1812116 (Refugee)

[2020] AATA 4846

1812116 (Refugee) [2020] AATA 4846 (12 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1812116

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Jason Pennell

DATE:12 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2020 at 10.31am

CATCHWORDS

REFUGEE – protection visa – Thailand – particular social group – person who is threatened by a money lender – guarantor of a loan – physical assault – fear of killing – attacks by loan sharks – state protection – inconsistent evidence – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 91
Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423

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

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 April 2018 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant, who claims to be a citizen of Thailand, applied for the visa on 6 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

3.The applicant appeared before the Tribunal on 8 October 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone, determining it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4.The hearing was assisted by an interpreter in the Thai and English languages. The Tribunal was satisfied that the applicant understood the interpreter and questions to her during the course of the hearing and note that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding questions during the hearing.

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

RELEVANT LAW

1. 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).

2. 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.’

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   [1] s.91R(1)(b)

   [2] s.91R(1)(c) of the Act

6. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]

   [3]    s.91R(1)(a) of the Act

8. Fourth, 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. 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.

9. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

10. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4]  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[5]

Mandatory considerations

[4]    s.5(1) of the Act

[5]    s.36(2B) of the Act

1. 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.

Identity and country of reference

1. In her application for protection lodged with the Department on 6 December 2017, the applicant stated she was born in Uttaradit Province, Thailand in [year], and that she is of Thai ethnicity. The applicant did not record any details of religion. The applicant noted she can speak, read and write Thai and English. She stated she has never been married or in a de facto relationship.

2. The applicant provided the Department with a certified copy of her Thai passport, which confirms her evidence to the Tribunal in relation to her date and place of birth. Therefore, based on the applicant’s passport, the Tribunal finds the applicant is a citizen of Thailand.

3. There is no further evidence before the Tribunal to suggest that the applicant has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the Tribunal finds that the applicant is a citizen of Thailand and that as such her protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.

Migration history

1. The applicant first arrived in Australia [in] April 2015 as the holder of a [Student] visa, granted to her offshore on 31 March 2015. On 8 November 2015, the applicant’s Student visa ceased, making her unlawful. On 6 December 2017, the applicant applied for Protection.[6]

Claims for protection

[6]    Protection Visa Decision Record dated 18 April 2018; [file and document number]

1. The applicant’s claims for protection are contained in her responses to questions on the protection visa application form, lodged 6 December 2017.[7]

   [7]    [file and document number]

   Why did you leave that country/those countries?

   ‘I am [name] I came from Uttaradit Thailand and I came to Australia seeking refuge amd protection from my home in Thailand as I am currently under threat and in danger. I have been harassed sexually and was assaulted and i was mugged in broad daylight. It happened when some of my friends who were very poor owed some bad people some money. when we went out for the night the people who came to collect the money tried to beat my group of friends, they found my id card and know who i am and have since been sending threats that if my friends do not pay the money i will have to. so they starting threatening me that they would beat me up and my family and take all our belongings, my friend was in the hospital barely surviving as he was beaten up that bad by the people who he owed money to. That is the reason why i left Thailand to come to Australia’

   What do you think will happen to you if you return to that country/those countries?

   ‘If i were to go back to my home country they would most likely know that i have re-entered the country as they are rich people who are very influential. and the threats to me and those around me would start again. I am scared that they would kidnap me and beat me up and possibly even kill me.’

   Did you experience harm in that country/those countries?

   ‘Yes. I have experienced lots of harm in Thailand from being sexually assaulted from people when I go out with my friends. I received threats from the people my friend owes money t they would beat me up and take everything from me. Someone tried to mug me one day. And I was almost beat up during the people beating my friends up to collect money.’

   Did you seek help within that country/those countries after the harm?

   ‘Did not seek help as I am just a nobody in Thailand. I have no money or power and the people who are threatening me are very influential and rich so if I reported to the authorities, they would most likely be bribed with money and they would beat me up.

   Did you move, or try to move, to another part of that country/those countries to seek safety?

   ‘No. No I cannot move to another place in my country as the people still think I have money to pay them so if I try to move they would know since they have lots of connections and would hunt me down and beat me up and abduct me for trying to leave as I am just a nobody in my home.’

   Do you think you will be harmed or mistreated if you return to that country/those countries?

   ‘Yes. If I return to my home in Thailand, I would get beat up and kidnapped as the people there do not like people leaving the country. So when I return they would start to threaten me and beat me up and would most likely target my family also that is why I cannot return to Thailand.’

   Do you think the authorities of that country/those countries can and will protect you if you go back?

   ‘No. No the authorities would not protect me as they are easily influenced by the money and power from the people that are targeting me and instead of helping me they would help my enemies as they will be bribed and influenced by money.’

   Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?

   ‘No. No I cannot relocate within the country as they do not like people leaving from where they are so if I do they would hunt and track me down beat me up and most likely kill me and then would go after my family and friends. It was a risk to come to Australia, so I beg that your kind government allows me to stay and grant me your protection.’

2. The delegate summarised the applicant’s claims as follows:

   (a)The applicant claims that she will be killed by moneylenders if returned to Thailand because her friends have borrowed money from them and cannot repay them.

   (b)She fears being physically harmed and/or killed by her friends’ assailants.

   (c)She claims that the police will not provide her with adequate assistance.

Applicant’s Evidence at hearing

1. The applicant’s evidence was that she was born on [date] in born in Uttaradit Province, and that she is ethnic Thai. Despite claiming in her application for protection that she can speak, read and write Thai and English, the applicant’s evidence to the Tribunal was that she not able to speak English. The applicant claims that she is not married.[8]

   [8] Applicants Protection Visa application dated 6 December 2017; [file and document number]

2. The applicant evidence was that her parents remain living in Uttaradit Province, Thailand. Prior to leaving Thailand, the applicant continued to live with her parents. Her mother and father both work as farmers. The applicant stated that she had [specified siblings]. One has passed away and the other continues to live in Uttaradit Province and works as [an occupation].

3. The applicant was educated in Thailand and completed her secondary school in Uttaradit Providence in [year]. Her evidence was that she attended [at a named] University where she completed a [specified] course. 

4. In her protection visa the applicant claimed that she has never been employed, having been “supported by parents” in Thailand until departure, and living off savings since arrival in Australia. However, her evidence to the Tribunal was that after she completed her University course, she was employed by [a service] company known as [name] for three (3) years. Her responsibilities included the issuing of [services] and the receipt of money in relation to [these services].   

5. The applicant’s evidence to the Tribunal was that she came to Australia because she did not feel safe in Thailand. The applicant claimed that a friend, known as [name], had borrowed THB 500,000.00 (approximately $AUD22,410.00)[9] from a money lender for which the applicant had guaranteed the repayment money. The applicant’s evidence was that her friend at the time of the loan worked in a factory in Randong Provence. The applicant claimed that her friend had borrowed the money to open a [business] in Uttaradit Providence. She said that her friend did not repay the money and, as a result, the money lender had threatened and harassed the applicant and her family for repayment of the loan.

   [9]  Calculated as at 8 October 2020 at the rate of 1.00 Thai Baht = 0.045 Australian Dollar

6. The applicant’s evidence was that her friend had opened a [business] as claimed and that she had [attended as a customer]. Her evidence was that it was not very good and, as a result, the business failed after approximately 2 years. The applicant’s evidence was that about one (1) year prior to her departure for Australia, two representatives of the money lender visited her at work demanding the repayment of the loan. She tried to contact her friend, but she avoided her by not answering her calls and deleting her social media. In addition, the applicant claimed when she visited her friend’s house she was told she had moved away. 

7. The applicant claimed that the money lender threatened to harm her if she did not pay the money. When asked how they knew where she worked the applicant’s evidence was that they ‘asked around.’ The applicant claimed that the money lender’s representatives attended her work and at home approximately eight (8) times demanding the money. She claimed that they had approached her parents to pay the money on her behalf. Her evidence was that that they pulled her by the arm and threatened her but otherwise did not physically harm her.

8. The applicant was not able to provide any documentary evidence of the loan or of the loan guarantee after she had commenced work at the [service] company, she was not able to provide any specific date upon which she signed the document. In addition, the applicant was not able to tell the Tribunal the name of the lender or the identity of the lender’s representatives. Finally, the applicant did not provide any supporting evidence from her family, her friend or any former work colleges in support of her having executed the guarantee and being threatened as claimed.

9. Finally, the Tribunal notes that the applicant’s evidence was different to that claimed in her application. When put to the applicant she did not offer any explanation as to why her evidence to the Tribunal was different to her claims as detailed in her application.

1. The applicant claims that she fears she will be seriously or significantly harmed if she returns to Thailand.

COUNTRY INFORMATION

1. The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the DFAT report on Thailand dated 10 July 2020 (‘the DFAT Report’).[10] Annexure A of this decision contains extracts of those parts of the DFAT report upon which the Tribunal has relied in this decision. 

   [10] DFAT Country Information Report Thailand 10 July 2020 

CONSIDERATION OF CLAIMS AND EVIDENCE

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

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[11]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[12]

   [11] s.5AAA Migration Act 1958.

   [12]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [13]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

Delay

[14]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[15] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[16] 

   [15] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [16] Subramanium v MIMA (1998) VG310 of 1997.

2. In this case, the applicant arrived in Australia [in] April 2015 on a student visa which expired on 18 November 2015. The applicant then remained in the country unlawfully until making application for a protection visa on 6 December 2017. A delay of approximately two (2) years and eight (8) months. The applicant claims that she was not aware that she could make a protection visa application upon her arrival in Australia. However, the Tribunal notes the applicant’s evidence that she had been threatened by the money lender prior to her departure for Australia, but nevertheless she had engaged an agent to obtain her student visa to travel to Australia. As such, the Tribunal does not accept that she was not aware or not able to become aware that she could make an application for protection upon her arrival in Australia. Therefore, the Tribunal finds the applicant’s delay of two (2) years and eight (8) months in making an application for a protection visa, in circumstances where she claimed fear occurred prior to her arrival in Australia, is excessive.

3. Therefore, given the excessive delay in making a valid protection visa application from the date of his arrival in Australia, the Tribunal has placed little weight on the applicant’s evidence in relation to her claims.

Applicant’s Refugee Claim

Relevant Grounds

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

2. The applicant did not make any specify submission in relation to her claim falling within the scope of s.5J(1)(a) of the Act. However, the Tribunal concedes that it is open to the applicant to claim that he falls within the scope of s.5J(1)(a) of the Act by reason of his membership of a particular social group.  That is, as a person who is threatened to be harmed by a money lender if she is returned to Thailand.

3. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.[17] In this case, the applicant claims that she guaranteed a friend’s loan with the moneylender for the purposes of financing a  [business]. The Tribunal has reservations that threats by a moneylender to the applicant as guarantor for the repayment of her friend’s loan represents a common element or characteristic that unites the applicant with a group and sets it apart from society at large. Nevertheless, the Tribunal is prepared, for the purposes of this decision, to accept that the applicant is a member of a particular social group pursuant to s.5J(1)(a) of the Act.

Applicant’s well-founded fear.

[17]   Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

1. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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.[18]

   [18] Chan Yee Kin v MIEA (1989) 169 CLR 379

2. In this case, the applicant claims that she will be harmed by a moneylender if she is returned to Thailand. That is, she claims there is a real chance she will be seriously harmed by the money lender if she returns to Thailand. For the reasons expressed below, the Tribunal has serious concerns about the applicant’s evidence in relation to the harm she claims she will suffer if she returns to Thailand and, accordingly, does not accept that the applicant holds any fear of returning to Thailand on a subjective or objective basis.

Accepted Facts

1. Based on the applicant’s evidence and the documentary evidence provided to the department and the Tribunal, the Tribunal finds that:

   (a)The applicant was born on [date] in born in Uttaradit Province,

   (b)The applicant is ethnic Thai.

   (c)The applicant is not married.

   (d)The applicant’s parents remain living in Uttaradit Province, Thailand together with her brother. 

   (e)The applicant was educated in Thailand and completed her secondary school in Uttaradit Providence in [year] and completed a [specified] course [at a named] University. 

Applicant’s Claim as a Refugee

1. The applicant claimed that if she returned to Thailand there is a real chance she would be seriously harmed by a moneylender who she could not identity for the Tribunal. The applicant did not present to the Tribunal as a credible witness as she appeared to have embellished or fabricated much of her evidence to strengthen her claim for protection.  The Tribunal accepts that generally an applicant, due to issues of distance or the passage of time, may have difficulty in recalling all the details of their claim or have trouble in obtaining the necessary evidence to support of his or her claim. However, in this case, the applicant’s evidence to the Tribunal was completely different to that claimed in her application for protection. When this was put to the applicant, she offered no explanation. In addition, she was unable to provide the Tribunal with any supporting evidence in relation to her claim. The applicant’s protection application refers to the fact that she is in regular contact with her family in Thailand. However, notwithstanding her evidence that her parents were also threatened by the moneylender’s representatives, there was no statement by them in support of her claim.

2. The applicant did not provide any documentation evidencing the loan and/or guarantee as claimed. She claimed that her friend had presented the guarantee for her to sign and taken it away. However, the Tribunal finds it unlikely that a person who claims that she received a Tertiary education and was employed in a commercial organization, dealing with commercial agreements, would execute such a document without taking advice and without taking a copy of the document as claimed. In addition, the Tribunal finds it unlikely that a person would execute a guarantee in circumstances where they are aware they could not afford to repay the loan if required.  

3. Finally, despite her claims that she was threatened 8 times prior to coming to Australia, the applicant was not able to identify or name the money lender or any of the representatives said to have threatened her.

4. Therefore, based on the vague nature of the applicant’s evidence, her lack of detail and supporting evidence in relation to the loan and guarantee and the threats as alleged, and the fact that the applicant’s evidence was contrary to her protection claim as set out in her application, the Tribunal does not accept that the applicant executed any guarantee as claimed.  Accordingly, it does not accept that the applicant was threatened by a moneylender as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Thailand by a money lender as claimed.

5. In her application for protection visa, the applicant claimed that the reason she left Thailand for Australia was because she was under threat and in danger of having been sexually harassed, assaulted and mugged in broad daylight. The applicant claimed that some of her friends, who were were poor, owed ‘some bad people money’. She claimed that when they went out for the night some people came to collect the money and tried to beat up her friends. She claimed they found her ID card and, as a result, started threatening her and her family. Given that the applicant did not provide any evidence to support her claim as detailed in her application for protection, the Tribunal does not accept the applicant was sexually harassed, assaulted and mugged in broad daylight as claimed. In addition, it does not accept that she was under threat and in danger as a result of her friends having owed money to bad people as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she is returned to Thailand as a result of her friends having owed money to ‘bad people’ as claimed in her protection visa application.

Access to state protection

1. In the event that the Tribunal accepts that the applicant did execute the guarantee and was threatened by a moneylender as claimed (which it specifically does not), then having considered the available country information the Tribunal finds that the applicant would be able to obtain effective protection to the extent that there would be no real chance that she would be seriously harmed in the event that she returned to Thailand.

2. The country information[19] provides that money lender or loan shark activities have been a persistent and deep-rooted feature in Thailand for several decades. Household debt is a major issue, with households finding it increasingly difficult to keep up with payments.[20] It reported[21] that, the three most-cited loan sources were commercial banks (36.4 per cent), finance/leasing companies (16.7 per cent) and loan sharks (15.3 per cent). As a result, a large percentage of  Thais engage in loan shark lending. Its reported that typically they utilise their land ownership deeds or assets, such as vehicles, as collateral for such loans and lose them if they are unable to pay high interest rates.[22]

   [19] Department of Home Affairs, Common Claims, Thailand, Country of Origin Information Source Service (COISS Effective from 17 July 209.   

   [20]    'As debt levels rise, more Thais struggle to keep up', Orathai Sriring, Satawasin Staporncharnchai , Reuters, 30 August 2018, 20190409105446

   [21] 'Three-quarters of Bangkok residents are in debt, says survey', The Nation, 10 October 2018, CXBB8A1DA36579

   [22] 'Loan shark victims line up for deeds ', Bangkok Post, 01 March 2019, 20190409102055

3. However, in Thailand an organisation known as National Council for Peace and Order (NCPO) actively worked to eliminate loan sharking operations.[23] There is also a government subsidy and welfare scheme available to borrowers aimed at helping them to repay money owned to illegal lenders. Its estimated that there is approximately 70 billion baht owed to illegal money lenders.[24] The NCPO has secured the support of two state-owned banks (the Government Savings Bank and the Bank of Agriculture and Agricultural Cooperatives) funds to help lenders repay outstanding loans to illegal money lenders.[25] The loans were made available to registrants in the welfare and subsidy scheme who earnt less than 15,000 baht per month.[26] As part of the scheme, the Finance Ministry plans to bring loan sharks and debtors to a negotiation process.[27]

   [23] ‘Loan shark debt down B20 billion’, Bangkok Post, 22 June 2017, CIS7B83941827. The NCPO was the official name of the junta who assumed power after the 2014 coup (COISS comment).

   [24] ‘Loan shark debt down B20 billion’, Bangkok Post, 22 June 2017, CIS7B83941827

   [25] ibid

   [26] ‘Loan shark debt down B20 billion’, Bangkok Post, 22 June 2017, CIS7B83941827; ‘Ministry aids banks in loan shark fight’, Bangkok Post, 19 August 2017, CISEDB50AD8516

   [27] ibid

4. In addition, in September 2017, the Department of Special Investigation (DSI) provided the names of people involved in 6 of the major illegal money lending networks to the Revenue Department in order to force them to pay taxes.[28] In addition the DSI  issued criminal suits against the major illegal money lenders.[29] It reported[30] that DSI has been involved in legal disputes with illegal money lenders in relation  to approximately 2000 borrowers approximately, that it has been a frequent and effective method of resolving borrowers disputes with the illegal money lenders .[31]

   [28] ‘Taxman spears billion-baht loan sharks’, Bangkok Post, 16 September 2017, CISEDB50AD8517

   [29] ibid

   [30] Department of Home Affairs, Common Claims, Thailand, Country of Origin Information Source Service (COISS Effective from 17 July 209

   [31]    ‘Taxman spears billion-baht loan sharks’, Bangkok Post, 16 September 2017, CISEDB50AD8517

5. In January 2017 the Debt Collection Act (DCA) was introduced anti-loan shark laws.[32] The DCA imposed stiffer penalties on illegal money lenders, targeting those lenders who charge over 15 percent interest.[33] The penalties include up to two years imprisonment and up to 200,000 baht and increase for corporate loan sharks and doubled the lender is a state official.[34] While its reported[35] that that some debtors have successfully petitioned local officials to mediate fair outcomes with money-lenders, others indicate that many debtors have been unable to recoup lost collateral and assets.[36] As a result, its reported that  the benefit to borrowers appears to be mixed. Nevertheless, borrowers have successfully used the courts to ensure they repay no more than the legal interest rate.[37] Authorities returned hundreds of land-title deeds and other assets to debtors who had used them as collateral in dealings with loan sharks.[38] The deeds were recovered through police-brokered debt settlements between lenders and debtors.[39] In March 2019 it was reported that 50,000 land deeds had been returned nationwide.[40]In late June 2019, Deputy Prime Minister Prawit presided over a ceremony in Lop Buri in which 1,704 land title deeds worth more than 2.3 billion baht were returned to local residents.[41] This was the twelfth ceremony of its type in the past year.[42] Deputy Prime Minister Prawit is reported as having stated that dealing with illegal money lending is a priority of the government.[43] It claimed that the government  has handed back a total of 21,312 land title deeds covering 59,000 rai of land, and worth 30.6 billion baht to debtors nationwide, according to Prawit.[44] Well-known critics of the government have however expressed scepticism over these numbers.[45]

   [32] ‘Stiffer anti loan shark law now effective’, Thai PBS, 16 January 2017, CXC90406620744;  Bangkok Post Corporate Counsellor Column by Koranathip Samransamruadkit & Alongkorn Tongmee dated 21 August 2015; Department of Home Affairs, Common Claims, Thailand, Country of Origin Information Source Service (COISS Effective from 17 July 209

   [33] ‘Stiffer anti loan shark law now effective’, Thai PBS, 16 January 2017, CXC90406620744

   [34] ibid

   [35] Department of Home Affairs, Common Claims, Thailand, Country of Origin Information Source Service (COISS Effective from 17 July 209

   [36] ‘Isaan loan shark tries to seize blocks of land from victims’, The Nation, 17 May 2017, CXC90406620745

   [37] ‘Isaan loan shark tries to seize blocks of land from victims’, The Nation, 17 May 2017, CXC90406620745

   [38] ‘Police initiative helps loan shark victims get lands back’, The Nation, 17 August 2018, CXBB8A1DA35420

   [39] ibid

   [40] 'Police return assets to debtors exploited by loan sharks', Pattaya Daily News, 31 March 2019, 20190409100854

   [41] ‘ FFP needs to check its facts’, Bangkok Post, 29 June 2019, 20190702141009. 2.3 billion baht equates to approximately AUD 107 million as at publication date – see < (Accessed 3 July 2019)

   [42] ‘FFP needs to check its facts’, Bangkok Post, 29 June 2019, 20190702141009

   [43] ‘ibid

   [44] ‘ ibid. 30.6 billion baht equates to approximately AUD 1.4 billion as at publication date – see < (Accessed 3 July 2019). One rai is approximately 0.4 of an acre.

   [45] ‘ISOC, loans and claims’, Political Prisoners in Thailand, 28 June 2019, 20190705110112

1. The applicant claims that she would not receive protection for the police. However, the country information reports that that while the professionalism of the Royal Thai Police Force (RTP) varies across its branches, in general it provides a higher standard of law enforcement that other regional police services. It’s reported that, in recent years, police have actively disrupted powerful loan shark syndicates. In December 2016, Thai police broke up the country’s biggest loan shark syndicate[46] which reportedly had 86 branches across the country. It was claimed that it had been assisted by over 1,000 state officials[47] and charged up to 300 per cent in annual interest.[48] Millions of baht worth of assets from the syndicate’s leader were seized or frozen.[49] In addition its reported that there are ongoing arrests of illegal money lenders with the return of assets including cash as well as land deeds to debtors taking place across a number of provinces.[50] 

   [46] ‘Thai police bust massive loan shark racket’, Inquirer, 23 December 2016, CX6A26A6E15538

   [47] ‘ibid

   [48] ibid

   [49] ‘Biggest loan shark surrenders, held in custody’, Bangkok Post, 17 January 2018, CIS7B839419465

   [50] 'B1bn in assets seized in fraud, loan shark busts', Bangkok Post, 23 February 2019, 20190409104057

2. Therefore, having considered the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that, if it did accept that the applicant was threatened by a money lender or a loan shark as claimed, effective protection measures are available in Thailand by the State[51] and that the State is able and willing to provide such protection.[52] The applicant can access the available protection and the protection provided is durable.

   [51] s.5LA(1)(a) of the Act

   [52] S.5LA(1)(b) of the Act

3. From the available country information the Tribunal finds that Thailand has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[53] Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as a victim of a money lender as claimed  or any related claim or any other reason.

   [53] S.5LA(2)

4. Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant as a victim of a money lender or a loan shark.

5. Therefore, having considered the applicant’s claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution if she returns to Malaysia and finds that the applicant does not satisfy s.36(2)(a).

Complimentary protection

1. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, 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'. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.

2. The Tribunal has not accepted the applicant’s evidence that she executed a guarantee for a friend’s loan to a money lender prior to departing for Australia. In addition, the Tribunal has not accepted the applicant’s evidence in relation to the alleged threats of harm by the moneylender to her and her family. As such, the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s.36(2A)(c) and (d) of the Act. The Tribunal finds that there is no real risk the applicant will be significantly harmed as a result of having borrowed money from a moneylender as claimed.

3. However, in circumstances where the Tribunal accepts the applicant did execute the guarantee for a friend’s loan to a money lender as claimed (which the Tribunal specifically has found she did not), then pursuant to s.36(2B) of the Act there is no real risk of significant harm if the applicant can ‘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’[54] To satisfy s.36(2B)(b)[55], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[56] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[57] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, section 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.

   [54] s.36(2B)(b) of the Migration Act 1958

   [55] MIAC v MZYYL (2012) 207 FCR 211

   [56] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.

   [57] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

4. Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state and other authorities available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the authorities and the Royal Thai Police will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Thailand, protection such that there would not be a real risk that she will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Thailand and does not satisfy s.36(2)(aa) in this regard.

5. In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to  her receiving country, that there is a real risk that they will suffer significant harm of any kind.

6. At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.

7. Having considered his claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to  Thailand that there is a real risk she will suffer significant harm, including that she will be arbitrarily deprived of her life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).

CONCLUSION

1. 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 the Act for the reasons mentioned in s.5J(2). Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

2. 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).

3. There is no suggestion that the applicant satisfies s.36(2) based on being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Jason Pennell

Senior Member

Annexure A

Royal Thai Police (RTP)

1.1The Royal Thai Police (RTP) is the national police force of Thailand. The RTP   has an estimated force strength of between 220,000-230,000, of whom more than 90 per cent are male. Headquartered in Bangkok, the RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility. The PPD is divided into nine regions that cover all of the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas). Other RTP bodies include the Central Investigation Bureau (CIB), which assists the RTP’s provincial and metropolitan components in preventing and suppressing criminal activity and in minimising threats to national security; the Narcotics Suppression Bureau; the Police Education Bureau; the Tourist Police Bureau; and the Immigration Bureau.

1.2In October 2018, a new 1,600-strong police unit was created to provide security to the royal family, carry out the king’s ‘royal wishes’, and collect information on ‘individuals and groups whose behaviours pose a threat to national security and the monarchy’. Initially known as the Special Service Division, the new unit’s name was changed in January 2019 to the Ratchawallop Police Retainers, King’s Guards 904.

1.3In-country sources report that the professionalism of the RTP varies considerably across its various branches, but that in general the RTP provides a higher standard of law enforcement than other regional police services. The CIB has reportedly improved considerably in relation to crime scene preservation, forensics and disaster victim identification; while other branches have performed well in relation to combating child exploitation and human trafficking (see relevant sections).

1.4A number of factors combine to limit the RTP’s performance, however.        Historical mistrust between the military and police was a contributing factor in the NCPO’s decision to grant the RTA policing powers (see previous section), which has weakened the RTP’s authority. Policing remains very regionally focused and there is no national database or central registry for court results. Changes in laws and procedures are not always communicated to officers on the ground. There remains a ‘response’-focused mentality towards investigating crimes that have already occurred, rather than implementing robust preventative measures. A culture of patronage and nepotism results in some promotions and desirable postings going to those who can afford to ‘purchase’ them. Police at junior levels are low-paid and have to provide much of their own equipment, including their own guns. Some therefore supplement their income through ‘moonlighting’ as security for bars, while some become involved in activities such as trafficking. The mandatory retirement age of 60 increases the incentive for officers to make money from their position while they are able to do so. There have been a large number of high-profile Corruption prosecutions against serving police officers, and frequent reports of abuse by police against prisoners and detainees, generally with impunity. Human rights observers report that most Thais do not hold the RTP in high esteem as an institution.

1.5Individuals can file complaints of police abuse directly with the superior of the accused police officer, with the Office of the Inspector General, or with the police commissioner general. The NHRCT, the Lawyers’ Council of Thailand, the Office of the National Anticorruption Commission, the Supreme Court of Justice, the MOJ, the Office of the Prime Minister, and the Office of the Ombudsman also accept complaints of police abuse and corruption. Human rights observers report that few complaints alleging police abuse result in punishment of alleged offenders, however, and there have been numerous examples of investigations lasting years without resolution. Human rights groups have criticised in particular the superficial nature of police and judicial investigations into incidents of alleged Torture and other mistreatment by security forces, and reported deficiencies in official investigations into Deaths in Custody. In-country sources also report that they are seeing a pattern in which police who have been accused of abuses have responded by bringing defamation charges against the victims (see also Torture).