1728915 (Refugee)

1728915 (Refugee) [2023] AATA 4613 (1 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1728915

COUNTRY OF REFERENCE: Thailand
MEMBER:Anne Grant
DATE:1 December 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 December 2023 at 1:39pm
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – women – victim of family violence – physical assault – new relationship and family – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Thailand. She has provided her passport confirming her citizenship. Thailand is the country of her nationality and the receiving country, and her protection claims have been assessed on that basis.
The applicant applied for the visa on 23 May 2017. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant feared persecution for one or more of the reasons in s.5J(1) (and so was not a refugee) and then also found that she could obtain protection from the harm she fears from the authorities in Thailand such that there would not be a real risk that she will suffer significant harm if she is returned to Thailand.
The applicant appeared before the Tribunal on 16 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being returned to Thailand, there is a real risk that she will suffer significant harm. At hearing I informed the applicant that all of the various criteria for a protection visa were in issue in this case because the delegate had not met the applicant and had made no findings about whether there was a real chance or a real risk that she would suffer serious or significant harm in Thailand. Her claims were discussed in detail. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Is the applicant a refugee?
In her application, the applicant stated that she fears harm from her ex de facto partner, [Mr A] if she returns to Thailand. She states that they started to live together in January 2010 and she gradually discovered that he was violent and an alcoholic. She claims that he tortured her when he was drunk. She became pregnant in [year], and wanted to have an abortion, but [Mr A] promised to stop drinking. He did, but then started again six months after their son was born on [date]. The applicant claims that when she asked him not to drink, he assaulted her with a bottle, knocking her unconscious, and then took her to hospital. She claims that she reported this assault to police but they ‘did not want to be involved in domestic matters’. [Mr A] would not agree to her separating from him and she claims that when she went to ‘several places’ to hide from him, he found her. She claims that one time, he locked her to a table for about one month.
At hearing, the applicant gave evidence which was consistent with her written claims. She stated that she continues to fear harm from her ex-partner, [Mr A], who was a violent man. He hurt her many times, including smashing her face and breaking some of her teeth. He told her that he would look for her and kill her in the past and she is fearful that he will do what he says if she goes back to Thailand. She gave evidence that she has a new baby and a husband, and they would like to raise her child in Australia. I noted (and the applicant confirmed) that her husband had been refused a protection visa and was a Thai citizen, and that her son is therefore also a Thai citizen. She agreed that if she was required to depart Australia, her husband and son would return to Thailand with her. I noted that this review application is not about whether the applicant should be granted a visa because her preference is to remain in Australia, but was about whether she met the criteria for a protection visa which I had outlined at the start of our hearing. The applicant said that she understood this, and said that she is still worried that [Mr A] will hurt her if she returns to Thailand.
The visa applicant confirmed that she and [Mr A] had a son together and that child has been living with her parents since she left Thailand. When she was working, she sent money home for his care. [Mr A] has never financially supported the child. He does not see the child, even though he could have some contact if he wanted to. Occasionally he turns up at her parents, offering to ‘help with’ the child (even though he has never financially or practically actually helped with the child) and asking where the applicant is. Her parents don’t tell him anything, except that they won’t give him information because don’t want him to hurt her any more. This last happened in 2022.
At hearing, I noted that the delegate had not made findings about whether there was a real chance or a real risk that she would be harmed by [Mr A] if she returned to Thailand, but that I considered that this was an issue which I had to consider in this case. I informed the applicant that for her to be considered a refugee, I have to be satisfied that there is a real chance that the applicant will suffer persecution now or in the reasonably foreseeable future if she returns to Thailand. The applicant said that she understood this, and as noted above, repeated that she continues to worry that [Mr A] will hurt her if she returns to Thailand.
I noted that the applicant has been outside of Thailand and away from [Mr A] since 2016. She has now re-partnered. I noted her evidence that she has not heard directly from him at all since a few months before she left Thailand in September 2016. I noted her evidence that he has not been harassing her family, though he has asked about her occasionally since she left (the last time being in 2022). I noted that she would be returning with a husband and child and that her parents would continue to support her (and keep her whereabouts from [Mr A], even if he asked.) I informed the applicant I had a concern that, given her evidence, it seemed to me that the chance that [Mr A] continued to have any real power or capacity to harm her if she returned to Thailand is remote. The applicant responded that she is still fearful that he will resume his assaults if she returns to Thailand and wants to stay in Australia.
According to the Department of Foreign Affairs and Trade’s most recent country information report (10 July 2020) domestic, family and gender based violence is a significant problem in Thailand. DFAT also notes that:
3.92 The Family Institute Protection Act (2019) came into force in August 2019. The new law standardises definitions of family violence (which previously differed across different ministries), aims to improve coordination between relevant agencies, and generally includes stronger measures to protect victims and to make perpetrators accountable for their actions than the earlier Victims of Domestic Violence Protection Act (2007). The new law allows third parties to report cases of domestic violence (rather than just the victim), makes family violence a criminal offence and mandates prosecution, and allows officials of the Ministry of Social Development and Human Security to impose a 48-hour restraining order, even without a court order, against those who have allegedly committed domestic abuse against a spouse. In addition to making financial support and other assistance available for victims of violence, the new law gives victims a voice in whether to pursue a criminal justice or restorative justice path. It also covers the conduct of the perpetrator, including through providing services and provisions to help prevent recurrence. Where relevant, perpetrators may be required to undergo behavioural adjustment, such as substance abuse treatment.
I discussed this country information with the applicant at hearing. She was not aware of this new legislative change. She reiterated that the police in Thailand have never assisted her in the past, even when [Mr A] hurt her severely. I accept that to be the case. I noted that she would not be in an intimate relationship with him if she returned and would have her husband’s support. The applicant agreed that if she has to return to Thailand, it is likely that her husband will return with her and their child, but she was not confident that the police would assist her if [Mr A] harmed her or threatened to harm her in the future.
I observed that it appeared to me that the new family violence protection act raised in the country information suggests that Thailand has demonstrated an intention and desire to improve their response and protect women in her position, who are subjected to family violence, including with the mandatory prosecution and jailing of perpetrators. I considered that the country information suggests that the applicant would be able to seek protection, and that it would be effective protection resulting in his arrest and prosecution, if [Mr A] did resume his past harassment of the applicant on her return. The applicant neither disagreed nor agreed with this suggestion, because she had not heard of this change in law prior to our hearing. She said that she doesn’t know if this law has had any good effect.
I found the applicant credible and genuine in giving her evidence. I accept that she was describing a genuine experience of extensive family violence throughout her relationship with [Mr A] which continued until she was finally able to leave him in mid-2016. Having considered the applicant’s evidence, I accept that the applicant has been the subject of prolonged and devastating family violence at the hands of her former partner, [Mr A], in the period from 2010 until shortly before she arrived in Australia in September 2016. I accept that she did not tell him where she was going when she left the country, and her parents have not told him where she is since she departed. I find, based on her evidence, that [Mr A] has only displayed an occasional interest in her whereabouts since her departure in 2016 and does not have regular or any meaningful contact with their son. I accept that the applicant is genuinely terrified of [Mr A] and continues to fear that he will harm her if she returns to Thailand.
I asked the applicant if there was any other reason why she feared returning to Thailand. She said that her only fear is her fear of harm from [Mr A].
I accept that the harm the applicant fears and that she has experienced in the past is serious harm.
An applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. I have accepted that the applicant holds a subjective fear of [Mr A] resuming his violence against her. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
I have had regard to the applicant’s evidence and my findings above. Almost 8 years have passed since their relationship came to an end, and since she last saw or heard from [Mr A] directly. Whilst I acknowledge that she subjectively continues to fear that he will find and hurt her, as discussed with her at hearing, I also note that her personal circumstances have changed significantly since she left him. She has been estranged from him since 2016. He has shown no interest in their joint child. He has only made general enquiries of her whereabouts and no threats to her family in the several years since she has been away. She will not be in an intimate personal relationship with him if she returns; and it is reasonable to assume that if she returns to Thailand, it will be with her current partner and child. As discussed with the applicant, I consider that the risk that she will ever meet and face harm from [Mr A] if she returns to Thailand is remote. I am not satisfied that there is any evidence before me that supports a finding that he would be capable of finding and harming her if she returns to Thailand.
I have also taken into consideration the applicant’s own resourcefulness, demonstrated by her past decision to seek help from the authorities (whilst acknowledging that it was not of help at that time), the support she receives from her family and would receive from her new husband, her capacity to leave [Mr A] and the relationship and remain outside her country since 2016, and the demonstrated intention and desire of the Thai authorities to prosecute family violence offenders as outlined in recent country information. I find that the chance that the applicant will suffer persecution involving serious harm from [Mr A], now or in the reasonably foreseeable future, is remote. I find that there is not a real chance that the applicant will be persecuted by [Mr A] as required by s.5J(1)(b) of the Act.
No other claims arise on the information and evidence before me.
I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). This requires me to be 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. In this case, the applicant claims to fear being subjected to physical and psychological abuse, including torture, at the hands of her former de facto partner. I accept that the harm she fears would constitute significant harm.
However I must also be satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if she is returned to Thailand.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
I refer to and rely on my findings above about the real chance of harm in this case. For the reasons there stated, I am not satisfied that there is a real risk that the applicant will suffer significant harm if she returns to Thailand, from [Mr A].
I conclude that there are not substantial grounds for believing that there is a real risk that the visa applicant will suffer significant harm from [Mr A] if she returns or is returned to Thailand. No other claims arise on the evidence and information before me.
I am therefore 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) on the basis of 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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
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 4613

1 December 2023

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Statutory Construction

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