1822432 (Refugee)

1822432 (Refugee) [2021] AATA 3477 (25 June 2021)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1822432
COUNTRY OF REFERENCE:                   Thailand
MEMBER:L. Symons
DATE OF DECISION:  25 June 2021
DATE CORRIGENDUM
SIGNED:22 September 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

Date of decision on page 1 on the Decision Record to be corrected from 25 June 2020 to 25 June 2021.
Statement made on 22 September 2021 at 2:15pm
L. Symons
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1822432
COUNTRY OF REFERENCE:                   Thailand
MEMBER:L. Symons
DATE:25 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 25 June 2021 at 4:54pm
CATCHWORDS
REFUGEE – protection visa – Thailand – Federal Circuit Court remittal – fear of harm from illegal money lenders – borrowed to pay workers and tax fine – threats and attacks on property – credibility – delay in applying for protection – applied after student visa cancelled – vague, inconsistent, expanding and new claims and evidence – travel to other countries and return to home country after Australian visa granted – joint ownership and management of family companies, and transfers of interests – financial and court documents – no harm to family members and continuing operation of businesses – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2), (2A), (2B), 65, 91R, 351, 424AA, 438
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Immigration and Border Protection 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, arrived in Australia [in] July 2012 as the holder of a [Visitor] visa. On 30 August 2012, he was granted a Bridging A visa in association with his application for a subclass 572 Student visa. He has been granted a series of Bridging visas since then.
On 30 October 2012, the applicant’s application for a subclass 572 Student visa was refused by the Department of Immigration (the Department). He applied to the Migration Review Tribunal (MRT) for a review of that decision. On 20 November 2012, the MRT affirmed the decision made by the Department. On 24 February 2014, he made a request for Ministerial intervention under s.351 of the Act and on 13 August 2014 his request for Ministerial intervention was unsuccessful.
On 8 August 2014, the applicant applied for a Protection visa and on 20 May 2015 the Department refused to grant the visa. On 2 June 2015, he applied to the Tribunal for a review of that decision. On 18 April 2017, the Tribunal affirmed the decision made by the Department. On 15 May 2017, he made an application for judicial review to the Federal Circuit Court and on 2 August 2018 the Federal Circuit Court remitted the application by consent to the Tribunal for reconsideration.
The applicant appeared before the Tribunal on 24 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The issue that arises on review is whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.
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 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa filed on 8 August 2014 are summarised as follows:
·In 1991, he started a business called ‘[Business name 1]’ selling [Product 1]. The business was set up in partnership with [Mr A], a [Country 1] [occupation], who provided the initial capital. They exported one hundred percent of their products to [Country 1]. They employed 160 employees and the revenue was about 10 million baht per annum.
·In 1997, he opened another wholesale and retail store selling [Product 2].
·In 2002, [Mr A] left the partnership to invest in [Country 2] and he became the sole proprietor. The business sold [Product 3] to local large [companies]. In 2002, the auditing company took his business VAT (value added tax) reserve worth between 3 million to 4 million baht and ran away. He had to pay 4 million baht for VAT and this drained his cash flow.
·He borrowed money from five lenders to pay the wages for his employees which had reduced to 60 employees. In 2006, he changed the business name to [Business name 2]. By 2009, he had 30 employees and his financial situation got worse. He looked for additional export markets without success.
·By 2012, the business cashflow was at its lowest level and the business was unable to pay the loans from the five lenders. They started to receive threats from the lenders. The first lender, [Lender B], charged 20% interest per month. The original loan was 100,000 baht and the debt was 500,000 baht. The second money lender, [Lender C], was a friend of his mother and charged 20% interest per month. He borrowed 2 million baht and his [Product 2] store was used as collateral for the loan.
·The third lender, [Lender D], charged 20% interest per month on a principal of 50,000 baht. The fourth lender, [Lender E], charged 20% interest per month on a principal of 1 million baht in [material]. He was both a supplier and a retailer. The fifth lender, [Lender F], charged 20% per month on a principal of 700,000 baht.
·Of the five lenders, [Lender B] was the most aggressive and intimidating lender. He would bring at least two friends with him to the [Product 2] store to collect money. [Lender C] would visit his mother and keep contact with her because he knew that if he did not repay the loan, he could exercise his right as a mortgagee to transfer title into his name.
·[In] July 2012, he left Thailand and came to Australia to obtain additional income to pay his debts. After he left, one of his sisters, [Ms G], changed the [Product 2] store into [another business, Business 3]. Another close relative, [Ms H] is looking after his factory.
·A week after he left Thailand, [Ms H] received many threats from the various money lenders, especially [Lender B], including threats to assault and kill him if he was found. [Lender B] sent his mobs to bang on the doors of the factory and the [Product 2] store which is now [Business 3]. When they were told that he was no longer working at the factory and had gone overseas, the mob became angry, threatened to return to collect money and kill him if they saw him back in Thailand.
·“Illegal loan sharks” is a big business in Thailand. The Thai authorities turn a blind eye or take bribes from the “illegal loan sharks.” There is no place in Thailand where he would be safe. He will be tortured and/or killed by “illegal loan sharks’” debt collectors.
·If he returns to Thailand, he fears the five lenders. He fears [Lender B] will kill him. He belongs to the particular social group ‘victims of illegal loan sharks’. The Thai authorities cannot protect him from harm at the hands of the illegal lenders.
The applicant provided a number of documents to the Department including his Birth Certificate, his Thai National ID Card, his Thai passport issued [in] 2012, a letter that appears to be a discharge from military service, two letters in relation to the registration of his change of name on two occasions, a document titled ‘Home about items’, a document that appears to be a bank statement from an unidentified bank with no details of the account holder’s name and a hand written note in English referring to the “[Thai Bank 1]”, an Interim Statement of Account dated 10 March 2015 from the [Australian Bank 1], a letter dated 5 May 2015 from the [Australian Bank 2], a reference dated 1 May 2015 from [a named person], documents in relation to his de facto wife, four colour photographs purporting to be damage to his factory and country information on Thailand.
The applicant attended an interview with the Department on 6 May 2015. During the interview, he expanded on his written claims and gave inconsistent evidence. He also made new claims that, before the money lenders knew that he had sold the business to his sister, they attacked the factory, placed a bomb in his sister’s car, one of the money lenders had ties to the military and another, [Lender C], had political connections. The delegate found that he is not a person in respect of whom Australia has protection obligations and refused his application for a Protection visa on 20 May 2015.
Proceedings before the Tribunal
The applicant filed with the Tribunal copies of the Department’s Decision Record dated 20 May 2015 and his Thai passport issued [in] 2012.
The applicant provided the Tribunal with a Statutory Declaration dated 18 January 2017 in which he re-iterated his written claims and provided additional information on why he did not seek protection when he first arrived in Australia. He provided the following information and new claims:
·He had no knowledge of Protection visas when he first arrived in Sydney.
·After he left Thailand, his mother tried to repay his loans but due to the high interest rate the principal has never been reduced.
·In May 2014, there was a military coup in Thailand. The money lender [Lender B] has connections with the military. Following the coup, he made more threats to his family. He demanded that the loan be repaid and asked for his current address. His family refused to provide his address as they feared he would get someone to harm him in Australia.
·His family have warned him not to return to Thailand as the “illegal loan sharks”, especially [Lender B], have been making threats to harm him.
The applicant attended a hearing before the Tribunal (differently constituted) on 31 January 2017. During that hearing, he re-iterated, expanded on and clarified his previous claims and made new claims as follows:
·The factory and the land on which it was built belonged to his older sister. He paid rent to his mother.
·He borrowed the money in 2002 and left Thailand in 2012. He was never harmed by his creditors. They went to his [Product 2] store to collect their money. One of them told him “I’m pretty connected in the military field. Whatever you do, be careful.” When asked about [Lender B]’s connection to the military, he stated that he did not know. They wanted to take over his business if he was unable to run it.
·The second money lender, [Lender C], is a friend of his mother and he had a mortgage over his [Product 2] store. He has not foreclosed on the [Product 2] store because he trusts his mother.
·He later stated that [Lender C] had commenced Court proceedings against his mother and older sister as he wants his older sister to transfer the property into his name. His older sister refuses to do so.
·When he (previously) referred to a car bomb that was the wrong term. The four tyres on the car were pierced and the car smashed in about 2013. This was reported to the Police. In early 2016, the door of the factory was damaged.
·Someone went looking for him once in 2014 and every two to three months thereafter. His mother would contact him and warn him. She received a lot of telephone calls to “bother” her. He later stated that they kept going back to try and shoot his mother, but his brother would not let that happen. He changed his mother’s telephone number.
During the hearing on 31 January 2017, the Tribunal (differently constituted) put to the applicant adverse information in relation to his application for review before the MRT including information from supporting documents he provided, his former migration agent, [Mr I]’s, submissions dated 31 January 2014 and the MRT’s Decision Record dated 3 February 2014. In particular, the Tribunal referred to [Mr I]’s submission that the applicant was well established in Thailand, intended opening a new business in Thailand and had left $100,000.00 with his mother in Thailand with the intention of using that money to build his business on his return. The applicant requested and was granted time to comment on or respond to this information.

On 3 February 2017, the Tribunal received a written submission from the applicant’s subsequent migration agents, [Migration Agency 1]. It was submitted that the applicant did not instruct his former migration agent ([Mr I]) that he left $100,000.00 with his mother, the submission was not read back to him and a Thai interpreter was not used when communicating with him. At the hearing before the MRT, he was not asked questions about the $100,000.00. Those proceedings were in relation to his Student visa. When he left Thailand, the total balance in his bank accounts was THB277.454.82 (equivalent to $11,098.19) not $100,000.00. The attached bank statements support his claims in relation to repaying various lenders. Court documents in relation to Court proceedings between his family and a lender, [Lender C], were attached and it was submitted that two loan agreements with [Lender C] were secured by bank cheques and not by the disputed land. Photographs of damage to the factory were enclosed.
[Migration Agency 1] submitted that the applicant meets the definition of refugee, that he is a member of the particular social groups ‘victim of loan shark lenders’ and he will not be able to obtain protection from the Thai authorities because one of the lenders has a connection with a military officer. He submitted that the applicant is also entitled to complementary protection.
The Tribunal was provided with copies of four photographs, four bank statements (three in the applicant’s name and one with no details of the account holder), four documents in what appears to be Thai without English translations, a submission dated 31 January 2014 to the MRT from the applicant’s former migration agent, [Mr I], and documents in relation to the applicant’s studies in Australia.
On 13 February 2017, the Tribunal received further documents from [Migration Agency 1] described as registration of [Business name 2], running loan balance of the third lender, [Lender D], running loan balance of the first lender, [Lender B], running loan balance of the second lender, [Lender C], Court Decision dated [09]/2013 between [Ms J] (investor of [Lender C]) and the applicant as first defendant and his sister as second defendant and some of the documents previously provided to the Department. These documents appeared to be in Thai and no English translations were provided.
On 22 February 2017, the Tribunal received English translations of these documents. The Registration Certificate indicated that [Business name 2] was registered [in] 2006 and had two Directors; the applicant and [Mr K]. Also provided were two loan agreements between the applicant and [Lender C] dated [January] 2012, a Title Deed with eleven listed owners and a Court Order issued by [a] Provincial Court [in] September 2013 naming the applicant and his sister as defendants.
On 18 April 2017, the Tribunal (differently constituted) affirmed the decision made by the Department. On 15 May 2017, he made an application for judicial review to the Federal Circuit Court and on 2 August 2018 the Federal Circuit Court remitted the application by consent to the Tribunal for reconsideration.
The applicant appeared before the Tribunal (as currently constituted) on 24 November 2020 to give evidence and present arguments. His evidence is discussed below.
Receiving country/Country of reference
The applicant claims to be a citizen of Thailand and has provided a copy of his Thai passport to the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Thailand. The Tribunal finds that Thailand is his country of reference for the purpose of assessing his claims for protection under the Refugees Convention. The Tribunal finds that Thailand is his receiving country for the purpose of assessing his claims for protection under the complementary protection criterion.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
The applicant gave evidence that his migration agent prepared his application for a Protection visa. He stated that the instructions he provided his migration agent were true and correct. When asked whether he was satisfied that his visa application is accurate and complete, he responded that he was not sure if more information was added as it was not read back to him after it was prepared. He recalled signing the application and going to a Justice of the Peace to “get it certified”. He stated that there have been no changes in his circumstances since he filed his visa application.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Thailand, his travel abroad, his reasons for leaving Thailand and why he fears returning to Thailand. The Tribunal found aspects of his evidence to be vague, inconsistent, implausible and unconvincing. He was unable to provide a consistent and coherent account of events. He made new claims throughout the process. His conduct in Thailand and in Australia was not consistent with his claims. The Tribunal formed the view that he is not a reliable witness for the following reasons.
First, in his application for a Protection visa, the applicant claimed that he opened a [Product 1] business called [Business name 1] in 1991 and in 1997 he opened a [Product 2] store. He claimed that after he left Thailand [in] July 2012, one of his sisters, [Ms G], converted the [Product 2] store into [Business 3]. He attended an interview with the Department on 15 October 2014. This was 2 months after he applied for a Protection visa. During that interview, he gave evidence that was not consistent with his claims in his application for a Protection visa. He stated that the [Product 1] business and the [Product 2] business were family businesses. His mother looks after the [Product 2] store and his sister, [Ms L], looks after the [Product 1] business. He also stated that a relative named [Ms H] runs the [Product 1] factory.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that this was very different to what he claimed in his application for a Protection visa and his evidence to the Tribunal. The Tribunal noted that these inconsistencies in his evidence raised concerns in relation to his credibility and the veracity of his claims.
The applicant responded that the [Product 2] business was in his name and the [Product 1] business was in his sister’s name or at least some part of it. His sister has [Business 3] next door to the [Product 2] store, so she is able to look after it (the [Product 2] store). His sister has a friend named [Ms H] who looks after the factory. Everything he said is true. It depends on where the focus lies. It is a family business. The [Product 2] business is 500 metres away. His sister and mother look after it during the day. He looked after the factory.
The applicant’s response does not alleviate the Tribunal’s concerns. His response is a fifth version of his evidence. During the hearing on 31 January 2017, he gave evidence that he set up the business called [Business name 1] in 1992. [Mr A] paid 100% of the costs in Sitting up the business. The land and the building on it, that was used as the factory, belonged to his older sister and [Business name 1] paid rent to his older sister and mother. The business was registered in seven names including his name, his sister’s name and a few of the staff so that they could finish off the registration process. His mother gave it to him to run. [Mr A] was not a registered owner but received the nett profits. He received a salary of 60,000 baht per month to manage the business and did not receive any other income from [Business name 1]. When [Mr A] left the business, he left him the machinery.
During the hearing on 24 November 2020, the applicant gave evidence in relation to the ownership of [Business name 1] that was consistent with his evidence on 31 January 2017. He stated that his sister [Ms M] was one of the seven registered owners. However, his evidence in relation to the ownership of the [Product 2] business was inconsistent with his previous evidence. He stated that no one was continuing his father’s [Product 2] business after his death so he tried to help out while working at the factory. His brother left home and did not get involved. However, during the hearing on 31 January 2017, he gave evidence that his father died in 2003 and his brother ran the [Product 2] store.
These inconsistencies in the applicant’s evidence in relation to who owned [Business name 1] and the [Product 2] business and who managed them raise concerns in relation to his credibility and the veracity of his claims.
Second, in his application for a Protection visa, the applicant claimed that [Mr A] left [Business name 1] in 2002. He claimed that, at that time, the auditing company took his business VAT reserve worth between 3 million to 4 million baht and ran away. He claimed that he had to pay 4 million baht for VAT and this drained his cash flow. He claimed that he borrowed money from five lenders to pay the wages for his employees which had reduced to 60 employees. He claimed that in 2006 he changed the business name to [Business name 2].
During the hearing on 31 January 2017, the applicant gave a different version of events. He stated that there were issues between [Mr A] and the Accountant in relation to the VAT. The business incurred 4 million baht in VAT. The money had been given to the Accountant to pay the VAT but he did not do so. As the VAT was not paid, the government fined [Business name 1] about 2 million baht in 2002. At the time [Mr A] left the business in 2002, about 2 million was owing to the government. He paid that off by instalments and the fine was paid in full by 2008. He had no cash flow at that time and had to borrow the money. He borrowed the money from five money lenders in 2002.
During the hearing on 24 November 2020, the applicant gave evidence that the garment business was originally registered as [a variation on Business name 1] but the name was changed to [Business name 1] as [Mr A] wanted an easier name. When [Mr A] took his money out of the business and left, he changed the name of the business again because he wanted his friends to invest in it. He could not remember what name he changed it to. His friend did not like that name so he changed it back to [Business name 1]. Each time he changed the name of the [Product 1] business it had to be registered and he needed seven people to be registered as the owners on each occasion. An Aaccounting firm did this for him.
The applicant provided the Tribunal with a Certificate of Registration in relation to the registration of a company called [Business name 2] [in] 2006. The company had two directors; the applicant and [Mr K]. This evidence is not consistent with the applicant’s evidence that he needed seven people to be registered as the owners on each occasion he changed the name of the business. These inconsistencies in his evidence raise concerns in relation to the ownership of the [Product 1] business and the extent of his involvement in the running of the business. Despite having several years to do so, he has not provided the Department or the Tribunal with any documentary evidence of the ownership of [Business name 1].
Third, in his application for a Protection visa, the applicant claimed that he borrowed money from five “illegal loan sharks”. He claimed that he borrowed 2 million baht from [Lender B], who was a friend of his mother, and his [Product 2] store was used as collateral for the loan. He claimed that [Lender C] would visit his mother and keep contact with her because he knew that if he did not repay the loan, he could exercise his right as a mortgagee to transfer title into his name.
The applicant’s migration agent provided a number of documents to the Tribunal which he submitted would support the applicant’s claim that daily loan repayments were made while he lived in Thailand. The Tribunal was provided with copies of two loan agreements between the applicant and [Lender C]. They are both dated 1 January 2012 and are each for the sum of 1,087,837 baht.
The loan agreements indicate that the money had already been given to the applicant as at the date of the agreement and that interest was payable on the loans on a monthly basis from the date of the agreement. It did not indicate the rate of interest. It indicated that the applicant had provided two [Thai Bank 2] bank cheques that were post dated 1 July 2012 as a guarantee and that they could be used to repay the loans. It did not indicate the amount on the bank cheques. It indicated that the applicant guaranteed that the asset was his own asset without any encumbrances and that he would not dispose of or cause any encumbrances on the asset.
The loan agreements do not support the applicant’s claim in his application for a Protection visa that the debt to [Lender C] was secured against his [Product 2] store. His lack of knowledge of this matter raises issues in relation to who negotiated the details of the loan agreement and, in fact, who actually borrowed the money.
The Tribunal was provided with copies of bank statements which the applicant’s migration agent submitted were in relation four of the applicant’s bank accounts in Thailand. The statements do not indicate which bank/s issued them. Three of the statements appear to be in the applicant’s name and the fourth statement (which is the largest statement) does not indicate who the account holder is. The bank statements show frequent withdrawals and deposits of money and money being transferred to other accounts. They cover the period 1 March 2012 to 6 June 2012.
The Tribunal was also provided with what appears to be copies of ledger entries with figures and notes written in Thai. There are ledger entries between the period 10 October 2010 (2553) and 10 October 2012 (2555) with an entry on 31 December 2012 (2555). The entries are not all in chronological order so an entry dated 2012 (2555) could be followed by an entry dated 2011 (2054). Some of the entries are crossed out and some are not. Without an English translation, it is not possible to be sure what the entries relate to. The applicant’s migration agent submitted that they are “running loan balances” for loans from [Lender B], [Lender C] and [Lender D].
If the ledger entries are a “running loan balance” and a record of loan repayments, it appears that loan repayments were made after the applicant came to Australia [in] July 2012. This raises issues in relation to who is responsible for the payment of these loans and who has been paying them.
The Tribunal was provided with a Title Deed in relation to a property in [a] District in the Province of Bangkok. It indicates that there were three consecutive transactions registered against the title on 10 May 2012. The first transaction registered against the title on 10 May 2012 indicates that there were five registered owners including the applicant, his mother and other family members, the property was mortgaged and the applicant and his mother “redeemed” their share of the land.
The second transaction registered against the title on 10 May 2012 indicates that the applicant’s mother ([Ms N]) gifted her share of the land to her daughter ([Ms L]), who already owned a one fifth share of the land, thereby reducing the number of owners to four. The third transaction registered against the title on 10 May 2012 indicates that there was a partial sale of the land with the applicant selling his share of the land to his sister, [Ms L], thereby reducing the number of owners to three.
The Tribunal was provided with a copy of a Court order made at the [Provincial] Court [in] September 2013 in relation to a civil lawsuit between the Plaintiff, [Ms J], and the Defendants, [the applicant] and [Ms L] (one of the sisters of the applicant). The Court order indicates that the Plaintiff claims that on 1 January 2012 she, via [Lender C], entered into five loan agreements with the applicant. At that time, the applicant provided the plaintiff with a cheque in the sum of 204,300 baht post dated 3 August 2012. After that date, the plaintiff banked the cheque but the bank did not honour it as the applicant had insufficient funds in his bank account.
The Plaintiff claimed that she thereafter sent a letter to the applicant but he ignored it. She claimed that on 10 May 2012 the applicant sold his one fourth ownership in a four storey commercial building (see paragraphs 57 and 58 above) to his sister, [Ms L], for 500,000 baht which was below the market price. She claimed that [Ms L] was aware that the applicant was indebted to her and that the sum of 500,000 baht was below the market price. She claimed that this was done by the applicant to cheat her and prevent her from enforcing payment of the money owing to her.
The Plaintiff claimed that the applicant sometimes paid her the interest on the loan. She claimed that he owed her 1,391,800 baht, which included interest of 60,891 baht calculated at the rate of 7.5% per annum, from 1 January 2012 to the date of filing the Statement of Claim. As at the date of hearing, she claimed that the applicant owed her 1,452,691 baht and sought an order that he pay her that sum plus ongoing interest at the rate of 7.5% per annum until full payment of the debt. She also sought an order that the applicant and his sister, [Ms L], register the revocation of the sale of the applicant’s interest in the four storey commercial building referred to above.
The Court order indicates that both the applicant and his sister, [Ms L], claimed that the loan agreements had an illegal interest rate, that partial payment had been made and that the cheque in the sum of 204,300 baht was a “guaranteed cheque” in case of default in payment. They also claimed that they did not try to deceive the Plaintiff and the reason why the applicant transferred his interest in the four storey commercial building to his sister was because she was “settling” his debt and their mother’s debt to the Plaintiff. They sought that the Court dismiss the Statement of Claims.
The Court order indicates that the Court found that the Plaintiff charged an interest rate of 3% per month on the loans to the applicant and that this was illegal. The Court found that the applicant owed the Plaintiff 1,281,026 baht and ordered that he pay this sum plus interest at the rate of 7.5% per annum from the date of filing the Statement of Claim ([2012]) until the debt is paid in full plus the Plaintiff’s costs of 10,000 baht.
The Court order indicates that the applicant’s sister, [Ms L], and his mother gave evidence at the hearing. The Court accepted that the applicant and his mother were indebted to [Lender C] and [Mr O] (mortgagee), that the applicant’s sister, [Ms L], had discharged those debts on their behalf and, in return, they transferred their interests in the property to her. The Court found that this transaction was not done for the purpose of deceiving the Plaintiff. The Court dismissed the Plaintiff’s claims against the applicant’s sister, [Ms L].
During the hearing on 31 January 2017, the Tribunal (differently constituted) discussed the Court proceedings with the applicant. He initially stated that [Lender C] sued his mother. He then stated that his mother and sister sued [Lender C]. During the hearing on 24 November 2020, the Tribunal (as currently constituted) asked him whether he was involved in any Court proceedings. He responded that he was not sure as he is in Australia. The asset is in his mother’s name. They sent a “bad signal” if he returns. The debt is outside the system and they do not get the authorities involved. He thinks she may have to go to Court. She does not want him to worry.

The Tribunal referred to the Court order the applicant had provided the Tribunal and raised a number of issues with him including the parties to the proceedings, the inconsistencies with his claims in his application for a Protection visa, the fact that the proceedings were commenced in September 2012 but he made no mention of it in his application for a Protection visa (filed on 8 August 2014) and appeared not to be aware of the proceedings when asked about it.
The applicant responded that [Ms J] is a person he borrowed money from and used his sister’s collateral so there is an issue there. When he was being pursued in Court, he thinks it was his sister but he thinks it was his mother got someone to proceed in his name. He did not ask any details like who won or how much it cost or what was the outcome. When the Tribunal commented that it had difficulty accepting that he did not ask about the outcome of the case when it involved him, he responded that he did not know how to explain it. He does not know the information.
The applicant gave evidence to the Tribunal that he has contact with his mother once a fortnight and sometimes once a week. The Tribunal would expect him to have discussed the outcome of the case and other financial matters with her. His evidence is that he has not repaid any of the outstanding debts during the time he has been in Australia despite his claim in his visa application that he came to Australia to obtain additional income to pay his debts. His lack of knowledge of the details of the loan agreements and the Court proceedings, his lack of contribution to the repayment of his debts and his evidence in relation to his mother and sister lead the Tribunal to the conclusion that these financial matters were and are being taken care of by his mother and sister and possibly other family members.
The evidence before the Tribunal, including but not limited to the applicant’s evidence that the businesses were “family businesses”, his mother gave him the task of running [Business name 1], his sister, mother and family have made repayments on his debts after he came to Australia, one of his sisters has been managing the [Product 1] business since he came to Australia and the Title Deed referred to above which indicates that his family members were the owners of the commercial property, leads the Tribunal to the conclusion that his family jointly owned a number of businesses and properties, his mother was the matriarch and decided which of her children would manage which business, loans were taken out by various members of the family on behalf of the family and the family assumed responsibility to repay the loans.
Fourth, in his application for a Protection visa, the applicant claimed that in 2012 the business cashflow was at its lowest level and the business was unable to pay the loans from the five money lenders. He claimed that they started to receive threats from the money lenders. He claimed that one of the five money lenders he borrowed money from, [Lender B], was the most aggressive and intimidating money lender. He claimed that he would bring at least two friends with him to the [Product 2] store to collect money.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 20 May 2015. It indicates that during his interview with the Department on 6 May 2015, he stated that [Lender B] had ties to the military and made a new claim that [Lender C] had political connections. In his Statutory Declaration dated 18 January 2017, he made more new claims that there was a military coup in Thailand in May 2014. The money lender, [Lender B], has connections with the military and, following the coup, he made more threats to his family including threats to harm him. He claimed that [Lender B] demanded that the loan be repaid and asked for his current address which his family refused to provide.
During the hearing on 31 January 2017, the Tribunal (differently constituted) discussed these claims with the applicant. When asked whether anyone made any direct threats to him, he responded that they would go to his [Product 2] store and wait there to collect their money. When asked again whether anyone ever threatened him or harmed him, he responded that they said “I’m pretty connected in the military field. Whatever you do, be careful.” When asked what [Lender B]’s connection were to the military, he stated that he did not know. They wanted to take over his business if he was unable to run it. He borrowed the money in 2002 and left Thailand in 2012. He was never harmed by his creditors.
During the hearing on 20 November 2020, the applicant claimed for the first time that [Lender C] is a politician. He claimed that he wanted to stay in Australia because he was being “chased” by [Lender C]. He made no mention of this in his application for a Protection visa filed on 8 August 2014 or during his interview with the Department on 6 May 2015 or during his first hearing before the Tribunal on 31 January 2017. This is at odds with his claim in his visa application that [Lender C] was a friend of his mother, he would visit his mother and keep contact with her because he knew that if he did not repay the loan, he could exercise his right as a mortgagee to transfer title into his name. It is also at odds with his evidence during the hearing on 31 January 2017, that [Lender C] has not exercised his right as a mortgagee because he trusts his mother.
The Tribunal raised as an issue with the applicant the fact that his application for a Protection visa has been in the process for many years (since 8 August 2014) and he made a new claim that [Lender C] is a politician for the first time at the hearing on 20 November 2020. (He had previously claimed at his interview with the Department on 6 May 2015 that he had political connections). The Tribunal raised as issues with him his credibility and the veracity of this claim. He responded that he has been truthful. His further education about the law in Australia has made him more confident about giving more details. They are not new stories. When he is relaxed, he can talk more. The Tribunal does not find his explanation to be convincing. He had the benefit of obtaining immigration advice from a migration agent before he lodged his application for a Protection visa which was prepared by his migration agent. The Tribunal would expect him to put his best case forward in his application for a Protection visa.
In his application for a Protection visa, the applicant claimed that a week after he left Thailand, [Ms H] received many threats from the various money lenders, especially [Lender B], including threats to assault and kill him if he was found. He claimed that [Lender B] sent his mobs to bang on the doors of the factory and the [Product 2] store which is now [Business 3]. He claimed that when they were told that he was no longer working at the factory and had gone overseas, the mob became angry, threatened to return to collect money and kill him if they saw him back in Thailand.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 20 May 2015 which indicates that during his interview with the Department on 6 May 2015 he made new claims that before the money lenders knew that he had sold the business to his sister they attacked the factory and placed a bomb in his sister’s car. During the hearing on 31 January 2017, he gave evidence that when he (previously) referred to a car bomb that was the wrong term. The four tyres on the car were pierced and the car smashed. This happened in about 2013 and it was reported to the Police.
Later in the hearing on 31 January 2017, the Tribunal (differently constituted) asked the applicant about the incident resulting in damage to his sister’s car. He stated that there was a threat that the car would be damaged and then it happened. When asked for the details, he stated that his sister was asked where he was and did not answer. She has connections and could not care less. The cars in the car park were damaged. He stated that they smashed the window, bent the wheel and pierced the tyre in her car. His sister reported this incident to the Police. When asked for the Police report, he responded that he had not asked for a copy.
During the hearing on 31 January 2017, the Tribunal (differently constituted) asked the applicant about the incident at the factory. He stated that it happened at night early in 2016. There was a loud noise at the factory and the door was damaged. Later in the hearing, he stated that the incident at the factory occurred in 2014. There was a loud noise like a gun shot at night and the left side of the building was damaged. He then added that the fence was also “wrecked”. This incident was also reported to the Police.
During the hearing on 20 December 2020, the Tribunal asked the applicant whether anything happened after he left Thailand and he responded yes. He stated that about a week after he left Thailand ([in] July 2012) his factory was bombed. Within a month after he left Thailand, after the money lenders found out that he was not there, there was another bomb and his sister’s car and another family car were destroyed.
The applicant provided the Department with four colour photographs on 13 May 2015. Attached to the photographs was a handwritten note that stated “the corner factory building have been boomed and someone called “need to see [the applicant]” about November 2014”. (sic) The photographs appear to be of a back yard with rubbish in it including two broken panels at the entry into the yard and a photograph of the top of a side of a building with damage to one of the cladding panels.
During the hearing on 20 December 2020, the Tribunal asked the applicant about these photographs. He stated that the photographs were of the factory and were taken by a friend of his sister 2 or 3 years ago. When the factory was attacked no one took photographs of it because they were too scared. After that, they started gathering evidence. When asked whether the damage to the factory had not been repaired, he responded that he thinks it has been repaired.
These photographs were provided to the Department on 13 May 2015. They could therefore not have been taken 2 or 3 years ago (i.e. 2018 or 2017). The applicant’s own evidence is that the photographs were not taken at the time the factory was attacked and he thinks the damage to the factory has been repaired. The Tribunal is not convinced that the damage depicted in the photographs were caused by a bomb or, alternatively, a gunshot. The Tribunal is not satisfied that the photographs are of the factory where the applicant worked.
The applicant did not make any claims in relation to his sister’s car being damaged or the factory being damaged in his application for a Protection visa. Those claims were made for the first time during his interview with the Department on 6 May 2015. Since then, his evidence in relation to when these incidents occurred, what damage was caused and how the damage was caused has kept changing and becoming increasingly implausible. The Tribunal raised as issues with him his failure to mention these claims in his application for a Protection visa and its concerns in relation to the credibility of these claims.
The applicant responded that his migration agent prepared his application for a Protection visa and did not ask him any details of what was dangerous to him. After that, he did his own research and found out what evidence was important. The Tribunal pointed out to him that he provided a very detailed Statement of Claims with his visa application and he would have had to have provided that information (to his migration agent) but did not provide any information about the car and factory being bombed. He responded that his migration agent did not ask him. He later found out that he needed to prepare.
The Tribunal pointed out to the applicant that he made a new claim at the hearing on 20 December 2020 that two family cars were bombed. He responded that things happen in internals and some intervals were heavy and some were not. His mother told him dates that she thinks are appropriate. His response does not address the issues raised with him or alleviate the Tribunal’s concerns.
The applicant gave evidence during the hearing on 31 January 2017 that both incidents were reported to the Police. The Tribunal (differently constituted) asked him, at that time, for the Police report in relation to the damage to his sister’s car and he responded that he had not asked for a copy. He has had over 4 years since then to obtain copies of Police reports in relation to both incidents and provide them to the Tribunal but has not done so. This raises further concerns for the Tribunal in relation to the credibility of these claims.
During the hearing on 31 January 2017, the applicant made new claims that someone went looking for him once in 2014 and every two to three months thereafter. He claimed that his mother would contact him and warn him. He claimed that she received a lot of telephone calls to “bother” her. He later stated that they kept going back to try and shoot his mother, but his brother would not let that happen. He changed his mother’s telephone number.
During the hearing on 20 December 2020, the Tribunal asked the applicant whether anything else happen (besides the bombing of the factory and his sister’s car). He responded that they threatened his mother. His brother blocked that and did not allow them to speak to his mother. She is old and they do not want her to know. He did not mention anyone trying to shoot his mother. It is not clear to the Tribunal how his brother changing his mother’s telephone number would prevent someone from shooting her particularly in view of his evidence that his mother, brother and two of his three sisters live in close proximity to each other and the factory.
The evidence before the Tribunal indicates that the applicant, his mother and siblings jointly owned and managed various family businesses and properties. Since he left Thailand, his family members have continued to operate the factory and [Product 1] business and live in close proximity to the factory. His mother and sister have paid some of his debts and were involved in Court proceedings on his behalf. He has claimed that he is at increased risk of harm because two of the people from whom he borrowed money have connections.
Despite the applicant’s claims that a money lender from whom he borrowed money, [Lender C], had political connections (and later claimed on 20 December 2020 was a politician), no harm has befallen any member of his family even after the Court made an order on 26 September 2013 in his favour (in relation to the applicant) and against him (in relation the applicant’s sister). Despite his claim that [Lender B], the most aggressive and intimidating money lender from whom he borrowed money, had connections to the military and, following the military coup in Thailand in May 2014, he made more threats to his family no harm has befallen any member of his family.
The Tribunal raised these issues with the applicant. He responded that no one has contacted him. Maybe they suffered some harm or they paid off the debt. The only person he speaks to is his mother. His brother is close to their mother but will not speak to him. There must be a reason but he does not know if they are angry with him. His evidence is that he has contact with his mother fortnightly and sometimes weekly. The Tribunal finds it implausible that his mother would not have informed him if some harm had befallen a family member particularly if it was caused by one of the money lenders from whom he borrowed money.
The Tribunal is of the view that the applicant’s statement that maybe his family has paid off the debt to be significant. It tends to indicate that, even if he does not already know that, he thinks it is a possibility. It may also explain his evidence that his brother will not speak to him and he does not know if he is angry with him.
In view of the above, the Tribunal has doubts about the veracity of the applicant’s claims in relation to the factory being bombed/damaged and his sister’s car or, alternatively, his sister’s car and another family member’s car being bombed/damaged after he left Thailand. The evidence also raises serious doubts about the risk of harm to him at the hands of the money lenders if he returns to Thailand.
Fifth, in his application for a Protection visa, the applicant claimed that the business cashflow was at its lowest in 2012, he was unable to repay the loans from the five money lenders and started receiving threats from them. He claimed that, if he returns to Thailand, he fears harm from the five lenders. He claimed that he fears that [Lender B] will kill him. His actions at that time were not consistent with these claims particularly in relation to his fear of returning to Thailand.
During the hearing on 31 January 2017, the applicant gave evidence that he travelled to [Country 3] and [Country 4] and returned to Thailand shortly before he travelled to Australia ([in] July 2012). He stated that he went there to “buy things and like on holiday to relax”. He travelled with his older sister and a friend of hers. He had not been overseas for a long time. His sister’s friend recommended that he travel to another country first before getting an Australian visa. During the hearing on 20 December 2017, he stated that he was stressed at the time and his sister suggested that he go overseas to relax.
The applicant provided to the Tribunal a copy of his Thai passport. It indicates that he travelled to [Country 4] and [Country 3] [in] June 2012 and [July] 2012. It also indicates that he was granted an Australian Visitor visa on 19 June 2012. He therefore travelled to [Country 4] and [Country 3] after he was granted his Australian visa. His evidence that he went to [Country 4] and [Country 3] to have a holiday and buy things is not consistent with his claims that he had a number of loans he could not repay, he was being threatened in Thailand and he came to Australia to earn money to pay off his debts. His voluntary return to Thailand after this trip is also not consistent with his claims that his life is at risk in Thailand.
The Tribunal raised as an issue with the applicant the many problems in his case and its concerns in relation to his credibility. He responded that he was stressed at the time trying to find money to repay his debts. His sister’s friend suggested that he go overseas and gave him the money. He only spent a few days overseas. He cannot remember the details because he was stressed at that time. He did not have the intention to go overseas and spend money. He followed the correct steps for his sister.
The Tribunal is prepared to give the applicant the benefit of the doubt and accept that he was stressed at that time, travelled overseas on the suggestion of his sister and her friend and that her friend paid for his trip. However, his voluntary return to Thailand is not consistent with his claims that he fears being killed if he returns to Thailand. He had the option to travel to Australia from [Country 4] or [Country 3] as he had an Australia visa at the time he travelled to [Country 4] and [Country 3].
Sixth, the applicant’s conduct in Australia was not consistent with his claims. The records of the Department indicate that he was granted a Visitor visa on 19 June 2012 and arrived in Australia [in] July 2012 on a Visitor visa that was valid for 3 months. On 28 August 2012, he applied for a Student visa. He consulted a migration agent at that time. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it would expect that, if he feared for his safety and thought he would be killed if he returned to Thailand and had consulted a migration agent, he would have explained his situation to the migration agent and applied for a Protection visa at that time. Instead, he applied for a Student visa which is a temporary visa that requires him to leave Australia at the end of that visa. The Tribunal noted that his conduct raised concerns in relation to his credibility and the veracity of his claims.

100. The applicant responded that he has no friends or family in Australia and no one to give him guidance. His migration agent gave him advice on the things he needed to do. If he had said Protection visa straight away, he would have told him everything. His migration agent told him Student visa. When his migration agent “released” him, he started analysing what information was necessary. He did not know what he needed to do. If he had, he would have done it straight away. He did not gather information about coming to Australia and came as an emergency. He met someone in the temple who referred him to his migration agent.
101. The Tribunal does not accept the applicant’s explanation. Firstly, his explanation that he came to Australia “as an emergency” is not consistent with his evidence that he travelled to [Country 4] and [Country 3] for a holiday and to buy things after he was granted his Australian visa and prior to coming to Australia. Secondly, the Tribunal is of the view that if he sought advice from his migration agent because he feared for his life if he returned to Thailand and explained this to his migration agent, he would have been told about Protection visas. However, if he was merely seeking to extend his stay in Australia it is more likely that he would have been advised to apply for a Student visa.
102. Seventh, the applicant’s delay in applying for a Protection visa is not consistent with his claims that he fears the money lenders he borrowed money from and fears that one of them, [Lender B], will kill him if he returns to Thailand. He came to Australia [in] July 2012. However, he did not apply for a Protection visa until 8 August 2014. That was more than 2 years after he came to Australia and it was after he was unsuccessful in relation to his Student visa application. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it may find that the reason he applied for a Protection visa was so that he could extend his stay in Australia and not because he is in need of protection.
103. The applicant responded that he did not know the law, did not study the law and it is not his fault. He did not get the right information from the migration agents. It is his fault that he did not understand but once he understood what was going on, he tried to get more information. He was trying to get work rights and should have done that before he came to Australia. He later tried to apply for work rights but was unsuccessful.
104. The Tribunal accepts that the applicant did not understand immigration law in Australia and relied on his migration agents to advise him. His evidence indicates that his focus was on trying to work in Australia and get work rights here. If this was what he told his former migration agent, it is not surprising that he was not advised about Protection visas. The Tribunal is of the view that if he sought immigration advice because he feared for his life if he had to return to Thailand, he would have explained this to his former migration agent and would have received advise about Protection visas at that time.
105. The Tribunal has had regard to the submission dated 3 February 2017 from the applicant’s migration agent. The Tribunal is prepared to give the applicant the benefit of the doubt and accept that the submissions from his former migration agent dated 31 January 2014 to the MRT were not read back to him and that a Thai interpreter was not used in communications with him. The Tribunal accepts that he did not leave $100,000.00 with his mother when he came to Australia.
106. The Tribunal has had regard to the two pieces of country information provided by the applicant to the Department. The first is an undated article printed from a website called ‘Tasty Thailand’, refers to ‘loan sharks’ in Thailand and anecdotal evidence from a friend of the author who borrowed money from a loan shark and was unable to repay the loan. The second is a research response dated 19 March 2013 from the Immigration and Refugee Board of Canada and refers to the nature and extent of loan sharking and the protection available to victims of loan sharks.
Other considerations
107. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Thailand dated 10 July 2020 and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Section 438 Certificate
108. The Tribunal informed the applicant that his file from the Department in relation to his application for a Student visa contained a Certificate under s.438 of the Act and it related to the non-disclosure of certain information on five pages in the file. The Department has indicated that the disclosure of the information would be contrary to public interest because it contains information relating to internal working documents. The Tribunal informed him that the information related to his request for Ministerial intervention and is information he should already be aware of as he provided the information to the Department.
109. The applicant responded that he did not know whether or not it was true. The whole procedure was undertaken by his former migration agent and he was not clear about the procedure. All he knew was that when everything was refused, he could not get in touch with his former migration agent. He is a Muslim. That is the truth. If it was important, he would have taken the time to find out.
110. The Tribunal is of the view that the s.438 Certificate is not a valid certificate as it does not specify a reason that could form the basis for a claim to public interest immunity. The information that the s.438 Certificate relates to was provided by the applicant to the Department. The information that is relevant to this review has been put to the applicant under s.424AA of the Act. The Tribunal has accepted his response to the information and has not relied on the information in this review.
Findings
111. Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has fabricated some of his material claims and exaggerated others for the purpose of obtaining a Protection visa.
112. The Tribunal accepts that the applicant was born on [date] at [district] in Thailand. The Tribunal accepts that he has never married. The Tribunal accepts that his father has passed away and his mother, brother and [sisters] live in Thailand. The Tribunal accepts that he completed High School and a Diploma of [subject] in Thailand and commenced a “mini MBA” at university in Thailand. The Tribunal accepts that he also completed a Diploma of Business and an Advanced Diploma of Business [in] 2013 in Australia. The Tribunal accepts that his studies in Australia cost almost $20,000.00 and that his mother paid for those costs.
113. The Tribunal accepts that the applicant worked in [a specified] industry after he completed his studies in Thailand. The Tribunal accepts that he entered into a business arrangement with [Mr A], a [Country 1] entrepreneur, in 1991 to manufacture [Product 1] for export to [Country 1]. The Tribunal accepts that [Mr A] provided one hundred percent of the finances to set up this business. The Tribunal accepts that the applicant and members of his family registered a business called ‘[Business name 1]’ and that [Mr A] was not a registered owner. The Tribunal accepts that the factory was set up on land owned by his family and his mother directed him to manage this business.
114. The Tribunal accepts that [Business name 1] was a successful business until [Mr A] decided to leave in 2002 and transfer the manufacture of [Product 1] to [Country 2]. The Tribunal accepts that he had a falling out with the Accountant in relation to unpaid VAT and that he provided the money for the payment of the VAT. The Tribunal accepts that [Business name 1] was subsequently fined about 2 million baht and that the applicant paid the fine off by instalments between 2002 and 2008. The Tribunal accepts that the business began to decline after it lost the export market in [Country 1] and the financial backing of [Mr A]. The Tribunal does not accept that the applicant had to pay 4 million baht for VAT after [Mr A] left the business.
115. The Tribunal does not accept that in 1997 the applicant opened a wholesale and retail store selling [Product 2]. The Tribunal accepts that he started managing his late father’s [Product 2] store from that date. The Tribunal accepts that this [Product 2] store is a family owned business and that he transferred his interest in this business to his sister [Ms L] prior to coming to Australia.
116. The Tribunal accepts that the applicant borrowed money from five money lenders to supplement the cash flow in [Business name 1] after 2002. The Tribunal accepts that they charged above the official interest rate and are referred to as “loan sharks”. The Tribunal accepts that he made repayments on the loans between 2002 and the beginning of 2012 but had increasing difficulty doing so as the profitability of the business declined. The Tribunal accepts that one of the money lenders, [Lender B], would go to his store with two of his friends to collect the repayments.
117. The Tribunal accepts that the applicant became stressed when he was unable to repay the loans and concludes, based on the evidence before it, that he became incapable of managing the businesses, his mother (who is the matriarch of the family) then decided that his sister [Ms L] should take over the management of [Business name 1], his sister [Ms G] should take over the management of the [Product 2] store and he should travel to Australia and work here. The Tribunal finds that [Business name 1] was a family owned business and accepts that the applicant transferred his interest in [Business name 1] to his sister [Ms L] who subsequently arranged for a relative named [Ms H] to manage the factory.
118. The Tribunal accepts that the applicant’s sister [Ms L] made arrangements for him to travel to [Country 4] and [Country 3] for a holiday and to obtain a Visitor visa for him to travel to Australia. The Tribunal accepts that she has a friend in Australia who arranged employment for him in Sydney. The Tribunal accepts that this friend’s boyfriend referred him to his former migration agent who advised him to apply for a Student visa if he wanted to extend his stay in Australia. The Tribunal accepts that he has studied and worked in Australia and that his mother has paid for his expenses in Australia when he has been unable to do so.
119. The Tribunal accepts that shortly after the applicant left Thailand his creditors made inquiries about his whereabouts at the factory and with his sister and mother. The Tribunal accepts that they were angry that he had left without paying his debts. The Tribunal does not accept that the factory was bombed or, alternatively, attacked or, alternatively, the left side of the factory building was damaged and the fence was “wrecked” by a gunshot or a bomb. The Tribunal is not satisfied, for the reasons given above, that the photographs provided to the Department and the Tribunal are of the factory.
120. The Tribunal does not accept that the applicant’s sister’s car was bombed or, alternatively, the tyres on his sister’s car were pierced and the window was smashed or, alternatively, the cars in the car park were damaged and a window in his sister’s car was smashed, the wheel was bent and a tyre was pierced or, alternatively, his sister’s car and another family car were destroyed by a bomb. The Tribunal does not accept that someone went looking for him once in 2014 and every two to three months thereafter and his mother would contact him and warn him. The Tribunal does not accept that [Lender B] threatened his family and, following the military coup in Thailand in May 2014, he made more threats to his family. The Tribunal does not accept that the money lenders threatened his mother and kept trying to shoot his mother but his brother would not let that happen.
121. The Tribunal accepts that on 10 May 2012, prior to coming to Australia, the applicant transferred his interest in a four storey commercial property to his sister [Ms L] in return for her discharging his debt to [Lender C] and a mortgagee, [Mr O]. The Tribunal accepts that a civil lawsuit was commenced [in] 2012 against the applicant and his sister [Ms L] by [Ms J] in relation to the payment of outstanding loans to the applicant via [Lender C] and seeking the revocation of the sale of the applicant’s interest in the four storey commercial building to his sister [Ms L].
122. The Tribunal accepts that [in] September 2013 the [Provincial] Court made an order that the applicant pay the sum of 1,281,026 baht to the Plaintiff plus interest at the rate of 7.5% per annum from the date of filing the Statement of Claim until the debt is paid in full plus the Plaintiff’s costs of 10,000 baht.
123. The Tribunal concludes, based on the evidence before it, that the applicant’s mother and his sister [Ms L] are wealthy women and his family jointly own a number of assets. The Tribunal accepts that, after he transferred his interests in [Business name 1] to his sister [Ms L] prior to leaving Thailand in July 2012, his mother and sister [Ms L] paid some of his debts in 2012. The Tribunal accepts that he has not paid any of the loans since coming to Australia. For the reasons given above, and in particular his evidence that the businesses are family businesses, he transferred his interest in the four storey commercial property to his sister [Ms L] on 10 May 2012 in return for her discharging some of his debts, he transferred his interest in [Business name 1] and the [Product 2] store to his sister [Ms L] prior to leaving Thailand and his evidence that his family may have paid off his debts and that is why no harm has befallen them, it is highly likely that his family (particularly his sister [Ms L]) have discharged his debts.
124. The Tribunal does not accept that the applicant’s family have warned him not to return to Thailand as the “illegal loan sharks”, especially [Lender B], have been making threats to harm him. The Tribunal is not satisfied, on the evidence before it, that [Lender B] has ties to the military and that [Lender C] has political connections or, alternatively, is a politician and that the applicant is at risk of serious harm or significant harm for these reasons. In view of his own conduct in Thailand and in Australia, the Tribunal does not accept that he fears he will be killed if he returns to Thailand.
125. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm from any of the money lenders from whom he borrowed money or anyone else for any of the reasons claimed if he returns to Thailand now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the Refugees     Convention?
126. Having considered all of the applicant’s claims, individually and cumulatively, all the evidence and the submissions and in view of the findings above, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his membership of a particular social group or any other reason under the Refugees Convention if he returns to Thailand now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution for a Refugees Convention reason and is not a refugee. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary      protection criterion?
127. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
128. Having considered all of the applicant’s claims, individually and cumulatively, all the evidence and the submissions and in view of the findings above, the Tribunal is not satisfied that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Thailand now or in the reasonably foreseeable future.
129. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
130. The Tribunal finds that the applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
131. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
132.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
Member

[2021] AATA 3477

25 June 2020

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Immigration

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