1815423 (Refugee)
[2021] AATA 618
•10 March 2021
1815423 (Refugee) [2021] AATA 618 (10 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1815423
COUNTRY OF REFERENCE: Thailand
MEMBER:Brendan Darcy
DATE:10 March 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 March 2021 at 5:28pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm by loan shark – assault and threats – credibility – vague and inconsistent claims and evidence – delays in relocating, departing and applying for protection – period as unlawful non-citizen – wife’s separate claim on other grounds in progress – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 1.12, Schedule 2CASES
Guo v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any 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 22 May 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 the Kingdom of Thailand (Thailand), applied for the visa on 25 January 2018. The delegate refused to grant the visa on the basis that the applicant did not have a nexus reason mentioned in s.5J(1)(a) under the refugee criteria and that the applicant did not meet the Act’s complementary protection provision under s.36(2B)(b).
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) of the Act. 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) of the Act, 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-5LA of the Act, 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed to be born on [Date] in Ayutthaya (officially Phra Nakhon Si Ayutthaya) province in central Thailand and to be a citizen of Thailand.
On Departmental file is a copy of the applicant’s valid Thai passport.
The applicant arrived in Australia [in] April 2017 while holding a Class FA Subclass 600 visitor visa which ceased on 5 July 2017.
On 6 July 2017, the applicant became an unlawful non-citizen in Australia
The applicant validly lodged an application for a Class XA Subclass 866 Protection visa on 25 January 2018. The applicant’s unlawful status ended when he was granted an associated bridging visa.
In the application for a protection visa, the applicant provided very limited written claims as to the reasons he is owed Australia’s protection obligations. In summary, it stated:
· The applicant claimed that he borrowed money from loan sharks, however the applicant could not make repayments due to the high interest rate and because of this he received death threats;
· It was further claimed that the applicant’s business was destroyed, and the applicant was assaulted;
· The applicant fears that if he returns to his country he will be kidnapped, tortured and killed;
· The applicant considered relocation before his departure but claimed to be on ‘a bounty list’; and
· The applicant stated that he cannot relocate within Thailand because there are people who work with the loan sharks and they will track him down.
No supporting or corroborative documents accompanied these written claims.
A delegate on behalf of the Minister refused to grant the applicant a protection visa on 22 May 2018.
On 26 May 2018, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. A copy of the decision record was attached to the review application.
On 29 September 2020, the applicant provided a copy of an application to the Federal Circuit Court pertaining to a third party’s protection visa application that had been reviewed by the Tribunal (submitted in error).
On 16 October 2020, the applicant attended a schedule hearing with the Tribunal via ‘MS Teams’ (an internet enabled audio-visual platform). While there were no witnesses, he was assisted by an interpreter in the Thai and English languages. At the end of the hearing, the Tribunal indicated that it would not make a decision on his case until the Tribunal had heard his spouse’s case. In the meantime, the Tribunal welcomed any further documents.
The Tribunal heard the applicant’s spouse’s protection matter on 22 February 2021. The Tribunal did not receive any further documents or submissions from either the applicant or on behalf of the applicant, right up to the time of making this decision.
Country information: Thailand
The most recent DFAT country information report on Thailand (10 July 2020) states the following about illicit money lending in that society:
Victims of Loan Sharks
3.115 In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.
3.116 So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.
3.117 DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.
ASSESSMENT CLAIMS AND FINDINGS
Country of nationality
The applicant claims to be a citizen of Thailand and provided a copy of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Thailand and that Thailand is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Member of the same family unit
The application form for this protection visa under review stated that the applicant had never married. However, the applicant informed the Tribunal at the scheduled hearing that he had been married on two occasions. He explained that he did not write that and that the forms were completed by a third person (not a registered migration agent or lawyer). The applicant elaborated that his previous marriage began when he was [Age] years of age and ended in 2007, and that from this marriage he had [children]. He further claimed that he had custody of his children who reside with his parents in Thailand. The Tribunal accepts this oral evidence to be credible.
The second marriage, it was claimed, began eight years ago but he could not remember the date of marriage or its registration. He claimed that he does not have any biological children as a result of this ongoing marriage. The Tribunal accepts this to be credible.
The applicant claims to be in a spousal relationship with a visa applicant who made a separate protection visa application and who has also appealed to the Tribunal, although their claims were separate with no overlapping dispositive claims. The applicant’s spouse’s AAT case number is 1818595. At the time of making this decision, the Tribunal has not made a decision on review application 1818595.
Accordingly, the Tribunal is satisfied this review applicant and the applicant pertaining to AAT 1818595 are in a genuine spousal relationship and that both review applicants satisfied r.1.12(1)(a) of the Regulations, in that they share membership of the same family unit with each other for the purposes of this application for review.
The Tribunal accepts that both review applicants have an interest in each other’s matter for the purposes of s.36(2)(b) or s.36(2)(c).
Credibility and other findings
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v MIEA (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, 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.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
The Tribunal accepts a number of straightforward or non-controversial aspects of the applicant’s personal circumstances, including:
·The applicant was born in [Year] in [City], as claimed;
·The applicant’s parents are retired rice farmers;
·The applicant’s parents continue to reside in [City] and he has one sibling, a brother, and no sisters;
·The applicant speaks, reads and writes in Thai and is ethnically Thai; and
·The applicant’s religion or faith tradition is Buddhist;
More critical for his claims, it accepted that the applicant is a qualified [Occupation]; had worked in a factory for as much as 12 years and that his last job or jobs before departing Thailand for Australia was as a business owner and operator of a [product] shop in [City]. This is also accepted.
Fear of illicit money lenders
At the scheduled hearing, the applicant had the opportunity to elaborate on his written dispositive claims. The applicant outlined to the Tribunal that he had borrowed up to THB1 million (Thai baht) (or about AUD43,000) from [a licenced financial institution], for his [business] which also had a [secondary business] attached and had been paying that debt down steadily.
The applicant claimed, however, that his business with a turnover of about THB1.5 million had been successful, until it was adversely impacted upon by the combination of a flood and a military coup in May 2014 and a flood in September 2014. The flood had caused damage to stock for which the applicant did not have insurance, and the curfew associated with the military coup affected his [secondary] business. Now struggling with his repayments, the applicant borrowed BHT500,000 from an illicit money lender (or loan shark), then borrowed THB1 million to repay the first debt.
The Tribunal enquired into whether the applicant paid the debts to the licenced financial institution, to which he claimed he did not and, in fact, also had a personal loan and a credit debt amounting to THB1 million. The applicant further elaborated that he was required to attend court but was not declared a bankrupt as the bank repossessed his house to recover the cost of his business loan. Prior to departing from Australia, the applicant was repaying the rest of his debt to the bank – about THB3000 per month plus interest. He claimed that he had since repaid all this debt since arriving in Australia and had no outstanding debts to any licenced financial institution back in Thai. The Tribunal asked if any of the debt to the bank was in his wife’s name or anyone else, to which he emphatically responded that the debt was only in his own name.
In parenthesis, the Tribunal accepts the applicant’s testimony about lawfully acquired debt and having repaid it all since departing Australia. It follows from this that the Tribunal is satisfied the applicant will not face a real chance of serious harm for any of the reasons mentioned in s.5J(1)(a) or a real risk of significant harm arising from owing lawfully acquired debt from any lawfully licenced financial institution or from bankruptcy, if removed from Australia for Thailand. In this regard, the applicant does not satisfy s.36(2)(a) and s.36(2(aa).
The Tribunal sought more details about the debts owing to illicit money lenders. The applicant claimed that he signed a loan agreement with a man named [Mr A] who ran a gambling business. The applicant was unable to tell the Tribunal his real or full name. He did not have a copy of the loan agreement, stating the money lender did not provide him with a copy.
The applicant elaborated that he was also a local politician. The Tribunal said if he was a politician then the applicant should know his real name. The applicant responded the money lender was an old politician and at the time of garnering the debt all that was important was money and he did not realise how powerful he was.
The Tribunal asked the exact amount the applicant owed to the money lender, to which the applicant claimed that it had now doubled to THB2 million (or about AUD86,000) due to the missed loan repayments and interest.
The Tribunal enquired into any threats or acts of harm associated with late repayments. The applicant claimed that those collecting debts for the loan shark damaged his property and physically assaulted the applicant’s person. The applicant then claimed that the assault was reported, and the assailants paid a BHT1000 fine (or about AUD50). The applicant claimed not to have kept a copy of the police report.
The Tribunal said it seems rather lenient to be merely fined a small amount of money for assault. The applicant claimed that the law was different in Thailand. At this point in the hearing, the Tribunal conducted a quick search about the penalties physical assaults attract under Thai’s criminal code and found the following:[1]
Section 295. Bodily Injury
Whoever, causes injury to the other person in body or mind is said to commit bodily harm, and shall be punished with imprisonment not exceeding two years or fined not exceeding four thousand Baht, or both.
[1] type="1">
The applicant claimed that he was only assaulted once; however his property was damaged several times and he was forced to close the business and he relocated to Phuket in southern Thailand, between one or two years prior to departing to Australia, where he worked in a [workplace] which happened to be owned or managed by an Australian.
However, while in Phuket, the applicant claimed to have been discovered by the debt collectors who continued to make threats, including death threats, if he did not repay the loan shark to whom he was indebted. As the applicant was very frightened, the applicant’s then Australian employer suggested the applicant flee to Australia to seek asylum.
The Tribunal enquired into the reasons there was a delay in his application for a protection visa given he departed Thailand with these fears. The applicant claimed he had to think carefully and had no knowledge of protection visas until he met with a third party who was not a registered migration agent or lawyer. The Tribunal enquired into the reasons he did not engage a registered migration agent or lawyer for migration advice or assistance considerably earlier given the gap between arrival in April 2017 and applying for a protection visa in January 2018. The applicant claimed that his English was poor, that there was a financial aspect to it and he had no or little computing skills.
The Tribunal enquired whether the claims that the applicant’s wife was owed Australia’s protection obligations were the same as his own; the applicant responded they were not and had nothing to do with illicit money lending. He also stated that his wife had never been the subject of any threats, harassment or harm to repay his debts to a loan shark.
The Tribunal also discussed with the applicant aspects of the country information outlined in the COISS (Country of Origin Information Services Section) Common Claims: Thailand, effective from 17 July 2019. Below is an extract:
The recently-elected government has indicated it will continue the NCPO’s (or the post-coup militiary government) focus on tackling loan-sharking. 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.[2] This was the twelfth ceremony of its type in the past year.[3] General Prawit is reported to have stated that ongoing efforts to tackle loan sharking would remain a priority of the new government.[4] To date, the post-coup government is reported to have handed back a total of 21,312 land title deeds covering Can I say something openly? I did not believe in the legal system. You may have that belief on a personal basis? But I must make an objective assessment scheme who earnt less than 15,000 baht per month.[5] As part of the scheme, the Finance Ministry plans to bring loan sharks and debtors to a negotiation process.[6]
Other key state agencies are actively seeking to combat illegal money-lenders. In September 2017, sources reported that as part of efforts to suppress exploitative loan-sharks, the Department of Special Investigation (DSI) forwarded a list of names of people in six major loan-shark networks to the Revenue Department in order to force them to pay taxes.[7] The DSI has also proceeded with criminal lawsuits against major loan shark operators demanding illegal interest rates from their borrowers.[8] Major loan shark operators targeted by the DSI are also reportedly involved in legal battles with nearly 2,000 debtors, indicating that judicial means are, not infrequently, used to settle disputes.[9]
New anti-loan shark laws were introduced in 2017, though redress for victims from the authorities remains uneven. New anti-loan shark laws were introduced in January 2017.[10] These impose stiffer penalties on loan sharks, targeting lenders charging over 15 percent interest.[11] Penalties of up to two years imprisonment and up to 200,000 baht apply, increasing for corporate loan sharks and doubled if the violator is a state official.[12] Redress for victims of unscrupulous loan-sharks appears to be uneven however. While sources indicate 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.[13] In some instances, victims have successfully used the courts to ensure they repay no more than the legal interest rate.[14] In August 2018, authorities returned hundreds of land-title deeds and other assets to debtors who had used them as collateral in dealings with loan sharks.[15] The deeds were recovered through police-brokered debt settlements between lenders and debtors.[16] In September 2018, authorities returned land assets worth 3.25 billion baht to over 1,000 Northeastern debtors who had fallen victims to loan sharks.[17] In March 2019 it was reported that 50,000 land deeds had been returned nationwide.[18]
[2] ‘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)
[3] ‘FFP needs to check its facts’, Bangkok Post, 29 June 2019, 20190702141009
[4] ‘FFP needs to check its facts’, Bangkok Post, 29 June 2019, 20190702141009
[5] ‘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
[6] ‘Loan shark debt down B20 billion’, Bangkok Post, 22 June 2017, CIS7B83941827
[7] ‘Taxman spears billion-baht loan sharks’, Bangkok Post, 16 September 2017, CISEDB50AD8517
[8] ‘Taxman spears billion-baht loan sharks’, Bangkok Post, 16 September 2017, CISEDB50AD8517
[9] ‘Taxman spears billion-baht loan sharks’, Bangkok Post, 16 September 2017, CISEDB50AD8517
[10] ‘Stiffer anti loan shark law now effective’, Thai PBS, 16 January 2017, CXC90406620744
[11] ‘Stiffer anti loan shark law now effective’, Thai PBS, 16 January 2017, CXC90406620744
[12] ‘Stiffer anti loan shark law now effective’, Thai PBS, 16 January 2017, CXC90406620744
[13] ‘Isaan loan shark tries to seize blocks of land from victims’, The Nation, 17 May 2017, CXC90406620745
[14] ‘Isaan loan shark tries to seize blocks of land from victims’, The Nation, 17 May 2017, CXC90406620745
[15] ‘Police initiative helps loan shark victims get lands back’, The Nation, 17 August 2018, CXBB8A1DA35420
[16] ‘Police initiative helps loan shark victims get lands back’, The Nation, 17 August 2018, CXBB8A1DA35420
[17] 'Govt returns assets to loan shark prey', Bangkok Post, 21 September 2018, 20190109110832
[18] 'Police return assets to debtors exploited by loan sharks', Pattaya Daily News, 31 March 2019, 20190409100854
As discussed in the hearing, the country information indicated the laws against illicit money lending and loan sharking were very strict and appear to be more rigorously employed against illicit money lenders. Furthermore, there appears to be a scheme to help debtors. The applicant responded that he did not have faith in the Royal Thai Police and the legal system to protect him. The applicant reiterated that he genuinely believed he could repay the debt but was unable to.
Cumulative credibility findings
In this decision, it is the Tribunal’s assessment that the applicant’s dispositive claims for protection lack overall credibility. This is a matter of central importance in the Tribunal's determination of this application for protection. It has reached this determination based on a number of elements arising from the applicant’s claims for protection.
Of particular credibility concern to the Tribunal has been the applicant’s otherwise vague claims about an ex-politician who is well known and powerful. The Tribunal found the overall testimony lacking in detail, not least because the applicant was unable to recall his real name or any significant details about the claimed illicit moneylender. Secondly, the Tribunal was deeply troubled by the applicant’s account that criminal debt collectors were only marginally punished for serious assault when the available country information indicates that the kind of bodily offence claimed is taken substantially more seriously by the authorities.
Another credibility concern to the Tribunal had been the applicant’s claim to have lodged a police report regarding the debt collectors’ bodily assault on his person but did not have a copy of that documentary evidence to corroborate that claim. In this regard, the Tribunal notes the applicant had ample time to submit further evidence and arguments to the Tribunal, including in a post hearing submission. However, the applicant did not respond or submit any further evidence after the scheduled hearing, further inviting the Tribunal to hold adverse credibility concerns about this applicant’s overall credibility.
The Tribunal also noted the substantial amount of time between claiming to flee [City] for Phuket and departing Thailand for about two years, indicating to the Tribunal that the applicant did not have a genuine, deep or urgent fear of persecution as claimed, in the context of other credibility concerns. Had the applicant been assaulted as claimed and was not satisfied with the degree of protection provided to him, it would have been reasonable for him to depart Thailand soon after the incident and not to have relocated in his country of reference.
The Tribunal has also considered the delay in applying for a protection visa and the reasonableness for the delay. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
As discussed in the hearing, the applicant arrived in Australia in April 2017, became an unlawful non-citizen in Australian in July 2017 and remained so until he applied for a protection visa in January 2018. That is a delay of some 10 months. While not holding the visa, the applicant risked being detained and forcibly removed from Australia to Thailand where he claimed to have a well-founded fear of persecution. When the Tribunal enquired into the reasons for the delay given he arrived in Australia to seek protection, the applicant unconvincingly claimed he had been cautious as there were financial costs, a language barrier and a lack of knowledge, including internet savvy, to applying for protection. He claimed to have no knowledge of protection visas until he met a woman called ‘[Ms B]’. That the applicant feared returning to Thailand and was unlawful for a substantial period, should have prompted him to seek professional migration advice and assistance soon after he arrived in Australia and before he risked being forcibly removed when his visitor visa expired in July 2017. The Tribunal also found it is inconsistent to claim that he did not know about protection visas when he claimed to have been advised by an Australian to depart for Australia to seek protection.
Had the applicant had a genuine, urgent or deep fear of harm arising out of his claimed circumstances about being indebted to a loan shark who employed violent debt collectors operating throughout Thailand, the Tribunal considers that the applicant would have sought to lodge a protection visa application considerably earlier, and the delay leads to a consideration that his claims in this regard are not genuine. Given the abovementioned credibility findings regarding the consistency and reliability of the applicant’s evidence, the Tribunal finds that the applicant does not for any genuine or credible well-founded fears of harm or harassment that Australia owes him protection obligations.
Based on these adverse credibility considerations on a cumulative basis, it is the Tribunal’s assessment that the applicant is not is not a credible or reliable witness and that his claims for protection lack overall credibility. It accordingly makes the following findings.
The Tribunal finds that while the applicant faced financial and economic setbacks in 2014 as a businessman for the reasons claimed and accepted above, it does not accept the applicant borrowed or owes any amount of money from or to a former politician or any other illicit money lender when his businesses fell into financial trouble. It does not accept the applicant was ever subject to physical ill-treatment and harassment or that his business was deliberately damaged by debt collectors acting on behalf of any illicit money lender. It follows from this that the applicant did not lodge any police report to the authorities or that the claimed assailants were punished by fines or any other sanction imposed by the authorities in the past. While it accepts the applicant travelled to Phuket, it does not accept he did so to avoid or evade harm by the debt collectors as claimed or that he was ever located and then threatened by debt collectors. Neither does the Tribunal accept the applicant departed Thailand to seek Australia’s protection from such claimed harm; nor the claimed explanations for the substantial delay in applying for a protection visa; nor that he genuinely continues to fear returning arising from his claimed indebtedness to an illicit moneylender.
This is because it is the Tribunal’s assessment that this set of dispositive written and oral claims for protection arising from the applicant’s indebtedness to a influential and corrupt former political figure who unlawfully lent him an amount of money he was unable to repay was fabricated solely for migration purposes and not because the applicant had a genuine fear of persecution, subjectively and objectively considered, for a reason mentioned in s.5J(1)(a) arising from the claimed indebtedness, either at the time of departing for Australia, at the time the visa application was lodged or at the time the applicant appeared at the Tribunal’s scheduled hearing.
Based on these adverse credibility findings, the Tribunal does not accept the applicant will return to Thailand to be a person of interest based on these fabricated claims about indebtedness to an illicit money lender. Therefore, it finds the applicant does not hold a genuine or well-founded fear of persecution for any reason mentioned in s.5J(1)(a) based on these claims, either in his home area or throughout his country of origin, as required by s.5H and s.36(2)(a).
Based on the same adverse credibility findings about the applicant’s claims of indebtedness, cumulatively considered, the applicant, therefore, does not satisfy the alternative complementary protection criterion set out in s.36(2)(aa).
Cumulative findings
At no stage did the applicant advance any other reasons, including those related to his race or ethnicity, his nationality, his political opinion (imputed or otherwise), his religion or any other membership of a particular social group or any other reason at all. There are no residual claims to consider in this application for review.
Based on the Tribunal’s extensive credibility concerns about the applicant’s otherwise very limited claims, the Tribunal finds that the applicant does not face a real chance of serious harm if returned to Thailand, and that the applicant would not be persecuted for one or more of the reasons mentioned in s.5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution.
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 considered the applicant's claims individually and cumulatively, for the reasons given above based on the Tribunal’s extensive adverse credibility findings and his accepted circumstances, it finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk the applicant will suffer significant harm, by way of being arbitrarily deprived of his life; the death penalty being carried out on him; that he will be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment.
Therefore the applicant does not satisfy the alternative complementary protection criterion set out in s.36(2)(aa).
As the Tribunal has not made a decision whether the review applicant pertaining to 1818595, the applicant’s spouse, satisfies s.36(2)(a) or not or whether she satisfied s.36(2)(aa), the Tribunal is unable to find that the applicant satisfies s.36(2)(b) or s.36(2)(c).
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).
At the time of making this decision, 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.
Brendan Darcy
MemberATTACHMENT - 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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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