1821718 (Refugee)

1821718 (Refugee) [2024] AATA 4205 (1 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821718
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Rachel Da Costa
DATE:1 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 July 2024 at 12:48pm
CATCHWORDS
REFUGEE – protection visa – Thailand – second applicant wife’s debt to money lenders – threatened and assaulted – new claims made at hearing – discrepancies between applicants’ claims and evidence – husband’s claim that he was unaware of events at the time – authenticity of photo showing claimed assault – lender’s ongoing harassment of wife’s parents – husband’s alcohol consumption and lack of responsibility increases risks – Australian-born child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are citizens of Thailand, applied for the visas on 3 April 2018. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
[The first applicant] is a [Age]-year-old Thai man. [The second applicant] is a [Age]-year-old Thai woman and [the first applicant]’s wife. [The third applicant] is their daughter.
In Part C of his Application for a protection visa form, [the first applicant] provides the following relevant information. He was born in Ubon Ratchathani city, Ubon Ratchathani province, Thailand. He speaks, reads and writes Thai and speaks and reads English. He is a Buddhist. He is married. In Thailand, he has his parents and he is contact with them.
In Thailand, he always lived at the same address at [Address], Ubon Ratchathani. He did not provide any information about employment or education in Thailand.
He departed Thailand legally using his Thai passport [in] April 2016 and arrived in Australia the next day. He held a Student visa.
In Part C of her Application for a protection visa form, [the second applicant] provides the following relevant information. She was born in Ubon Ratchathani city, Ubon Ratchathani province, Thailand. She speaks, reads and writes Thai and speaks and reads English. She is a Buddhist. She is married. She did not provide any information about family members.
In Thailand, she always lived at the same address at [Location], Ubon Ratchathani, which is the same address provided for her husband. She did not provide any information about employment or education in Thailand.
She departed Thailand legally using her Thai passport [in] April 2016 and arrived in Australia the next day. She held a Student visa. In fact, movement records show that [the second applicant] arrived in Australia [in] December 2016, a few months after her husband.
[The third applicant] was born in Australia in [Year].
Evidence before the Department
Protection visa application claims
In his protection visa application form, [the first applicant] makes the following claims:
·     They left Thailand because they are afraid for their lives;
·     Due to his wife’s debt to unlicensed financial lenders their lives are in danger;
·     They received threats almost every day and they threatened to kidnap his daughter;
·     He cannot repay his wife’s debt because his salary is not enough;
·     They came to Australia to help each other;
·     If they return to Thailand, their lives will continue to be threatened by the unlicensed lenders;
·     The harm he experienced made him think he was going to die;
·     He cannot sleep or work properly because of the worry about their situation and safety and the worry that the unlicensed lenders will take their daughter if they cannot pay the debt;
·     They did not try to relocate in Thailand because they were afraid to seek help and afraid that the lenders had government connections and would be able to find them;
·     The authorities cannot help them because they are corrupt.
In Part B of their Application for a protection visa form, it states that only [the first applicant] is making claims for protection and [the second and third applicant] are not making their own claims for protection. However, in her protection visa application form [the second applicant] makes identical claims to her husband and those same claims are reproduced to an extent in [the third applicant]’s form as well.
The delegate’s decision
The applicants were not invited to an interview with the Department to discuss their claims for protection. On 26 July 2018, the delegate made their decision. The delegate considered that effective protection would be available to the applicants so they would not face a real risk of significant harm. The delegate found that the applicants are not persons in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 26 July 2018, the applicants lodged their application for review with the Tribunal. They provided the Tribunal with a copy of the delegate’s decision.
On 5 February 2024, the applicants returned a pre-hearing information form to the Tribunal in which they provided the following additional information about their claims:
· the original debt has still not been repaid because the high cost of living prevents this;
· returning to Thailand would be a risk because of not knowing if they would receive Thai government assistance until they had enough money to repay their debt.
On 14 March 2024, [the first applicant] sent an email to the Tribunal attaching an undated photograph which he says shows “my wife was attacked by the men who was collect the money.”
[The first applicant] also provided two character references dated 7 March 2024 and 8 March 2024 for [the second applicant] from work colleagues, a character reference for him and his wife dated 8 March 2024 from a friend who is also a work colleague of [the second applicant] and a copy of his daughter’s 2023 Semester 2 school report from her primary school.
Documents provided after the hearing
In the hearing, [the second applicant] provided three hard-copy documents to the Tribunal, all of which were in Thai. She explained to the Tribunal that the documents were the death certificate of her uncle, an interest payment document her uncle sent before he passed away, and a media article about money lenders killing people.
The Tribunal explained to her that if she wanted the Tribunal to be able to consider the documents then they would need to be translated into English. The Tribunal gave [the second applicant] time after the hearing to do this. On 22 April 2024, [the second applicant] provided certified English translations of the documents and stated in her cover email that the documents were:
·     death certificate of her uncle;
·     her uncle’s payment record “that helped me paid interest before him pass away”;
·     country information.
The country information is a translation of a Thai news article from Thairath Online which is entitled “Brutal loan shark shot dead fruit merchant following missed interest payments”. The article reports the dead man’s wife as saying her husband had taken a loan from a loan shark gang and he was shot dead with two days of interest owing. The gang is not named.
[The second applicant] also provided a translated written statement from her mother dated 15 April 2024, which was provided in lieu of the Tribunal taking oral evidence from her parents by telephone in the hearing, as discussed below.
The hearing
[The first and second applicants] appeared before the Tribunal on 26 March 2024 and 9 April 2024 to give evidence and present arguments. [the third applicant] daughter did not give evidence, which is appropriate given her age and lack of relevant knowledge. She attended the first day of hearing with a friend of the family who came as a support person and they sat outside the hearing room. She did not attend the second day of hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicants had indicated that they wanted the Tribunal to take evidence by telephone from [the second applicant]’s parents in Thailand. In the hearing, when the Tribunal attempted to call the parents on the numbers provided the calls did not connect. The Tribunal tried several times but with no success. As a result, the Tribunal gave applicants the opportunity to provide written statements from [the second applicant]’s parents, which they did as referred to above.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
[The second applicant] gave evidence in the hearing that she filled out their protection visa application forms using Google Translate and with the help of a friend. [The first applicant] confirmed that all the information in his protection visa application form is true and correct, but then said he was not sure if there were any mistakes because the application was prepared by his wife and he “roughly knows about the story”. [The second applicant] said she was not sure if there were mistakes because she was using Google Translate so there could be some inaccuracies. She pointed out one inaccuracy which is that she only has one child and she did not have children in Thailand, whereas the protection visa application form suggests otherwise.
In the hearing, the Tribunal took evidence from [the first and second applicants] separately and discussed concerns with each of them about their evidence. It also discussed some concerns with them together and after the hearing sent them a letter using the s 424A process, inviting them to comment on or respond to information which the Tribunal considers would, subject to their comments or response, be the reason or part of the reason for affirming the decisions under review.
In the hearing, the Tribunal discussed with [the first and second applicants] their family and relationship history, residential history, employment history, migration history, the claimed events in Thailand and why they fear returning there. Although [the first applicant] is named as the first applicant, it became apparent in the hearing that the events in question primarily involved [the second applicant] and she was the person who provided most of the detailed evidence in the hearing about the events which give rise to their claims. They both made a number of new claims in the hearing which were not included in their protection visa application forms. Overall, the Tribunal did not find [the first and second applicants]’s claims and evidence regarding events in Thailand and the consequences that have followed, to be credible for the reasons explained below.
New claims made in the hearing
For ease of reference and consistency, the Tribunal is going to refer to the claimed “unlicensed financial lenders” or “loan sharks” in these reasons as the “money lender”.
Both [the first and second applicants] made new claims in the hearing, including claims that were different from the claims in their protection visa application forms.
In the hearing, [the first applicant] gave evidence that he only found out about the events involving [the second applicant] and the money lender after he came to Australia, so most of the evidence he gave about the events giving rise to their protection claims was based on what [the second applicant] had told him rather than from his direct personal knowledge or experience. He made a number of new claims in the hearing:
·     He did not leave Thailand due to fear or experience any threats there;
·     He found out about [the second applicant]’s problems with the money lender after he arrived in Australia;
·     Since being in Australia, [the second applicant]’s parents have told her about ongoing problems with the money lenders, and she told him;
·     He has not had any direct contact with the people causing the problems;
·     He is worried about the safety of his daughter and wife if they return to Thailand due to the money lender but not for any other reason.
Most of the detailed evidence given in the hearing about events in Thailand was given by [the second applicant]. In the hearing, she made a number of new claims and elaborated on her claims:
·     In early 2015, she borrowed 400,000 baht, with an interest rate of 20% per annum and a repayment term of 10 months. She borrowed the money to invest in gold. The investment failed and so the money lender started pursuing her for repayment;
·     She lived with her parents in [District]. She also lived with [the first applicant] for a while in Bangkok. After [the first applicant] departed for Australia, she spent a week hiding from the money lender in Konkan province and then moved back to her parents’ place;
·     While she was living at her parents’ place, she was moving between their house in the village and their house in the CBD to avoid the people associated with the money lender from finding her;
·     In February 2016, people associated with the money lender found her at her parents’ CBD house and beat her;
·     Her aunt, who was the guarantor of the loan from the money lender, took her to the hospital where she had medical treatment for her wounds;
·     After this assault, [the second applicant] moved to Bangkok and lived with [the first applicant] for a short time before he came to Australia;
·     The people associated with the money lenders continued to hunt her at her parents’ house and so she moved between their two houses and tried to be in public places during the day because she knows that is when they come to collect the money;
·     [The first applicant] knew about her problems before he left Thailand and came to Australia;
·     The money lender found out she had a child after she came to Australia and made threats via her parents to kidnap and sell [the second applicant] and her child if they return to Thailand;
·     About two years ago, the money lender’s people threw pigs blood at her parents’ house in the village;
·     She has been told that the leader of the money lender business is a high ranked military member;
·     Her parents’ dog has been poisoned but there is no evidence about who did it;
·     She is worried for the safety of her daughter because of the money lender if they return to Thailand.
Background of [the first and second applicants]
In the hearing, [the first applicant] gave evidence that in Thailand he has his parents and two older siblings. They live in the north-east of Thailand in the [District] of Ubon Rajatani province. His parents run a [farm] and he is in regular contact with them. He lived in Bangkok for about seven or eight years before coming to Australia and ran a retail [business] in the street. Before that he was living and working with his parents. Bangkok is about 700km from Ubon Rajatani province.
He met [the second applicant] in Thailand and they were in a relationship for about one year before he came to Australia and they lived together in Bangkok for about five or six months before he departed. [The first applicant] came to Australia to study and arrived in April 2016. He was planning to return to Thailand after one year until [the second applicant] told him about the problems she was having in Thailand which form the basis of their protection claims.
In the hearing, [the second applicant] gave evidence that in Thailand she has her parents, and cousins who were cared for by her mother. Her parents live in the [District of Ubon Rajatani province. They have a house in the countryside or village where they live and her mother has a house in Ubon Rajatani CBD. Her father works as [an occupation 1] and her mother is [an occupation 2]. She is not in very regular contact with them.
She had known [the first applicant] for a long time as they were from the same area, but their romantic relationship only began about one year before [the first applicant] came to Australia. She obtained a Student visa for Australia and arrived [in] December 2016. She wanted to improve her work skills and earn money to repay her debts. She was living at home with her parents at the time she departed Thailand.

The Tribunal accepts the biographical background information about [the first and second applicants] except for the aspects of that evidence which relates to their protection claims, for the reasons explained below.
When [the first applicant] found out about [the second applicant]’s problems with the money lender
On 24 April 2024, the Tribunal wrote to the applicants pursuant s 424A about the discrepancies in their evidence about when [the first applicant] became aware of [the second applicant]’s financial problems with the money lender in Thailand. Relevantly, the letter stated as follows:
…
The particulars of the information are:
·     In the hearing, [the first applicant] gave evidence that he only found out about [the second applicant]’s problems with the money lenders after he came to Australia. He gave evidence that while he was living in Thailand he was not aware that [the second applicant] had financial problems and he only found out when [the second applicant] told him, which was about five months after he arrived in Australia and she was still living in Thailand
·     In the hearing, [the second applicant] gave evidence that [the first applicant] knew about her financial problems and the problems she had with the money lender before he came to Australia.
·     After the Tribunal put its concern about this discrepancy to [the first and second applicants] in the hearing, [the first applicant] changed his evidence said sometimes he was not there when these incidents happened (in Thailand) and sometimes [the second applicant] or her friends told him what happened but not all of it. He said he and [the second applicant] only lived together for a short time before he left for Australia.
This information is relevant because the differences in your evidence may lead the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility.
If the Tribunal relies on this information, it may lead the Tribunal to find that the events you claim took place did not occur and you do not face harm from money lenders or people associated with them in Thailand. It may lead the Tribunal to find that you do not have a well-founded fear of persecution if you return to Thailand in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Thailand. If the Tribunal does not accept that you have given truthful evidence you may not be entitled to a protection visa.
…
On 7 May 2024, the applicants responded to the Tribunal’s s 424A letter in writing. They did not specifically address the Tribunal’s concern, but their response stated that they may not be able to provide correct information because the incident happened eight years ago, and “[the first applicant] was not part of the incident himself and so he probably doesn’t remember most of the details.” This response does not allay the Tribunal’s concerns for the reasons explained below.
It is not clear to the Tribunal what incident is being referred to in their response, but in any event, the Tribunal’s concern expressed in the s 424A letter was about [the first applicant] being made aware of a set of ongoing circumstances and problems rather than an individual event.
While the Tribunal acknowledges that the passage of time can cause memories to fade, the Tribunal does not accept that [the first applicant] would be mistaken about or have forgotten whether he knew about the problems [the second applicant] was having with the money lender while he was still in Thailand or whether he only found out after he came to Australia, given the significance of the events in question. This is particularly the case given both of them have claimed they were in a romantic relationship and living together (for different periods of time) before [the first applicant] came to Australia and [the second applicant] has claimed that she was already having problems at this stage, including being beaten by associates of the money lender and [the first applicant] knew about this incident when it happened. Equally, the Tribunal also does not accept that [the second applicant] would be mistaken about whether she made [the first applicant] aware of her problems with the money lender before or after [the first applicant] left Thailand given the significance of those claimed events. In addition, the fact that [the first applicant] adjusted his evidence in the hearing about whether he was still in Thailand when he became aware of [the second applicant]’s problems, in response to the Tribunal’s concern, adds to the Tribunal’s doubts.
When [the first applicant] found out about [the second applicant] being assaulted by people connected with the money lender
On 24 April 2024, the Tribunal wrote to the applicants pursuant s 424A about the discrepancies in their evidence about when [the first applicant] found out about [the second applicant] being assaulted by people connected to the money lender. Relevantly, the letter states as follows:
…
The particulars of the information are as follows:
·     In the hearing, [the first applicant] gave evidence that he only found out about [the second applicant] being assaulted by people connected to the money lender after he came to Australia and [the second applicant] told him about it. [The first applicant] left Thailand and came to Australia in April 2016.
·     In the hearing, [the second applicant] gave evidence that she was assaulted by people connected to the money lender and attended the hospital in February 2016 which was before [the first applicant] left Thailand. She said she told [the first applicant] what happened at that time, and after this incident she ran away to live with [the first applicant] in Bangkok.
·     At another point in the hearing, [the second applicant] said she told [the first applicant] about her problems at the beginning of 2016 before she was abused or hit. She said he knew about her problems before he came to Australia.

This information is relevant because the differences in your evidence may lead the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility.
If the Tribunal relies on this information, it may lead the Tribunal to find that the events you claim took place did not occur and you do not face harm from money lenders or people associated with them in Thailand. It may lead the Tribunal to find that you do not have a well-founded fear of persecution if you return to Thailand in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Thailand. If the Tribunal does not accept that you have given truthful evidence you may not be entitled to a protection visa.
…
On 7 May 2024, the applicants responded to the Tribunal’s s 424A letter in writing. As noted above, they did not specifically address this concern, but their response stated that they may not be able to provide correct information because the incident happened eight years ago, and [the first applicant] was not part of the incident himself and so he probably doesn’t remember most of the details. Again, as noted above, it is not clear to the Tribunal what incident is being referred to by the applicants.
In any event, the discrepancy between the evidence of [the first and second applicants] about whether [the first applicant] found out about the physical assault of [the second applicant] at the time the claimed incident happened or later after he left Thailand, raises a concern for the Tribunal about the credibility of this claim. The Tribunal finds it difficult to accept that if [the second applicant], who was [the first applicant]’s romantic partner by this time, was physically assaulted in the way she claims by people connected to the money lender, that [the first applicant] would not have become aware of this at or shortly after the time of the assault while he was still in Thailand. This is particularly the case given [the second applicant]’s evidence about when and why she came to live with [the first applicant] in Bangkok.
[The second applicant] gave evidence in the hearing that the assault happened in February 2016 in her home area of [District] and after this she ran away to live with [the first applicant] in Bangkok. Her evidence therefore suggests that she lived with [the first applicant] in Bangkok for around two months before he left Thailand (in April 2016) and at least part of the reason she came to live with him was to flee after the assault, which she claims he knew about at the time. [The first applicant] gave evidence in the hearing that [the second applicant] lived with him in Bangkok for five or six months before he came to Australia in April 2016, which suggests that she began living with him sometime in late 2015. He did not give evidence that she came to live with him after being assaulted by people connected to the money lender and as noted above, he claims he only found out about the assault after he was in Australia.
The Tribunal finds these two accounts difficult to reconcile. These discrepancies in the evidence of [the first and second applicants] about their living arrangements and when [the first applicant] found out about the assault add to the Tribunal’s concerns about the credibility of this claim and the applicants’ claims more generally.
The photograph of [the second applicant] which she claims shows her being assaulted by a person connected to the money lender in February 2016
The Tribunal has referred above to an undated photograph provided to the Tribunal by the applicants which they say shows [the second applicant] at the hospital after being assaulted by a person associated with the money lender. The photo shows [the second applicant] sitting on what appears to be the kerb of a footpath. She is resting her head in her right hand and she is looking down. She has a mark on her shirt which is the colour of blood and a clean wound dressing on part of her forehead. Close behind her is a person standing still with their right leg and foot raised in a position from which it appears they are going to kick [the second applicant] with the sole of their shoe. The person’s upper body and face is not visible. [The second applicant] appears oblivious to the presence of the person behind her. The photo is undated.
[The first applicant] gave evidence in the hearing that he only saw this photo after [the second applicant] came to Australia and the photo is part of the reason he believes his wife’s story about what happened to her in Thailand.
[The second applicant] gave evidence in the hearing that it was her aunt who took her to the hospital after she was assaulted by the people associated with the money lender. When [the second applicant] was being discharged from the hospital, a person associated with the money lender kicked her. Her aunt took photos but there was only one photo which was good and that is the photo [the second applicant] provided to the Tribunal.
In the hearing, the Tribunal put to [the second applicant] that along with its other concerns about the credibility of her claims, it had a concern that the photo was staged. [The second applicant] responded that she understood, but she did not offer a further response or explanation. The Tribunal put the same concern to [the first applicant] and he said that at the time the incident happened things were very busy and friends came to help [the first applicant] and he doesn’t have a better picture than that one. The Tribunal does not accept either of their responses as they do not respond to the Tribunal’s concern.
In its 424A letter to the applicants, the Tribunal relevantly wrote as follows:
…
The particulars of the information are as follows:
· In the hearing, [the second applicant] gave evidence that her aunt and uncle took the photo she provided to the Tribunal. She said her aunt took many photos at the time but this was the only good one. [The second applicant]’s aunt was there when the incident happened because she is the person who took her to hospital.
· In the hearing, [the first applicant] gave evidence that [the second applicant]’s friend took the photo. He said that when the incident happened it was confusing and busy and [the second applicant]’s friends came to help her so they didn’t have time to take pictures. [The first applicant] gave evidence that he found out what happened after [the second applicant] was in Australia and she told him and showed him the photo.

This information is relevant because the differences in your evidence may lead the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility.

If the Tribunal relies on this information, it may lead the Tribunal to find that the events you claim took place did not occur and you do not face harm from money lenders or people associated with them in Thailand. It may lead the Tribunal to find that you do not have a well-founded fear of persecution if you return to Thailand in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Thailand. If the Tribunal does not accept that you have given truthful evidence you may not be entitled to a protection visa.
…
In their response to the s 424A letter, the applicants did not specifically address this concern. The Tribunal has already set out its concerns about their general response and why that response does not allay its concerns.
The differences in the evidence of [the second and first applicants] in the hearing about whether it was [the second applicant]’s aunt and uncle or her friends who took the photo and why there were either many (according to [the second applicant]) or not many (according to [the first applicant]) photos taken suggests to the Tribunal that neither of the applicants was speaking from their own personal knowledge or experience of actual events and their explanations were fabricated. The Tribunal has referred above to its concern that the photo appears staged.
Along with the Tribunal’s other concerns set out above, this adds to the Tribunal’s concerns about the credibility of the applicants’ evidence and the truthfulness of their claims.
Written statement of [the second applicant]’s mother
As noted above, the applicants wanted the Tribunal to take oral evidence by telephone from [the second applicant]’s parents in Thailand during the hearing. The Tribunal’s attempts to call them failed and so the Tribunal gave the applicants the opportunity to provide written statements from her parents.
The applicants provided a written statement dated 15 April 2024 from [the second applicant]’s mother, [Ms A]. In that statement, [the second applicant]’s mother makes the following points:
·     She only became aware of her daughter’s debt around the end of 2015 because a motorcycle gang came to their house to collect the debt;
·     She didn’t ask her daughter how much the debt was because she and her husband thought their daughter could look after herself, but they thought the sum must be quite large;
·     In February 2016, [the second applicant]’s aunt told [the second applicant]’s parents that [the second applicant] was assaulted and threatened at their house in the town centre;
·     [The second applicant] was always on the run from the people in the gang and she only returned home occasionally. When she was home, she always remained in her bedroom;
·     Later, [the second applicant] told her parents she was moving to Australia;
·     The debt collectors have come to their home and made threats, including splashing pig’s blood on the house wall. They also made threats to harm [the second applicant] and her baby if they returned;
·     The debt collectors people continue to come to the house to collect the debt belonging to [the second applicant] and also [the second applicant]’s aunt and uncle, who have now passed away, and they continue to make threats;
·     Their dog has been poisoned, and they leave their house through the back door to make it look as though nobody is home;
·     The police cannot help because the debt collectors are powerful;
·     They are worried for the safety of their daughter and granddaughter if they return to Thailand.
In the s 424A letter, the Tribunal raised inconsistencies between some of the information contained in the written statement of [the second applicant]’s mother with evidence [the second applicant] gave in the hearing as follows:
…

The particulars of the information are as follows:
·     In her written statement, [the second applicant]’s mother states that her daughter, [the second applicant], was always on the run from the people from the money lender’s gang and her daughter would only return home occasionally. When her daughter was home, she would always remain inside her bedroom.
·     In the hearing, [the second applicant] gave evidence that when she was being pursued for the debt she owed, she was moving between her parents’ house in the countryside and their house in the CBD trying to hide. She said she tried to escape from the money lender’s people by going out and being in public places because she knew they tried to collect during the day. [The second applicant] did not give evidence that she only returned home occasionally or that when she was home she would always remain inside her bedroom.

This information is relevant because the differences in your evidence may lead the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility.

If the Tribunal relies on this information, it may lead the Tribunal to find that the events you claim took place did not occur and you do not face harm from money lenders or people associated with them in Thailand. It may lead the Tribunal to find that you do not have a well-founded fear of persecution if you return to Thailand in the reasonably foreseeable future or that there is a real risk of significant harm as a necessary and foreseeable consequence of you being removed from Australia to Thailand. If the Tribunal does not accept that you have given truthful evidence you may not be entitled to a protection visa.
…
The applicants did not respond to this concern in their response to the s 424A letter. While some of the detail provided by [the second applicant]’s mother is consistent with evidence given by [the second applicant] in the hearing, some of it is not, including the evidence referred to in the Tribunal’s letter. Further, the mother’s written statement was prepared and provided after the Tribunal had put its concerns about various aspects of the applicants’ evidence to [the second applicant] in the hearing and after [the second applicant] had the opportunity to speak to her mother. For these reasons, the Tribunal gives the contents of the written statement from [the second applicant]’s mother no weight in terms of it corroborating the applicants’ evidence and claims for protection and the Tribunal remains concerned about the credibility of the applicants’ claims for the reasons explained above.
Other documents provided to the Tribunal
As discussed above, after the hearing, the applicants provided translated certified English translations of documents they had provided in the hearing as follows:
·     death certificate of [the second applicant]’s uncle;
·     [the second applicant]’s interest payment record provided by her uncle before he passed away;
·     country information.
The Tribunal explained to the applicants in the hearing that in light of its concerns about the credibility of their claims it might give these documents no weight.
The Tribunal accepts the death certificate of [the second applicant]’s uncle, [Mr B], showing he died [in] September 2022. [The second applicant] said that if her uncle were alive she would have asked him to give evidence. The Tribunal does not consider the death certificate to be relevant to the applicants’ claims for protection and gives it no weight.

The Tribunal has concerns about the payment record provided by the applicants, which is a single-sided one page document. [The second applicant] said it was the interest repayment schedule for her loan. The payment schedule states at the top the “Loan Amount” is 130,000 [no currency specified]. [The second applicant] gave evidence that her loan was for 400,000 baht. The name on the top of the payment record is “[Name]”. The applicants did not mention this name in their evidence and the form of the document suggests that it is the person responsible for making the loan repayments whose name is at the top of the document. The payment dates in the document are weekly from 8 July 2021 to 9 March 2022. The significance of these dates is unclear given [the second applicant] claims to have taken the loan out in March 2015. In essence, there is nothing on the face of this document to link it to [the second applicant] (or [the first applicant], or [the second applicant]’s uncle). Accordingly, the Tribunal does not accept that this document is the loan repayment schedule for [the second applicant]’s claimed loan from the money lender and gives it no weight.
The country information is a translation of a Thai news article from Thairath Online which is entitled “Brutal loan shark shot dead fruit merchant following missed interest payments”. The article reports the dead man’s wife as saying her husband had taken a loan from a loan shark gang and he was shot dead with two days of interest owing. The gang is not named. The Tribunal does not accept this document as being relevant to the applicants personally as there is nothing to tie the reported incident to them, and therefore gives it no weight.
The Tribunal asked the applicants about the relevance of the character references they provided. They said that just want to confirm they have no problems here in Australia. The Tribunal asked them about the relevance of their daughter’s school report. They responded that she is at school and will have a good future in Australia. The Tribunal does not consider these documents to be relevant to the applicants’ claims for protection and gives them no weight.
[The third applicant]
In the hearing, the Tribunal asked [the first and second applicants] about the reasons they fear harm for their daughter if she returns to Thailand. Both of them said they were afraid for their daughter’s safety because of the people connected to the money lender and the risk she would be being kidnapped or hurt by them. They said there were no other reasons.
Family issues in Australia
In the response to the s 424A letter, [the second applicant] wrote that while it is not related to the case, she and [the first applicant] are having some problems in their marriage because he is drinking too much alcohol. She said she just wishes to stay living in Australia where they are safe and her husband’s alcohol consumption increases the risk for them if they return to Thailand due to his lack of responsibility to them. She asks the Tribunal to consider her family position.
Findings
Having considered all the applicants’ claims and evidence, and based on the Tribunal’s concerns set out above about the credibility of the evidence given by [the first and second applicants] about their claims, the Tribunal does not accept their central claim that [the second applicant] borrowed 400,000 baht or any other amount from a money lender in around March 2015, or their claims which flow from this.
It follows that the Tribunal does not accept that the applicants left Thailand because they are afraid for their lives. It does not accept that due to [the second applicant]’s debt to money lenders their lives are in danger, as it does not accept that any such debt exists. It follows that the Tribunal does not accept that they received threats almost daily or that the money lenders or people connected to them threatened to kidnap [the third applicant]. As it does not accept that a debt exists, it does not accept that [the first or second applicant] cannot repay the debt because their salaries are not enough. It does not accept that if the applicants return to Thailand, their lives will be threatened by the money lenders. As the Tribunal does not accept that there is a debt or that the claimed events occurred, it does not accept that the applicants experienced harm as a result or that the harm they experienced made them think they were going to die. As the Tribunal does not accept that the claimed events occurred, it does not accept that the applicants did not try to relocate in Thailand because they were afraid, or that the money lenders had government connections, or that the authorities would be unable to help them because they were corrupt.
As the Tribunal does not accept [the second applicant] owes a debt to money lenders, it does not accept that the debt remains unpaid or that returning to Thailand would be a risk for the applicants, including due to their concern about whether they could receive government assistance while they repaid their debt.
The Tribunal accepts [the first applicant]’s evidence that he did not leave Thailand due to fear or experience any threats there. For the reasons set out above, the Tribunal does not accept that he found out about [the second applicant]’s problems with the money lender and her claimed assault after he arrived in Australia, or while he was still in Thailand, or that since being in Australia [the second applicant]’s parents have told her about ongoing problems with the money lenders and she has told him, or that he is worried about the safety of his daughter and wife if they return to Thailand due to the money lender. As the Tribunal does not accept that the claimed money lender exists, the Tribunal accepts that [the first applicant] has not had any contact with them. The Tribunal also accepts that [the first applicant] does not fear returning to Thailand for any other reason.
The Tribunal does not accept that [the second applicant] borrowed money from a money lender to invest in gold or that her gold investment failed and so the money lender started pursuing her for repayment of the loan. The Tribunal accepts that [the second applicant] lived with her parents in the [District] of Thailand and that she also lived for some time with [the first applicant] in Bangkok before he came to Australia. As the Tribunal does not accept that [the second applicant] was being pursued by the money lender, it does not accept that she spent time hiding from them in Konkan province or that she was trying to hide from the money lender’s associates by moving between her parents’ houses in the village and the CBD and by spending time in public places. The Tribunal does not accept that in February 2016, or at any other time, people associated with the money lender found [the second applicant] at or near her parents’ CBD house and beat her, or that she was taken to the hospital by her aunt, or that she required medical treatment, or that this is the reason she went to live with [the first applicant] in Bangkok. The Tribunal does not accept that the people associated with the money lender continued to hunt her and threaten her until she left Thailand. The Tribunal does not accept that [the second applicant] told [the first applicant] about her problems with the money lender either before or after he left Thailand as the Tribunal does not accept that such problems exist. The Tribunal does not accept that people associated with the money lender have continued to make threats against [the second or third applicant] through her parents, or that they have thrown pigs blood at her parents’ house, or that they continue to harass [the second applicant]’s parents or that they poisoned her parents’ dog. As the Tribunal does not accept that the claimed money lender exists, it does not accept that the boss is person with senior military or government connections.
The Tribunal does not accept that [the first or second applicant] are worried about [the third]’s safety if they return to Thailand because of the people connected to the money lender and the risk she would be being kidnapped or hurt by them.
The Tribunal finds that the photograph of [the second applicant] provided by the applicants does not genuinely show what they claim it shows, which is [the second applicant] about to be kicked by someone connected with the money lender after she was assulted.
Do the applicants meet the refugee criterion?
In their protection visa application forms, the applicants have claimed that they fear returning to Thailand because they will be threatened and harmed by the money lender and [the third applicant] may be kidnapped or otherwise harmed by those people. In the hearing, they have also claimed that they fear being harmed by the money lender and their associates. They fear harm because the debt has not been repaid. The Tribunal has found above that there is no debt owed to a money lender, [the second applicant] did not suffer harm in the past in connection with such a debt and no threats have been made in respect of the applicants in connection with such a debt. On this basis, the Tribunal does not accept their claims and finds that if the applicants returned to Thailand in the reasonably foreseeable future they would not face a real chance of serious harm arising from these circumstances.
Apart from the claim of harm connected to the money lender, which the Tribunal has rejected above, [the first and second applicants] said they did not fear harm for their daughter if she returns to Thailand for any other reason. The Tribunal accepts this.
As noted above, after the hearing [the second applicant] wrote in the s 424A response that while it is not related to the case, she and her husband are having some problems in their marriage because he is drinking too much alcohol. She said she just wishes to stay living in Australia where they are safe and her husband’s alcohol consumption increases the risk for them if they return to Thailand because of his lack of responsibility towards them. While the Tribunal is sympathetic to the problems [the second and first applicants] may be having in their relationship, it notes that [the second applicant] has said the marriage problems are not related to their case, and the Tribunal accepts this. [The second applicant] did not mention these problems in the hearing despite being given the opportunity to raise all her concerns, and the Tribunal has set out above its concerns about her credibility as a witness. The Tribunal notes her claim that [the first applicant]’s alcohol consumption increases the risk for them if they return to Thailand, but the Tribunal does not accept their claims and has found above that they do not face a real chance of serious harm if they return to Thailand for any reason. On this basis, the Tribunal is not satisfied that [the first applicant]’s alleged alcohol consumption and lack of responsibility increases a risk to the family that the Tribunal does not accept exists in the first place. [The first applicant] is not suggesting that she or her daughter face a risk of harm from [the first applicant]. Therefore, insofar as this can be regarded as claim, the Tribunal finds that the applicants would not face a real chance of serious harm arising from these circumstances if they returned to Thailand in the reasonably foreseeable future.
Do the applicants meet the complementary protection criterion?
As the Tribunal has found that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicants meet the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons as those set out above, the Tribunal finds that the applicants do not face a real risk of significant harm. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, there is a real risk that they will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
[1] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rachel Da Costa
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.
…

[2024] AATA 4205

1 July 2024

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