1818595 (Refugee)

1818595 (Refugee) [2021] AATA 1357 (15 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1818595
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Brendan Darcy
DATE:15 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 March 2021 at 1:51pm
CATCHWORDS

REFUGEE – protection visa – Thailand – a person of interest to a criminal syndicate – applicant was not an actual or reliable witness – inconsistent evidence – lack of any corroborative material – delay in applying for a protection visa – credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Guo v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 20 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of the Kingdom of Thailand (Thailand), applied for the visa on 16 November 2017. The delegate refused to grant the visa on the basis that that the applicant did not have any reasons under s.5J(1)(a) to be considered a refugee and because the applicant would not be at a real risk of significant harm as she could obtain protection from the Thai authorities under s.36(2)(aa).
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for one of the five reasons mentioned under s.5J(1)(a): s.36(2(a); or whether the Tribunal 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 she will suffer significant harm: s.36(2)(aa).
Background
The applicant claimed be born on [date] in Bangkok, the capital city of Thailand, and to be a citizen of Thailand.
A certified copy of the applicant’s Thai passport is on the departmental [file] . The passport is set to expire [in] 2021.
The applicant arrived in Australia [in] April 2017 while holding a Class FA Subclass 600 visitor visa, which was expected to expire [in] July 2017.
On [date] July 2017, the applicant became an unlawful non-citizen and remained so until 28 November 2017.
On 16 November 2017, the applicant applied for a Class XA Subclass 866 permanent protection visa and was granted an associated bridging visa on 28 November 2017.
The applicant’s claims for protection are outlined in the submitted 866 forms lodged at the time of application. Those claims are summarised as follows:
·The applicant claimed that after she graduated, she went to work for the family business without being paid and that the family was of Chinese origin;
·The applicant claimed to visit her friends in a nearby village (no timeframe is given) and, as she was passing by a house in that (unnamed) village late at night she heard a cry for help coming from inside the house;
·A bit further on the applicant came upon a person in the street or laneway beside the house, recently deceased, whose body was still bleeding. The applicant decided to call the police on her mobile phone to have them check the house;
·The applicant claimed that when the police arrived and checked the house they arrested a man, as the applicant waited near the house for quite some time;
·The applicant subsequently learned from the police that the house was being used for trafficking women and girls, and she was pleased that she was able to help those trafficking victims;
·Because the applicant phoned the police, they were able to cease the operations of the human trafficking syndicate over the course of the following month. As a result of this incident the applicant also became a witness to the case on behalf of the police;
·The applicant’s friends in the village heard about what she did on behalf of the trafficking victims and the police. The male traffickers learned that the applicant was friends with certain people in the village, and they approached those friends to enquire about her;
·The applicant’s friends denied that they knew her, but the group of men threatened the applicant’s friends, stating that they should not be involved and that they would track down the applicant and kill the applicant. One of the men attacked one of the applicant’s friends to emphasise the point, causing her or him to be hospitalised;
·The applicant’s friends from the village told the applicant to flee and her family members advised her to go abroad, so she has come to Australia;
·The applicant believes that she will be killed if she returns to Thailand because she informed the police, and they investigated, a house from which she heard a cry for help and beside which she found a dead body.
·The men from the trafficking syndicate belong to a very influential criminal group, and they are known to bribe police and government officials, as they are rich and most of the officials are corrupt and can be manipulated. The human traffickers are also well-connected and powerful, and they would be able to easily locate the applicant if she was to relocate within Thailand.
No supporting documentary evidence or third-party statements were attached regarding these claims for protection.
The 866C form indicates that the applicant has never married or been in a de facto relationship. There is no indication the applicant has any children. The applicant further claimed to speak, read and write English and Thai; that her religion or faith tradition is Buddhist; and that her occupation was ‘study’, yet she claimed to have completed a [qualification] in 2002 at [a named university].
There was no departmental interview in relation to this protection visa application.
A delegate acting on behalf of the Minister refused to grant the applicant a protection visa on 20 June 2018.
The applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal on 26 June 2018.
The applicant attended a scheduled hearing on 22 February 2021 to provide evidence and present arguments as to the reasons she is owed Australia’s protection obligations. The applicant was assisted by an interpreter in the Thai and English languages. There were no witnesses.
The applicant was provided with a post hearing opportunity to provide any additional documents or submissions to support her claims for protection and to do so by 8 March 2021. The applicant requested a further extension of time on 8 March 2021. The Tribunal refused this request (discussed in more detail below).
Non-disclosure certificates
There are no non-disclosure certificates or notices attached to either the applicant’s departmental or Tribunal files.
Country information: Thailand
The most recent DFAT country information report on Thailand dated 10 March 2021 states the following about the trafficking of persons in Thailand and the Royal Thai Police:
of PersonsTrafficking
2.57According to the US Department of State, Thailand is a destination, source, and transit country for human trafficking for both Thai nationals and foreigners. Traffickers reportedly subject victims to forced labour and sex trafficking in Thailand and abroad. Women, children, lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals, ethnic minorities and stateless persons are particularly vulnerable. Children from Thailand, Myanmar, Laos and Cambodia have been victims of sex trafficking in brothels, massage parlours, bars, karaoke lounges, hotels and private residences. Labour traffickers exploit migrant workers in commercial fishing and related industries, the poultry industry, manufacturing, construction, agriculture, domestic work and street begging. Labour traffickers often exploit migrants through debt-based coercion and fraudulent promises of well-paid employment, while some migrants are kidnapped and held for ransom. Traffickers use Thailand as a transit country for victims from a number of countries, including China, North Korea, Vietnam, Bangladesh, India and Myanmar. DFAT does not have any specific information in relation to migration routes of North Korean asylum seekers transiting through Thailand.
2.58In upgrading Thailand from Tier 3 to Tier 2 in its 2018 Trafficking in Persons Report, the US Department of State reported that the government had increased its efforts to eliminate trafficking, including through identifying more victims, sentencing convicted traffickers and complicit officials to significant prison terms, and developing manuals in partnership with civil society to standardise anti-trafficking training and policies. Thailand retained its Tier 2 ranking in the US Department of State’s 2020 report. According to the Thai government, officials rescued a record 1,807 victims of human trafficking in 2019, an increase from 622 in 2018. Around half of those rescued in 2019 were women, most of whom had been labour trafficked. Nearly three-quarters were migrants from Myanmar bound for neighbouring Malaysia.
2.59Government-operated shelters provide victims of trafficking access to counselling, legal assistance, medical care, civil compensation, financial aid, witness protection, education or vocational training, and employment. The government operates 76 short-stay shelters and nine long-term regional trafficking shelters, including four dedicated to adult male victims and families, four for female victims, and one for male child victims. Undocumented foreign victims of trafficking are reportedly required to remain in shelters while the government processes their applications for permits to stay and work in Thailand, and victims are not permitted to leave or carry personal communication devices without permission. Thai law permits foreign victims of trafficking and witnesses to stay and work in Thailand for up to two years upon the completion of legal proceedings against their traffickers. NGOs report, though, that the required shelter stays have deterred some victims from cooperating with law enforcement.
2.60According to international observers, Corruption continues to undermine anti-trafficking efforts, with some government officials and police directly complicit in trafficking crimes, including through accepting bribes or loans from business owners and brothels that exploit victims. Corrupt immigration officials reportedly facilitate trafficking by accepting bribes from brokers and smugglers along Thai borders. Credible reports indicate that corrupt officials protect brothels, other commercial sex venues, and fishing vessel owners from raids and inspections, and collude with traffickers. Some government officials reportedly profit from bribes and direct involvement in extortion from and exploitation of migrants. While there have been an increasing number of prosecutions in trafficking cases, in-country sources report that it is common for a low-level functionary to be paid to bear responsibility for the real perpetrators.
ASSSESSMENT OF CLAIMS AND FINDINGS
Country of nationality
The applicant claims to be a citizen of the Kingdom of Thailand (Thailand) and provided a copy of her passport to the Department with her application. The Tribunal finds that the applicant is a citizen of Thailand and that Thailand is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Member of the same family unit
The application form for this protection visa under review stated that the applicant had never married. However, the applicant informed the Tribunal at the scheduled hearing that she had been married between 2007 and 2009, and that she remarried in 2012 to a Thai national who had travelled to Australia with the applicant and applied for a protection visa separately. She explained that she did not write that and that the forms were completed by a third person (not a registered migration agent or lawyer). At the hearing, the applicant confirmed that she had never had any biological children and remains married to the other review applicant. The Tribunal accepts this oral evidence to be credible.
The applicant stated that her dispositive claims for protection were not only separate to her spouse but did not overlap. The applicant’s spouse’s AAT case number is 1815423. Accordingly, the Tribunal is satisfied this review applicant and the applicant pertaining to AAT case 18185423 are in a genuine spousal relationship and that both review applicants satisfied r.1.12(2)(a) of the Regulations, in that they share membership of the same family unit as the first applicant for the purposes of this application for review.
At the time of making this decision, the Tribunal had determined that in relation to review application 1815423, the applicant’s spouse did not meet either s.36(2)(a) or s.36(2)(aa), if returned to Thailand. The Tribunal accepts that both review applicants have an interest in each other’s matter for the purposes of s.36(2)(b) or s.36(2)(c).
Applicant’s aliases
During the hearing, the Tribunal explained that she had been known in Thailand under two other names on official documents. The applicant explained she was born under the name ‘[Alias 1]’ until she and her family decided to change it to ‘[Alias 2]’ when the applicant was [age] years of age. The catalyst for this change was the death of a cousin who had died in a traffic accident and who shared the same first [name], on the basis that it would bring bad luck to the applicant and her family if the applicant kept the name of this deceased relative. The applicant maintained her amended name until her marriage to the applicant in review application 1815423. This name is [the applicant’s name] and is the name and identity on her Thai passport.
The Tribunal accepts this account about her aliases as part of her identity to be credible.
Credibility and other findings
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v MIEA (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

Arising primarily from the applicant’s oral evidence, the Tribunal accepts a number of straightforward or non-controversial aspects of the applicant’s personal circumstances, including:
·The applicant was born in [year] in [Bangkok], as claimed;
·The applicant’s mother and father, who were teachers, are now retired and living in Bangkok;
·The applicant has one sibling – a sister, who lives in Bangkok working as a salesperson;
·The applicant completed a [qualification] at a university in Thailand in the year 2000;
·The applicant travelled to [Country 1] 20 years ago to complete [studies];
·The applicant had travelled to [Country 2] with her first husband (but did not have any residency rights to that country); and
·The applicant had worked variously in [specified occupations] and had part owned and operated [a] shop.
During the scheduled hearing, the applicant elaborated on her dispositive written claims that she had been a person of interest to a criminal syndicate involved in people trafficking based on the applicant being a witness to a significant crime.
Specifically, the applicant claimed to have visited a friend in a large housing estate area known as [name] within metropolitan Bangkok. She claimed the incident was in November 2014 at around nine o’clock at night. What the applicant and her friend claimed to have discovered was a seriously injured woman in an offside street on the canal side of an estate. The applicant claimed the lighting was poor and it was in a [specified] area. The injured woman, lying on the [ground], had been making moaning sounds as she was in pain. She claimed to have witnessed liquid she assumed to be blood. The applicant claimed that she and her friend approached the person to assist and that the applicant called for the Royal Thai Police. The applicant claimed that she remained at the site until the authorities arrived. While the applicant and her friend waited, she witnessed a suspicious silhouette or shadow of a person in the darkness but was not close enough to see any distinctive features of the suspicious figure, although the applicant stated that it seemed to be male.
The Tribunal enquired if she made a statement to the police, to which the applicant said it was not a formal statement, but she left her phone number and address. Three days later when the police contacted her for more details of the incident, she found out that the police had arrested a group of people in the same area for people trafficking. Around two weeks later, the applicant claimed that she was asked to be a witness to identify the culprits.
The second attack occurred in Nonthaburi province where the applicant had been hiding. The applicant claimed she was had been locked in or barricaded inside her residence and petrol-soaked clothes were squeezed under the door and lit. The applicant claimed neighbours came to help when she shouted for assistance. This incident, it was claimed, was reported to the police but the authorities could not find the culprits. The applicant then fled to Ayutthaya province and told her husband about the incident and they then moved to Phuket for a year and then she returned to Sukhothai province before departing for Australia in April 2017.
Since leaving Australia, the applicant claimed that her mother, who relocated to Nakon Prathom province, had been asked by suspicious men about her whereabouts at some point in 2017. The applicant claimed that her friend relocated to Phuket in 2014 as she was also targeted by the criminal syndicate. She has since lost contact with her and does not know her whereabouts.
The Tribunal outlined the following credibility concerns to the applicant:
Firstly, it troubled the Tribunal that the applicant and her friend did not actually witness any specific criminal act or were unable to identify any specific person, which invited the Tribunal to consider that given the poor quality of the information provided to the Thai Royal Police, the applicant and her friend were not persons of interest. Afterall, any passers-by would have found the injured woman and she did not see any person other than a shadowy figure for which she could not provide the police with any distinctive details. The Tribunal also queried her as to the reasons she was asked to identify the culprit or culprits two weeks after telling the police she did not witness any details. The applicant was not able to provide a response. As discussed in the hearing, the premise of the applicant’s claims – she was a witness to a serious crime in 2014 – does not appear plausible as she was not an actual or reliable witness to any incident that would lead to a prosecutable conviction. Furthermore, as discussed in the hearing, members of a criminal syndicate involved in people trafficking were arrested because the police found them with trafficked persons nearby where the injured woman was found, and her testimony was not required. The applicant stated she feared the criminal would be released in a few years and search for her. The Tribunal found these explanations inadequate and implausible, which has invited the Tribunal to consider that her other evidence lacked credibility.
It is in that context; the Tribunal has considered the inconsistencies between the applicant’s written claims and oral claims about the two incidents of harm. At Question 80 in Form 866 the applicant’s written claim stated:
I did not experience direct assault. But my friend, who did not know about it, was attacked and hospitalized
This answer was distinctly discrepant from the applicant’s late oral claims about herself being attacked on two occasions, with the first leading to hospitalisation and the second involving the horrifying incident where her residence was subject to arson while she was inside it. The Tribunal enquired into the reason she did not only outline these in her written claims but wrote that she did not experience any direct assault. The applicant was unable to explain the discrepancies but said that an insurance claim related to the hospitalisation could be gained, as well as a police report about the incident involving arson. As outlined below, no documentary evidence was provided at the time of making this decision. The Tribunal has been strongly invited to place significant weight on this discrepancy between her written and oral accounts of past harm incidents and to consider that the oral evidence in this regard were late fabrications to augment the weak premise of her overall claims for protection.
With these adverse credibility concerns in mind, the Tribunal has considered the applicant’s delay in applying for a protection visa. The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
As discussed in the hearing, the applicant arrived in Australia [in] April 2017, became an unlawful non-citizen in Australian in July 2017 and remained so until she applied for a protection visa in November 2017. That is a notable delay of some eight months since arrival and nearly five months since holding no visa at all. During the time she did not hold a visa, the applicant risked being detained and forcibly removed from Australia to Thailand where she claimed to have a well-founded fear of persecution. The applicant claimed she thought refugee status could only be claimed for persons fleeing political persecution and she had to do research on it. She had no help from friends and legal aid would not assist her. Noting the applicant taught English as a second language, the Tribunal found these reasons unconvincing. Having claimed applicant’s fear of returning to Thailand, the Tribunal finds it reasonable that her claimed circumstances should have prompted her to seek professional migration advice and assistance soon after she arrived in Australia to avoid being forcibly removed when her visitor visa expired in July 2017. In this regard, the Tribunal has further been invited to consider the delays in applying for protection lack credibility and that she did not have a genuine fear of returning to Thailand for any of the claimed reasons.
The Tribunal also notes that the applicant’s written claim is that she came upon a deceased person and not a seriously injured persons as outlined in her oral evidence. This inconsistency is also of credibility concern, in the context of the Tribunal’s other adverse credibility concerns.
Of further serious credibility concern to the Tribunal was the lack of any corroborative material such as a police report or evidence of hospitalisation. The applicant variously advanced a number of reasons for the lack of documentary evidence, despite having the chance to gain and then submit it since the lodgement of this protection visa application under review. They included that she did not know it would be required; that the hospital did not keep records; and that she was to afraid to return to the police station she made a report to and the police would not send her an electronic copy as the Thai Royal Police are not sufficiently computerised or networked. (Given the high level of sophistication among Thai bureaucracy, the Tribunal raised doubts with the applicant about this characterisation being credible.)
As part of her post hearing opportunity to submit further evidence and arguments, the applicant undertook to attempt to retrieve hospital insurance claims in relation to the hospitalisation she endured after the first attack and to ask her mother to travel to a specific police station to garner some documentary evidence of the police complaint lodged in relation to the second attack. It is in this context that the Tribunal is unable to overlook the requests by the applicant during the conclusion of the hearing for the Tribunal to leave its decision making open as long as possible. The Tribunal informed the applicant that it could not leave its decision-making duties open indefinitely but it would provide a two-week period for post hearing submission, albeit reluctantly given the credibility concerns raised with the applicant about her written and oral evidence. When the applicant sought an extension for a post hearing submission, she wrote to the Tribunal that she had authorised her mother to contact the local authorities to obtain the property lodged at a district police office. The applicant claimed the practice of the Royal Thai Police was time consuming as the it needed time to search and review the document. She further stated that copies cannot be provided without authorisation. No timeframe for any foreseeable submission was provided. Neither was there any accompanying evidence of an authorisation for her mother to act on her behalf. After carefully considering the request in the context of the applicant’s avoidance of timeframes and due dates, the request for an extension of time was refused on 11 March 2021. This was on the basis the applicant was seeking only to delay the Tribunal’s decision-making duties to remain in Australia as long as possible and not because documentary evidence was genuinely retrievable to support her otherwise weak and inconsistent claims for protection.
Based on the abovementioned adverse credibility concerns and findings, cumulatively considered, it is the Tribunal’s assessment that the applicant’s written and oral claims that she is owed Australia’s protection obligations were implausible, inconsistent and seriously undermined by her delay in applying for a protection visa since her arrival in Australia. Under these circumstances, the Tribunal was unable to provide the applicant with the benefit of the doubt and it makes the following findings arising from this overall assessment that the applicant’s dispositive claims lacked overall credibility:
The Tribunal does not accept the applicant was ever a witness to serious crime in Bangkok in 2014 or at any other time before coming to Australia. It does not accept the applicant and/or friend came upon a deceased body, as raised in her written claims, or a seriously injured woman as inconsistently outlined in her oral claims. It does not accept she was a witness to any crime as raised in her claims. The Tribunal furthermore does not accept the applicant reported this incident to the Royal Thai Police or that she cooperated with the authorities leading her to be a witness in any meaningful sense or to be a person of interest to a criminal syndicate involved with the trafficking of persons or the killing or seriously injuring a person.
Furthermore, it does not accept that the applicant’s written claim that she was not assaulted, directly or otherwise, but her friend, whom it is claimed also was a witness, was harmed and hospitalised. Neither is it accepted as credible the applicant’s inconsistently advanced claims that she was seriously harmed and hospitalised and then later subjected to an arson attack to harm or intimidate her. It does not accept the applicant, the applicant’s friend or any of her family members were forced to relocate within Thailand or that she departed Thailand to seek protection because the police were unable to protect her or because the criminals seeking her were able to discover her.
Moreover, the applicant has not provided any reasonable explanation for the notable delay in her applying for a protection visa. This delay, in the context of the Tribunal’s overall adverse credibility finding about the applicant’s dispositive claims, has invited the Tribunal to find that she did not have a genuine, urgent or deep well-founded fear of persecution, either subjectively or objectively considered, at the time of arrival in Australia, at the time of applying for this visa or at the time of making this decision.
The applicant has set out to provide fabricated written claims for protection and then to have ineptly augmented them with inconsistent testimony at the scheduled hearing, despite making a solemn undertaking to tell the truth. The applicant was unable to submit any credible documentary evidence to support her claims for protection and any extension of time requested to submit such corroborative evidence was advanced only to delay the Tribunal’s decision making on an indefinite basis and not because such evidence, including a police report, actually existed.
As these contrived claims for protection were advanced solely for migration purposes, the Tribunal finds that the applicant does not hold a genuine or credible fear of persecution for any of the reasons mentioned in s.5J(1)(a), if returned to anywhere within her country of nationality of reference, Thailand, for the foreseeable future, as required by s.5H and s.32(2)(a).
Based on the same adverse credibility findings about the applicant’s distortive or critical claims, cumulatively considered, the applicant accordingly does not satisfy the alternative complementary protection criterion set out in s.36(2)(aa).
Cumulative findings
Although the applicant mentioned in her written claims to belong to a Chinese family, the applicant claimed at the hearing that she was brought up Thai and that she and her family identified as Thai. This was despite one of her grandfathers being of Chinese origin. Otherwise, there was no suggestion the applicant faced any real chance of serious harm or any real risk of significant harm based on her ethnicity, as either Thai or Chinese.
Neither did the applicant advance any other reasons to fear serious harm, including those related to her nationality, her political opinion (imputed or otherwise), her religion or any other membership of a particular social group or any other reason at all. There are no residual claims to consider in this application for review.
Based on the Tribunal’s extensive credibility concerns about the applicant’s claims, the Tribunal finds that the applicant does not face a real chance of serious harm if she returned to Thailand and that the applicant would not be persecuted for one or more of the reasons mentioned in s.5J(1)(a). The Tribunal finds that the applicant does not have a well-founded fear of persecution.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having considered the applicant's claims individually and cumulatively, for the reasons given above based on the Tribunal’s extensive adverse credibility findings and her accepted circumstances, it finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand there is a real risk: the applicant will suffer significant harm, by way of being arbitrarily deprived of her life; that the death penalty will be carried out on her; or that she will be subjected to torture, cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.
Therefore, the applicant does not satisfy the alternative complementary protection criterion set out in s.36(2)(aa).
As discussed above, the applicant has an interest in the outcome of the review application 1815423. On 11 March 2021 the Tribunal affirmed the delegate’s decision not to grant the applicant’s spouse a protection visa. It therefore follows that the applicant in this review application is not eligible for a protection visa as she does not satisfy s.36(2)(b) or s.36(2)(c).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The applicant does not satisfy 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
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.
…

[2021] AATA 1357

15 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice