1817379 (Refugee)

[2022] AATA 1346

1817379 (Refugee) [2022] AATA 1346 (30 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817379

COUNTRY OF REFERENCE:                   Thailand

MEMBER:K. Chapman

DATE:30 March 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 March 2022 at 9:11pm

CATCHWORDS

REFUGEE – Protection visa – Thailand – fear harm from the former boyfriend – an unlawful non-citizen – support for the monarchy –better economic opportunities – misuse the Student visa pathway to remain in Australia – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

1. 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 applicants protection visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

   BACKGROUND

2. The Tribunal has obtained the following background information from the visa application, evidence presented to the delegate by the applicants, the decision of the delegate (provided to the Tribunal by the applicants) and the applicants’ evidence submitted to the Tribunal (including their evidence at hearing).

3. The applicants, who claim to be citizens of Thailand, applied for the visas on 9 January 2017. The first named applicant made written claims concerning her former boyfriend (also referred to elsewhere as an ex-husband) in Thailand mistreating her, including making attempts on her life. Both applicants also claim that this former boyfriend attacked them with a knife in a restaurant in Bangkok and the second named applicant also claimed in writing their residence was shot at by him. They both purportedly fear harm from the former boyfriend, who is a member of the Thai Army with relatives in the Thai Police. The delegate refused to grant the visas on the basis that State protection was available to the applicants if they return to Thailand.

4. The applicants told the Tribunal at hearing that their last interaction with the former boyfriend was in 2008, during the purported restaurant attack in Bangkok. Thereafter, they moved to the second named applicant’s family residence in Udon Thani and lived without incident for the next five years. Both applicants expressly confirmed to the Tribunal that the former boyfriend had not interacted with them since they departed Bangkok in 2008. On [date] September 2013, the applicants became married. On [date] November 2013, the applicants arrived in Australia as the holders of Student visas. The first named applicant was the primary holder, and her husband the secondary, of those visas. The eldest child of the applicants’ remains resident in Thailand with the maternal grandmother. They reside in the same Thai village as the former boyfriend, however according to the applicants he has not bothered them.   

5. The applicants confirmed to the Tribunal that the first named applicant ceased study after approximately six months in Australia and then commenced full time work on a farm in [Region 1]. The second named applicant also worked on that farm. The applicants confirmed they remained in Australia unlawfully for a significant period following the expiry of their Student visas and were also aware they continued to work in Australia without permission to do so. The applicants did not apply for protection visas until 9 January 2017. They were unlawfully in Australia at that time and subsequently each obtained a Bridging Visa C.

6. The applicants applied for review of the delegate’s visa refusal decision on 14 June 2018, providing a copy of that decision to the Tribunal with their application for review. They also submitted material relating to Bridging Visa matters and the birth of a child in Australia on [date] (the second child of the applicants’). The Tribunal notes that this child was born after the primary decision of the delegate and therefore is not a party to the present review.

7. The applicants appeared before the Tribunal in person on 14 March 2022. They confirmed to the Tribunal that they were comfortable proceeding with the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages, with the applicants confirming they understood the interpreting service. Each applicant confirmed at the conclusion of the hearing they had no further evidence to provide to the Tribunal.

8. Following the hearing, the applicants submitted identity documents and a Freedom of Information (FOI) request lodged by a law firm on their behalf. The Tribunal notes that this firm has not been appointed as the representative of the applicants, nor have any substantive post-hearing submissions been made. On balance, the Tribunal is satisfied it is appropriate to make its decision on the material before it, in the absence of any substantive post-hearing submissions or requests from the applicants to submit further material.

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

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

15. ‘Significant harm’ for these purposes is exhaustively defined in the Act: s.36(2A) and s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Relocation

17. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

18. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Mandatory considerations

19. 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

    Country of reference

20. According to the protection visa application, the applicants claim to be citizens of Thailand. Given the personal details provided in the visa application, the Tribunal is satisfied the applicants are indeed Thai nationals. Thailand is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.

21. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

22. The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Thailand, there is a real risk they will suffer significant harm.

    Documentary evidence before the Tribunal

23. The Tribunal has its own file, and the Department file, relating to the applicants before it. Information including, but not limited to, the following is contained in those files:

    a.the applicants’ protection visa application forms lodged on 9 January 2017;

    b.the applicants’ identity documents, including Thai passports;

    c.Thai marriage certificate of the applicants’ dated [date] September 2013;

    d.a statement of claims of the first named applicant;

    e.a statement of claims of the second named applicant;

    f.English proficiency certificate for General English awarded to the first named applicant;

    g.the Departmental delegate’s visa refusal decision dated 23 May 2018 (a copy of which was provided to the Tribunal by the applicants);

    h.the application for review submitted on 14 June 2018;

    i.various utilities bills, vehicle registration, insurance accounts, payment receipts and money transfer receipts of the applicants’;

    j.medical documents for the first named applicant, primarily regarding her most recent pregnancy in 2018;

    k.a birth certificate and passport for [the child]; and

    l.Departmental administrative records.

    Claims for protection

24. The applicants made claims for protection which may be summarised as follows:

    a.the first named applicant has a former boyfriend named Mr [A]. They had a marriage in Thailand, without documentation (a customary marriage). [Mr A] was purportedly a soldier in the Thai Army and has relatives in the Thai Police. The first named applicant claims she was mistreated and harmed by [Mr A]. When she separated from him, [Mr A] apparently attempted to kill her using a firearm and shot at her residence;

    b.the first named applicant escaped from her former boyfriend and met the second named applicant in Bangkok in 2008. In that year, the former boyfriend ([Mr A]) apparently saw the applicants together in a restaurant and attempted to attack them with a knife (the second named applicant also claims in writing that [Mr A] shot at the house they lived in);

    c.both applicants fear harm from [Mr A] if they return to Thailand. They claim the Thai Police won’t assist them due to corruption and as [Mr A] has relatives in the Police; and

    d.the applicants purportedly cannot relocate within Thailand to avoid the former boyfriend.

    Evidence at the review hearing

25. The applicants’ evidence at hearing may be summarised as follows. They confirmed to the Tribunal all their claims for protection are contained in their protection visa application, they understand their claims, such claims are accurate and truthful, and they both signed the protection visa application. The Tribunal canvassed the backgrounds of the applicants. They were both born in Thailand and understand some of the English language. They married in Thailand on [date] September 2013. Their eldest child remains living in Thailand with the maternal grandmother. They also have a young child born [in] Australia, with whom they reside. Both applicants confirmed their respective family members were not subject to harm in Thailand.

26. The first named applicant is currently working [on] a farm in [Region 1]. She explained she arrived in Australia in 2013 holding a Student visa valid for two years but only completed six months of study before heading to [Region 1] to work. The first named applicant confirmed she did not advise the Department of the abandonment of her studies. She conceded she worked without permission in Australia and improperly held her Student visa after ceasing study, contending she needed to pay for her own grandmother’s medical care at the time. The second named applicant confirmed she was not a genuine student after her first six months in Australia. She also confirmed she remained in Australia without a valid visa for ‘about one or two years’ following the expiry of her Student visa.

27. When asked by the Tribunal why she remained in Australia without a valid visa, she responded that at that time she and the second named applicant didn’t know what other visas there were to extend their stay. When asked by the Tribunal if she stayed in Australia primarily to work when she did not have a visa, the first named applicant agreed. When asked by the Tribunal why she wants to stay in Australia now, she indicated it is to work and live in this country. She added that she doesn’t want to return to Thailand because her former boyfriend lives in her home village (as distinct from the home village of the second named applicant). The first named applicant confirmed she currently holds a Bridging Visa C that has permission to work attached.

28. The second named applicant is working [in] [Region 1] also. He admitted to working without permission and indicated he had the same visa history as his wife (the first named applicant). He agreed he had not held a valid visa at times and had to work in hiding. He wants to remain in Australia because of the former boyfriend and also for financial reasons, citing that his mother in law is disabled. The second named applicant also holds a Bridging Visa C that has permission to work attached.

29. Both applicants confirmed to the Tribunal they have not been involved in any political activities in any country. They advised they were living together in Udon Thani Province, at the family residence of the second named applicant, prior to departing for Australia. Each applicant advised that they have family members remaining in Thailand, none of which are facing harm presently. The eldest child of the applicants resides with the mother of the first named applicant in their local village.

30. The first named applicant has an aunt residing in Melbourne, who is married to an Australian man. She also has a cousin who resides in Sydney with her Australian husband. This is the cousin who recommended the applicants move to Australia holding Student visas. The second named applicant has no family members residing in Australia.

31. The Tribunal raised with the applicants that the delegate’s visa refusal decision, a copy of which they provided with their review application, indicates they arrived in Australia on [date] November 2013. The Tribunal confirmed this date as correct with each applicant, asking them why they travelled to this country at that time? The first named applicant outlined that they married each other around two months prior to travel. The first named applicant came to Australia at that time because her cousin in Sydney recommended she travel here on a Student visa then seek permanent residence, because it was not safe to remain in Thailand due to her former boyfriend. The first named applicant confirmed she did not indicate a fear of returning to Thailand in her Student visa application. She advised at that time she wanted to finish a Diploma then apply for permanent residence, but it didn’t happen.

32. The Tribunal canvassed the first named applicant’s permanent residence aspirations with her. She advised she wanted to finish her study first and her aunt also told her if she finished study whilst working [the] employer could sponsor her. The first named applicant confirmed she attempted to obtain an employer sponsored visa, however the employer informed her she didn’t have enough experience. The first named applicant told the Tribunal that she spoke to her employer about visa sponsorship early after her arrival in Australia and whilst she was still studying. The first named applicant confirmed to the Tribunal that she understood she was not getting visa sponsorship from her employer after being in Australia for six months.  

1. When asked by the Tribunal why she moved to [Region 1] following the cessation of her study, the first named applicant indicated the second named applicant was already working in [Region 1] at the time. They had a friend in [Region 1] and they moved there upon recommendation. As soon as she arrived in [Region 1], the first named applicant commenced farm work. She confirmed she subsequently became an unlawful non-citizen after her Student visa expired.

2. The second named applicant confirmed he arrived with his wife in Australia on [date] November 2013, as a secondary visa applicant on her Student visa. He came to Australia at that time because he wanted to earn money and also to avoid his wife’s problems in Thailand. Each applicant confirmed they departed Thailand via commercial air using their own Thai passports to depart the airport.

3. The Tribunal asked each applicant if they feared serious or significant harm in Thailand from anyone when they arrived in Australia on [date] November 2013. The first named applicant told the Tribunal she feared harm from her ex-husband, Mr [A] and nobody else. The second named applicant told the Tribunal he didn’t personally fear anything himself, he just feared for his wife (the first named applicant).

4. The Tribunal canvassed with each applicant whether they were attempting to obtain an Australian visa other than a protection visa. The first named applicant indicated she is only pursuing the protection visa. However, the second named applicant advised he had spoken to his farming employer about obtaining a sponsored visa, however his employer doesn’t know the process and what sponsorship options might be available. The second named applicant indicated he is working in a supervisory role at the farm in [Region 1] and he wants to remain employed there.

5. The Tribunal canvassed the protection claims of the first named applicant with her. She explained she had an informal marriage without documentation (a customary marriage) to Mr [A]. She was apparently pressured to do so by her family. [Mr A], her ‘ex-boyfriend’, was a soldier in the Thai Army and purportedly has relatives in the Thai Police. Her former boyfriend physically harmed her and in due course she attempted to separate from him. According to the first named applicant, [Mr A] threatened to kill her (in written claims she purports that he attempted to kill her with a firearm). The first named applicant did not report the matter to Police, rather she told the village head who did so. However, the Police did not conduct a fulsome investigation according to the first named applicant.

6. The Tribunal asked the first named applicant to provide further details concerning any harm she suffered from [Mr A]. She advised the Tribunal that she managed to escape from [Mr A] and in due course she moved to Bangkok. In 2008, she met the second named applicant in Bangkok and they commenced a relationship. That same year, according to the first named applicant, [Mr A] located them together in a restaurant and attempted to attack them with a knife. The applicants managed to escape unharmed. The first named applicant advised the Tribunal that they fled Bangkok to the second named applicant’s family residence in Udon Thani. There they resided from 2008 until 2013 without incident and having no interaction with her former boyfriend. The Tribunal, on several occasions, invited the first named applicant to provide further particulars of the harm she purportedly suffered from [Mr A]. However, it observed her to provide only scant detail of such matters in her evidence at hearing.

7. When asked again by the Tribunal why she wanted to come to Australia in 2013, the first named applicant advised her cousin recommended it, as there would be better economic opportunities. When asked by the Tribunal if the main reason she moved to Australia was to improve her economic opportunities, she confirmed that to be the case. When asked why she travelled in 2013, she advised that they didn’t have enough money to travel to Australia prior to that time. The first named applicant had to save up the funds by working in a [factory]. She also confirmed her eldest child resides in another province with her own mother (the grandmother of the child) and is ok.

8. The Tribunal canvassed the protection claims of the second named applicant with him. The second named applicant advised ‘the only thing I’m worried about is her ex-husband bothering her again.’ He confirmed to the Tribunal he had not seen this man since the incident in the restaurant in 2008. The Tribunal, on several occasions, invited the second named applicant to provide further particulars of any harm he or his wife purportedly suffered from [Mr A]. However, in response he indicated he had informed the Tribunal of everything regarding those topics. The Tribunal notes that it observed him to provide a paucity of information regarding the purported actions of [Mr A] in his evidence at hearing.

9. The second named applicant advised the Tribunal that he felt better living in Australia than in Thailand. He doesn’t want to return to his country of nationality. Indeed, he wishes to bring his daughter and mother-in-law to Australia. He added that whilst they still reside in the same village as [Mr A] in Thailand, the latter has not bothered them.

10. When asked again by the Tribunal why he came to Australia in 2013, the second named applicant advised it was to avoid problems with the ex-husband and also for financial reasons. He outlined that his mother in law has a disability and is poor. He also advised that his wife’s cousin, who lives in Sydney, had advised them to travel to Australia. When asked by the Tribunal why there would be a problem with [Mr A] if he hadn’t seen him since 2008, the second named applicant responded that he didn’t really know what to say. He added that he had heard about [Mr A]’s story but again didn’t know what to say. The second named applicant maintained that the main reason he travelled to Australia was to avoid problems with [Mr A] and also for financial reasons.

11. The Tribunal canvassed with each applicant whether they could seek assistance from the Thai Police or other authorities if they return to Thailand. The first named applicant advised that she could not because she does not have the money and also her ex-husband has all of the connections with the Police. The second named applicant advised that the Thai Police won’t listen to him if there is ‘no incident’ and they won’t assess anything. He added that an incident would have to happen first and he doesn’t want that.   

12. The Tribunal canvassed with each applicant whether they could move to another part of Thailand to avoid the ex-husband and anyone connected to him. The first named applicant advised she would need money to buy a house and land to make such a move, adding it is too difficult. The second named applicant also indicated that they need to have money to buy a house and land to move, adding financially this is too difficult.

13. The Tribunal asked each applicant why they could not return to Udon Thani province in Thailand, where they lived undisturbed by the ex-husband from 2008 to 2013? The first named applicant stated yes, they can move there permanently but they don’t have land to build a house. She noted the house they previously lived in is owned by the family of the second named applicant, adding they would have to take her daughter and own mother there also. The second named applicant advised that at the time they lived in his village they were only temporarily staying at his mother’s house. She also had other family members there and the second named applicant helped her with the farm work. He told his mother he would go looking for work overseas and noted his daughter and mother in law needed money. The second named applicant confirmed part of the reason he came to Australia was to earn money and also to avoid the problem of the former boyfriend. He also confirmed they resided with his mother for around five years from 2008 to 2013, without incident, prior to travelling to Australia.

14. The Tribunal raised with the first named applicant that her background, including living, working and studying in Australia, might tend to suggest that she has the attributes to successfully relocate in Thailand to avoid the harm she fears. She was invited to comment and replied that she wishes to live and work in Australia, adding she doesn’t want to return to Thailand and she doesn’t have to worry about moving if she stays in Australia.

15. The Tribunal raised with the second named applicant that his background, including living and working in Australia, might tend to suggest that he has the attributes to successfully relocate in Thailand to avoid the harm he fears. He was invited to comment and replied that he was working here but they still don’t have enough savings to start a new life. He explained that they still have to look after family members in Thailand, including their eldest child and his mother in law. He noted they have some savings but not enough.

16. The Tribunal asked each applicant if they had anything else to fear about returning to Thailand. The first named applicant advised she had nothing else. The second named applicant indicated if he has to return to Thailand, he has no idea what he will do there. He explained that living in Australia saved his life and helped him a lot, including when his father in Thailand was ill. He cannot see his future if he returns to Thailand. The second named applicant confirmed he had no other reasons for fearing to return to Thailand.

17. The Tribunal raised with the first named applicant that she waited over three years from her entry into Australia, including time without holding a valid visa and working illegally, before making a valid application for a protection visa. The Tribunal indicated this might tend to undermine the genuineness of her claims to fear harm in Thailand, inviting her comment. The first named applicant responded that when she first arrived on the Student visa, she had no agent or advice so they let their visas expire. Later someone told them they could apply for this visa.

18. The Tribunal raised with the first named applicant that it might have difficulty accepting that she could not contact the Department closer to the time of her arrival in Australia to seek protection, particularly given she advised at hearing she was in fear of her ex-husband upon arrival. The Tribunal invited the applicant to comment and she replied that at that time they didn’t know how to do this, adding that she wanted to finish her studies and get employer sponsorship.

19. The Tribunal raised with the second named applicant that he waited over three years from his entry into Australia, including time without holding a valid visa and working illegally, before making a valid application for a protection visa. The Tribunal indicated this might tend to undermine the genuineness of his claims to fear harm in Thailand, inviting his comment. The second named applicant responded that at that time he didn’t know about protection visas. He thought he would do whatever necessary to get out of Thailand and upon arrival didn’t know anyone here and he had no money. His daughter and mother in law in Thailand needed money and at that time he couldn’t speak English. His wife’s cousin in Sydney helped him to look for a job, but because of his lack of English language skills he went to perform farm work in [Region 1] upon recommendation.

20. The Tribunal raised with the second named applicant that it might have difficulty accepting that he could not contact the Department closer to the time of his arrival in Australia to seek protection, particularly given he advised at hearing he held fears regarding the ex-husband upon arrival. The Tribunal invited the applicant to comment and he replied that at that time he had not heard of such a visa and when they consulted an agent to help with a visa they didn’t tell them about the incident with the ex-husband.

21. The Tribunal raised with each applicant that their last interaction with the ex-husband was in 2008 and they lived in Thailand without incident until 2013 when they travelled to Australia, which is now several years ago. The Tribunal indicated this might tend to suggest they each do not face a real chance of serious or significant harm if they return to Thailand now or in the reasonably foreseeable future, inviting their comment. The first named applicant replied she has been living in Australia and doesn’t want to go back to Thailand. She wants to live in Australia permanently. The second named applicant replied that it could be correct that since ‘the incident’ nothing happened. It is also possible that nothing might happen but this is because they have been able to hide from him. The second named applicant saw what the ex-husband was like then, people didn’t assist them and he is a dangerous person.

22. The Tribunal raised with each applicant that their reasons for seeking protection appeared to be vaguely described at hearing, which might tend to undermine the genuineness of their respective claims to fear harm in Thailand. They were each invited to comment and had no substantive comment to make. The Tribunal raised with each applicant that they were able to exit the international airport in Thailand without difficulty to travel to Australia, which might tend to suggest they are each not of any adverse interest to the Thai authorities. They were each invited to comment. However, neither had a comment to make.

23. The Tribunal canvassed with the applicants country information from DFAT[1] regarding relocation within Thailand, to avoid those whom they say have caused, or might cause, them harm. They were each invited to comment upon this country information. The first named applicant agreed that one can relocate anywhere they like but they require finances to buy a house and land, which they do not possess. The second named applicant indicated it is correct they can relocate anywhere within Thailand but they don’t have the money to do so.

    [1] DFAT Country Report - Thailand, 10 July 2020, paragraphs 5.24-5.26.

24. The Tribunal advised the applicants it had not made up its mind on their application. The Tribunal then raised some potential concerns with their application. These include the following matters. The significant delay in seeking protection after arrival in Australia, including being in this country without a valid visa and working illegally for a time, might tend to undermine the genuineness of their claims for protection. That they have not interacted with the ex-husband since 2008 and were able to live in Thailand until 2013 without incident, combined with being in Australia for a long time now, might tend to suggest that there is no real chance of them facing serious or significant harm if they return to Thailand now or in the reasonably foreseeable future. The applicants’ claims were vaguely described at hearing, which tends to undermine their genuineness. No persuasive corroborating evidence was submitted in support of their claims for protection. The ability of the applicants to exit an international airport in Thailand, using their own Thai passports, without difficulty might tend to suggest they are of no adverse interest to the Thai authorities. The DFAT country information also tends to suggest the applicants could relocate within Thailand to avoid harm. The applicants were invited to comment upon these potential concerns raised by the Tribunal, however neither wished to do so.

25. The first named applicant confirmed to the Tribunal that she had no further substantive matters to raise at hearing. The second named applicant then raised that his mother in law (the first named applicant’s mother) is disabled by virtue of one of her legs not being functional. When asked by the Tribunal, the second named applicant confirmed that his mother in law is able to look after their daughter, who is ok. The Tribunal raised with both of the applicants that whilst it is prepared to accept the disability of the first named applicant’s mother, that might not tend to suggest their claims for protection are genuine. Both of the applicants were invited to comment, however, they chose not to do so. At the conclusion of the review hearing, both applicants confirmed to the Tribunal that they each had no further evidence to provide.

    Analysis  

26. That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.

27. The Tribunal does accept the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. 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.

28. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

29. The Tribunal has very carefully considered the applicants’ claims, individually and cumulatively, and the evidence before it. During the review hearing the Tribunal developed serious concerns with the credibility of both applicants. This is due to the following reasons. Each applicant provided their evidence at hearing concerning purported incidents of harm caused by Mr [A] (the former boyfriend/ex-husband of the first named applicant) in a superficial and vague fashion. Indeed, the level of information provided was so scant that it points to the purported actions of [Mr A] being fabricated by them. Further, neither applicant claimed protection for over three years following arrival in Australia, despite maintaining they fled Thailand with fears regarding [Mr A]. Rather, they proceeded to misuse the Student visa pathway to remain in Australia, primarily in search of employment, whilst prepared to extend their stay in this country as unlawful non-citizens for a significant period before claiming protection. Having obtained Student visas it is implausible, in the view of the Tribunal, that they did not know how to approach the Department for assistance if they genuinely needed to seek protection in Australia. In addition, no persuasive corroborating evidence in support of their claims for protection was before the Tribunal. On balance, the Tribunal finds that each applicant has fabricated their claims for protection so they can pursue economic opportunities in this country.

1. The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. As previously indicated, the Tribunal has formed the view that the applicants fabricated their claims for protection to remain in Australia. For completeness, the Tribunal highlights that on the evidence of each applicant they have not interacted with [Mr A] (the former boyfriend/ex-husband of the first named applicant) since 2008 and, in fact, were able to reside in the home village of the second named applicant undisturbed for around five years until they decided to travel to Australia in 2013. Further, the applicants informed the Tribunal that [Mr A] resides in the same Thai village as their eldest child and the first named applicant’s mother, but he has not cause them any difficulties. Even if the Tribunal accepted that [Mr A] had threatened or harmed either applicant in any fashion, which it does not, it is apparent that there is no real chance of them facing serious or significant harm if they return to Thailand now or in the reasonably foreseeable future. This is due to the effluxion of time, their ability to live without incident for the last five years of their residence in Thailand and also the lack of disturbance for their eldest child and the mother of the first named applicant.

2. Furthermore, the ability of the applicants to each depart Thailand by commercial air, using their own Thai passports, indicates they are of no adverse interest to the Thai authorities. This is despite their claims [Mr A] is a member of the Thai Army with relatives in the Thai Police. Therefore, it is apparent that neither applicant is at risk of any harm whatsoever from the Thai authorities. The Tribunal so finds.

3. The Tribunal has also considered the country information regarding internal relocation and finds that it would be reasonable for the applicants to relocate within Thailand to avoid [Mr A], noting they have successfully relocated previously within that country and they have also demonstrated versatility in being able to travel to Australia and secure employment here. In reaching this conclusion, the Tribunal has taken into account that the applicants have two children, with their maternal grandmother being disabled in one leg.

4. For completeness, the Tribunal has carefully considered whether the disability of the first named applicant’s mother (the maternal grandmother of their children) raises genuine claims for protection for the applicants, or whether the children of the applicants may have claims in their own right. Given that the Tribunal has determined the claims regarding [Mr A] to be a fabrication, it is satisfied that the first named applicant’s mother and the two children are at no risk of harm in Thailand whatsoever. Furthermore, the Tribunal is satisfied that the two applicants are able to work and secure their needs, and those of their family members, for subsistence in Thailand. This is because the applicants were previously successful in doing so during the last five years of their residence in Thailand and also because they have gained skills in the workforce during their time in Australia. Accordingly, the Tribunal finds that the applicants do not have a real chance of facing serious or significant harm, if they return to Thailand now or in the reasonably foreseeable future, on account of any attribute of a member of their family (including their children or the maternal grandmother of these children) or for any subsistence related reason.

5. In summary, the Tribunal is satisfied that the applicants have fabricated their claims for protection and are attempting to use all possible avenues to prolong their stay in Australia, that commenced with them arriving as Student visa holders in November 2013. In short, the Tribunal does not accept that the applicants faced any threats or harm whatsoever from [Mr A] or any member of the Thai Army or Police. It is therefore safe for the applicants to return to Thailand with their youngest child (who is not an applicant in this review, nor have any separate claims been presented on his behalf).

   CONCLUSION

6. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of either being removed from Australia to Thailand, there is a real risk that either will suffer significant harm.

7. For the reasons outlined above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) of the Act for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c) of the Act and they cannot be granted the visa.

   DECISION

8. The Tribunal affirms the decision not to grant the applicants protection visas.

   K. Chapman
   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.

   …