandemic were introduced in April 2020, which provide financial support to individuals and businesses, additional support for temporary and contract workers and the self-employed, and funding for community infrastructure.

    Employment

    2.16 Thailand’s official unemployment rate of 0.7 per cent in January 2020 is among the lowest in the world. Analysts attribute this figure to: a low birth rate, which means a decreasing number of people join the workforce annually; a lack of social insurance in the form of unemployment benefits that creates a high incentive to find work of any nature; and the practice of considering those working in Thailand’s large informal sector to be employed (this includes street vendors, motorcycle taxis, and other self-employed people, and accounts for more than half of the total workforce). Official unemployment figures also do not take into account the large number of undocumented migrant workers in the country: there are an estimated 4.9 million non-Thai individuals residing and working in Thailand, including approximately 3.9 million low-skilled workers from Cambodia, Laos and Myanmar, many of whom have an irregular status. In reality, there is considerable unemployment and underemployment in Thailand, including off-season unemployment in the agriculture sector.

    2.17 More than half of the active labour force is estimated to work in the services sector. The agricultural sector, comprised mostly of small-scale farms, employs about one-third of the labour force. The remainder is employed in industry.

    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.

    …

    POLITICAL SYSTEM

    2.35 Thailand is a constitutional monarchy, with King Vajiralongkorn (Rama X) the current Head of State. Although the monarchy has limited formal power, it is highly influential over Thai politics, the military and the legal system (see also Critics of the Monarchy). Article 3 of the Constitution, first promulgated in 2017, states that sovereign power belongs to the Thai people, and that the King as Head of State shall exercise such power through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of the Constitution. Although King Vajiralongkorn’s coronation took place in May 2019, the government retrospectively declared his reign to have begun on 13 October 2016 upon the death of his father King Bhumibol (Rama IX), who had been monarch since June 1946.

    2.36 Chapter VII of the Constitution sets out the role and functions of the National Assembly, which consists of a Westminster-style House of Representatives and Senate. The House of Representatives consists of 500 members, of whom 350 are elected on a single-member constituency basis and 150 from party lists of political members. Voters cast a single vote for their constituency member, which is then also used in the calculation of the party list seats. The House of Representatives has a four-year term.

    2.37 The Senate consists of 250 appointed members, who may not be members of political parties and who are selected based on their societal standing, knowledge and expertise. Fifty seats are reserved for representatives of ten professional and social groups, including bureaucrats, teachers, judges, farmers and private companies, while six places are reserved for the armed forces leaders, the supreme commander, the defence permanent secretary and the national police chief. The NCPO appointed all of the current Senators, releasing its list in May 2019 following The 2019 General Election. Political opponents and commentators strongly criticised the list for its purported lack of political balance and transparency. A large percentage of those appointed were aligned with the NCPO, including 105 nominees with military or police ranks, 15 former NCPO cabinet ministers, 126 former members of the National Assembly, National Reform Council, or National Reform Steering Assembly, and the brothers of a number of senior NCPO figures.

    2.38 At a sub-national level, Thailand is divided into 76 provinces and two special administrative areas (Bangkok and Pattaya). The Ministry of Interior (MOI) appoints provincial governors, while the citizens of Bangkok and Pattaya directly elect their Governors, who head the Bangkok Metropolitan Administration and the Council of Pattaya respectively. Provinces are further subdivided into districts, led by centrally appointed district chiefs. Local government subunits include subdistricts, municipalities and village communities, in which citizens directly elect their leaders.

    The 2019 General Election

    2.39 The 24 March 2019 general election was Thailand’s first in eight years, the first since the May 2014 coup, and the first to be held under the current Constitution. The elections, administered by the Election Commission of Thailand (ECT), had been the subject of numerous delays, beginning shortly after the coup. Seventy-seven parties contested the election, including the former governing Pheu Thai Party (removed from power in the May 2014 coup) and the Democrat Party, previously the main opposition party. A number of new parties campaigned on either a pro- or anti-NCPO stance. The most prominent of the pro-NCPO parties was the Palang Pracharath Party, while the most significant anti-NCPO party was the youth-oriented FFP, led by Thanathorn Juangroongruangkit (see Opposition Politicians).

    2.40 On 7 March 2019, the Constitutional Court dissolved the anti-NCPO (and Thaksin-aligned) Thai Raksa Chart party over its nomination of Princess Ubolratana as its prime-ministerial candidate. The court also banned party executives from running in an election for 10 years, or from setting up or standing as executives of any new party for ten years. In its judgment, the court emphasised the importance of the traditional separation of palace and politics to preserve the neutrality of the monarchy and maintain national unity. The court’s decision followed a declaration by King Vajiralongkorn on 8 February 2019 – the same day as the party announced the nomination – that the nomination of the princess was inappropriate and breached time-honoured royal traditions. The King issued a further statement on the eve of the election, which urged citizens to vote for ‘good people’ to govern the country. Some observers interpreted the statement as a call for citizens to support the pro-NCPO parties.

    2.41 Although fraud or intimidation were not in evidence, some election monitors were critical of the integrity of the election process. In its pre-election report, Human Rights Watch (HRW) said that the NCPO had failed to create conditions for a free and fair election, pointing to repressive laws restricting freedom of speech, association, and assembly; media censorship; lack of equal access to the media; the outsized role of the NCPO-appointed Senate in forming a government; and the lack of independence and impartiality of the ECT. Following the election, the Open Forum for Democracy Foundation determined that the poll was ‘not free and fair’, declaring that the election commission had been unprepared for overseas advance voting; that ECT members were inexperienced; that polling station staff were poorly trained and did not follow regulations strictly; and that there had been insufficient voluntary observers at polling stations to detect potential fraud. While crediting the ECT for a well-managed process on election day, the Asian Network for Free Elections reported that the election process demonstrated fundamental democratic shortcomings. In particular, overly restrictive regulations on the validity of ballot marks contributed to a very high number of invalid ballots (2.8 million); while the ‘deeply flawed’ organisation and tally of ballots led to the announcement of inaccurate preliminary results on election night, damaging the perceived integrity of the election.

    2.42 The ECT did not release formal results for the election until early May 2019, after the Constitutional Court ruled that it could proceed with a controversial formula for allocating party list seats among all parties, including minor parties that critics claimed were ineligible to receive votes under the Constitution. The court’s decision meant that seven seats that would otherwise have gone to FFP went instead to small parties likely to join a pro-NCPO coalition. On 5 June 2019, a joint sitting of the new parliament voted 500-244 to nominate Prayut as an ‘elected’ prime minister over FFP leader Thanathorn Juangroongruangkit (see Opposition Politicians), with the NCPO-appointed Senate voting as a bloc. On 21 February 2020, the Constitutional Court upheld a party financing-related ECT complaint against the FFP, ordering the dissolution of the party and the banning of its executives from politics (see Opposition Politicians).

    …

    The 2017 Constitution

    2.50 Since becoming a constitutional monarchy in 1932, Thailand has had 20 charters or constitutions. Many have been adopted following military coups, with military regimes abrogating existing constitutions and promulgating new ones. Following the May 2014 coup, the NCPO suspended the 2007 Constitution and promulgated an interim constitution, which granted it broad authority to circumscribe some fundamental human rights, according to HRW. After the National Reform Council rejected a draft constitution without explanation in September 2015, extending the NCPO’s rule, the NCPO announced it would hold a referendum on a new proposed constitution in August 2016.

    2.51 In preparation for the referendum, the National Assembly passed an Organic Act on the Referendum for the Draft Constitution (2016). Section 61 of the Act made it a criminal offence to ‘instigate trouble in order to cause disorder in the voting’, with penalties including up to 10 years’ imprisonment, a fine of up to THB200,000 (AUD9,640), and revocation of the right to vote for up to five years. The law specified that ‘texts, pictures, sound in newspaper, radio, television, electronic media or any other channels that distorted from the fact or had violent, aggressive, rude, inciting, or threatening characteristics aiming to induce eligible voters to refrain from voting, to vote in a certain way, or to abstain from voting’ would be considered ‘instigating trouble’ under the law. Authorities used the law to arrest dozens of activists seeking to highlight their concerns about the draft constitution or to encourage others to vote against it in the referendum. The draft was ultimately approved by more than 60 per cent of those voting in the referendum. In the time between the August 2016 referendum and the Constitution coming into effect in April 2017, six changes were made that considerably strengthened the powers of the monarchy (see also Critics of the Monarchy).

    2.52 The Constitution retains the explicit acknowledgement and commitment to the protection of human rights made in earlier constitutions. Some analysts have criticised it, however, for the lack of broad consultation involved in its preparation and implementation; for consolidating decrees issued by the NCPO and confirming their immunity; for creating a permanent place for the military in government and normalising the military’s intervention in politics; and for weakening the democratic system of governance through creating a permanent unelected upper house.

    SECURITY SITUATION

    2.53 The security situation in Thailand is unpredictable and varies according to location, partly due to the uncertain political situation. While most of the country is generally peaceful, a long-running separatist insurgency in southern Thailand has caused numerous deaths and injuries (see Insurgency in Southern Border Provinces (SBPs)). Political demonstrations and protests in Bangkok have turned violent in the past but large-scale street-based protests have been rare since the 2014 coup. Petty crime is common. There is a risk of land mines and unexploded ordnance near the Thai-Cambodian border.

    2.54 Many border areas of Thailand are used as trafficking routes for both the import and export of illegal substances for international markets, including opium, heroin, methamphetamine, cannabis, and yaba (a methamphetamine-type stimulant). Such border areas are dangerous due to violence associated with the drug trade. There have been numerous credible reports of some military and police personnel being involved in the drug trade and related violence. A ‘war on drugs’ waged during the Thaksin The 2017 Constitution

    2.50 Since becoming a constitutional monarchy in 1932, Thailand has had 20 charters or constitutions. Many have been adopted following military coups, with military regimes abrogating existing constitutions and promulgating new ones. Following the May 2014 coup, the NCPO suspended the 2007 Constitution and promulgated an interim constitution, which granted it broad authority to circumscribe some fundamental human rights, according to HRW. After the National Reform Council rejected a draft constitution without explanation in September 2015, extending the NCPO’s rule, the NCPO announced it would hold a referendum on a new proposed constitution in August 2016.

    2.51 In preparation for the referendum, the National Assembly passed an Organic Act on the Referendum for the Draft Constitution (2016). Section 61 of the Act made it a criminal offence to ‘instigate trouble in order to cause disorder in the voting’, with penalties including up to 10 years’ imprisonment, a fine of up to THB200,000 (AUD9,640), and revocation of the right to vote for up to five years. The law specified that ‘texts, pictures, sound in newspaper, radio, television, electronic media or any other channels that distorted from the fact or had violent, aggressive, rude, inciting, or threatening characteristics aiming to induce eligible voters to refrain from voting, to vote in a certain way, or to abstain from voting’ would be considered ‘instigating trouble’ under the law. Authorities used the law to arrest dozens of activists seeking to highlight their concerns about the draft constitution or to encourage others to vote against it in the referendum. The draft was ultimately approved by more than 60 per cent of those voting in the referendum. In the time between the August 2016 referendum and the Constitution coming into effect in April 2017, six changes were made that considerably strengthened the powers of the monarchy (see also Critics of the Monarchy).

    2.52 The Constitution retains the explicit acknowledgement and commitment to the protection of human rights made in earlier constitutions. Some analysts have criticised it, however, for the lack of broad consultation involved in its preparation and implementation; for consolidating decrees issued by the NCPO and confirming their immunity; for creating a permanent place for the military in government and normalising the military’s intervention in politics; and for weakening the democratic system of governance through creating a permanent unelected upper house.

    …

    POLITICAL OPINION (ACTUAL OR IMPUTED)

    3.20 Article 34 of the Constitution guarantees the right to express opinions, make speeches, write, print, publicise and express by other means, but allows for this right to be restricted by law for the purpose of maintaining state security, public safety, public order or good morals, or for protecting the health of the people. Article 44 guarantees the right to assemble peacefully, but allows for this right to be restricted by law for the purpose of maintaining state security, public safety, public order or good morals, or for protecting the rights or liberties of other persons.

    3.21 In the years following the 2014 coup, a range of laws and decrees has collectively served to limit significantly the freedoms of expression and assembly. Human rights observers have criticised these laws for being overly broad and vaguely worded, and have expressed concern about the broad scope of their application. The key laws and decrees are listed in the following paragraphs.

    3.22 Head of NCPO (HNCPO) order 3/2015, issued in April 2015 under the interim constitution, consolidated many of the orders issued prior to the lifting of martial law. Section 12 of the order prohibits political gatherings of five or more persons, providing for punishment of up to six months’ imprisonment or a fine of up to THB10,000 (AUD487) for unauthorised gatherings. Section 12 provides, however, for any case brought under the provision to be considered closed if the individual concerned agrees to receive, and undergoes, up to seven days of ‘corrective training’. According to documentation provided by a leading domestic human rights NGO, authorities used HNCPO order 3/2015 (and its predecessor, NCPO announcement 7/2014) to file at least 43 cases against a total of 431 defendants from the time of the coup until January 2019, with most cases targeting pro-democracy protesters. In December 2018, the HNCPO issued order 22/2018, which lifted the ban on political gatherings and certain other political activities in advance of the forthcoming elections. Section 1(7) of HNCPO order 22/2018 nullified section 12 of HNCPO order 3/2015, but noted that the nullification did not impact the prosecution of cases, proceedings, or actions already in progress. Although military courts and courts of justice have dismissed most pending cases under HNCPO order 3/2015 (citing HNCPO order 22/2018), human rights observers report that some cases related to pro-democracy protests are still ongoing (see Protesters and Demonstrators).

    3.23 The Public Assembly Act (2015) requires those wishing to hold a public assembly to notify authorities at least 24 hours in advance of the time, place and objective of the assembly. Failure to provide such notice is an offence punishable with a fine of up to THB10,000 (AUD487). The law also prohibits holding public assemblies within 150 metres of specified royal palaces, courts, Government House or the National Assembly, with violations punishable by up to six months’ imprisonment and a fine of up to THB10,000 (AUD487) for unauthorised gatherings. Sections 15 and 16 impose vaguely worded duties on both organisers and participants, including a duty not to cause ‘unreasonable inconvenience’ to any person. Violations are punishable with a fine of up to THB10,000 (AUD487). Human Rights Watch claims that, while the Public Assembly Act has been invoked with far less frequency than HNCPO order 3/2015, it has been used as an additional charge against pro-democracy protesters and against environmental activists, and has been increasingly cited since the nullification of HNCPO order 3/2015.

    3.24 Article 116 of the Criminal Code (‘the Sedition Law’) provides for a penalty of up to seven years’ imprisonment for anyone who uses words or writings in order to: 1) bring about a change in the laws of the country or the government by use of force or violence; 2) raise unrest and dissatisfaction among the people in a manner likely to cause disturbance in the country; or 3) cause the people to transgress the laws of the country. Although this law was rarely used before the coup, since May 2014 authorities have consistently used this provision against critics of the government and military. Human rights groups report that the NCPO charged at least 117 people with sedition between May 2014 and May 2019, with almost any criticism of military rule or the NCPO treated as a basis for charges. Among other things, authorities have brought sedition charges against activists critical of the coup and those calling for elections, lawyers who have provided legal assistance to peaceful protesters, the administrators of a satirical Facebook page, and opposition politicians who have criticised the NCPO’s performance. Given the possible severity of a conviction under Article 116, the filing of sedition charges against government critics has reportedly had a considerable nullifying effect on critical speech.

    3.25 Section 14(1) of the Computer-Related Crime Act (2007; amended 2017) provides for a penalty of up to five years’ imprisonment and a fine of up to THB100,000 (AUD4,820) for anyone who puts into a computer system ‘false’ or ‘distorted’ information ‘in a manner that is likely to cause damage to the public’; while Section 14(2) provides the same possible sentence for anyone who puts into a computer system ‘false computer data in a manner that is likely to damage the national security or cause panic in the public’. It is also an offence to forward or share any content that violates Article 14. The 2017 amendments broadened the provision to cover the input of such information ‘in a manner that is likely to damage the maintenance of national security, public safety, national economic security or public infrastructure serving national public interest or cause panic in the public’. Authorities have used the law against pro-democracy activists, opposition political figures, critics of the government, and a range of ordinary citizens discussing matters of public concern on the internet (see relevant sections).

    3.26 Sections 326 to 333 of the Criminal Code criminalise defamation. Section 326 states that whoever imputes anything to another person before a third person in a manner likely to impair the reputation of such other person or to expose such other person in a manner to be hated and scorned is said to commit defamation and shall be punished with up to one year’s imprisonment or fined up to THB20,000 (AUD965) or both. If the defamation is committed by means of a document, video, drawing, or any other means, it is punishable by up to two years’ imprisonment. Under Section 330, truth is a defence to charges of defamation, but a defendant is not allowed to prove the truth of the statement if ‘such imputation concerns personal matters, and such proof will not be of benefit to the public’. Authorities have repeatedly used criminal defamation charges against those highlighting abuses by the military or raising allegations of corruption. In practice, the burden of court cases in defamation cases effectively lies with the defendant. Some private companies have also used criminal defamation charges against journalists, civil society activists, and workers seeking to highlight labour or environmental abuses (see relevant sections).

    3.27 DFAT assesses that, notwithstanding the existence of constitutional protections guaranteeing the freedoms of expression, opinion and assembly, the ability of Thai citizens to criticise the government and express dissent publicly (either individually or collectively) is circumscribed in practice. Authorities have demonstrated a willingness to use broad interpretations of national security legislation, or the threat of prosecution under such legislation, to prevent political demonstrations from occurring or to discourage the expression of matters of public interest online. The criminalisation of defamation, and placing of the burden of proof upon the defendant, also acts as a significant deterrent to those wishing to exercise their freedom of expression.

    GROUPS OF INTEREST

    Critics of the Monarchy

    3.28 The existence of the institution of monarchy in Thailand goes back to the 13th century. Although Thailand officially ceased to be an absolute monarchy in December 1932 (see Recent history), the monarchy has continued to be a prominent national institution and one held in high esteem by most Thais. This reverence has been enshrined in all of Thailand’s recent constitutions: the current (2017) constitution recognises the King’s authority to be final arbiter in a political crisis (a traditional royal prerogative), including through installing an interim or unity government to defuse political conflict, while Section 6 states that the King shall be enthroned in a position of revered worship and shall not be violated, and that no person shall expose the King to any sort of accusation or action. DFAT understands that Thai authorities maintain a list of academics from foreign countries who have spoken against the Thai Government or Royals, and that individuals on this list are targeted for interviews on entry and exit to Thailand.

    3.29 In-country sources report that a number of symbolic and practical actions undertaken since King Vajiralongkorn ascended to the throne have strengthened and centralised the monarchy’s role in relation to the country’s economy, politics and military. In June 2017, the government amended a 1936 law to give the King full control of the Crown Property Bureau (CPB) (formerly managed by the Finance Ministry) and transfer CPB-managed assets into the King’s name. The CPB manages land holdings estimated to be worth more than USD30 billion, including much of Bangkok’s prime real estate, meaning that big businesses with property interests are required to court favour with the palace. Whereas King Bhumibol generally exercised political influence from behind the scenes, King Vajiralongkorn has been more forthright, particularly through issuing several direct statements ahead of The 2019 General Election. There has also been a notable strengthening of the monarchy’s influence over the Military (for example, in October 2019, King Rama X issued a royal decree transferring command of two army units from the military chain-of-command to the Royal Security Command) and a number of symbolic actions taken to de-emphasise Thailand’s revolutionary and democratic history in public spaces, including the replacement of a historic plaque commemorating the 1932 revolution with one paying deference to the monarchy, and the demolition of a monument celebrating the revolutionary government’s victory over royalist counter-revolutionaries.

    3.30 Section 112 of the Criminal Code (widely known as the ‘lèse-majesté law’) provides for a penalty of up to 15 years’ imprisonment for anyone who ‘defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent’. The law does not provide a definition as to what constitutes an insult to the monarchy, which has given authorities leeway to interpret it in a very broad way. The law permits citizens to file lèse-majesté complaints against each other. Courts have rarely granted bail in Section 112 cases, meaning defendants have been detained during the entire pre-trial and trial period, although there are indications this is being relaxed, with bail granted in some cases. The imprisonment penalty for breaches of Section 112 applies to each individual charge, meaning those charged with multiple offences have faced extremely long prison terms. In June 2017, for example, an activist was sentenced to 70 years’ imprisonment in the heaviest sentence ever handed down (although his sentence was later halved when he confessed to the crime). The activist had posted photographs and videos of the royal family on a Facebook account that purported to be from a different user. The combination of long pre-trial detention, lengthy prison terms, low rate of acquittals and substantial sentence reductions for confessions results in defendants facing heavy pressure to confess rather than trying to contest the charges at trial.

    3.31 In the years following the 2014 coup, Thai authorities applied Section 112 broadly and prosecuted cases aggressively. In a media interview in December 2015, for example, the chief of the NCPO’s Legal Office said that commenting, sharing, or pressing ‘Like’ on Facebook content that authorities considered offensive to the monarchy would be prosecuted under Section 112. According to human rights advocates, at least 169 persons were prosecuted under Section 112 between May 2014 and May 2019. In one notable case in August 2017, a political activist was sentenced to five years’ imprisonment (later reduced to two and a half years after he pleaded guilty) for posting on his Facebook page a BBC Thai language profile of King Vajiralongkorn. In some cases, the accused committed the alleged offence prior to the 2014 coup but authorities only filed charges afterwards. In one such case, an eminent 85-year-old historian was summoned in October 2017 to face charges based on classroom comments he made in a 2014 lecture about the historical accuracy of a 16th century elephant battle involving a Thai king (a battle commemorated annually as Thai Armed Forces Day). The historian, who had been charged under Section 112 on four previous occasions, was cleared of the charges in December 2017 following an audience with the King.

    3.32 According to the Department of Corrections, as of August 2018, 65 persons were awaiting trial or imprisoned on Section 112 charges, including a number of persons convicted for corruption-related offences for misuse of royal title to further business interests. Despite a September 2016 order that ended the practice of trying violations of Section 112 in military courts, human rights observers report that such trials continued to occur after this date. Many Section 112 cases were reportedly conducted in secret, with authorities prohibiting public disclosure of the content of the alleged offences. Sentences for Section 112 offences also increased: before the coup, sentences were generally five years per count, but post-coup military courts instead generally imposed sentences of ten years per count unless the defendant pleaded guilty.

    3.33 In a February 2018 directive, the Attorney-General instructed all public prosecutors to review all pending prosecutions under Section 112. Under the new guidelines, only the Office of the Attorney-General can make a final determination on whether or not to prosecute a Section 112 case, which previously had also been within the power of public prosecutors. While authorities subsequently dropped a number of Section 112 prosecutions, many of those already prosecuted under the law remain imprisoned serving long sentences.

    3.34 While there have been no new charges brought under Section 112 since the issuing of the February 2018 directive, the law remains unchanged and available for future use. Human rights groups have also expressed concern that authorities have continued to target perceived opponents of the monarchy through utilising other serious charges, particularly the Computer-Related Crimes Act and Section 116 of the Criminal Code, and criminal defamation (see also Political Opinion (Actual or Imputed)). In some cases, authorities have brought new charges against individuals who have already been acquitted or have had earlier Section 112 charges dismissed. In one such case in March 2018, after a one-day trial the Bangkok Criminal Court sentenced a 23-year-old woman to two years’ imprisonment for breaching the Computer-Related Crimes Act for sharing on her Facebook page audio clips deemed defamatory to the monarchy. The woman had earlier successfully appealed a conviction and prison sentence handed down by the Yala Provincial Court under Article 112 for the same offence.

    3.35 Human rights observers have expressed concern that the monarchy’s increasing presence in public life will result in further formal and informal restrictions on freedom of expression in relation to matters of legitimate public interest, including restricting discussion on Thailand’s politics, economy and military. Noting the very low evidentiary threshold on Section 112 and other serious charges relating to criticism of the monarchy, and the established willingness of authorities to use them against political opponents, DFAT assesses it as likely that authorities will continue to use criminal charges other than section 112 to suppress critics. Those facing such charges have a limited ability to defend themselves.

    Anti-Monarchy Political Activists in Exile

    3.36 Human rights observers have expressed concern about a spate of incidents in recent years involving the targeting of anti-monarchy political activists in exile in neighbouring countries, including through illegal forced repatriation, enforced disappearance, torture, and extrajudicial killing (see also relevant sections). An anti-government activist was forcibly disappeared in Cambodia in June 2020. Three anti-monarchy activists belonging to the outlawed anti-monarchy Organisation for Thai Federation (OTF) disappeared in Laos in late 2018, with the murdered and mutilated bodies of two discovered in the Mekong River in northeast Thailand in late December 2018. The third activist remains unaccounted for. The earlier disappearances of a further two anti-monarchy activists in Laos in June 2016 and July 2017 respectively also remain unsolved.

    3.37 On two separate occasions in May 2019, neighbouring countries repatriated anti-monarchy activists at the request of Thai authorities. Vietnamese authorities returned three activists on 8 May 2019, after detaining them in early 2019 for illegally crossing the Laos-Vietnam border. Thai authorities had accused the three of committing lèse-majesté while exiled in Laos by operating online anti-monarchy radio programs and mobilising OTF supporters to demonstrate against the monarchy by wearing black t-shirts in Bangkok and other provinces. The three reportedly fled Laos following the earlier disappearance of their fellow activists. Neither Vietnamese nor Thai authorities have acknowledged their detention. Their fate and whereabouts remain unknown, although in-country sources believe they were likely killed while in detention.

    3.38 In May 2019, Malaysian authorities forcibly repatriated a further anti-monarchist activist associated with the OTF. UNHCR had registered the activist as an asylum seeker and designated her a ‘person of concern’. The activist had fled to Malaysia in January 2019 and claimed to have been arrested in Thailand several times between September and December 2018, including being held in incommunicado detention. The threats allegedly intensified after she participated in peaceful anti-monarchy activities during the birthday memorial in December 2018 for the late King Bhumibol, including handing out leaflets criticising the monarchy in a Bangkok shopping mall while wearing a black t-shirt with the OTF logo. Thai authorities had issued an arrest warrant that accused her of sedition and organised crime. Human rights groups criticised the repatriation as being in breach of Malaysia’s international obligations, and expressed concerns that the activist faces human rights abuses on return. In January 2020 she was sentenced to three years in prison for membership of a secret society (reduced to two years for pleading guilty).

    3.39 DFAT assesses that a limited number of republican and/or anti-monarchy political activists who are overtly critical of the monarchy, particularly members of the OTF, face a high risk of arrest, prosecution, torture and extrajudicial killing. Those based outside of Thailand, particularly in Southeast Asian nations, face a high risk of illegal extradition or enforced disappearance.

    Opposition Politicians

    3.40 Human rights observers have expressed concern about a continuing pattern in which authorities have targeted opposition parties and politicians through legal administrative actions, both in the lead-up to and following the 2019 General Election. Politicians targeted in this manner have generally been high profile, including party leaders or spokespersons, and some politicians have had multiple charges brought against them. In many cases, serious criminal charges have been brought in relation to social media posts. Although authorities have subsequently dropped charges in some cases, often after lengthy and time-consuming delays, many of these cases remain unresolved.

    Pheu Thai Party

    3.41 In August 2017, police charged Pichai Naripthaphan, a prominent Pheu Thai member and a former Energy Minister, with violating the Computer-Related Crime Act after he posted a commentary on Thailand’s economy on his Facebook page. In charging Naripthaphan, police claimed that he had posted ‘false information’ that could harm the economy. Naripthaphan had earlier been subjected to multiple rounds of ‘attitude adjustment’ (see Arbitrary Arrest and Detention) following the May 2014 coup. His case is yet to be submitted to the public prosecutor.

    3.42 In December 2017, police charged Sunisa Lertpakawat, Pheu Thai’s spokesperson, with violating the Computer-Related Crime Act and committing sedition in relation to three social media posts on her Facebook page. The posts, which were made between 22 November and 4 December, criticised the NCPO for failing to provide credible explanations about the death of an army cadet who allegedly died as a result of corporal punishment at the Armed Forces Academies Preparatory School; criticised the government’s budget allocation for allegedly failing to prioritise the public health service and relying on voluntary donations from the hospital to fill in missing budgetary support for state hospitals; and criticised Prayut for welcoming a rock music star to the Government House while harshly treating people who had suffered from government policies. On 20 December 2017, police charged Sunisa with additional sedition and Computer-Related Crime Act breaches based on criticism she had posted on Facebook in September and October 2017. According to human rights groups, the later charges came after Sunisa posted a Facebook message criticising the first round of charges. DFAT understands that the cases are yet to be resolved.

    3.43 In May 2018, police charged three Pheu Thai politicians (including the party’s legal chief) with sedition and breaches of HNCPO order 3/2015, and a further five with breaches of HNCPO 3/2015 after the party held a press conference in which they gave their assessment of the NCPO’s performance in the four years since the May 2014 coup. The three charged with sedition spoke at the press conference, while the other five were merely in attendance. Authorities dropped the HNCPO order 3/2015 charges against the group after the issuance of HNCPO order 22/2018 in December 2018. Although the Attorney-General’s office stated in February 2019 that it would announce a decision in relation to the sedition charges on 21 March – three days before the scheduled election – it did not do so. Authorities did not formally drop the charges until September 2019, 16 months after the alleged offence had been committed.

    3.44 Authorities have charged Watana Muagnsook, a prominent Pheu Thai member and former Commerce Minister, with multiple criminal charges since the May 2014 coup, most of which have been in relation to Facebook posts. While courts have dismissed some of the charges, others remain unresolved years later. These include an April 2016 charge of violating his terms of agreement after completing an initial round of ‘attitude adjustment’ (see Arbitrary Arrest and Detention), which carries a potential two year prison sentence; and sedition and Computer-Related Crime Act charges lodged in August 2017 in relation to Facebook posts condemning the trial of former Prime Minister Yingluck Shinawatra. Watana has also twice been held in contempt of court for sending messages on social media from the court complex, and subjected to multiple rounds of ‘attitude adjustment’.

    Future Forward Party (FFP)

    3.45 As noted in The 2019 General Election, on 21 February 2020 the Constitutional Court upheld a complaint by the ECT that FFP leader Thanathorn Juangroongruangkit had breached various provisions of the Organic Act on Political Parties (PPA; 2017) by extending THB191 million (AUD9.5 million) in loans to the party ahead of the 24 March 2019 General Election. The court ruled that Thanathorn’s loans to the party were not on commercial terms and therefore qualified as a donation, the value of which exceeded THB10 million (the allowable donation limit under section 66 of the PPA). Because the loans breached section 66, they were also adjudged to be an illegal source of funds in breach of section 72, which carries the penalty of party dissolution (most legal experts had understood the purpose of section 72 as being to bar donations from criminal or illicit sources rather than technical violations of party financing laws). The court therefore issued an instruction to dissolve the FFP and bar its executives from politics for the maximum allowable ten years. In issuing the maximum allowable ban, the court ruled that party executives had knowingly attempted to circumvent the PPA’s donation limits; and that the size of the donation could give party financiers undue influence over the party in breach of the Constitution’s democratic principles emphasising transparency and public participation in political party affairs.

    3.46 The FFP’s dissolution in February 2020 was widely seen as the culmination of a campaign by authorities to discredit Thanathorn and the party that had commenced with the FFP’s formation in March 2018. Since that time, authorities had consistently targeted Thanathorn and the FFP with legal charges that observers had widely concurred to be politically motivated. In addition to the large number of legal cases brought against Thanathorn and the FFP, there have also been numerous reports of bribes, threats, and legal cases against members of Thanathorn’s family, and against members of the other FFP leadership.

    3.47 In August 2018, police charged Thanathorn and several other senior FFP officials with breaching the Computer-Related Crimes Act in relation to discussions held on a party Facebook live event in June 2018 in which the FFP accused the NCPO of encouraging defectors to the Palang Pracharat Party. The charges followed the lodging of a complaint by the NCPO’s legal officer that Thanathorn had made accusations about the NCPO and twisted facts in a manner that amounted to an attack on Thailand’s justice system. The charges are yet to be resolved.

    3.48 In April 2019, police charged Thanathorn with sedition, aiding person/s who had committed a crime, and illegal assembly in relation to him allegedly assisting a group of anti-coup activists to flee from a police station in June 2015. A RTP representative explained the nearly four-year delay in bringing charges as a result of staff changes and misplaced paperwork. The laying of charges came two weeks after Future Forward’s strong performance in The 2019 General Election.

    3.49 In November 2019, the Constitutional Court found Thanathorn guilty of holding media shares when he registered as an electoral candidate, in breach of the electoral law, and therefore disqualified him as an MP following his earlier suspension by the ECT. The decision is final and there are no avenues for appeal. The court’s decision does not ban Thanathorn from standing in future elections. As Thanathorn is a party list rather than a constituency MP, FFP retains his place in parliament through replacing him with a candidate from their party list. The ECT may refer the case for further legal consideration (by either the Criminal or Supreme Courts) to determine whether a prima facie criminal case exists.

    3.50 In January 2020, the Constitutional Court dismissed a case against both FFP and Thanathorn for allegedly conspiring to overthrow Thailand’s system of democracy with the King as head of state. The case, filed in June 2019 by a former adviser to the chief ombudsman, included a widely-ridiculed claim that the FFP’s triangular logo resembled an upside-down pyramid and therefore showed the party was linked to the Illuminati secret society.

    3.51 Other members of the FFP leadership have also faced legal charges widely perceived as being politically motivated. The FFP Secretary General is currently facing charges under the Computer-Related Crimes Act for criticising the Constitutional Court’s decision to dissolve the Thai Raksa Chart Party (see The 2019 General Election); while the FFP Spokesperson has had a complaint filed against her for a ten-year-old photograph of her posing next to an image of the King in a ‘disrespectful’ way.

    Protesters and Demonstrators

    3.61 While there has been a significant reduction in the number of large-scale protests and demonstrations since the May 2014 coup, there have been a number of recent demonstrations in relation to the legal actions against the FFP and its leader Thanathorn. These include:

    * The Constitutional Court’s 21 February 2020 ruling to disband the FFP (see Opposition Politicians) was followed by a number of protests, centred on university campuses. DFAT is not aware of any reports of arrests or associated violence in relation to any of these protests, or subsequent legal action against the organisers or participants.

    * thousands of its supporters attended a rally in central Bangkok on 14 December 2019 to protest the disqualification of Thanathorn from parliament and the ongoing legal efforts to disband the party. This rally was held under a light police presence. Although DFAT is not aware of any reports of arrests or associated violence during the rally, authorities subsequently filed criminal complaints against the organisers.

    * Two competing running events took place in Bangkok on 12 January 2020: a ‘Run Against Dictatorship’ protest attended by between 10-20,000 people, and a much smaller pro-government ‘Walk to Cheer Uncle (Prayut)’. The two events did not physically interact and DFAT is not aware of any reports of associated violence in relation to either of them. Authorities subsequently charged the organiser of the ‘Run Against Dictatorship’ protest and affiliated activists with offences under the Public Assembly Act. Following the rival events, Prayut expressed concern that they would lead to fresh political conflicts and said he had instructed security authorities to find ways to prevent such activities in future.

    3.62 Pro-democracy activists known as the ‘We Want Elections’ group organised a series of protests in Bangkok in early 2018 to protest the repeated postponement of the promised election. Authorities responded by charging the protest organisers with multiple counts of sedition and holding illegal political gatherings, along with violations of a number of other legal codes including the Public Assembly Act and the Road Traffic Act. The cases are yet to be resolved. Authorities also arrested protest participants (many multiple times) and staff of human rights NGOs who were present as observers, charging them under HNCPO order 3/2015 or the Public Assembly Act. While some courts have dismissed the charges, others reportedly have yet to do so. 3.63 As noted in Recent history, Thailand experienced periodic large-scale demonstrations between June 2007 and the May 2014 military coup, which included associated political violence through clashes between the rival ‘Red Shirt’ and ‘Yellow Shirt’ factions and security forces. The violence peaked in the period of March to May 2010, when a government crackdown on Red Shirt protestors led to the deaths of at least 90 people and injured more than 2,000. According to human rights observers, while a large majority of the casualties resulted from unnecessary or excessive use of lethal force by soldiers, elements of the Red Shirts were also responsible for deadly armed attacks against soldiers, police and civilians. The government responded to the political crisis caused by the protests by declaring a state of emergency in April 2010 and creating a Centre for the Resolution of Emergency Situations (CRES), an ad hoc body made up of civilians and military officers. The CRES questioned, arrested, and detained Red Shirt leaders and members who took part in the protests, as well as accused sympathisers. It also summoned hundreds of politicians, former officials, businesspersons, activists, academics, and radio operators for interrogation, froze individual and corporate bank accounts, and detained some persons in military-controlled facilities.

    3.64 Prosecutions against the leaders of the Red Shirt protests have resulted in mixed outcomes. In July 2017, the Supreme Court sentenced a Red Shirt leader to a year’s imprisonment for defaming the then-Prime Minister by calling him a murderer in a speech delivered at the height of the 2010 protests. Two lower courts had previously dismissed the defamation charge. In August 2019, however, the Bangkok Criminal Court dismissed a case against 24 Red Shirt leaders that involved charges of terrorism, criminal association, using force to damage government property, inciting unrest, possession of arms, obstruction of officials through intimidation, and the gathering of more than ten people to cause chaos. In dismissing the case, the court ruled that the Red Shirt protests were ‘a political fight’, not terrorism.

    3.65 The Bangkok Criminal Court also dismissed charges of insurrection, criminal association, illegal assembly, instigation of strikes, and obstructing an election against four prominent members of the Yellow Shirt group, including a Bangkok deputy governor, in relation to their involvement in protests against the Yingluck Shinawatra government in 2013-14. In dismissing the charges, the court ruled that the defendants had only taken part in the protests and were not part of the leadership group that had instigated violent action. At the peak of the 2013-14 protests, demonstrators blockaded a number of international airports, imposed worker strikes on train services, blocked roads and traffic in Bangkok, and stormed a number of government buildings.

    3.66 DFAT assesses that authorities are likely to disrupt large-scale protests and demonstrations from occurring, including through arrests and prosecutions against protest organisers. While authorities are likely to maintain records of those involved in the Red Shirt and Yellow Shirt protests, DFAT assesses that authorities are unlikely to prioritise prosecutions in relation to these historical events, particularly for low-level participants. Participants in the Red Shirt protests who continue to be politically active against the government are likely to face a higher risk of arrest and prosecution than those protesting for the first time (see also Media).

    …

    Reasons

    Identity

1. On the basis of the copy of the applicants’ Thai passports provided to the Department, the Tribunal accepts that the applicants are citizens of Thailand and that their identity is as they claim it to be.  The Tribunal accepts that Thailand is the applicants’ ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

   Credibility

2. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

3. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, 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.

4. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

5. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

6. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

7. The Tribunal is satisfied that in the protection visa application, the second named applicant made no separate claims to her husband, the first named applicant (the applicant) and instead relied on his claims. At hearing, she and the first named applicant clarified that she feared harm due to her association with him, and because she had attended some political rallies with him.

8. As discussed at hearing, and in detail below, the Tribunal found various elements of the first named applicant’s evidence to be vague and inconsistent and considered that this raised concerns regarding his credibility.

   Assessment of claims

9. In his written statements in the protection visa application, the first named applicant (the applicant) indicated that he was at risk of harm as his boss in Thailand had been a PTP campaigner and had been arrested after the 2014 coup, and the applicant was harassed by the military as a result. His house was searched and he was beaten and threatened. As he had come to the attention of the Thai military, he would be at risk if he returned now because of this. He made no mention of being politically active himself and did not mention any involvement in the Red Shirts movement.

10. At the hearing, however, the applicant indicated that he was a supporter of the Red Shirts since 2011, so he was considered an enemy of the government because he was in a large group that was opposed to a military government. He described himself as a bit of a leader and said that he participated in activities and tried to get others to join. He said that he helped to block roads and marched in protests on the Royal Parade in Bangkok between 2011 and 2013. As a result, the applicant said that he received verbal threats that he would be harmed or killed from soldiers in Bangkok, and that he was physically harmed, when soldiers came to his house outside Bangkok and threatened him and punched him at the end of 2013.

11. The Tribunal considers that the applicant’s evidence at hearing was significantly at odds with his written claims, and put this to him at hearing. The applicant asserted that he did mention his boss during the hearing. The Tribunal has reviewed the audio recording of the hearing, and is satisfied that the applicant did not mention his boss until specifically asked about his written claims about his boss by the Tribunal. The applicant also said that the Tribunal only asked him about his own activities; however, the Tribunal specifically asked him about whether anyone he knew was involved in similar activities, in response he told the Tribunal that he elected not to comment. The Tribunal notes that the applicant elected to respond ‘no comment’ to a range of questions, despite being advised by the Tribunal that the hearing was confidential and that he could answer in more general terms if he did not want to name specific individuals. The Tribunal further notes that the applicant also elected to make no comment on matters which he had already addressed in his written claims (such as his boss’ involvement in the PTP party).  The Tribunal has considered whether the applicant’s ‘no comment’ responses to several of its questions were a genuine (if misguided) attempt by the applicant to shield other individuals from potential exposure or risk, but has concluded that they were not. It concludes that they indicate that the applicant either could not or would not answer those questions, for reasons known only to himself. In reaching this conclusion, the Tribunal again notes that the applicant chose to make no comment on questions which clearly engaged with his written claims, or which did not appear contentious to the Tribunal. The Tribunal is satisfied that the applicant did not lack the capacity to give evidence, as he freely and articulately responded to other questions during the hearing. The Tribunal therefore considers it implausible that the applicant genuinely refused to answer in order to protect others or because he lacked capacity to respond. Rather, the Tribunal is of the view that he did so when he was unable to answer a question posed by the Tribunal. This did not enhance his credibility.

12. This in and of itself would not cause the Tribunal to reject some or all of the applicant’s evidence. However, there were further concerning aspects of the applicant’s evidence; namely:

    ·he was unable to satisfactorily explain the discrepancy between his written claims and his oral evidence at hearing, which was not minor;

    ·he was not able to articulate in any clear detail why he supported the Red Shirt movement and Thaksin/Yingluck governments, or what activities he undertook while he was involved with the Red Shirts, without significant prompting from the Tribunal. The Tribunal considers that this not due to reticence or caution but was due to his inability to do so, and it further considers that his evidence was unconvincing, and inconsistent with his claim at hearing to have had some kind of leadership role in the Red Shirt movement in his area (or indeed any active role); and

    ·there were significant chronological discrepancies in the applicant’s account of his political involvement in Thailand. As discussed with him at hearing, he described Thaksin as being Prime Minister in 2011 and 2013, when he went into exile in 2006 or thereabouts, and his sister Yingluck Shinawatra was the Prime Minister between 2011 and 2014. The applicant also maintained that he was involved with Red Shirt protests against the government between 2011 and 2013, when the government in power at that time was the government of Yingluck Shinawatra, who was supported by the Red Shirts. The Tribunal notes that Yingluck was deposed by a military coup in 2014, at which time there were clashes between her supporters (the Red Shirts) and her opponents (the Yellow Shirts) but this was after the period during which the applicant described being involved in demonstrations. The Tribunal notes that the available country information indicates that there may have been clashes between Red Shirts and Yellow Shirts prior to this, but finds that the general pattern of events is inconsistent with the applicant’s timeline given at hearing.

13. Taken together, cumulatively, the Tribunal considers that these factors significantly undermine the applicant’s credibility, to the extent that it does not accept his claims to have been involved in the Red Shirt movement at all prior to leaving Thailand. It does not accept that he had any role in this movement, or that he was harmed by the military for having been. Specifically, it does not accept that he or his wife were monitored, beaten or visited at their house by the military. The Tribunal therefore does not accept that the applicant’s wife would be at risk due her association with him as it does not accept that he was engaged in the activities which he claims to have been. The Tribunal does not accept that either of them attended political rallies in Thailand.

14. Further, the Tribunal does not accept that either of them would be active in politics if they now returned to Thailand, and reaches this conclusion on the basis of their lack of prior involvement, not because it considers that they would wish to but would not do so out of fear of being harmed.

15. Of the residual claims that are left following the rejection of the applicants’ central claim, the Tribunal notes that the applicant claimed that he still owed some money to the agent who obtained student visas for himself and his wife to come to Australia. The applicant did not express any fear of harm connected with any outstanding debt, and his evidence was that he had repaid most of it from his Australian earnings. Based on this evidence, the Tribunal is not satisfied that the applicant would face a real chance of serious or significant harm on this basis.

16. The Tribunal finds that neither of the applicants faces a real chance of serious or significant harm if returned to Thailand now or in the foreseeable future.

17. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

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

    Alison Mercer
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

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

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

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

    (a)     that is not inconsistent with Article 7 of the Covenant; or

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

    …

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

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

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

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …