1821641 (Refugee)

1821641 (Refugee) [2020] AATA 5493 (13 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821641
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Paul Windsor
DATE:13 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 November 2020 at 2:53pm
CATCHWORDS
REFUGEE – Protection visa – Thailand – conflict at work – health issues – original written claims not true- economic circumstances – fabricated claims – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 13 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa on 19 April 2017.
The applicant’s protection visa application indicated that she was born on [date] in Bangkok, Thailand, is a Buddhist and has never married. It indicated she departed Thailand legally and arrived in Australia [in] February 2017, entering on a [temporary] visa.[1]
[1] See the Departmental file.
The application indicated she sought protection in Australia because she feared her life was in danger in Thailand as she received death threats from people associated with an illegal gambling operation because she and her boyfriend owed them millions of baht that they borrowed but could not repay. The applicant indicated her boyfriend disappeared one day when he went out to look for money and she does not know whether he was killed by this group or just ran away because of the problems they had.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding the claimed fear of harm is not for one or more of the fives reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate was satisfied that the applicant could obtain, from the Thai authorities, protection such that there would not be a real risk of her suffering significant harm from money lenders in Thailand.
The applicant applied to the Tribunal for review of this decision on 26 July 2018.
The applicant appeared before the Tribunal by telephone on 12 November 2020. The hearing was conducted with the assistance of an interpreter in the Thai and English languages.
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 applicant’s claims for protection as set out in her protection visa application were as follows:[3]
[3] See the Departmental file.
Q. 88. I am seeking protection in Australia so that I do not have to return to: THAILAND
Q. 89. Why did you leave that Country?
I am miss [name deleted], from thailand. I came here in Australia to seek for you help and protection.l am [age] years old.
I am a bussiness women back in thailand, my life their is wealthy because my bussiness is stable. I owned a small [shop]. I supported my children's studies through my bussiness. My life routine from monday to sunday is the same, its just rotated all the years in the same thing until my children finish their studies and have their own family.All the while, i supported my family i give my best to give them a better future. But i did not notice that i am alone after i give everything.
My husband left me and my children have their own family and beacuse their are professionals they don't have time for me even if i go to them they almost push me away. I felt all my effort is worthless, I felt that i was not love by them.Until i find ways to divert my self.And my life become more misserable.
I've learned how to gamble, almost everyday i play in casino from morning to night time.I met a lot and different people everyday until i found boyfreind, younger than my age.At first i was so happy because I felt that i was cared and loved, I was so inlove with him, and to think at my aged someone is inlove of me, i felt so proud.We stay together and i supported him all his hobbies including his addiction in drugs and gamble hobbies.l know that he might using me but i don't care because i know i am happy.My family learned about what i am doing they get mad at me and they disgrace me.They don't even acknowledge me as their mother. They pushing me away everytime i come with them. I still continue my relationship with my boyfriend, no one can stop me at that time, my ears are closed to one thing, that is to love and to be loved.
The scenario of my life started, me and my boyfriend always in casino, everykind of gambling we play, even if its illegal gamble we played.I lost my bussiness because every day we spend money.until I decided to sell my shops. We both enjoyed the money we gamble and we take drugs at no time.l felt that time i was young and wild. we win and we loose.Until we finished and losses everything i have. i still supported my boyfreind by barrowing money from others.We barrowed money from the illegal operator of gambling place. Until we both don't know that we owed them millions of baht money and we dont know how to pay. And they started to chasing us. We started recieving threat. We lay low to everything we do.untill time comes i started to realized my mistake.Every where we go someone is following us and threatening our life if we don't pay our life is in danger. I was so afraid, me and my boyfreind started to quarrel for what happening, and almost everyday we fight i blamed him to ehat happen to us.until my boyfreind disappears after he went out to look money. I keep calling him and searching for him but i can not find him, until now i have no news from him. I have no idea if he was killed by this group who looking after us or he just runaway because of the problems we had. I managed to flew to australia with the help of my friend.
Help me to change my life and be strong more so that in time i can able to face my own family and find solution to my problem. I can only see hope from here.
Q. 90. What do you think will happen if you return to that country?
IF I RETURN BACK TO THAILAND MY LIFE WILL BE DANGER ORI MIGHT BE KILLLED AS SOON THEY KNOW I AM BACK. AND IF I RETURN BACK STILL I CAN NOT FACE MY FAMILY AND THEY WILL CONTINUE TO DISGRACE ME AFTER WHAT HAPPEN TO ME I NEED TO PREPARE MY SELF AND FIND SOLUTION.
Q. 91. Did you experience harm in that country? Yes
YES, PHYSICAL AND EMOTIONAL.
EVERYDAY I RECIEVED DEATH THREATS, SOME NIGHTS THIS GROUP OF PEOPLE MAKE NOISE AND PAINTED MY DOOR WITH SOME BAD WORD OR SOMETIME THEY MAKE NOISE INFRONT MY HOUSE. I CAN NOT GO OUT FROM MY HOUSE BECAUSE I FELT THAT I WAS BEING FOLLOWED. I AM VERY STRESSED AND WORRIED OF WHAT HAPPENED,FROM MY SIMPLE LIFE NOW I CAN NOT ABLE TO SUPPORT MY OWE LIFE BECAUSE OF THE GROUP.I CAN NOT ABLE TO SLEEP AT NIGHT AND EAT MEATS.
Q. 92. Did you seek help within the country after the harm? No
NO. I DID NOT SEEK ANY HELP FROM THERE. I AM SCARED OF WHAT HAPPENING TO. SPECIALLY MY BOYFRIEND IS MISSING I AM DEPRESSED AND VERY WORRIED, I CAN NOT ALSO COME TO MY FAMILY BECAUSE THEY DISGRACE ME FOR WHAT HAPPENED TO ME. THEY DON'T UNDERSTAND ME BEFORE AND THEY DON'T EVEN CARE ABOUT WHAT'S HAPPENING TO ME. I AM SCARD TO COME TO AUTHORITIES BECAUSE I WAS THREATENED BY THIS GROUP IF I WILL REPORT THEY WILL KILL ME.
Q. 93. Did you move or try to move to another part of the country to seek safety? No
NO. I DIDN'T MOVE TO ANOTHER PLACE, I HAVE NO WHERE TO GO. THE GROUPS IS ALWARS THERE LOOKING AFTER ME,I CAN KILL ME ANYTIME.
Q. 94. Do you think you will be harmed or mistreated if you return to that country? Yes
YES,DEFINITELY MY LIFE WILL BE ENDANGERED ONECE I COME BACK. I MANAGED TO RUNAWAY FROM THEM EVENTHOUGH I HAVE DEATH THREATS,SO ONCE THEY KNOW I AM BACK THEY CAN TAKE MY LIFE FROM ME. I AM SCARED WHY MY BOYFRIEND IS MISSING UNTIL NOW IF MIGHT BE KILLED. I DON'T WANT TO WANT TO GO BACK HOME I WANT TO STAY HERE ME TO PREPARE MYSLF AND REGAIN MY TRUST TO OTHERS. TO BE ABLE PREPARE MYSELF IN FUTURE TO SEEK FORGIVENESS TO MY FAMILY. PLEASE LET ME STAY AND IM SEEKING FOR YOUR PROTECTION.
Q. 95. Do you think the authorities of that country can and will protect you if you go back? No
NO.I DON'T THINK BECAUSE A LOT OF STORIES I HEARD THAT THEY REPORTED TO THE AUTHORITIES NOTTHING HAPPENED, I BELIEVED THAT SOME OF THE AUTHORITIES OUR PROTECTOR OF THIS SYNDICATES.I AM SORRY FOR NOT TRUSTING MY GOVERNMENT BUT IT REAL, IT'S HAPPENING A LOT OF CORRUPT AUTHORITIES. mOST LIKELY THERE ARE THE OPERATOR OF THIS ILLEGAL GAMBLING, THEY DOING IT TO ALL WEAK LIKE ME. THEY LEND MONEY WITH A HIGH INTEREST UNTILL WE CAN NOT PAY. I KNOW AND I BELIEVE MY COUNTRY AUTHORITIES CAN NOT ABLE TO HELP ME. PLEASE HELP ME AND PROTECT ME FROM THEM.
Q. 96. Do you think you would be able to relocate within that country to an area where you would not be harmed? No
NO.NOWHERE TO GO,NO PLACES IS SAFE THERE FOR ME, I KNOW THERE CONNECTION IS WIDE. I WILL PUT MYSELF MORE IN DANGER IF I MOVE FROM ONE PLACE TO ANOTHER. I AM SEEKING FOR YOUR HELP AND PROTECTION. PLEASE I BEGGING YOU TO HELP ME SAVE MY LIFE.
Findings and reasons
Identity
On the basis of the copy of her Thai passport submitted to the Department,[4] the Tribunal accepts that the applicant is a national of Thailand and that her identity is as claimed. The Tribunal accepts that Thailand is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[4] See the Departmental file.
The issues in this review are whether the applicant has 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 her being removed from Australia to her receiving country of Thailand, there is a real risk she will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. 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 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.
Assessment of claims
At the start of the hearing the Tribunal asked the applicant if she was sure that everything in her protection visa application is true and correct as far as she knows and believes. Contrary to what was indicated in the application (where it stated she received no assistance with the application), the applicant indicated that she paid a Thai person $500 to fill it out for her. She commented that because this person had lots of clients she is sure there will be some errors. She added that she can’t remember much of the details. The applicant said she could not remember the name of the company and while she knew their office was in Melbourne city she did not go there but the person came to her home. She indicated that the person did not read to her in Thai what they had included in the application. She said she asked to check the accuracy of what had been included but was told it is too late because the application had already been lodged. The Tribunal commented that it noticed that the contact email in her protection visa application was [deleted] and asked the applicant if that was the name of the company. She said she was not sure but confirmed it was not her email address.
Background
The applicant indicated that she does not have any family in Australia. She said she came to Australia alone. She said she has [siblings] in Thailand. She indicated that she still has her residence in Bangkok, which was built by her father, commenting that the title is in her name. She said her elder brother and younger sister live in her house. She indicated that her siblings are all in [employment]. She said the sister who lives in her house works in a [workplace] while her other sister is a [occupation]. She indicated she remains in contact with her younger sister.
Contrary to her written statement of claims, the applicant indicated that she has never been married and does not have any children.
The applicant indicated that when she was in Thailand she worked in [Workplace 1] in Bangkok. She said she had not done any other work in Thailand. Contrary to the advice in her application, she indicated that she had never worked as a businesswoman with a [shop]. The applicant indicated that she is working as a [Occupation 1] in Australia.
Decision not to contact the applicant’s nominated witnesses
In her response to the hearing invitation received on 8 October 2020 the applicant requested that the Tribunal take evidence from two witnesses, Miss [A] (who she described as an Australian citizen who is like a sister to her and gives her advice) and Miss [B] (who she stated was the owner of [Workplace 2] and her boss). The Tribunal wrote to the applicant on 9 October 2020 asking her, if possible, to provide a written statement from each of these people at least seven days prior to the hearing, to assist the Tribunal in determining whether it should take oral evidence from them at the hearing. No response was received from the applicant.
The Tribunal asked the applicant why she had not submitted statements from these two people as requested. She apologised, commenting that it was a lack of understanding due to her poor English language skills. The applicant indicated that she met these people in Australia and they did not know about her circumstances in Thailand. When asked why she requested the Tribunal take evidence from them, she said they know her best, but acknowledged that they would not be able to comment on her circumstances in Thailand. On this basis, the Tribunal decided not to call these people and take evidence from them. The applicant accepted this decision.
Stress due to being retired
The Tribunal asked the applicant why she came to Australia [in] February 2017. She said she was retired and was too stressed so she was told to relax overseas. When asked to clarify what had happened to make her stressed the applicant said there was a clash between the old and new Directors at her workplace. She indicated that the new Director put her under pressure to resign so he could find someone to replace her. She commented that she was asked to sign a document admitting that she was at fault in relation to a work incident, but did not want to do that as it would taint her record, so she decided to resign instead. She elaborated, explaining that she worked in [Field 1] and under the old Director she would [undertake specified tasks] but the new Director did not do things this way and it came to be a problem, causing her stress.

Th applicant indicated that she was turning [age] years of age when this occurred. Noting that she was born in [year] the Tribunal asked if this was back in 2012, eight years ago. After some deliberation, the applicant indicated she thought it was about five years before she came to Australia (that is, in early 2012). The Tribunal asked the applicant what she did for the next five years before she came to Australia. She indicated that she sat a test for a government ‘bureaucracy’ job. She said she was on a waiting list for the job, attended an interview and was the ‘second seat’, but after two years of waiting to be called when she inquired further she was told there was no budget for the position.
The applicant said she also did some [courses]. When asked if she did any other work she replied, ‘no’, commenting that she hoped she would get the job she was waiting on. She indicated she did [the] courses because she was thinking of opening a shop. She said she came to Australia and was thinking of studying English and doing [a] course in Australia but her English is still not at a high enough level for her to do that.
The Tribunal asked the applicant if she did any other work at all after she resigned and before she came to Australia. She indicated she did not. When asked how she supported herself, she commented that she had been in her previous position for 20 years when she resigned and got a lump sum payment.
The Tribunal asked the applicant what she thought would happen if she had to return to Thailand now. She said she has been in Australia for a long time. She commented on the economy in Thailand stating that many aspects in Thailand do not give her support and she accumulated stress there. She said she is healthier when working in Australia.
The Tribunal asked the applicant if she feared she would suffer serious harm or significant harm if she returned to Thailand. She said there would not be significant suffering but commented that Bangkok is not very safe because there is political unrest and people protesting, and because of the economy she would not be able to do anything.
The Tribunal discussed with the applicant country information from the DFAT Country Information Report regarding the economy in Thailand and the security situation there. The report indicates that Thailand has experienced rapid economic and social development in recent decades and since 2011 the World Bank has classified Thailand as an upper-middle income economy, recognising its achievements in increasing Gross National Income per capita, significantly reducing poverty (from 67 per cent in 1986 to 7.8 per cent in 2017, as measured by the upper-middle income class poverty line of USD5.50 per day), and successfully withstanding the 2008 Global Financial Crisis. Thailand has the second largest economy in Southeast Asia, only behind Indonesia. The major economic sectors are services, manufacturing and agriculture with the services sector continuing to expand, contributing 56.3 per cent of Gross Domestic Product (GDP) in 2018. Tourism is a major industry and the main source of foreign currency. The official unemployment rate is 0.7 per cent and while the economy has contracted due to the impact of lockdowns and the decrease in Tourism revenue because of the COVID-19 Pandemic, GDP had been forecast to grow by 2.8 per cent in 2019 overall. [5]
[5] DFAT Country Information Report, Thailand, 10 November 2020, sections 2.12-2.17.
In relation to the security situation in Thailand, the DFAT report comments that while the situation is unpredictable and varies according to location, partly due to the uncertain political situation, most of the country is generally peaceful. The report indicates there has been a long-running separatist insurgency in southern Thailand that has caused numerous deaths and that terrorism is an ongoing concern (noting that the country’s relatively permissive visa requirements and porous borders make it vulnerable to exploitation as a transit hub for terrorists moving in and out of the region). DFAT notes, however, that while there have been a number of terrorism-related incidents in recent years that have caused deaths and injuries, large-scale attacks are rare. In relation to Bangkok, where the applicant’s home is, DFAT comments that political demonstrations and protests in Bangkok have turned violent in the past but large-scale street-based protests have been rare since the 2014 coup. DFAT states that petty crime is common in Thailand.[6]
[6] DFAT Country Information Report, Thailand, 10 November 2020, sections 2.53-2.56.
The Tribunal commented that given her background (university educated, having worked in [Field 1] in Thailand and as a [Occupation 1] in Australia, and having undertaken [specified] courses) and the relevant country information on the Thai economy, it seems she would be able to find work in Thailand. The Tribunal asked the applicant why she could not work as a [Occupation 1] in Thailand as she has been in Australia. She indicated the type of [service] she does in Australia [is] not popular there. The applicant commented that a women she knows plans to open [a] shop in Australia and it is proposed that she be the manager there. When the Tribunal commented that its question is about what she would do if she returned to Thailand, the applicant said the information about Thailand is not accurate, commenting that she has a [Field 1] background and knows how what is presented is not true facts.
The Tribunal also commented that she had indicated that she owns her own home in Bangkok, where her brother and sister are currently living, so she would have family support there. The applicant replied that in Thailand there are no jobs for people her age, the economy is not suitable and there is no quality of life. She added she has no vision of what she would do in Thailand whereas in Australia there is the plan to open the [shop]. She added that returning to Thailand would not be good for her mental health.
In relation to the security situation in Thailand the applicant commented that people are protesting. The Tribunal accepts that there have been recent student-led pro-democracy protests in Bangkok.[7] The Tribunal asked the applicant how the protests would affect her. She said the news is sometimes not true and you can’t know what is happening unless you are there, adding that the government is in control. The applicant said many of the student protesters are 14 years old, which has not happened before. She said the government use the military to control the situation and safety is low in Bangkok because her house is near the Grand Place. She said if there is a coup the streets near the Grand Place will be a focal point.
[7] ‘Thai police use water cannon on protesters in Bangkok’, Al Jazeera, 8 November 2020, >
The Tribunal asked the applicant if she had received treatment for her mental health issues. She said in Thailand she had initial stages of depression. The Tribunal asked her what treatment she received. She said she talked to a psychologist and a doctor and they advised her to move to another spot so she could forget about the pressure she faced. She said that is why she came to Australia. The Tribunal asked if she was prescribed any medication. The applicant indicated she was not, commenting that it was just the initial stage of depression where she was feeling stressed and having trouble sleeping. The Tribunal asked the applicant if she had been seeing a psychologist in Australia. She replied, ‘no’ and commented that her allergy has been better in Australia. The Tribunal asked her about her allergy. She said she did not like extreme hot weather because she experienced difficulty breathing. The tribunal queried whether she had air conditioning in her home in Bangkok. The applicant did not answer the question but said she never faced the sunlight but left home before dawn and returned after dusk.
Analysis
The Tribunal accepts that the applicant felt she had no option but to retire from her long term position as a [Field 1] officer at a [Workplace 1] in Bangkok in or around 2012 because of conflict about work practices with the incoming Director of the operation. The Tribunal accepts that this caused the applicant to feel stress and have trouble sleeping. The Tribunal notes that she applied for another bureaucratic position which she was hopeful of securing but this did not eventuate, and accepts that this contributed to the stress she felt at the time. The Tribunal notes that the applicant received a lump sum payment when she retired in 2012 and this appears to have been sufficient for her to support herself from 2012 until she came to Australia for a holiday in 2017, without her having to find employment over that time. Over this period she was also able to undertake [some] courses. The Tribunal notes that the applicant owns her own residence in Bangkok, and that her brother and sister currently reside in her home, so she has both a home to live in in Bangkok and close family support there.
The Tribunal considers that the applicant’s evidence regarding the conflict with the incoming Director of the applicant’s work unit indicates it was an interpersonal conflict regarding work style/acceptable work practices. The Tribunal finds there is nothing in the evidence to indicate or suggest that her resignation was due to persecution for one or more of the five reasons mentioned in s.5J(1)(a) of the Act.
The Tribunal finds that the evidence indicates that the applicant is a university educated woman who has worked as a [Field 1] professional at a [Workplace 1] in Thailand, and has worked as a [Occupation 1] in Australia, has hopes of being the manager of a [shop] in Australia and in the past had also thought about opening a shop where she could utilise her [specified] skills. While the applicant has a strong desire to remain in Australia, where she enjoys her current employment and lifestyle, and has a vision for herself as the manager of a [shop], considering the applicant’s background and the relevant country information regarding the Thai economy, the Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm for economic or related reasons should she return to Thailand. In this regard, the Tribunal finds there is nothing to indicate or suggest that the applicant would suffer severe economic hardship and/or be prevented from or be unable to obtain any employment on her return to Thailand. The Tribunal finds that there is nothing to indicate or suggest that there is a real chance the applicant would suffer significant economic hardship that threatens her capacity to subsist; and/or would be denied access to basic services, where the denial threatens her capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act, should she return to Thailand.
In relation to the applicant’s concerns about the security situation in Thailand, the Tribunal finds the relevant country information indicates most of the country is generally peaceful. The Tribunal accepts that there are student-led pro-democracy protests in Bangkok at the moment, which have led to protests near the King’s residence at the Grand Palace. The Tribunal finds, however, that it is purely speculative to suggest that this will result in a coup or a major confrontation in the area around the palace, which might impact the applicant’s residence in Bangkok. She did not indicate that her brother and sister who live at her residence had experienced any problems due to the recent protests or that the family experienced issues at the time of the 2014 coup. The Tribunal concludes that the applicant does not face a real chance of suffering persecution involving serious harm due to her political opinion or for one or more of the other reasons mentioned at s.5J(1)(a) of the Act, should she return to Thailand.
The Tribunal has also considered the applicant’s claimed health issues. While she has not provided any medical evidence in support of her claims to have suffered stress and to have experienced an allergic reaction to extreme hot weather which results in her experiencing breathing difficulties, the Tribunal accepts this may have been the case. In relation to her stress, the applicant indicated that she did not take medication while in Thailand, but was advised to take a holiday to relax. She indicated that she is not taking medication or seeing a psychologist in Australia. The Tribunal finds that the stress she experienced before coming to Australia was as a result of her feelings around having resigned her long term position under some duress and being unable to secure another bureaucratic position. These events date back to the period from 2012-2017, however, and the applicant is not suffering ongoing symptoms of stress. While it is possible that she might feel some stress at the prospect of returning to Thailand, it is speculative to conclude that she will suffer significant stress or depression if she had to return to Thailand. If she was to suffer stress as a consequence, there is nothing to indicate or suggest that she could not obtain treatment for her symptoms from her doctor or a psychologist in Thailand. In relation to the applicant’s allergy, while the Tribunal accepts that the applicant may find the cooler weather in Victoria more agreeable than the hot, humid climate of Bangkok, from personal experience the Tribunal finds that that air-conditioning is readily available in Thailand to mitigate the effects of the heat and the applicant indicated that in the past she avoided going out in the sunlight/heat of the day in Bangkok by leaving home pre-dawn and returning post-dusk. The Tribunal does not accept that any health conditions the applicant may suffer preclude her from returning to her home in Thailand.
Original written claims not true
The Tribunal queried the applicant that what she had told the Tribunal at the hearing is completely different to the written claims in her application. She confirmed that she had never married, never had children, had never run a small business, had never gambled or had a relationship with a boyfreind she met through gambling. She said she had not seen the written statement of claims and indicated that the written statement of claims is not true. The Tribunal finds that the applicant has disavowed her original written claims. Accordingly, the Tribunal finds that the applicant does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm from the owners, operators or agents of an illegal gambling operation because she borrowed money from them which she cannot repay, should she return to Thailand.
Does the applicant have a well-founded fear of persecution if she returned to Thailand?
Having carefully considered the applicant’s claims, for the reasons given above, the Tribunal does not accept that there is a real chance that she will suffer persecution involving serious harm from owners, operators or agents of an illegal gambling operation, her past employer or prospective future employers, the Thai government or its authorities, protesters, the Thai military or any other authority, organisation, person or group, for one or more of the five reasons mentioned at s.5J(1)(a), if she was to return to Thailand, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to Thailand, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[8]
[8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from owners, operators or agents of an illegal gambling operation, her past employer or prospective future employers, the Thai government or its authorities, protesters, the Thai military or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching this conclusion, the Tribunal finds that any economic hardship the applicant might experience if removed to Thailand, including feelings of emotional distress/stress and/or humiliation due to her economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing her to suffer significant harm.
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

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

[2020] AATA 5493

13 November 2020

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice