1816710 (Refugee)

1816710 (Refugee) [2020] AATA 4366 (13 August 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816710
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Vlahos
DATE OF DECISION:  13 August 2020
DATE CORRIGENDUM
SIGNED:29 October 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

·     At paragraph 5, the phrase ‘his mobile phone’ which appears twice in the paragraph, should be deleted and replaced with the phrase ‘her mobile phone’;
·     At paragraph 6, the word ‘his’ should be deleted and replaced with the word ‘her’;
·     At paragraph 14, the word ‘his’ should be deleted and replaced with the word ‘her’;
·     At paragraph 16, the word ‘his’ should be deleted and replaced with the word ‘her’;
·     At paragraph 19, the word ‘his’ should be deleted and replaced with the word ‘her’;
·     At paragraph 22, the word ‘he’ which appears twice in the paragraph, should be deleted and replaced with the word ‘she’;
·     At paragraph 22, the word ‘his’ should be deleted and replaced with the word ‘her’;
·     At paragraph 23, the word ‘he’ should be deleted and replaced with the word ‘she’.
Peter Vlahos
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1816710

COUNTRY OF REFERENCE: Thailand
MEMBER:Peter Vlahos
DATE:13 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 August 2020 at 12.41pm

CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – alleged theft of business funds – threats to the applicant’s family – fear of killing – fear of physical assault – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, 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 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 24 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 Thailand, applied for the visa on 16 January 2018. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the applicant’s decision on 4 June 2018.
A hearing of the applicant’s application for review [via telephone] of the delegate’s decision by the Tribunal was scheduled for 4 August 2020.
On 28 July 2020 the applicant was sent by the Tribunal a SMS reminder message on his mobile phone concerning the scheduled date of the hearing. Again, on 3 August 2020, the Tribunal sent the applicant a further SMS reminder message to his mobile phone and received no message response stating that the message had not been received.
On the day of the scheduled hearing, the Tribunal attempted to contact the applicant but again was unable to connect. The applicant’s number provided to the Tribunal was called at 8.47 am and 9.51 am but no response was forthcoming. No response was received from the applicant and the applicant did not make any effort to answer the hearing invitation scheduled for 28 July 2017. 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 Malaysia and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia 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. The applicant’s claims for protection are summarised below:
·The applicant states that she came to Australia for a holiday. However, the person who had taken over her duties at work, discovered that there had been a lot of money withdrawn from the “procurement budget” which had been signed and authorised with the applicant’s signature.
·The applicant claims that her signature had been forged.
·Consequently, the owner of the company now believes that the applicant stole the money and left the country, with the stolen money.
·The owner of the company then threatened the applicant’s husband and son. He sent men to assault the applicant’s husband. The applicant’s husband was also told that if the money was not returned that they would kill the applicant.
·The applicant states that the owner of the company is a very wealthy man. He has a lot of control over the police and other authorities. It would be of no assistance to go to the police for help.
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 her 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 her and sought further information from her on a range of details relevant to his claims. For example, the applicant has not provided sufficient detail regarding the ‘alleged’ forgery of her signature on a document allowing moneys to be loaned from her employer’s company. The applicant has not provided the sum total that was allegedly ‘stolen’. Also, for example, the applicant has not stated as to how she found out that her signature had been forged or what steps did she take in trying to protect her innocence before leaving Thailand.
Moreover, the applicant also claims that she had sought help from the Thai police and other authorities in Thailand but was not assisted or protected because her employer was a very influential person was ‘very powerful’ and that the police and military would intervene against him. The applicant provided little evidence and detail as to how members of her family were threatened by her employer and when this occurred. Also, the applicant did not provide any explanation as to why after arriving in Australia ‘allegedly fleeing persecution in Thailand from her employer’ [in] January 2018 it took her three months to seek protection from the Australian authorities.
Also, the Tribunal would have had the opportunity if the applicant had attended the hearing to seek an explanation as to why her ‘written submission’ provided to the Department and to the Tribunal was similar in content and claims as others provided to the Tribunal by other Thai nationals claiming similar issues as that of the applicant and seeking like the applicant Protection from Australia.
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 Migration 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
Conclusions
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).
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 4366

13 August 2020

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice

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