1808624 (Refugee)

1808624 (Refugee) [2021] AATA 2064 (24 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1808624
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Nicole Burns
DATE:24 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 May 2021 at 1:54pm

CATCHWORDS

REFUGEE – protection visa – Thailand – fears harm from money lenders – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 Home Affairs on 23 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa on 3 October 2017. The delegate refused to grant the visa on 23 March 2018.
The applicant gave evidence to the Tribunal about the issues in his case via teleconference[1] on 24 May 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
[1] At the time of hearing he was residing in NSW.
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 (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 applicant is a [age]-year-old man from Thailand. He first came to Australia on [date] March 2016 as the holder of a Student (Subclass 572) visa. The applicant initially presented his claims in his protection visa application in which he states, in summary, that:
·He borrowed almost a million Baht from money lenders to keep [his] business afloat. He was unable to keep up the 20% per month interest repayments to the money lenders.
·He received threats, his business was burnt, and they painted his house, stopped his car and pointed a gun at him and threatened to kill him if he could not repay the debt.
·He fears he will be killed if he returns to Thailand.
·He did not seek assistance because he was afraid and believed there might be connections between the money lenders and the government.
·He did not move elsewhere in Thailand because his family has no connections in another part of the country. Also he feels the money lenders will find him and look for the money that is owed.
·If he returns to Thailand, his life will continue to be threatened by these heartless unlicensed lenders and his life will be at stake.
·He cannot seek the protection of the authorities as he has heard many stories of people seeking help and ending up dead or with miserable lives and does not trust them.
·The situation is the same all over Thailand because the money lenders have connections.
The issues in this review are whether there is a real chance that, if he returns to Thailand, the applicant will be persecuted for one or more of the five reasons set out in s.5J(1)(a) for the purpose of s.36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Thailand, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a valid Thai passport and states that he is a national of Thailand. The delegate did not indicate any issues with the applicant’s identity or nationality. Therefore, the Tribunal is satisfied the applicant is a national of Thailand and has assessed his claims against Thailand as his receiving country.
At hearing the applicant gave evidence about his background, reasons for leaving Thailand, and fears upon return now, summarised as follows. He said he studied a bachelor’s degree [at] university in Thailand and then worked in several different positions in the [field]. He came to Australia to study in early 2016 and started [a] course after completing six months English but did not finish: he acknowledged at hearing this was because he could not afford the fees and his intention was to come here to work.
The applicant told the Tribunal at the end of 2014 he decided to establish a store selling [products] in [City 1] and borrowed money from a money lender (introduced via a friend) to do so. Specifically he borrowed 1.5 million Baht[2] – paid in cash via three instalments - at 20 per cent interest. He repaid the interest four times and then negotiated the interest rate to 15 percent. However his business was not successful, he struggled to repay the interest, and decided to flee [City 1]. He moved to Bangkok where he stayed for six months with his mother and made arrangements to study in Australia. He paid for his trip to Australia (and the financial requirements for the student visa) by selling a house he owned in Bangkok and his car. The applicant said after he stopped making the loan repayments and before he left [City 1], some men linked to the money lender visited his shop and asked him to pay. He requested more time then shut his shop and left the area. When asked if he sold the business, including any of the equipment, the applicant said it was too dangerous to do so.
[2] Equivalent to AUD61,616 as at 24 May 2021, Currency Converter | Foreign Exchange Rates | OANDA
The applicant said in Australia he has worked in various [jobs]. He sends money back via his friend to pay the interest on the loan. He thinks he currently owes around 1 million Baht[3].
[3] Equivalent to AUD41,077 as at 24 May 2021, Currency Converter | Foreign Exchange Rates | OANDA
The applicant said he wants a visa to continue to work in Australia to send money back to eventually pay off the loan and get his normal life back.
Findings in respect of the applicant’s money lender claims
The Tribunal has considered the applicant’s core claims to fear harm from a money lender (and his associates) in Thailand who he fears may harm him if he is unable to repay the loan. The Tribunal has several concerns with the applicant’s claims in this respect, for the following reasons.
First, there are inconsistencies between the applicant’s written claims in his visa application and oral evidence to the Tribunal at hearing in significant respects, including about the loan amount and the threats and problems the applicant allegedly experienced from the money lenders. Specifically in his application form the applicant stated that he borrowed around a million Baht however at hearing he said he borrowed 1.5 million Baht. Additionally, in his application form he received threats, his business was burnt, and they painted his house, stopped his car and pointed a gun at him and threatened to kill him if he could not repay the debt. However at hearing he did not indicate that he received any threats, had a gun pointed at his head, or had his house or business damaged including when asked specifically. He said the money lenders visited his shop and asked him to repay, but nothing further. When these inconsistencies were pointed out at hearing, the applicant said a friend had helped him complete the application form, based on what he told him. He was unable to adequately explain, in the Tribunal’s view, these inconsistencies, which are significant.
Second, aspects of the applicant’s oral evidence were vague and lacking in detail. For instance whilst claiming he borrowed money from a politically influential money lender in [City 1] the applicant was unable to provide any details about the money lender such as his name or explain why he was influential.
Third, there are internal inconsistencies in the applicant’s account in some respects which casts doubt on the level of fear he claims to have had whilst in Thailand in relation to the money lender. For example, on the one hand he claims he fled Thailand in 2016 because he was unable to repay his debts and feared for his life as a result. However on the other hand he told the Tribunal he did not try and sell his stock in [his] shop to repay his debt and he did not use any of the proceeds from selling his house and car to repay the debt, using the money instead to secure a student visa to Australia. At hearing the applicant said it was too dangerous to sell the stock in his [shop]: however he could have had a friend, or third party do so. He also said the money from his house and car would not have been enough to repay the loan. Whilst that may have been the case, the fact that he did not use any of that money to pay off some of the loan at the very least casts doubt on his claims to fear serious harm from money lenders.
Given these concerns the Tribunal does not accept the applicant’s claims to have borrowed 1.5 million Baht from a money lender in [City 1], Thailand in the past. It follows that the Tribunal does not accept he has been threatened (including a gun pointed at his head) or had property damaged by the money lenders when unable to repay his debt as claimed at the visa application stage. Therefore, the Tribunal finds the applicant does not face a real chance of serious harm from a money lender or their associates or anyone else because of monies owed or for any other reason on return to Thailand in the foreseeable future. His fears of persecution on this basis is not well founded.
For the reasons given above, the Tribunal is not satisfied the applicant has a well-founded fear of persecution as required by s.5J of the Act for any of the grounds advanced or that arises and therefore finds the applicant is not a refugee within the meaning of s.5H.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Thailand and the Tribunal therefore finds that Thailand is the ‘receiving country’ for the purposes of s.5(1).
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will suffer serious harm from a money lender or his associates, or anyone else on the basis of outstanding debts (or any other reason) on return to Thailand. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Thailand for these reasons.
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
CONCLUSION
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) 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.
Nicole Burns
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.
…

[2021] AATA 2064

24 May 2021

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