1815477 (Refugee)

1815477 (Refugee) [2020] AATA 4853 (29 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1815477

COUNTRY OF REFERENCE: Thailand
MEMBER:Peter Vlahos
DATE:29 October 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 29 October 2020 at 10.55am
CATCHWORDS
REFUGEE – protection visa – Thailand – physical assault – attacks by criminal gangs – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant made an application to the Tribunal to review the delegate’s decision on 28 May 2018.
On 18 September 2020, the Tribunal wrote to the applicant that it had considered all the material before it relating to his application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case at the hearing on 27 October 2020. The letter advised that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The letter also advised the applicant that if he was not able to attend the hearing, he should advise the Tribunal as soon as possible. As noted from the Tribunal’s file, the applicant did not provide the Tribunal with a mobile number to enable the Tribunal to provide further hearing reminders. As noted from the Tribunal’s file, the applicant was also sent to his mobile phone two reminders concerning the scheduled hearing on 16 October 2020 and 22 October 2020.
No response to this letter was received from the applicant and the applicant did not attend the hearing invitation scheduled for 27 October 2020. As the applicant has not responded to the invitation to attend a hearing, and has not contacted the Tribunal to explain his non-attendance or sought to engage further in the review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant claims to be a citizen of Thailand and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Thailand, that Thailand is the applicant’s country of nationality for the purposes of s.36 (2) (a) and receiving country for the purposes of the complementary protection assessment, s. 36 (2) (aa).
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s. 36 (3) of the Act.
Claims
The applicant’s claims were set out in in his application for protection visa[1] and were as follows:
§The applicant states that he fears criminal individuals in Thailand who have assaulted and threatened him.
§The applicant fears that if he returns to Thailand that these individuals will harm him and his family.
§The applicant did not seek protection from the police as he believes that they do not protect people who are not wealthy and influential.
§The applicant states that he cannot relocate as they would be able to locate him again
[1]see AAT File and Department of Home Affairs File – copy of the Delegate’s decision record
The Tribunal finds that the applicant’s claims are vague and lacking in detail.
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant’s in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material before it in relation to his application but that it was unable to make a favourable decision on the information alone. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with him and sought further information from him on a range of details relevant to his claims. For example, the applicant has not provided sufficient detail regarding his circumstances while living in Thailand concerning his difficulty with criminal individuals. The Tribunal notes from his application for protection visa which was attached to his application for review, he provides very little detail explaining as to the reasons why the applicant was unable to find protection in Thailand against these criminal individuals as he claims forced to leave Thailand to find safety in Australia.
Moreover, the applicant also claims that he had he had been unable to have the appropriate and necessary protection from these criminals while in Thailand from the Thai authorities. He does not provide examples of instances where he has sought protection from the Thai police and was not forthcoming. What were the ‘reasons’ for this failure? Were they related to any particular reason or set of circumstances as allowed for by the Act in sections 36(2)(a) or 36(2)(aa)?
Finally, the applicant claims that he feared to return to Thailand because he will face threats from these criminal individuals and will be unable either to relocate for safety or to be provided with protection as provided by the Thai civil and military authorities responsible for law and order. He considered this a threat to himself and to his family. However, again the applicant provides no substantial albeit ‘Convention reasons’ for his inability to find protection in Thailand. The applicant’s failure to attend the hearing when requested to do so, however, meant that the Tribunal had not been able to explore the applicant’s claims with him or the opportunity to seek further information about the basis on which he sought protection.
Country Information that would have been discussed with the application at a scheduled hearing
The Tribunal would also have referred to country information on Thailand from DFAT[2] in state protection. The Department of Foreign Affairs and Trade (DFAT) reports that credible and local and international sources that there is despite some corruption – a credible and functioning police force which is further aided in its work by the military and security forces. Thailand also has a functioning legal and judicial system.[3]
[2] Department of Foreign Affairs & Trade Country Report- Thailand, 10 July 2020.
[3] Ibid pp.52, 53, 54 and 55.
In-country sources report that the professionalism of the RTP (Royal Thai Police) 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.[4]
[4] Ibid at p.53
These are only a few examples of the country information the Tribunal would have discussed with the applicant if he had returned the courtesy extended to him by the Tribunal to attend the hearing and discuss his plight while also providing his comments on this information concerning the state of law enforcement in Thailand.
The Tribunal would have asked the applicant in reference to the country information which indicates the RTP had improved its operational performance in recent years as to why he was of the opinion that the RTP would not provide him with protection as he required it. The Tribunal would also have requested from the applicant his comments and thoughts to the information that the authorities have turned their attention to criminal activities in Thailand reducing to an extent the areas of control and activity by criminal gangs and individuals.
The Tribunal would have explained to the applicant that it was obliged to put information to him that addressed some of the issues he had raised in particular about the issue of law and order in Thailand. The Tribunal would have explained that it was obliged to take this into consideration this information in assessing his claims.
Considering the applicant’s individual circumstances on a cumulative basis, the Tribunal finds there is not a real chance that in the reasonably foreseeable future he would be persecuted for any reason. His fear is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Considering the applicant’s individual circumstances, the Tribunal finds that there are no substantial grounds for believing that a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand that there is a real risk that he will suffer significant harm
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2) (a).
Having concluded that the applicant does not meet the refugee criterion in s.36 (2) (a), the Tribunal has considered the alternative criterion in s.36 (2) (aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2) (aa).
There is no suggestion that the applicant satisfies s.36 (2) on the basis of being a member of the same family unit as a person who satisfies s.36 (2) (a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36 (2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
Member

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

[2020] AATA 4853

29 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Natural Justice