1720451 (Refugee)

1720451 (Refugee) [2023] AATA 4309 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Benjamin MacDonald Magill (Australian Legal Practitioner No: 5513587)
CASE NUMBER:  1720451
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Haag
DATE:11 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 11 September 2023 at 6:21pm
CATCHWORDS
REFUGEE – protection visa – Thailand – religion – Buddhist – political opinion – Red Shirts activist – history of domestic and off-shore anti-military, anti-Monarchy and pro-democracy activism – failed asylum seeker –subjected to serious harm and or persecution for the reason of her political opinion – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 16 October 2014 and the delegate refused to grant the visa on 1 September 2017 on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 7 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Other and English languages.
The applicant was represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
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.
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 matter should be remitted for reconsideration.
Applicant’s background
In her application for protection visa, the applicant claims to be a citizen of Thailand, born on [DOB] in Pitsanulok Province, Thailand. She claims to be a Buddhist who can speak, read and write in Thai and English.
In her visa application, she claims to have been divorced [in] July 2010, although she does not provide details of when she was married.
In an attachment to her visa application, the applicant stated at the time of her visa application she was residing in [City 1], Victoria, Australia since 20 November 2013. Between 8 September 2013 and 19 November 2013, she was residing in [City 2]. Between 23 August 2013 and 7 September 2013, she was residing in [City 3]and between 21 and 22 August 2013 she resided in[City 4]. Between 3 and 20 August 2013 she resided in Bangkok, Thailand. Between 20 August 2012 and 2 August 2013, she was residing in the [Location 1]. Between 20 June 2012 and 19 August 2012, she resided in Bangkok, Thailand, and between 1 August 2011 and 19 June 2012 she was residing in the [Location 1]. Between 1976 and 31 July 2011, she resided at multiple addresses in Bangkok, Lopburi, Nonthaburi, [Province 1], Pathumthani, Uthaithani, [City 5] and [City 6], Thailand.
In an attachment to her visa application, the applicant stated that she completed her primary and secondary schooling in Thailand between [year] and [year]. Between 1997 and 1999 she completed a diploma course and between 2000 and 2002 and she completed a Bachelor level degree, in Thailand. Between 2 March 2009 and 9 April 2009, she completed a training course in [Course 1], and between 10 and 20 April 2009 she completed [Course 2], in Thailand. Between 8 and 18 July 2010 in Thailand she completed[Course 3].
In an attachment to her visa application, the applicant stated that she had been employed in [Job 1]between 1 August 2011 and 2 August 2013 in the[Location 1]. Between May 2010 and December 2010, she was the owner of a business in Lopburi, Thailand. Between November 2009 and April 2010, she was employed as an [Job 2]in Nonthaburi, Thailand. Between May 2009 and October 2009, she was employed in [Job 1]in Bangkok, Thailand. Between July 2004 and January 2008, she was the owner of businesses in [Province 1] and Lopburi, Thailand. Between September 2003 and January 2007, she was employed as a [Title]in Saraburi, Thailand, and between January 1997 and August 2003 she was employed as [Job 3]in Pathumthani, Thailand.
Applicant’s identity
The applicant provided the Department with a certified copy of her Thai passport, a certified copy of her Thai national ID card and a certified copy of her Surname Change Certificate, with English translation.
The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. 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 information provided by the applicant, the Tribunal finds that she is a citizen of Thailand, and as such her protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.
Migration history
Between 1 August 2011 and 19 June 2012, the applicant resided in [Country 1] for work purposes.
Between 19 June 2012 and 7 July 2012, the applicant visited [Country 2] on a holiday.
Between 20 August 2012 and 3 August 2013, the applicant was residing in [Country 1] for work purposes.
On 3 August 2013 the applicant returned to Bangkok, Thailand.
On 21 August 2013 the applicant arrived in Australia from Thailand on a tourist (FA-600) visa. [In] November 2013 her tourist visa expired, and she remained in Australia unlawfully.
On 16 October 2014 the applicant lodged an application for a protection visa and on 1 September 2017 her protection visa application was refused by the Delegate for the Minister.
On 4 September 2017 the applicant lodged an application with the Tribunal for review of the protection visa refusal decision.
Claims for protection and other supporting documentation
The applicant submitted her claims for protection in the following attached statement, unsigned and undated, with her protection visa application lodged with Department on 16 October 2014:[1]
[1] Department file [number], Doc ID 9154652, folios 54-56.
I, [the applicant], aged [age] years, born on [DOB], am a [position]of the Red Shirts, who at the present time are known as NFS, which is abbreviated from Democratic Alliance Against Dictatorship (in English UDD), which supports the ex-Prime Minister Police Lieutenant Colonel Dr. Thaksin Shinawatra.
I and my older sister, [Ms A]and my brother-in-law [Mr A]share the same ideology and admire the work of Police Lieutenant Colonel Dr. Thaksin Shinawatra. Throughout the time that he held government, the country’s economy was good, commerce was smooth, because during the year 2004, when I was a manager at the [Company 1]I was able to start my own business on behalf of my ex-husband, [Mr B], called[business name]. I was co-owner with my husband however ail the registration documents were in my husband’s name.
We traded in [product 1]and [equipment], and we opened a centre for purchasing [product 2].
The business prospered and I resigned as manager of [Company 1]in early September 2006 in order to manage my own business.
Not many days after tendering my resignation from the position of manager there was a coup on 19 September 2006 by General Sonthi Bunyakrin, which was at a time when Police Lieutenant Colonel Dr. Thakdin Shinawatra was performing duties abroad, and for that reason Police Lieutenant Colonel Dr. Thaksin Shinawatra has not been able to return to Thailand to this day.
After the coup, the Kor Mor Chor [Council of National Security, CNS] established a government and were not able to run the country. The partner companies did not buy any [product 2]and the price of [product 2]fell, so that the [product 2]had to be thrown away. Business was not good. This meant that I could not continue my business and had to close down the business of purchasing [product 2]and the [product 1]business at the end of 2007.
As a result, I studied [Course 1] so I could find work.
I and my sister [Ms A] and my brother-in-law [Mr A] joined as [positions]of the Red Shirts in about December 2007. At that time it had its original name Nor Por Kor, Allied Democratic Movement Against Dictatorship [United Front of Democracy Against Dictatorship]. I joined the political movement to oppose the coup of 2006 and drive out the CNS which appointed General Surayud Chulanont as Prime Minister.
[Information deleted].
The People Power Party, which supported Police Lieutenant Colonel Dr. Thaksin Shinawatra and the Red Shirts, was elected, and we then stopped our rallies, however they could not form a government because MP’s switched sides.
Because PPP could not form the government Mr Abhisit Vejjajiva became the Prime Minister. He was the opposite of the PPP.
In about March 2009, myself, my sister and my brother-in-law became active again as [positions]to help [the] Red Shirts to rally the Red Shirts together to drive out the government. [Information deleted].
In about April 2009 the government announced a State of Emergency and used military force to shut down the demonstrations. The government used military force to corner the protesters ( on one day I was among them) use tear gas on them. The leadership of the Red Shirts called off the protest. Injuries amongst the protesters were only minor at that time.
We stopped protesting until about March 2010 when I, my sister and my brother-in-law again were involved in [the]Red Shirt Rally’s . [Information deleted]I also joined in the rally, during the morning and in the afternoon and again in the evening. We had to be extra careful as [Positions]. My sister and brother in law were present at the rally’s all the time, they were acting as[position 1].
Our demands were that the government of Mr. Abhisit Vejjajiva dissolve parliament.
In April 2010 the government dispersed the rally causing 99 of the Red Shirt members to lose their lives and more than 2000 people to be injured.
I divorced from my husband in July 2010, my husband did not want me involved in the protests.
In 2011 there was an election, at which I, my sister and my brother-in-law joined in support of Miss Yingluck Shinawatra, who is the younger sister of Police Lieutenant Colonel Dr. Thaksin Shinawatra, until her Pheu Thai Party was victorious and established a government. Following that, in August 2011, I went to work in [Country 1].
While I was working in [Country 1] I kept in touch with the leadership group of the Red Shirts until I found out that on 4 August 2013 there was going to be a rally [organized by the Opposition,
namely Mr Suthep Thuagsuban] to drive out the government of Miss Yingluck Shinawatra and protest the Amnesty Bill which she had put to Parliament. The purpose of the Amnesty Bill was not to prosecute any one involved in the protests of the previous years.
The leadership group of the Nor Por Chor arranged a meeting of the leaders of the Red Shirts from all over the country on 3 August 2013. When I found out about this I submitted a request for my annual leave in order to [join] in with the meeting of the Nor Por Chor and the Red Shirts in Thailand on that date.
I left [Country 1] on 2 August 2013, taking about 45 days leave, and had planned to return to work on 15 October 2013 as per the date and time of the airline ticket that I had purchased.
On 3 August 2013 I returned to Thailand at about 12.00 pm. My sister and brother-in-law met me and we went to join the meeting of [the] Red Shirts at [a] College to give our support to the Amnesty Bill so as not to abolish said Bill, so that ex- Prime Minister Police Lieutenant Colonel Dr. Thaksin Shinawatra could return to Thailand.
[In] August 2013 at about 10.30am, myself, my sister and my brother-in-law joined with the Red Shirts in a cavalcade of more than 50 motorcycles and more than 30 pick-up trucks and entered and sealed off the Head Office of the Democrat Party, closing off the area [Location deleted], in order to demand that the Democrat Party support the Amnesty Bill in the interests of justice for all parties.
On 8 August 2013 at around 2pm, myself, my sister and my brother-in-law, joined with the Red Shirts leadership group in the name of the [group], led by Mr[B], to collect the Red Shirts to demonstrate and give speeches supporting the draft of the Amnesty Bill from the coup event around the area of the [Location deleted].
On 14 August 2013 at 10am myself, my sister and my brother-in-law joined with the Red Shirts leadership group, led by [Mr C], or [Mr D] who led a motorcycle cavalcade of more than 100 motorcycles and Red Shirts [Information deleted].
[In] August 2013, I travelled to Melbourne Australia in order to celebrate a friend’s birthday, with a return ticket with Thai Airways, with the return date [in] September.
Before I could return I heard news from my sister who telephoned me in Melbourne and told me it is not safe for me to return to Thailand because there were some strangers gathering around the area of the house where I lived with my father.
[Ms A] told me that she and my brother in law were shot at on two occasions while travelling to join a meeting with the Red Shirts leadership group. She told me that my they had fled upcountry. So I did not return to Thailand on that date.
After that I prepared to go back to Thailand on another occasion, buying a ticket with Jetstar to travel back [in] November 2013, but [Ms A] telephoned me with news that there were snipers around rny fathers house for several days. These snipers were walking around the house where my father and I lived.
[Ms A] told me that it was definitely not safe for me because my sister and brother-in-law had been shot at at their house; luckily no one was hurt. I was very scared so I dared not return.
After the coup of 22 May 2014 by Mr Prayuth Chan-ocha, my sister, [Ms A], and brother-in-law, [Mr A], were subjects of arrest warrants with another seven people on the charge of shooting an [weapon] in front of the [Location].
Before the issue of the warrant hundreds of uniformed soldiers captured my sister on the charge of shooting an [weapon] in front of [Location], and took her for incarceration at the Army barracks.
They tied her hands and feet and blindfolded her. They wrapped her head in a black sack and covered that with a balaclava, and then beat and assaulted [Ms A] and she was threatened with electric shocks. At the same time they were threatening her to choose whether she wanted to die by being thrown into a pit of crocodiles or be thrown out of a helicopter.
My sister was kept in captivity for one day and one night until late at night my sister was able to untie her bonds, remove the louvers of the window and climb out and flee from Thailand with my brother-in-law. Up till now, they have not been able to return to Thailand because if they did they would certainly die.
I myself feel very afraid with the events related to me by my sister, because both of us have been joining with the Red Shirts throughout. If I were to go back I might be assaulted like my sister, or killed. Because Thailand is now under the control of the military. The military can do whatever they want. If they killed me and threw me into a pit of crocodiles no one would know.
While I have been hiding here I feel that my life is safe, no one will take me and assault me or torture me or kill me.
Therefore I would like to request political asylum here. I have spent the last period in refuge here since I am afraid to return as I might be tortured and murdered.
I am in contact with my sister and my children by use of line telephone which cannot be traced by the Military.
The applicant provided the following documents in support of their protection visa application lodged on 16 October 2014:[2]
[2] Ibid, folios 61-72.
·Certified copy of Royal Thai airline itinerary receipt, [in] August 2013;
·Certifed copy of airline ticket receipt for flight [in] September 2013 from Bangkok to Country 1]
·Certified copy of Jetstar airline ticket receipt for flight [in] November 2013 from Melbourne to Bangkok;
·Copy of online article titled “The Court issued a warrant for the [weapon] [location] added [further] people”, dated [date], published in [name];
·Copy of photographs of the applicant’s sister [Ms A]and the applicant’s partner’s sister, [Mr A];
·Copy of untranslated online news article;
·Certified copy of an English translation of a letter from the applicant’s sister, [Ms A], unsigned and undated, in support of the applicant’s statement of protection claims;
·Certified copy of an English translation of a letter from the applicant, unsigned and undated, containing links to news articles in support of her statement of protection claims;
·Certified copy of a letter from the applicant’s employer in [Country 1], signed and dated 28 July 2013;

On 21 April 2015 the applicant’s legal representative wrote to the Department advising that the applicant wished to add to her claims for protection a claim for Complimentary Protection.[3]
[3] Ibid. folio 128.
On 9 March 2016 the applicant submitted the following documents to the Department in support of their visa application:[4]
·Copy of online article titled “[name]”, [dated]published in the [name];
·Copy of online article titled “[name]”, [dated].
[4] Ibid, folios 129-131.
On 19 December 2016 the applicant attended an interview with the Department.
On 20 March 2017 the applicant submitted the following documents to the Department in support of their visa application:[5]
·A medical certificate, dated 15 March 2017, for an injury sustained by the applicant;
·Photographs of damage to the applicant’s business premises, allegedly due to an ongoing dispute with another [business], [Ms B].
[5] Department file [number deleted], Doc ID 9154652, folios 25-27.
On 14 August 2017 the applicant submitted the following documents to the Department in support of their visa application:[6]
[6] Ibid, folios 36-81.
·Copy of an English translation of the applicant’s father’s death certificate;
·Photocopy of a photograph of the applicant’s father and sister,[Ms A];
·Photocopy of a photograph of the applicant’s father’s funeral;
·Photocopy of article titled “[title]”, published in The [name], dated [in] 2017;
·Photocopy of a photograph sent to the applicant by a Red Shirt affiliate;
·Photocopy of a work confirmation letter from [Company 1];
·Photocopies of [Country 1] employment contracts for 2011 and 2012;
·Photocopies of the following photographs:
a)[Name]caught and [Ms A] and [Mr A]named.
b)Suspects and[Ms A]’s family car. [information deleted].
c)[Product] protest 2005.
d)The applicant’s ex-husband [Mr B] ([positons]) and the applicant (Assistant Manager).
e)Organisational Chart of [Company 1].
f)The Presidents of the Province Co-operatives.
g)Ex-husband [Mr B]
h)Certificate showing applicant in the position as Manager,[Company 1].
On 4 September the applicant provided the Tribunal with a copy of her protection visa refusal Decision Record.[7]
[7] Tribunal file 1720451, Doc Id 3649488.
On 7 February 2023 the applicant submitted to the Tribunal the following documents not presented before the primary decision was made:
a)Written legal submissions from the applicant’s legal representative, including photographs and news articles as evidence in support of the applicant’s visa application;[8]
[8] Ibid, Doc Id 10717231.
b)Submissions from the applicant’s legal representative, including screenshots and photographs, regarding alleged online harassment and false accusations;[9]
c)Thailand 2020 Human Rights Report, United States Department of State;[10]
d)Psychology report for the applicant from [clinical psychologist], signed and dated 6 October 2021;[11]
e)Notice to Cease and Desist, dated 10 February 2022, regarding alleged defamatory statements about the applicant;[12]
f)Police report by the applicant regarding alleged fraud, signed and undated;[13]
g)[Information deleted][Information deleted][Information deleted]Copy of Commercial Registration Certificate with English translation, granted on 22 July 2004, for the applicant’s ex-husband;[14]
h)Letter in support of the applicant’s protection claims from [Mr C]), signed and dated 22 May 2017;[15]
i)[Company 2]draft Financial Report for the year ended 30 June 2022;[16]
j)[Company 2] draft Financial Report for the year ended 30 June 2022;[17]
k)[Company 2]., draft financial report for the year ended 30 June 2022;[18]
[9] Ibid, Doc Id 10717232.
[10] Ibid, Doc Id 10717233.
[11] Ibid, Doc Id 10717234.
[12] Ibid, Doc Id 10717235.
[13] Ibid, Doc Id 10717237.
[14] Ibid, Doc Id 10717245.
[15] Ibid, Doc Id 10717247.
[16] Ibid, Doc Id 10717248.
[17] Ibid, Doc Id 10717249.
[18] Ibid, Doc Id 10717250.
On 5 July 2023 the applicant submitted to the Tribunal a copy of an email she sent to her legal representative, dated 2 July 2023, with the following additions to her protection claims:[19]
I have compiled evidence of political I have activity in Australia before Thai Democratic Party Wins Election 14 May 2023 and after with [Organisation 1]for Human Rights that’s Organise meeting to discuss Thai politics and people who have effected by Thailand law 112 and Thailand fearless Cop.
On July 27, 2022 I attended a seminar on human trafficking. of the Thai military that has power now and revealed by[Ms C], a former Thai [official]who is refugee in Australia.
On May 28, 2023, I was a co-leader in organising activities in [City 7] Regarding the Thai political situation after the Democratic Party won the election on the 14th May 2023 and together as a force for the repeal of Section 112 [information deleted].
On June 1, 2023, I was the mainstay of a large seminar in [City 8]on the topic of repealing Section 112 of the Thai Law. and overseas asylum for political dissidents, with refugees in Australia from 112 cases. is [Mr E]and other .
We have a stand to demand that Section 112 of the law be amended and let Thailand return to democracy.
The activity were held in various cities such as Sydney, Brisbane,Canberra and Melbourne.
I would like you to add more information and evidence submit to AAT for prove that I have continued my political activities with the group despite having lived in Australia.
[19] Ibid, Doc Id 11247122.
On 17 August 2023 the applicant’s legal representative provided written submissions to the Tribunal regarding the applicant’s ongoing political activism, including associated photographs.[20]
[20] Ibid, Doc Id 11409022.
The determinative claim
At the conclusion of the evidence and upon application, the applicant’s representative was granted leave to make oral submissions.
During submissions, the applicant’s representative conceded the applicant relied upon one claim only, and that all other claims were subsumed under that claim, namely persecution for the reason of political opinion. The applicant’s representative was right to make that concession on behalf of the applicant.
Consideration of the evidence
According to the applicant’s evidence, in the context of close questioning by the Tribunal, the applicant said she believes the system of government in Thailand is undemocratic; that it primarily serves the interests of the Monarch, the military, business and wealthy elites. Consequently, ordinary people and the poor suffer, and will continue to suffer until the national Constitution is changed.
The applicant said that she joined the ‘red Shirts’ political movement to protest the military who removed the Prime Minister, Thaksin Shinawatra (Mr Thaksin), from power in 2006. He went into exile. In exile he was sentenced to imprisonment for corruption.
Mr Thaksin became Prime Minster in 2001. According to the applicant she supported him because he stood-up for the urban and rural poor and he was against the Monarchy’s influence over politics. The DFAT Country Information Report Thailand – July 2020 (DFAT report) which summarises Thailand’s recent political history is consistent with the applicant’s evidence.
According to the applicant, while Mr Thaksin was in exile large numbers of people known collectively as the ‘red shirts,’ supported Mt Thaksin. They protested on the streets of Thailand against the military, the Monarchy, and the members of the ‘yellow shirts’ who supported the military, the Government and the Monarch. The different groups clashed violently. The the military and their supporters arbitrarily imprisoned, assaulted, and killed members of the ‘red shirts.’ The applicant’s description of the prevailing political circumstances in Thailand between 2007 and 2010 is consistent with information the in the DFAT report about the same period.
According to the DFAT report, in the 2011 elections the pro-Thaksin political forces were returned to power under the leadership of his sister, Yingluck. Mass protests and street battles broke-out in 2013 and the military seized power in 2013. Subsequently the military junta allowed general elections which resulted in a power sharing arrangement between elected parliamentarians, the military and their political appointees.
According to the applicant, the constitution of Thailand was altered by the military regime which resulted in the ‘upper house’ of Parliament being controlled by the military. Consequently, the military is able to determine which party governs the country, irrespective of which party wins any general election and a majority of seats in the ‘lower house’ of parliament. The applicant’s evidence is consistent with the DFAT report.
The applicant demonstrated in evidence a detailed knowledge of the constitutional arrangements in Thailand that enabled the military to control and use their control of the ‘upper house’ of Parliament to block the party that wins the most seats – most recently the Move Forward party – from forming a government of the country.
Instead of Move Forward forming government in August this year, after the Party won a majority of seats in the ‘lower house’ of parliament, the Military, and the political party controlled by Mr Thaksin, the Pheu Thai, united to form a national government.
In the forgoing circumstances Mr Thaksin returned to Thailand after 15 years in exile, And according the evidence and cited country information, despite Mr Thaksin previously opposing the involvement of the military and Monarchy in domestic politics, and members of his supporter group the ‘red shirts’ being identified as anti-monarchy, his party formed government with the support of the military, and the King reduced his prison sentence from 8 years to 1 year.[21]
[21] The Guardian, September 2023, guardian.com/world/sept/01/thai-king-reduced-ex-pm-thaksin-shinawatra- prison-sentence-to-one-year; BBC 23 August, Jonathan Head, South East Asia Correspondent.
In evidence the applicant, without hesitation, made plain that what she and her sister opposed the way government favoured the elites over ordinary people, the influence of the military in politics and government, and way the King interferes in government and politics. She joined the ‘red shirts’ with her sister and supported Mr Thaksin because she believed that in the past, he governed for everyone. That is no longer the case, according to the applicant, Mr Thaksin has betrayed the ‘red shirts,’ and the ordinary people by sided with the military and Monarch, because now that alliance suits his personal interests.
The applicant now opposes Mr Thaksin and his party and supports Move Forward. The applicant produced photographic evidence and other written evidence of her public and private political activities in Australia in 2022 and 2023, the theme of which was to garner support for the repeal of the Constitutional provisions that enable the military to control the parliament and determine which party can govern the country.[22]
[22] Tribunal file, Doc Id 11247122; 11409022; 10717162.
One set of photographs depicts the applicant and others in [City 1] protesting the state of the Constitution. The applicant is depicted holding a placard that states ‘Thailand – [details deleted].’ The placard also depicts a judicial ‘hammer.’ Other placards state, amongst other things, ‘Respect the People’s vote.’ According to the applicant, the ‘’[word deleted]’ is the military that uses the Constitution to control the government of Thailand.
In evidence the applicant identified two forthcoming events planned by the [Organisation 1] for Human Rights – Australia, and the dates on which they are to occur, in respect of which the applicant asserts she is an active participant. One of the planned events is said to be a visit by a named member of the Thai Parliament who is also a member of Move Forward. According to the applicant the visit is for the purpose of fostering support for Move Forward, and to remove from government the newly formed coalition between the military and Mr Thaksin’s party, Pheu Thai.
In support of the applicant’s claim to have been a pro-democracy political activist and member of the ‘red shirts’ in Thailand, and her continued activism in Australia, the applicant places reliance on a testimonial signed by[Mr F], in the position of President of ‘[Organisation 1],’ [address detailed] with email address and mobile phone number provided.
[Mr G]states he was an anti-monarchy political activist in Thailand and a political person who was granted asylum in Australia. In summary form, [Mr G]states from his own knowledge and inquiries into the applicant’s background in Thailand, that she is known to be anti-monarchy, and she openly opposed the government and continues to do so.
The Tribunal challenged the applicant’s claim that she would be harmed if she returns to Thailand, for the reason her stated political objectives and the objectives of the ‘red-shirts’ have been accomplished: Mr Thaksin has returned from exile, the King reduced his prison sentence form 8 years to only 1 year, and Mr Thaksin’s party is now in government.
Without hesitation the applicant responded that she does not simply support an individual. She supports democracy and opposes the military and the Monarch having any role in government. She says the role of the military is to defend the country. Mr Thaksin, according to the applicant, is now serving his own personal interests, and has become a puppet of the military by allowing the political party, Pheu Thai, to form government in coalition with the largely military-appointed ‘upper house’ of Parliament.
On balance, and after considering the answers the applicant gave to the Minister’s delegate during the protection visa interview the delegate conducted with her; the applicant’s concerns about the skill of the interpreter; and, the applicant’s evidence at hearing, the evidence available to the Tribunal does not provide any satisfactory basis upon which to make a credibility finding adverse to her claim that she was a relatively prominent member of the ‘red shirts,’ anti-monarchy, and opposed the control exerted by the military over the processes of government.
The Tribunal is of the opinion that it is reasonably likely the applicant’s public anti-military, anti-monarchy, and pro-democracy activities in Australia, would be known to the state security apparatus in Thailand. Relevantly, according to the DFAT report, DFAT assesses that anti-monarchy political activists who are overtly critical of the Monarchy, […] face a high risk of arrest, prosecution, torture, and extrajudicial killing. Those based outside Thailand, particularly in Southeast Asian nations, face a high risk of illegal extradition or unenforced disappearance. The latter point indicates that authorities in Thailand relevantly monitor off-shore-political activists, especially anti-monarchists.
According to the DFAT report participants in the ‘red shirt’ protests who continue to be politically active against the government are likely to face a higher risk of arrest and prosecution than those protesting for the first time: [3.66].
The evidence is sufficient to establish to the satisfaction of the Tribunal that the applicant was a relatively visible participant in the ‘red shirt’ protests; that she has been prominent in pro-democracy political activities in Australia; she is a strong advocate for constitutional reform to prevent the military from determining which party may govern Thailand, and she opposes the Monarchy being able to interfere in politics.
The Tribunal is satisfied the applicant’s political beliefs are contentiously held beliefs, and that to alter her political beliefs or conceal them would conflict with her conscience.
The cited country information demonstrates it is reasonable to infer that Mr Thaksin’s ‘red shirt’ supporters who recall the imprisonment and the killing of many of their number, will be seeking to appreciate how the Thaksin aligned Pheu Thai party, joined with the military to form government; and, the circumstances that led to the Monarch reducing Mr Thaksin’s prison sentence from 8 years to 1 year. It is reasonable to apprehend the applicant would be returning to a politically unstable situation if she were removed to Thailand now, or in the reasonably foreseeable future.
The applicant said in evidence, that she fears if she returns to Thailand and the present circumstances, she is likely to be arbitrarily arrested at the airport because she will be perceived to be a failed asylum seeker, returning with a prominent history of domestic and offshore anti-military, anti-Monarchy, and pro-democracy activism.
To summarise the applicant’s evidence: she contends the current political circumstances in Thailand are unprecedented. If she is returned to Thailand now, it is likely the state security apparatus would classify her as a potential impediment to the new political accord between the military, the Monarchy, Mr Thaksin, and the political party aligned with him, namely Pheu Thai, winning acceptance from the ‘red shirts,’ Move Forward and dissatisfied pro-democracy elements of Thai society.
Findings
On balance, the Tribunal is satisfied of the existence of a real chance state actors would classify the applicant as a failed asylum seeker who, for the reason of her political convictions, may challenge the legitimacy of the new government, the military, and the Monarchy.
Additionally, the evidence sufficiently establishes the existence of a real chance the applicant would be arbitrarily detained by state actors, thereby suffering an arbitrary deprivation of liberty, and being subjected to significant physical harassment and ill-treatment if she is returned to Thailand, and in the unique present political situation, that it is reasonable to view the real chance of serious harm as discriminatory and systematic in nature.
Having considered the applicant’s claims individually and cumulatively, the evidence considered in combination with the cited country information is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for the reason of her political opinion, that being a reason that meets the provisions of s 5J(1)(a) of the Act, if she is removed to Thailand now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
The Tribunal is also satisfied political opinion is the essential and significant reason for the real chance of persecution faced by the applicant, and that the persecution would involve systematic and discriminatory conduct by state actors.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely political opinion, and that the applicant meets the definition of refugee as set out is s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Haag
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4309

11 September 2023

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