1706933 (Refugee)

[2021] AATA 3701

1706933 (Refugee) [2021] AATA 3701 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706933

COUNTRY OF REFERENCE:                   Thailand

MEMBER:James Silva

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

Statement made on 31 August 2021 at 2:02pm

CATCHWORDS

REFUGEE – protection visa – Thailand –member of the Red Shirts – applicant has no fear of persecution – applicant does not fear harm – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age] year old woman from Thailand. She first entered Australia [in] February 2014, as the holder of a visitor visa. Her most recent entry was [in] March 2016.

2. The applicant applied for a protection (class XA) visa on 19 December 2016. On 31 March 2017, a delegate of the Minister for Immigration and Border Protection decided to refuse to grant the visa under s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Criteria for a protection visa

5. The issue here is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. The attachment summarises relevant law.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Protection claims

6. The applicant wrote in her protection visa application that she participated in an anti-government protest.  The authorities arrested and beat her, later releasing her without charges. Their threats to her and her family have left her afraid to return to Thailand.

7. At the Tribunal hearing, the applicant said in fact she does not fear harm if she returns to Thailand, although she would like to stay in Australia.

   Background

8. The applicant is a [age] year old woman from Bangkok. She grew up and attended school in [City 1], [north] of Bangkok, where her grandmother lives. She also lived in Chonburi (85km east of Bangkok) and Kampaeng Phet (360km north-west of Bangkok).  After finishing school in December 2003, she did general labour. For about two years before coming to Australia (in February 2014), she worked in a [factory] in Chachoengsao.

9. The applicant married a Thai man in November 2013; the couple divorced in October 2017. Her parents and her younger brother live in Pattaya. She said that she has only occasional contact with them.

10. The applicant said that she came to Australia to study, and undertook an English language course, and later some studies in [a specified area].

11. As noted in the decision record, she returned to Thailand from [July] to  [August] 2015, and from [February] to [March] 2017. She told the Tribunal that she went back because she had been homesick.

    Evidence

12. The material before the Tribunal includes the following:

    §  The protection visa application form lodged on 19 December 2016. The applicant’s protection claims are contained in brief handwritten statements on Form 866C. The Department file includes a brief undated document titled ‘submission’ which appears to have been prepared by a third party. It briefly restates her claims and addresses the criteria for the grant of a protection visa.

    §  There was no Department interview in this matter.

    §  The protection visa assessment record (‘delegate’s decision) of 31 March 2017. The decision record did not make specific findings of fact, but concluded that, in light of country information applicable at that time, the applicant’s claims, as stated, did not invoke Australia’s protection obligations.

    §  The Department file includes a copy of the applicant’s Thai passport, issued on [in] 2013 and valid for five years; and a copy of her Thai National ID card.

    §  The file also includes documents relating to the applicant’s education in Australia, namely certificates of enrolment for seven [courses], from 2014 to 2017; and notification of the grant of a student visa on 27 October 2014.

13. The review application, lodged on 4 April 2017, had attached to it a copy of the delegate’s decision. The applicant sent to the Tribunal a partial photocopy (biodata page) of her current Thai passport, issued [in] 2018, valid for five years.

14. The applicant appeared before the Tribunal on 31 August 2021. The hearing was conducted with the assistance of an interpreter in the Thai and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

15. The applicant did not present any documents. She nominated her husband, [Mr A] as a witness, and sent to the Tribunal a copy of his driver licence. At hearing, she clarified that she wanted him present as a support person only.

    Receiving country

16. The applicant claims to be a national of Thailand. She has presented a full copy of her Thai passport, and the biodata page of her current passport. Her other documentary and oral evidence supports this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that she is a national of Thailand, and assesses her claims against Thailand as the receiving country.

    Assessment of claims

17. The applicant’s protection claims were set out in brief typed statements on Form 866C, and in a two-page submission that appears to have been ‘cut and pasted’ from another statement, with only one paragraph referring to the applicant’s claims. These claims are:

    §  The applicant is a member of the ‘Red Shirts’ (supporters of the populist former Prime Minister Thaksin Shinawatra, who are now a major opposition group).

    §  She attended a rally, and was one of many protestors who was arrested, beaten and later released without charge.

    §  The Thai authorities harassed and threatened her from that time. They also told her that if she returns, they will hurt her and her family.

18. The applicant told the Tribunal that someone filled in the protection visa application form for her. She does not know what they wrote. She said that she lodged the application in order to stay in Australia, commenting that life in Thailand was ‘full of hassle’. She confirmed that she does not like politics and does not fear harm in Thailand.

19. The Tribunal explained that Australia has protection obligations only in respect of persons who are at risk of persecution or significant harm, and that based on her evidence at hearing, she did not appear eligible for a protection visa.

20. The Tribunal is satisfied that the applicant has resiled from the claims set out in her protection visa application; that she was not involved in politics; that the Thai authorities did not detain, mistreat or threaten her; and that she has no fear of persecution or significant ham in that country.

    ASSESSMENT – REFUGEE CRITERIA

21. The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1).

22. In light of her evidence at hearing, the Tribunal finds that the applicant does not fear persecution in Thailand; and there is nothing to suggest that she faces a real chance of serious harm. Her wish not to return there is based on unrelated factors (such as personal circumstances and living conditions). The Tribunal finds that she does not face a real chance of serious harm amounting to persecution for reason of any political opinion, actual or imputed, or for any reason set out in s.5J(1), now or in the reasonably foreseeable future.

23. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    ASSESSMENT -  COMPLEMENTARY PROTECTION

24. The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand. Based on her evidence at hearing, the Tribunal considers that her concerns about returning to Thailand do not relate to any genuine fear of significant harm.

25. The Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that she will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or that would meet the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of his life or the death penalty. 

26. Accordingly, the Tribunal is not satisfied that there are 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 that she will suffer significant harm: s.36(2)(aa).

    Conclusion

27. 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).

28. 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).

    DECISION

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

    James Silva
    Member

    
    

    ATTACHMENT – RELEVANT LAW

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

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

    In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.