1705418 (Refugee)

1705418 (Refugee) [2022] AATA 3000 (2 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1705418
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Jason Pennell
DATE:2 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 2 August 2022 at 1.59 pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – opposed to the Constitutional Monarchy in Thailand – particular social group – person who fears harm because of having been accused of cheating people – applicant has worked hard in Australia – a benefit to the Australian community – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499

Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa on 10 July 2015. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 21 March 2017. The applicant did not provide the Tribunal with a copy of the delegate’s decision record.
A certificate and notification regarding the Administrative Appeals Tribunal’s discretion to disclose certain information under s 438 of the Act dated 15 August 2017 is currently on file to protect the allegations received by phone to the Department of Immigration and Border Protection (DIBP) reporting line on 11 August 2017 and 14 August 2017. The allegations received were ‘dob in’ in nature claiming that the applicant’s protection claims were false. As the information was given to officers of the DIBP in confidence it has been the subject of a s 438 certificate. The Tribunal considers that the information was provided to the Tribunal for the improper purpose of discrediting the applicant. The information was irrelevant to the Tribunal’s consideration of the applicant’s claims. As a result, the Tribunal has placed no weight on the information disclosed under s 438 of the Act in determining the applicant’s claim for protection.
The applicant appeared before the Tribunal in person on 16 June 2022 and 7 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [Ms A]. The Tribunal hearing was assisted by an interpreter in the Thai and English languages. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was not represented in relation to the review.

Criteria for a protection visa

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

Mandatory considerations

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

APPLICANT’S Claims and evidence
Applicant’s identity

The applicant stated in her application for a protection visa that she was born on [date] in [Town 1], Thailand.[1] The applicant has provided a copy of the biodata page of her Thai passport to the Department.[2] There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.
[1] Protection visa application form, Department file [number], Doc ID no: [number], f.22
[2] Certified copy of applicant’s passport, Department file [number], Doc ID no: [number], f.23
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that she is a citizen of Thailand and as such her protection claim will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.

Applicant’s migration history

The applicant’s migration history is as follows:[3]
[3] Department Movement Details, Tribunal file 1705418, Doc ID no: 6886853

Date

Details

[Date] June 2008

Arrived in Australia on a Tourist (TR-676) visa granted on 19 June 2008.

[Date] July 2008

Departed Australia.

[Date] September 2008

Applicant returned to Australia on a Tourist (TR-676) visa granted on 9 September 2008.

[Date] October 2008

Departed Australia.

[Date] January 2009

Applicant returned to Australia on a Tourist (TR-676) visa.

[Date] April 2009

Departed Australia.

[Date] August 2009

Applicant re-entered Australia holding the same Tourist visa.

[Date] November 2009

The applicant’s Tourist (TR-676) visa ceased, and she became unlawful.

10 July 2015

Applicant lodged a valid application for a Class XA Subclass 866 Protection visa; Applicant was granted an associated Bridging visa.[4]

11 September 2015

Applicant was granted a further Bridging visa C with nil conditions.

[4] Protection visa application form, Department file [number], Doc ID no: [number], f.16

The applicant had not travelled outside of Thailand in the 30 years preceding her protection visa application.

Claims for protection and supporting documentation

The applicant first submitted claims for protection when she applied to the Department for protection on 10 July 2015.[5] The applicant’s claims are as follows:
[5] Protection visa application form, Department file [number], Doc ID no: [number], f.12-13
Why did you leave that country(s)?
‘I was work at [employer] but the people who was work in [employer] was cheat people money and put blame on me. I was try to prove them but nobody listen to me. One I resign the [people] always threatening me to give a lot of money to them. I was dont no anything but still blame on me and they was threatening me to rape me or kill me. I got nobody for help.’
What do you think will happen to you if you return to that country(s)?
‘They will torture me. Never leave me peaceful.’
Did you experience harm in that country(s)?
‘No’
Did you seek help within the country(s) after the harm?
‘No. I’m scared to ask people to help because if they knows the will do more disturbence’
Did you move, or try to move, to another part of that country(s) to seek safety?
‘In Thailand we go anywhere easily can find us because the country is very small.’
Do you think you will be harmed or mistreated if you return to that country(s)?
‘They will rape me or kill me.’
Do you think the authorities of that country(s) can and will protect you if you go back?
‘No. Police will blame on me. The people put blame on me’
Do you think you would be able to relocate within that country(s)?
‘No. I cannot move in other place. They easy can find me.’
The delegate summarised the applicant’s claims as:[6]
·     She used to work at [employer], but the staff there cheated people and blamed her
·     She [resigned], but the [staff] demanded money from her and threatened to rape or kill her
·     She is too scared to go to the police and there is nowhere to relocate
[6] Department decision record, Department file [number], Doc ID no: [number], p.3.
The applicant submitted the following supporting evidence to the Tribunal:
a.Applicant’s submissions dated 4 June 2022 titled ‘Written argument, response to protection visa decision record and support documents’
b.Country information: Human Rights Watch article titled ‘Thailand Events of 2021’, undated
c.Country information: BBC News article titled ‘Defaming a dog: The ways to get arrested for lèse-majesté in Thailand’, dated 16 December 2015
d.Country information: BBC News article titled ‘Thailand lèse-majesté: UN urges amendment to law’, dated 19 June 2017
e.Country information: Lowy Institute article titled ‘Thailand’s regressive royal insult law’, dated 15 November 2021
f.Country information: BBC News article titled ‘Lèse-majesté explained: How Thailand forbids insult of its royalty’, dated 6 October 2017
g.Country information: Daily Record article titled ‘Thai activist becomes first person to be arrested for insulting new king’, dated 3 December 2016
h.Country information: 9 News/60 Minutes article titled ‘Inside the bizarre life of the “Kardashian” King of Thailand’, dated ‘2 years ago’
i.Country information: New York Post article titled ‘Thailand’s new king is a kooky crop top-wearing playboy’, dated 13 October 2016

j.Country information: The Sun article titled ‘Monarch Madness’, dated 17 May 2017
k.Country information: Thai PBS World article titled ‘Paween Pongsirin: Exiled police investigator puts Thai authorities in trafficking spotlight’, dated 23 February 2022.

In addition, at the hearing the applicant provided the Tribunal with a written summary of her claims.
The Tribunal has read and considered all the documents provided by the applicant.

Delay

Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[7] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness or depth of an applicant’s fear of persecution.[8]
[7] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[8] Subramaniam v MIMA (1998) VG310 of 1997.
In this case the applicant initially arrived on [date] June 2008 on a Tourist (TR-676) visa granted on 19 June 2008 and departed on [date] July 2008. Her evidence was that at the time she was employed by [Employer 1] and the purpose of her visit was to attend a work conference in Perth, Western Australia. The applicant subsequently travelled to Australia on [date] September 2008 and departed on [date] October 2008. Her evidence was that she travelled to Sydney, Australia for a holiday and to attend a friend’s wedding. The applicant’s evidence was that she continued to work for [Employer 1] at that time and that she returned to Thailand after her visit to Australia. The applicant again travelled to Australia on [date] January 2009 until [date] April 2009. Her evidence was that she travelled to Australia to visit a friend who was having a baby.
Finally, the applicant travelled to Australia on [date] August 2009 and became an unlawful non-citizen on[date] November 2009. The applicant’s evidence was that prior to her arrival in Australia on [date] August 2009 she worked for [Employer 1]. Her evidence was that prior to her arrival in Australia, she was falsely accused by a [colleague] and by a credit card applicant of using the applicant’s credit card unlawfully. The applicant claims that she was threatened with serious and significant harm by her colleague and the credit card applicant. As a result, the applicant’s evidence was that she did not return home to Thailand.
On 10 July 2015, the applicant made her application for a protection visa, a delay of approximately five years and 11 months after her arrival in Australia.
The applicant’s evidence was that because of her poor English she was not aware that she could make a protection visa application. Her evidence was that from about 2009 until 2015 she worked as a [labourer] principally on a cash basis. In or about 2015 she was informed about making a protection visa application and referred to a migration agent to whom she paid $8,000.00 for the purposes of making her application for protection. The applicant claims that the migration agent did not complete her application properly. Consistent with the applicant’s evidence, an inspection of the document reveals that the applicant’s personal details including her close relatives, employment history and education details were not completed. Nevertheless, the applicant was required to apply for a visa when first travelling to Australia. In circumstances that she claims that she travelled to Australia to escape being threatened and harassed in Thailand the Tribunal does not accept her evidence that she was unaware that she could make a protection visa in Australia due to her poor English as claimed.
The applicant is an educated person having completed [a] degree at [University 1]. In addition, she worked in [positions] at [Workplace 1] and [Workplace 2] in Thailand and as a [consultant] [doing specified work]. The applicant travelled to Australia on a tourist visa on three previous occasions. As such, it is reasonable for the Tribunal to expect that the applicant would have known that she would not be able to remain in the country on a tourist visa without formalising her immigration status. Therefore, in circumstances where the applicant claims to have had a well-founded fear of persecution in Thailand at the time of her arriving in Australia on a tourist visa in 2009, it is reasonable to expect that she could have made a protection claim relatively soon after her arrival. In addition, she remained unlawful in Australia from November 2009 to July 2015, a period of approximately five years and eight months. On the applicant’s own evidence, it appeared to the Tribunal that she would have been content to remain unlawfully in Australia but for her desire to obtain legitimate work rights and to formalise her taxation status.
In any event, based on the applicant’s delay in making her application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicant’s fear of persecution[9] as claimed. Given the extensive delay of approximately five years and 11 months from her arrival in Australia until her application for a protection visa, the Tribunal has placed little weight on the applicant’s evidence in relation to each of her respective claims.

Applicant’s evidence
[9] Subramaniam v MIMA (1998) VG310 of 1997.

The applicant’s evidence to the Tribunal was that she was born on [date] in [Town 1], Thailand. The applicant claims that she can speak, read and write Thai and English and that she is a Buddhist in ethnicity and in religion.[10] The applicant’s parents worked as farmers but are now retired. They continue to live in Thailand. The applicant has [specified siblings]. All the applicant’s siblings continue to live in Thailand, save the applicant’s sister, [Ms A], who is now a permanent resident in Australia. [Ms A] appeared before the Tribunal to give evidence in support of the applicant at both hearings. The applicant has not been married and has no children.
[10] Protection visa application form, Department file [number], Doc ID no: [number], f.21
The applicant did not provide any details of her education in her application for protection.[11] The applicant’s evidence was that she attended school in [Town 1], Thailand before travelling to Bangkok to complete her high school studies. The applicant’s evidence was that she then studied [at] [University 1] in Bangkok. By a letter dated 4 June 2022 the applicant provided the Tribunal with a copy of her academic transcript from the University. Based on the applicant’s evidence and the documentation provided to the Tribunal, the Tribunal accepts that the applicant attended [University 1] as claimed.
[11] Protection visa application form, Department file [number], Doc ID no: [number] f.12
In addition, the applicant did not provide any employment details in her application for a protection visa.[12] Nevertheless, her evidence to the Tribunal was that after University she worked [at Workplace 1] in Thailand for approximately two years. She then worked at [Workplace 2] in Bangkok [for] approximately one year. The applicant then claims that she worked as a freelance sales and marketing consultant [for] approximately five years. The applicant provided letters from [Company 1] dated 14 May 2008, [Company 2] dated 9 June 2008 and [Company 3] dated 10 June 2008[13] (‘the work letters’) that confirmed her employment as a freelance sales and marketing consultant as claimed. The applicant claims that it was part of her duties to [perform specified tasks].
[12] Protection visa application form, Department file [number], Doc ID no: [number], f.14
[13] Letter dated 4 June 2022, AAT file no. 1705418, Doc ID 9926059
The applicant claims[14] that she travelled to Australia on [date] September 2008 at which time there had been several politically motivated protests in Thailand known as the ‘yellow shirts’ protest. The applicant’s evidence was that the group of royalists and ultra-nationalists known as the People’s Alliance for Democracy, amongst other things, forced the closure of two airports in Bangkok in November 2008. The applicant claims that these protests were particularly concerning for her as she does not support the Constitutional Monarchy in Thailand. Her evidence was that in Thailand she had to be careful to keep her thoughts to herself and not to speak out against the Monarchy in fear of the ‘draconian lèse-majesté law’ in force in Thailand. The applicant claims that the law is still regularly enforced in Thailand.
[14] Letter dated 4 June 2022, AAT file no. 1705418, Doc ID 9855860

On [date] January 2009 the applicant travelled to Melbourne, Australia for a period of three months to visit a friend who had a newborn baby and help care for the baby.[15]
[15] ibid
The applicant claims[16] that before she left Thailand for Melbourne in 2009, she was accused by former co-workers of [Employer 1] of defrauding a customer. Her evidence was that she had assisted a client with a new credit card application which was approved with a significant amount of credit. She claims that when she returned to Thailand, she was informed that the client never received the credit card and that it had been used to run up a significant debt. The applicant claims that she was accused by a former colleague of having used the card to pay for her three-month long holiday in Australia. The applicant claimed that no evidence was presented to her of the card having been used as alleged against her. Nevertheless, she claimed that she was threatened and harassed by the [employer’s] staff and the owner of the credit card. She claims that she was threatened of being killed and raped if she did not repay the money.
[16] ibid
The applicant’s evidence was that she was innocent of the allegations made against her. She claims that because of the allegations against her she resigned her position, but the harassment did not stop, and she continued to receive threats of being killed and raped. The applicant did not report the threats to the police. Her evidence was that the Thai police are notoriously corrupt and would not assist unless paid a bribe. She claimed that taking her situation to the police would only make the matter worse for her. As a result, she returned to Melbourne to escape the threats and living in fear.[17] The applicant claims that as a result of being threatened over the use of a customer credit card as claimed, she will be seriously or significantly harmed if she is returned to Thailand.
[17] ibid
In addition, the applicant claims that if she is returned to Thailand she will be seriously or significantly harmed due to her political opinion of being opposed to the Constitutional Monarchy in Thailand. The applicant provided the Tribunal with several newspaper articles relating to the Thai Monarch Maha Vajiralongkorn and his ideocracies, particularly in relation to the way he has dressed while visiting Germany. The applicant’s evidence was that she did not respect or support the Monarch. However, her evidence was because of the laws in Thailand against criticising the Monarch she would be forced to suppress her views. In addition, the applicant claimed that since the last political coup in Thailand, the Thai Prime Minister Prayut has stated he would not tolerate criticism of the government. As a result, the applicant claims that in addition to the lèse-majesté law in Thailand she fears that she would be seriously or significantly harmed if she was critical of the government in Thailand upon her return.
The applicant’s evidence is that she has now lived in Australia for approximately 13 years. During this time, she has worked hard to make a future for herself in Australia. She has established a business [based] in [Suburb 1], Victoria with an average turnover of $80,000 per month. The applicant rents her business premises, employs four people, and has paid all her taxes. As a result, she claims there will be significant economic consequences in Australia, not only for her personally as she would be required to close her business but also for her employees and landlord if she is returned to Thailand.

COUNTRY INFORMATION

The Tribunal, in accordance with Ministerial Direction No.84, made under s 499 of the Act, also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report on Thailand dated 10 July 2020 (the DFAT Report) and to those parts of the DFAT Report reproduced in Annexure ‘A’ of this decision.

ASSESSMENT OF CLAIMS AND FINDINGS

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

Credibility

When assessing claims the Tribunal must make findings of fact in relation to the claims. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[18] Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[19]
[18] Section 5AAA, Migration Act 1958
[19] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v
MIEA (1985) 6 FCR 155 at 169-70
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[20] Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[21] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[20] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan
(1996) 40 ALD 445 per Foster J at p482
[21] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for
Determining Refugee Status, Geneva, 1992 at para 196
Based on the applicant’s evidence and the documents provided the Tribunal accepts and finds that:
(a)the applicant was born on [date] in [Town 1], Thailand.
(b)The applicant can speak, read and write Thai and English.
(c)The applicant is a Buddhist in ethnicity and religion.[22]
(d)The applicant’s parents live in Thailand and are retired farmers.
(e)The applicant has [specified siblings].. All the applicant’s siblings continue to live in Thailand, save the applicant’s sister, [Ms A], who is now a permanent resident in Australia.
(f)The applicant attended school in [Town 1], Thailand before travelling to Bangkok to complete her high school studies.
(g)The applicant studied [at] [University 1] in Bangkok.
(h)The applicant worked [at Workplace 1] in Thailand for approximately two years and [Workplace 2] in Bangkok for approximately one year.
(i)The applicant worked as a freelance sales and marketing consultant [for] approximately five years.
[22] Protection visa application form, Department file [number], Doc ID no: [number], f. 21

Applicant’s refugee claim

Relevant grounds

The applicant submitted that she fell within the scope of s 5J(1)(a) of the Act by reason of her political opinion as a person opposed to the Monarch in Thailand. In addition it was open to her to claim that she has a well-founded fear of persecution within the scope of s 5J(1) of the Act as a member of a particular social group (PSG). That is, as a person accused of having cheated people.
To fall within the scope of s 5J(1) of the Act, the applicant’s political opinion does not necessarily have to be one that is held by the applicant. It is sufficient for her political opinion to be imputed to her by the persecutor.[23] The applicant claimed that because of the actions of the Monarch she did not respect the Thai Monarch and believed that he was unfit to hold such a position. In addition, the applicant claimed that the government in Thailand was controlled by the military and corrupt. As such, it was open to the applicant to claim that she holds a well-founded fear of being persecuted by the authorities in Thailand because of her political opinion. As a result, the Tribunal accepts her claim within s 5J(1)(a) of the Act to have a well-founded fear of persecution because of her political opinion.
[23] MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J
In addition, it was open to her to claim that she fell within s 5J(1)(a) of the Act by reason of her membership of a PSG as a person who fears harm because of having been accused of cheating people in Thailand.
Members of a PSG must be recognised (generally by the persecutor or persecutors) as sharing a connection or falling under some general classification.[24] When a person claims to fear being persecuted by reason of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L of the Act states:
[24] Applicant S v MIMA (2004) 217 CLR 387
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i) the characteristic is an innate or immutable characteristic.
(ii) the characteristic is so fundamental to a member‘s identity or conscience, the member should not be forced to renounce it;

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

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

The Tribunal has some difficulty accepting that the applicant, as a person who has been incorrectly accused of a crime in Thailand, is a member of a PSG pursuant to s 5L of the Act. The Tribunal is not convinced that having been accused of unlawfully using another person’s credit card is a shared characteristic that can be considered innate and immutable. Nor does the Tribunal consider it a characteristic so fundamental to a member’s identity or conscience that she should not be forced to renounce it. However, the fact that she has been accused of a crime which she claims she did not commit may be described as a characteristic that would be considered as distinguishing her or the group from the rest of society. As such, the Tribunal is prepared, for the purposes of this decision, to accept that the applicant is a member of a PSG pursuant to s 5J(1)(a) of the Act.

Applicant’s well-founded fear

Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[25] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[26]
[25] (1989) 169 CLR 379 at 396
[26] (1989) 169 CLR 379 at 396; see also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed or persecuted if she returns to Thailand.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[27] stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[27] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that:[28]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[28] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below the Tribunal does not accept that the applicant has a well-founded fear of persecution on either a subjective or an objective basis if she is returned to Thailand.

Allegation of credit card theft

The applicant claims that she received threats of being killed and raped from an employee of [Employer 1] and the owner of the [credit] card. The applicant claims that if she is returned to Thailand there is a real chance that she will be seriously harmed by reason of being wrongly accused of having unlawfully used a customer’s credit card.
The applicant claimed that prior to arriving in Australia she worked as a freelance sales and marketing [consultant]. Based on the work letters provided by the applicant the Tribunal accepts that she worked as a freelance sales and marketing [consultant]. The applicant claims that she initially visited Australia as part of her sales promotion bonus. The applicant later visited Australia for a period of three months to help a friend with an infant child. The applicant claims that when she returned, she was accused by a colleague at work of having used a customer’s [credit] card while she was in Australia. The applicant’s evidence was that she was also accused of having used the card by the owner of the card. She claims that they threatened to kill and rape her if she did not repay the debt on the card.
However, the applicant’s evidence in relation to the circumstances in which it was claimed she was threatened because of having used another person’s credit card was vague and lacking in any detail. The applicant was not able to explain to the Tribunal how it was alleged that she had access to the credit card to be able to use it while in Australia. The applicant was not able to identify for the Tribunal the work colleague or the owner of the credit card who she claims threatened her. Further, she was not able to say how much money it was alleged she had taken from the credit card. Finally, the applicant was not able to say with any clarity the number of times she was threatened or the circumstances in which she was threatened. As such, based on the applicant’s own evidence the Tribunal does not accept that the applicant had access or was able to use another person’s credit card. As such, the Tribunal does not accept the applicant’s evidence in relation to her being threatened as claimed because she used another person’s credit card. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Thailand by reason of having been threatened because of using another person’s credit card as claimed she was accused of.
Nevertheless, if the applicant was threatened because she had illegally used another person’s credit card as claimed (which the Tribunal has specifically found that she did not) she claims that she was not able to receive any help from the police because they are corrupt and unwilling to help. The country information reports[29] that the Royal Thai Police Force (RTP) has an estimated 220,000 to 230,000 members of which 90 per cent are male. RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility.[30] The PPD is divided into nine regions that cover all the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas). Other RTP bodies include the Central Investigation Bureau (CIB), which assists the RTP’s provincial and metropolitan components in preventing and suppressing criminal activity and in minimising threats to national security; the Narcotics Suppression Bureau; and the Police Education Bureau.[31]
[29] DFAT Report at p.53
[30] DFAT Report at p.53
[31] DFAT Report at p.53
It’s reported that the professionalism of the RTP varies considerably across its branches, nevertheless it generally provides a higher standard of law enforcement than other regional police services. Policing remains regionally focused with a response focus mentality rather than on prevention.[32] A culture of patronage and nepotism has led to some promotions and desirable postings going to those who can afford to ‘purchase’ them. Police at junior levels are low-paid and are required to provide much of their own equipment. As a result, they tend to supplement their income as security guards or through activities such as trafficking.[33] As a result, corruption is an issue within the RTP.[34]
[32] DFAT Report at p.53
[33] DFAT Report at p.53
[34] DFAT Report at p.53
The country information[35] suggests that influential sources can sway the police. Nevertheless, this does not mean that they can engage in malpractice without consequences. It’s reported that influential figures, that is, those in authority and/or privileged either at a local or national level can influence the police. As such any complaint that has connections with police will be taken more seriously.[36] Nevertheless, it’s also reported that authorities act against police misconduct. From October 2015 to August 2016 the RTP disciplinary branch reported over 3,000 police officers to disciplinary actions.[37] The offences included misbehaviour, dereliction of duty, harming people or suspects, drug use, gambling, embezzlement and illegal weapon possession.[38] In addition, authorities have taken steps to investigate and punish officials who committed human rights abuses. Nevertheless, official impunity continues to be a problem.[39] However, authorities have arrested police officers and convicted them of corruption, drug offences and smuggling.[40]
[35] Policing and Society ‘A critique of the internal complaints system of the Thai police force’ Richard Young, Dhiyathad Prateeppornnarong University of Birmingham 25 July 2017
[36] ibid
[37] US State Department, ‘Thailand - Country Report on Human Rights Practices 2016, 2 March 2017;
[38] ibid
[39] US State Department, ‘2020 Country Reports on Human Rights Practices: Thailand
[40] US State Department, ‘Thailand - Country Report on Human Rights Practices 2016, 2 March 2017;

Therefore, based on the country information, while the Tribunal accepts that there is corruption in the Thailand police force, the Tribunal has placed great weight on the fact that measures have been taken in relation to police misconduct. Further, the Tribunal notes that the country information reports that RTP provides a higher standard of law enforcement than other regional police services. In circumstances where the applicant claims to have been threatened with death and rape there was no evidence that she would not be able to obtain effective protection from the RTP upon her return to Thailand. As such, the Tribunal finds the RTP does provide the applicant effective protection and as such there is no real chance she will be seriously harmed if she is returned to Thailand.
Therefore, having considered the operation of s 5J(2) alongside the available country information, together with the applicant’s own evidence, the Tribunal is satisfied that, effective protection measures are available to the applicant in Thailand. The Tribunal finds that the effective protection measures are available to the applicant by the State[41] and that the State is able and willing to provide such protection.[42] The applicant can access the available protection and the protection provided is durable.
[41] Section 5LA(1)(a) of the Act
[42] Section 5LA(1)(b) of the Act
From the available country information, the Tribunal finds that Thailand has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[43] Therefore, by operation of s 5J(2) and s 5LA, the applicant does not have a well-founded fear of persecution as a person accused of unlawfully using a customer’s credit card in Thailand as claimed.
[43] Section 5LA(2)
Accordingly, by operation of s 5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s 36(2)(a) regarding her claim in relation to threats received as a result of being accused of using a credit card unlawfully.

Applicant’s political opinion of the Monarchy

The applicant claims that she holds very strong opinions about the political system in Thailand. She claims that she is strongly opposed to the Constitutional Monarchy system in Thailand where the Royal family are treated in a god-like manner together with the strict lèse-majesté law against speaking out against the Royal family. The applicant states that the current King is a disgrace to the Throne of Thailand and in her opinion should be charged himself under the lèse-majesté law for bringing the Royal family into disrepute. The applicant provided the Tribunal with photos and newspaper articles referring to the Monarch wearing skimpy crop tops in Germany. She claims that his behaviour means that he is not fit to hold the position as Head of State in Thailand. The applicant claims that in Thailand she does not have the right to criticise the Monarch without fear of imprisonment.[44]
[44] Letter dated 4 June 2022, AAT file no. 1705418, Doc ID 9855860
The country information reports that Thailand is a constitutional monarchy, with King Vajiralongkorn (Rama X) the current Head of State. While the monarchy has limited formal power, it is highly influential over Thai politics, the military and the legal system. Thailand’s current Constitution[45] recognises the Monarch as the final arbiter in the political process. Article 3 of the Constitution provides 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 Constitution. Section 6 provides that the Monarch shall be enthroned in a position of revered worship and that he shall not be exposed to any accusation or action. The National Assembly consists of a Westminster-style House of Representatives, consisting of 500 elected members,[46] and Senate, consisting of 250 appointed members.
[45] Thailand has had 20 Charters or Constitutions since becoming a constitutional monarchy in 1932. In August 2016 a referendum was conducted, and a new Constitution came into effect in April 2017.
[46] DFAT reports that of the 500 members in the House of Representatives, 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.
Section 112 of the Thai Criminal Code (referred to as the lèse-majesté law) provides a penalty of up to 15 years imprisonment for anyone who defames, insults or threatens the Monarch.[47] The combination of long detention, lengthy prison terms, low rate of acquittals and substantial sentence reduction for confessions means that defendants face great pressure to confess rather than to contest the charges.[48] Complaints under the lèse-majesté provision can be filed by any member of the public and are also often filed by government departments.[49] While lèse-majesté has been prosecuted in Thailand for decades, it’s claimed that it is often used as a tool for political purposes.[50] From 1947–2005, 329 cases of lèse-majesté were reordered with a significant number of cases reported during student uprisings in 1976 (21 cases) and 1977 (42 cases).[51]
[47] DFAT Report at p.27
[48] DFAT Report at pp.27-28
[49] Article 19, ‘Breaking the Silence, Thailand’s renewed use of lèse-majesté charges’ March 2021. ibid
[51] Ibid. Hong Xiyue, ‘Thailand Protests: Lese-majeste law put back in force’, Deutsche Welle, 8 December 2020, >
It’s reported[52] that after the 2014 coup the lèse-majesté cases rose dramatically.[53] The law was applied broadly by the authorities in Thailand, including sharing or ‘liking’ Facebook content that the authorities consider offensive to the Monarchy.[54] From May 2014 to May 2019 169 people were prosecuted pursuant to Section 112 of the Constitution. In 2017 a student activist known as Mr Boonpatararaksa was the first person charged with royal defamation after King Rama X took the throne. He was arrested for sharing a BBC News article about the King on his Facebook page.
[52] DFAT Report at p.28
[53] Article 19, ‘Breaking the Silence, Thailand’s renewed use of lèse-majesté charges’ March 2021. ibid
As a result of the personal intervention by the King, a de facto moratorium on the prosecution of lèse-majesté cases was implemented from March 2018 until late 2020.[55] In June 2020, Prime Minister Prayuth confirmed that the King had instructed the government not to enforce Section 112.[56]
[55] Article 19, ‘Breaking the Silence, Thailand’s renewed use of lèse-majesté charges’ March 2021. Lawyers for Human Rights, ‘Changes in Thailand’s lèse-majesté prosecutions in 2018’, 15 January 2018, available at: Article 19, ‘Breaking the Silence, Thailand’s renewed use of lèse-majesté charges’ March 2021. Hong Xiyue, ‘Thailand Protests: Lese-majeste law put back in force’, Deutsche Welle, 8 December 2020, available at: >
However, it’s reported that the authorities have engaged in a new round of sedition and royal insult charges against prominent activists and human rights defenders.[57] In November 2020, in response to ongoing pro-democracy protests in Thailand, Prime Minister Prayuth stated that all laws, including Section 112, would be enforced against the protesters.[58] He claimed that it was ‘necessary for the government and security agencies to enhance our measures by enforcing all pertaining laws against protesters who violate the law or infringe on the rights and freedoms of other citizens’.[59] It was reported[60] that six people were charged in relation to their participation in a 29 November 2020 protest in Bangkok under the banner ‘Disarm Thai Feudalism.’ Five of the six people who gave speeches during the protest were charged with sedition and lèse-majesté, while the sixth person, a well-known actress in Thailand, was charged with sedition only.[61]
[57] Article 19, ‘Thailand: Sedition, lèse-majesté charges against protesters proliferate’ 25 November 2021, Panu Wongcha-um & Kay Johnson, ‘Special Report-The last taboo. A new generation of Thais is defying the monarchy’, Reuters, 18 December 2020, Hong Xiyue, ‘Thailand Protests: Lese-majeste law put back in force’, Deutsche Welle, 8 December 2020, available at: Article 19, ‘Thailand: Sedition, lèse-majesté charges against protesters proliferate’ 25 November 2021, ibid
Based on the available country information the Tribunal accepts that there is a real chance a person who is publicly opposed to the Monarch in Thailand may be prosecuted under the lèse-majesté law. However, in this case the applicant’s evidence was that she had not been politically active in Thailand or while she has been in Australia. Her evidence was that because the King had engaged in a certain lifestyle (wearing crop tops etc.) as reported in the press, she felt ashamed that he was the King of Thailand and believed that he was unfit to be the Monarch. Her evidence was that she had not expressed her view publicly in Thailand and had not publicly expressed her views in Australia either via social media, protest rally or in any other public forum. She claims, if she returns to Thailand, she will not express her views about the Monarchy due to the threat of being prosecuted under the lèse-majesté law. Nevertheless, in circumstances where the applicant has not been politically active and claims that she would not express her views if returned to Thailand it is unlikely that the applicant will be prosecuted under the lèse-majesté law. As such, the Tribunal finds that there is no real chance she will be seriously harmed if she is returned to Thailand because she objects to the Constitutional Monarchy in Thailand.

Applicant’s political opinion of the government

In addition, the applicant claims that the government is corrupt and controlled by the military, which makes her feel unsafe in Thailand. The applicant did not provide any details in relation to the basis of her fear concerning the government and the political situation in Thailand, save to say that she would not be able to express her opinion against the government or the Monarch freely out of fear of being arrested and punished. The applicant did not claim to have been engaged in the political process. In addition, she did not claim to have been affiliated with any political party or engaged in protests either in Australia or in Thailand.
It is reported[62] that Thai politics has been generally 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 Thaksin’s time in power. The military removed Thaksin from power in a bloodless coup in September 2006, but his party won the next general election in December 2007.[63] Political polarisation between Thaksin supporters and opponents led to protracted protests and on occasions deadly clashes in the years following. In July 2011 the pro-Thaksin forces under the leadership of his sister Yingluck, were elected to power. However, in 2013 mass protests and street battles broke out resulting in the military staging a bloodless coup in May 2014. As a result, General Prayut Chan-ocha (‘Prayut’) seized power as Prime Minister as leader of the National Council for Peace and Order (NCPO). In June 2019 Prayut was elected as Prime Minister following his nomination by the Palang Pracharath Party.
[62] DFAT Report at p.8
[63] Thaksin went into exile after the 2006 coup and remains abroad
It is reported[64] that the widespread demonstrations, political instability and associated political violence ceased under NCPO rule. However, NCPO rule has led to a reduction in some political and social freedoms.
[64] DFAT Report at p.9
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 10 years. It is reported that in its judgement, the Court emphasised the importance of the traditional separation of palace and politics to preserve the neutrality of the Monarchy and maintain national unity.
While it was reported that fraud or intimidation were not in evidence, some reporters were critical of the election process. Human Rights Watch (HRW) claimed that due to laws restricting freedom of speech, association and assembly, as well as media censorship and lack of equal access to the media, the NCPO had failed to create conditions for a free and fair election.[65] Following the election, the Open Forum for Democracy Foundation determined that the poll had not been free and fair due to the election commission having been unprepared for overseas advance voting, poorly trained polling staff and lack of voluntary observers at polling stations to detect potential fraud.[66]
[65] DFAT Report at p.16
[66] DFAT Report at p.16
Thailand is a signatory to the United Nations Convention Against Corruption (CAC). The Thailand Constitution[67] 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.[68] The Criminal Code in Thailand criminalises embezzlement, trading in influence, and both active and passive bribery of public officials.[69] Penalties for actively bribing an individual include imprisonment of up to five years and a maximum fine of THB10,000 (AUD480). Passive bribery can (theoretically) incur the death penalty or life imprisonment, and/or a fine of up to THB40,000 (AUD1,920).[70] Finally, the Thai National Anti-Corruption Commission (NACC) is empowered and mandated to investigate and prepare opinions into allegations of corruption against politicians, judges or government officials.[71] 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.
[67] Article 63 of the Thailand Constitution
[68] DFAT Report at p.16
[69] DFAT Report at p.12
[70] DFAT Report at p.16
[71] DFAT Report at p.16
Nevertheless, it’s reported[72] that despite its strong legal framework and institutions established to combat corruption, 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 the police force was corrupt, while half of Thais felt that most or all local government councillors were corrupt.[73] 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 to obtain favourable judicial decisions.[74]
[72] DFAT Report at p.16
[73] DFAT Report at p.16
[74] DFAT Report at p.16
Based on the available country information, the Tribunal accepts that despite its strong legal framework and institutions, corruption exists within the Thai authorities. In addition, based on the available country information, the Tribunal accepts and finds that the military has played a central role in Thai politics since it seized power in 1947.[75] However, there was no evidence that the applicant had been engaged in the political process, held a position within a political party or had participated in any anti-government protests. The applicant did not provide any detail of harm she had suffered because of corruption within the government. There was no evidence of harm suffered by the applicant because of the Thai authorities’ actions. The Tribunal notes that the applicant was able to obtain a passport and depart the country on several occasions without any difficulty. As such, even if the applicant does hold anti-government sentiments, the fact that she has been able to obtain a passport and leave and enter the country without difficulty indicates that she is of little or no interest to the authorities. Finally, it was the applicant’s evidence to the Tribunal that if she returned to Thailand she would not engage in any anti-government behaviour. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Thailand by reason of the fact that she has anti-government sentiments and believes that the political situation in Thailand is unstable due to the government being corrupt and controlled by the military.

Modification of applicant’s behaviour

[75] DFAT Report at p.8

The applicant claims that if she is returned to Thailand, she would be forced to modify her behaviour. The applicant has lived and worked in Australia for approximately 13 years. She has commenced a successful business employing several people. Her evidence was that she holds the Australian values of democracy, multiculturalism and human rights in high regard. She claims that if she returns to Thailand, she will be forced to keep views of the Monarch and the government to herself. That is, the lèse-majesté law would force her to repress her views of the Monarchy and the government in breach of her individual freedoms and human rights.
Section 5J(3) of the Act provides that 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 the receiving country other than where a modification would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic of the person. In Appellant S395/2002 v MIMA[76] Justices McHugh and Kirby in considering a claim by homosexual men in Bangladesh stated:
In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
[76] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [43].

The Tribunal has accepted that the applicant has lived in Australia for approximately 13 years and has made a life for herself. The applicant claims to have become more liberal and open to the Australian values of democracy and multiculturalism with a firm belief in human rights. She claims that she has developed more liberal views in relation to human rights and democracy. The Tribunal accepts that having worked and lived in Australia she has developed a sense of ‘freedom’ and a conscience consistent with a firm belief in human rights as claimed. Nevertheless, her evidence was that she had never been involved in the political process either in Thailand or Australia. Her evidence was that she did not speak out against the Monarch or the government while she was in Thailand. In addition, her evidence was if she was returned to Thailand she would not speak out against the Monarchy or the government for fear of prosecution. Accordingly, the Tribunal finds that the applicant could take reasonable steps to modify her behaviour to avoid a real chance of persecution pursuant to s 5J(3) of the Act. As such the Tribunal finds that there is no real chance the applicant would be seriously harmed if she is returned to Thailand.

Applicant’s economic claim

The applicant’s evidence was that having lived in Australia for approximately 13 years she has worked hard to make a future for herself in Australia. She has established a business [based] in [Suburb 1], Victoria with an average turnover of $80,000 per month. The applicant rents her business premises, employs four people and pays tax to the Australian government. Her evidence is that if she is returned to Thailand there will be significant economic consequences for her personally because of the loss of her business, but also to her employees and her landlord if she is returned to Thailand and closes her business.
The Tribunal accepts and finds that the applicant has worked hard in Australia and has contributed to the Australian community as a business owner and employer. It also accepts her evidence that she has paid all her taxes and that she is a good member of the community. However, there is no evidence that she has a well-founded fear of persecution because of her economic circumstances if she is returned to Thailand pursuant to s 5J(1)(a) of the Act.
While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work or re-establishing a business if she is returned to Thailand, it does not accept she will not be able to access paid employment given her work experience and motivation to find work. The Tribunal acknowledges the applicant has a genuine personally held fear regarding the loss of her business in Australia and the difficulties of re-establishing herself in Thailand. However, the Tribunal has placed considerable weight on the country information that the Thai economy has experienced rapid growth and social development in recent decades and that it is classified by the World Bank as an upper-middle-income economy since 2011.[77] The Tribunal notes that it’s reported that the official unemployment rate is 0.7 per cent (as at January 2020) and one of the lowest in the world.[78] In this regard, the Tribunal notes the significant reduction in poverty rates in Thailand.[79] For these reasons, the prospects of finding work in Thailand based on the applicant’s circumstances do not amount to the applicant facing a harm that will amount to serious harm, in the sense that she will experience significant economic hardship or be denied the ability to earn a living that threatens her capacity to subsist, or that she will be denied access to basic services, where the denial threatens her capacity to subsist. In this case, the Tribunal has not treated the instances of serious harm under s 5J(5) of the Act as definitive.
[77] DFAT Report at p.10
[78] DFAT Report at p.11
[79] DFAT Report at p.10 (DFAT reports that poverty rates fell from 67 per cent in 1986 to 7.6 per cent in 2017)
Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm arising from her economic circumstances for reasons mentioned in s 5J(1)(a) or any other claimed reasons, if she was to return to Thailand from Australia, now or in the reasonably foreseeable future.
Having assessed all the applicant’s claims individually and cumulatively, the Tribunal finds that she does not face a real chance of serious harm, now or in the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1) of the Act if she is returned to Thailand and therefore she does not satisfy the criterion in s 36(2)(a).

Complementary protection

In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal accepts that the applicant is a citizen of Thailand and that Thailand is the ‘receiving country’ for these purposes.
The applicant claims that she satisfies the requirements under s 36(2)(aa) by reason of being threatened by a work colleague and a customer for using the customer’s credit card unlawfully and that as a result, she faces a real risk of significant harm including deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. As referred to above the Tribunal has not accepted the applicant’s evidence in relation to the threats over the credit card by reason of the fact that her evidence was vague and lacking in any detail. In particular, the applicant was not able to say the amount of the debt that was claimed to have been incurred on the credit card, the identity of her work colleague and the [customer] and the circumstances in which the threats were made. As a result, for the reasons expressed above the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Thailand, there is a real risk that she will suffer significant harm on the basis that she has been threatened because of being accused of having used a customer’s credit card as claimed.
In addition, if the applicant was threatened as claimed (which the Tribunal has specifically rejected), having considered the country information, the accepted circumstances of the applicant and her own evidence to the Tribunal as discussed under the Tribunal’s effective protection findings for s 36(2)(a), the Tribunal finds that the level of protection from state authorities available to the applicant, if removed from Australia to anywhere within Thailand, would remove the real risk of significant harm. That is, the Tribunal finds that the RTP will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Thailand, protection such that there would not be a real risk that she will suffer significant harm. Accordingly, pursuant to s 36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Thailand and she therefore does not satisfy s 36(2)(aa) in this regard.

Applicant’s opinion of the Thai Monarchy

As referred to above, based on the available country information the Tribunal has accepted that there is a real chance a person who is publicly opposed to the Thai Monarch may be prosecuted under the lèse-majesté law. However, in this case the applicant’s evidence was that she had not been politically active in Thailand or since she has been in Australia. Her evidence was that because the King had engaged in a certain lifestyle (wearing crop tops etc.) as reported in the press, she felt ashamed that he was the King of Thailand and believed that he was unfit to be the Monarch. Her evidence was that she had not expressed her views publicly in Thailand and had not publicly expressed her views in Australia either via social media, protest rally or in any other public forum. She confirmed to the Tribunal that if she returns to Thailand, she will not express her views about the Monarchy due to the threat of being prosecuted under the lèse-majesté law. Nevertheless, in circumstances where the applicant has not been politically active and claims that she would not express her views if returned to Thailand it is unlikely that the applicant will be prosecuted under the lèse-majesté law. As such, the Tribunal finds that there is no real risk she will be significantly harmed if she is returned to Thailand because she objects to the Constitutional Monarchy in Thailand.

Applicant’s opinion of the Thai government

As detailed above, the Tribunal has accepted that the applicant holds opinions that are opposed to the Monarchy and the government in Thailand. For the reason stated above and based on the available country information referred to above, the Tribunal accepts that despite its strong legal framework and institutions, corruption exists within the Thai authorities. In addition, based on the available country information, the Tribunal accepts and finds that the military has played a central role in Thai politics since it seized power in 1947.[80] However, as referred to above, there was no evidence that the applicant had been engaged in the political process, held a position within a political party or had participated in any anti-government protests. The applicant did not provide any detail of harm she had suffered because of corruption within the government. There was no evidence of harm suffered by the applicant because of the Thai authorities’ actions. The Tribunal notes that the applicant was able to obtain a passport and depart the country on several occasions without any difficulty. As such, even if the applicant does hold anti-government sentiments, the fact that she has been able to obtain a passport and leave and enter the country without difficulty indicates that she is of little or no interest to the authorities. Finally, it was the applicant’s evidence to the Tribunal that if she returned to Thailand she would not engage in any anti-government behaviour.
[80] DFAT Report at p.8
Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Thailand by reason of the fact that she has anti-government sentiments and believes that the political situation in Thailand is unstable due to the government being corrupt and controlled by the military.

Applicant’s economic claim

The Tribunal has also considered if there are any reasons to believe the applicant will face a real risk of significant harm arising from her economic circumstances as contemplated by s 36(2)(aa). Significant harm is different from the concept of serious harm as required by s 5J(4)(b) in the context of s 36(2)(a).[81] The Tribunal referred to its findings above and notes that it has already found that the applicant has the capacity and inclination to find work anywhere in Thailand. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work or re-establishing her business, it does not accept the applicant will not be able to find paid employment anywhere in Thailand, given her overall motivation and experience, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s 36(2A).
[81] In MZZIA v MIBP [2014] FCCA 717 at [34] (Judge Riethmuller,16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms (e.g. a risk of being killed is sufficient to fulfil both).
Furthermore, the Tribunal finds there is no intention on the part of the Thai government in its role of managing the economy in combination with market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to Thailand. The Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Thailand, based on the applicant’s economic circumstances, that will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subjected to degrading treatment or punishment.
At no stage did the applicant advance any other reason in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk she will suffer significant harm as required by s 36(2)(aa). The Tribunal therefore finds that Australia does not owe her any protection obligations pursuant to s 36(2)(aa) of the Act.

Recommendation for Ministerial Intervention

The Tribunal has accepted and found that the applicant has worked hard in Australia. She has contributed to the Australian community as a business owner and employer. The applicant’s evidence was that she currently is engaged in [a specified business]. She currently rents a factory in [Suburb 1], Victoria from which she conducts the business and employs four people on a full-time basis within the business. The Tribunal accepts the applicant’s evidence that she has paid all her taxes to the Australian government as claimed. It accepts and finds that she is a benefit to the Australian community. As such, notwithstanding the fact that the Tribunal has found that she does not satisfy s 36(2)(a) of the Act or s 36(2)(aa) of the Act, the Tribunal recommends that the applicant be afforded Ministerial Invention in support of her application for protection.

CONCLUSIONS

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

DECISION

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

Jason Pennell
Senior Member

Attachment – Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

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

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

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

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

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

5H Meaning of refugee

For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J Meaning of well-founded fear of persecution

For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

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.
Civil Society Activists
3.53 In-country sources report that civil society groups have traditionally tended to be conservative in nature, with many religious-based or linked to the monarchy. Thai civil society has grown considerably in recent years, however, and is now varied and diverse. It coexists with constitutional guarantees of political participation, freedom of assembly, government consultation, and local determination of community rights. In the Thai context, ‘civil society’ covers citizen organisations with political, social and economic motivations, and groups are often active around several sets of issues. It is difficult to identify the exact number of domestic and international civil society organisations (CSOs) working in Thailand as there is no mandatory centralised registration mechanism. A variety of government agencies has a role in registering CSOs, including the Ministries of Culture, Interior and Labour. In-country sources report that registration conditions are onerous, and have an impact on the ability of CSOs to conduct day-to-day activities.
3.54 Analysts have identified a geographic divide in the focus of CSOs in Thailand. Those in central Thailand and Bangkok have tended to be more diverse in scope than elsewhere, focusing on a wide range of issues including economic development; social issues, including gender, children, health and education; the environment; and politics. Bangkok has also hosted the majority of international and regionally focused CSOs. CSOs in the north and northeast have been predominantly grassroots groups focused on issues such as rural poverty, indigenous peoples, and subregional water and natural resource management issues; while their proximity to border areas has also influenced their characters. The ongoing Insurgency in Southern Border Provinces (SBPs) has impacted on civil society in the south, particularly since the 2014 coup. There are reportedly now fewer active CSOs in this part of the country; those CSOs that do exist in the south tend to be comprised of diverse groups of local communities based on their livelihoods or religious backgrounds.
3.55 In-country sources report that there is often considerable mutual mistrust between authorities and CSOs, although the extent may vary according to geographic location and the nature of the issue being covered. According to in-country sources, CSOs working on LGBTI and gender-based issues are generally able to operate unhindered. Authorities are, however, likely to take exception to a number of particular ‘red line’ issues, including anything to do with the monarchy, the insurgency in the SBPs, some environmental matters and issues related to conflicts over land use, particularly in the north and northeast. Activists attempting to work on these issues are likely to face a range of official obstacles, including denial of administrative permissions, harassment, verbal threats, physical attack, arrest and/or legal charges. They may also face legal challenges and/or physical threats and attacks from groups and individuals opposed to their activities.
3.56 Civil society activism around environmental and land use issues is particularly sensitive, particularly in areas in which Stateless Persons reside. Because a high percentage of this group does not have Thai citizenship, they are unable to apply for recognition of land title, meaning their traditional lands are highly susceptible to appropriation by both authorities and business interests. In-country sources report that authorities have declared national parks or Special Economic Zones in some inhabited areas, charging residents with encroachment should they fail to depart. In one 2019 case, 14 community activists were given lengthy prison sentences and fines for defending their homes in an area that authorities had declared a national park. In addition to legal sanction, human rights observers report that at least 62 community-based rights defenders and lawyers have been killed in Thailand since 2003 in relation to their work; while a high percentage of those subjected to Enforced or Involuntary Disappearances also worked in this area. In one recent case, the leader of a network of land rights activists was abducted in August 2019 in Phatthalung province as he was entering a public hearing on plans for a rock quarry, and he was held for several hours until the hearing was over. The activist claims that community sources told him that the men who abducted him were connected to the killing of eight people involved in another dispute involving a mining project two years earlier. 3.57 As discussed in Political Opinion (actual or imputed), following the May 2014 coup authorities have used a range of legislative measures against large numbers of civil society activists, political opponents, journalists and others (see also relevant sections), with numerous cases still ongoing. Police have also shut down several human rights-focused academic events, and openly monitored others. During the ASEAN Summit in June 2019, security forces effectively placed many prominent civil society activists under house arrest.
3.58 Human rights organisations report that authorities have continued to use security forces to monitor and intimidate civil society activists since the return to civilian government. Activists have reported being followed and subjected to house arrest, and having their houses ransacked and their cars set alight. Female activists have reported being subjected to cyber-bullying, and in one case had their hotel room bugged and sex tapes released as a means of shaming them. Security authorities have reportedly visited and threatened the parents of student activists. Authorities have also ‘de-platformed’ civil society activists by denying them access to media coverage – in some cases halting live media interviews, or by punishing media outlets themselves.
3.59 In-country sources report an increase in violent attacks targeting civil society activists since the return to civilian government. In one particularly notorious case in July 2019, four unidentified assailants beat a prominent political activist with metal truncheons, resulting in him being hospitalised while unconscious. The victim, who has 13 outstanding charges in relation to his activism, had been separately hospitalised three weeks earlier following a similar beating outside of his home. Despite good CCTV coverage of the assault locations, police have not made any arrests in relation to the two beatings and in February 2020 announced they had closed their investigations without identifying the assailants. Other activists have reported similar attacks. Following the increase in violence, security officials have reportedly offered activists ‘protection’ in return for explicit commitments to refrain from comment on, or criticism of, the government – effectively demanding that they give up their activism.
3.60 DFAT assesses that civil society activists attempting to work on the ‘red line’ issues outlined in 3.55 face a high risk of official harassment in the form of denial of administrative permissions, harassment, verbal threats, physical attack, arrest, and/or judicial harassment. They may also face societal harassment in the form of legal challenges and/or physical threats and attacks from groups and individuals opposed to their activities, although this may vary according to geographic location. DFAT assesses that civil society activists attempting to work on environmental and land use issues in rural areas are most at risk in this regard.
STATE PROTECTION
5.1 In-country sources report that the independence of state protection bodies has eroded over the past two decades, under both civilian and military rule, and that most Thais have limited confidence in their ability to access justice through them. Human rights observers report that state protection bodies are heavily politicised, and that politically motivated appointments and problematic management have negatively affected their overall performance. As earlier described, the NCPO routinely used state authorities to restrict the activities of political opponents. Human rights groups have consistently raised concerns that impunity for abuses committed by security authorities and other official bodies remains the norm, particularly in the SBPs. All state protection institutions are significantly subject to and affected by Corruption, particularly the police.
Military
5.2 The Thai military is comprised of five branches – the Royal Thai Army, Royal Thai Navy, Royal Thai Air Force, Royal Thai Armed Forces (joint headquarters), and Ministry of Defence. The army is the largest and most prominent branch. The King is the official Head of the armed forces. While the military is overseen by the Minister of Defence, each branch is highly independent and autonomous. The military is responsible for: protecting the sovereignty and territorial integrity of Thailand; defending the monarchy against all foreign and domestic threats; ensuring public order; and assisting victims of national disasters. In 2019, the Thai military had an estimated force strength of 605,000 personnel, of which 360,000 were active and the remainder in reserve. More than one million Thais reach military age (21) annually. Global Firepower ranked Thailand’s military 23rd out of 137 countries in its annual military strength rankings.
5.3 The Ministry of Defence requires service members to receive human rights training. Routine training occurs at various levels, including for officers, non-commissioned officers, enlisted personnel and recruits. Military officers who deploy in support of counterinsurgency operations in the SBPs receive specific human rights training, including training for detailed, situation-specific contingencies. As noted in Insurgency in Southern Border Provinces (SBPs), however, despite numerous reports of the military and other state security forces committing serious human rights abuses in connection with the insurgency, no member of the state security forces has ever been held accountable as a result. Although there have been occasional convictions of military personnel, these have always been overturned on appeal. 5.4 As noted in Recent history, the military has regularly intervened in politics in Thailand and continues to play a prominent role in all aspects of national life. The military is a deeply conservative institution, and one traditionally closely associated with the monarchy.
5.5 Section 50 of the Constitution includes military service as a ‘national duty’. The Military Service Act (1954) mandates that men become eligible for military service at the age of 21, which takes place through a lottery system. Approximately 100,000 personnel are recruited each year through the system, with the length of time spent in the military varying. Those with university degrees normally serve for six months if they volunteer for service, but one year if drafted via lottery. Those who have completed secondary education will serve one year if they volunteer, or two years if drafted. Reports of bribery to avoid the draft or to leave the military early are common, although doing so carries a potential punishment of up to three years’ imprisonment.
Royal Thai Police (RTP)
5.6 The Royal Thai Police (RTP) is the national police force of Thailand. The RTP has an estimated force strength of between 220,000-230,000, of whom more than 90 per cent are male. Headquartered in Bangkok, the RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility. The PPD is divided into nine regions that cover all of the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas). Other RTP bodies include the Central Investigation Bureau (CIB), which assists the RTP’s provincial and metropolitan components in preventing and suppressing criminal activity and in minimising threats to national security; the Narcotics Suppression Bureau; the Police Education Bureau; the Tourist Police Bureau; and the Immigration Bureau.
5.7 In October 2018, a new 1,600-strong police unit was created to provide security to the royal family, carry out the king’s ‘royal wishes’, and collect information on ‘individuals and groups whose behaviours pose a threat to national security and the monarchy’. Initially known as the Special Service Division, the new unit’s name was changed in January 2019 to the Ratchawallop Police Retainers, King’s Guards 904.
5.8 In-country sources report that the professionalism of the RTP varies considerably across its various branches, but that in general the RTP provides a higher standard of law enforcement than other regional police services. The CIB has reportedly improved considerably in relation to crime scene preservation, forensics and disaster victim identification; while other branches have performed well in relation to combating child exploitation and human trafficking (see relevant sections).
5.9 A number of factors combine to limit the RTP’s performance, however. Historical mistrust between the military and police was a contributing factor in the NCPO’s decision to grant the RTA policing powers (see previous section), which has weakened the RTP’s authority. Policing remains very regionally focused and there is no national database or central registry for court results. Changes in laws and procedures are not always communicated to officers on the ground. There remains a ‘response’-focused mentality towards investigating crimes that have already occurred, rather than implementing robust preventative measures. A culture of patronage and nepotism results in some promotions and desirable postings going to those who can afford to ‘purchase’ them. Police at junior levels are low-paid and have to provide much of their own equipment, including their own guns. Some therefore supplement their income through ‘moonlighting’ as security for bars, while some become involved in activities such as trafficking. The mandatory retirement age of 60 increases the incentive for officers to make money from their position while they are able to do so. There have been a large number of high-profile Corruption prosecutions against serving police officers, and frequent reports of abuse by police against prisoners and detainees, generally with impunity. Human rights observers report that most Thais do not hold the RTP in high esteem as an institution.
5.10 Individuals can file complaints of police abuse directly with the superior of the accused police officer, with the Office of the Inspector General, or with the police commissioner general. The NHRCT, the Lawyers’ Council of Thailand, the Office of the National Anticorruption Commission, the Supreme Court of Justice, the MOJ, the Office of the Prime Minister, and the Office of the Ombudsman also accept complaints of police abuse and corruption. Human rights observers report that few complaints alleging police abuse result in punishment of alleged offenders, however, and there have been numerous examples of investigations lasting years without resolution. Human rights groups have criticised in particular the superficial nature of police and judicial investigations into incidents of alleged Torture and other mistreatment by security forces, and reported deficiencies in official investigations into Deaths in Custody. In-country sources also report that they are seeing a pattern in which police who have been accused of abuses have responded by bringing defamation charges against the victims (see also Torture).
Department of Special Investigation (DSI)
5.11 Formed in 2002, the Department of Special Investigation (DSI) is a 1,600-strong investigative unit that sits within the MOJ and operates independently of the RTP. The DSI has a statutory remit to investigate serious crimes in the public interest, including complex criminal cases, those affecting national security, those involving organised crime, and those potentially implicating high-ranking government officials or police officers. It is empowered to instigate its own enquiries. The DSI is reportedly a well-funded and highly capable organisation. There is a public perception that its work in politically sensitive cases has been subject to political interference.
Judiciary
5.12 Chapter X of the Constitution (Articles 188-214) sets out the roles and functions of the judiciary, and guarantees its independence. The judiciary consists of Courts of Justice, which deal with the majority of civil and criminal cases; Administrative Courts, which settle litigation between organs of state and private citizens; the Constitutional Court, which settles matters pertaining to the constitution; and Military Courts, which have the power to try and adjudicate cases involving offenders who are subject to their jurisdiction as provided by law. The King formally appoints all judges. The Courts of Justice hierarchy is the Supreme Court of Justice, Appeal Courts, and Courts of First Instance (including general courts, juvenile and family courts, and specialised courts).
5.13 The Constitution provides for the right to a fair and public trial and for the presumption of innocence. While most trials are public, courts may order closed trials in cases involving national security, the royal family, children, or sexual abuse. Defendants in ordinary criminal courts enjoy a broad range of legal rights, including access to a lawyer of their choosing, prompt and detailed information on the charges against them, free assistance of an interpreter as necessary, the right to be present at trial, and the right to adequate time and facilities to prepare a defence. They also have the rights to not be compelled to testify or to confess guilt, to confront witnesses, and to appeal. While these rights are generally respected, human rights observers report that in some cases authorities do not afford all of them to defendants, particularly in small or remote provinces.
5.14 Although the law provides for access to courts and administrative bodies to sue for damages for, or cessation of, a human rights violation, the emergency decree in place in the SBPs expressly excludes administrative court scrutiny or civil or criminal proceedings against government officials. Victims may instead seek compensation from a government agency.

5.15 Section 10 of the Criminal Code prohibits double jeopardy. The Section reads: ‘Whoever commits an offence outside the Kingdom shall not be punished again in the Kingdom for the doing of such an act if there has been a final judgement (sic) of a foreign court acquitting such person; or there has been a judgement (sic) of a foreign court convicting such person, and such person has already passed over the punishment’. 5.16 In a 2014 order, the NCPO redirected prosecutions for offences against the monarchy, insurrection, sedition, weapons offences, and violation of its orders from civilian criminal courts to military courts, which do not provide the same legal protections for civilian defendants as provided in civilian criminal courts. Military courts are systemically slow and expensive, and the ability of a defendant to obtain bail is more limited than in a civilian court. Those defendants who are granted bail are compelled to wear a bulky electronic ankle device that requires frequent charging – one defendant reportedly wore the device for over a year. In September 2016, the NCPO transferred jurisdiction over such cases to the civilian courts for any new offences, but many civilians continued to face trial in military courts for alleged crimes that occurred prior to the order being issued. A leading human rights NGO reported on 22 May 2019 that 2,408 individual civilians had been prosecuted in military courts in 1,892 cases, with a further 450 individuals still undergoing prosecution. In July 2019, Prime Minister Prayut ordered an end to all prosecutions of civilians in military courts, with ongoing cases being transferred to civilian courts. Those already convicted in military courts have no right of appeal.
5.17 In-country sources report that, although Thais continue to hold the judiciary in high regard compared to other institutions (particularly the Royal Thai Police (RTP)), general confidence in the judicial system has fallen since the May 2014 coup. There is a strong general perception that the institution has been politicised, including through the large number of judicial appointments made under the NCPO, the high number of cases brought against political opponents and other critics of the government, and the lack of fair and consistent judgments issued in these cases. There is also evidence to suggest that authorities apply pressure on judges to deliver the ‘right’ outcome in politically sensitive cases. In October 2019, a Thai judge delivered a speech broadcast live on Facebook from a Yala courtroom that strongly criticised the judicial system before non-fatally shooting himself. The judge delivered the speech after acquitting five Muslim men of murder and firearms offences. A statement understood to have been written by the judge and posted to Facebook stated that he had been pressured to find the men guilty despite lack of evidence. The judge reportedly died in March 2020 after shooting himself a second time.
5.18 DFAT assesses that individuals involved in politically sensitive cases are less likely to receive a fair trial than those involved in ordinary criminal or civil matters.
INTERNAL RELOCATION
5.24 Section 38 of the Constitution provides for freedom of internal movement, but allows for the restriction of this right by law in cases of national security, public order, public welfare, town or country planning, maintaining family status or for welfare of a minor. Thai citizens from all backgrounds can and do relocate internally for a variety of reasons. In particular, large numbers of Thais have relocated from rural areas to major cities in recent decades in search of employment opportunities. 5.25 The government restricts the free internal movement of Stateless Persons who are not citizens but who hold government-issued identity cards. Authorities prohibit holders of these cards from travelling outside their home districts without prior permission from the district office, or outside their home provinces without permission from the governor. Offenders are subject to fines or a jail term of 45 to 60 days. Persons without identity cards may not travel at all. According to human rights organisations, police at inland checkpoints often ask for bribes in exchange for allowing stateless persons to move from one district to another. In addition, two groups – former Chinese civil war belligerents and their descendants living in the country for several decades, and children of Vietnamese immigrants residing in 13 northeastern provinces – live under laws and regulations restricting their movement, residence, education, and access to employment. The Chinese group is restricted to residence in the northern provinces of Chiang Mai, Chiang Rai and Mae Hong Son. 5.26 As noted in Women, internal relocation may be more difficult for single women seeking to relocate with children. An individual facing adverse official attention, particularly prosecution in a politically sensitive case, is unlikely to be able to escape this through internal relocation. However, men facing adverse attention from non-state actors may be able to relocate internally successfully, depending on individual circumstances.

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Appeal

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Citations

1705418 (Refugee) [2022] AATA 3000

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Zhang v RRT & Anor [1997] FCA 423

Kavun v MIMA [2000] FCA 370

Subramaniam v MIMA [1998] FCA 305

Date	Details
[Date] June 2008	Arrived in Australia on a Tourist (TR-676) visa granted on 19 June 2008.
[Date] July 2008	Departed Australia.
[Date] September 2008	Applicant returned to Australia on a Tourist (TR-676) visa granted on 9 September 2008.
[Date] October 2008	Departed Australia.
[Date] January 2009	Applicant returned to Australia on a Tourist (TR-676) visa.
[Date] April 2009	Departed Australia.
[Date] August 2009	Applicant re-entered Australia holding the same Tourist visa.
[Date] November 2009	The applicant’s Tourist (TR-676) visa ceased, and she became unlawful.
10 July 2015	Applicant lodged a valid application for a Class XA Subclass 866 Protection visa; Applicant was granted an associated Bridging visa.[4]
11 September 2015	Applicant was granted a further Bridging visa C with nil conditions.

[2022] AATA 3000

2 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal