1835833 (Refugee)

[2024] AATA 1807

1835833 (Refugee) [2024] AATA 1807 (8 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835833

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Sydelle Muling

DATE:8 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 May 2024 at 5:00pm

CATCHWORDS

REFUGEE – Protection Visa – Thailand – owed money to a loan shark – applicant does not face a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 December 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Thailand, applied for the visa on 21 March 2018.

3. The applicant appeared before the Tribunal on 26 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

10. The applicant claims to be a citizen of Thailand who was born on [date] in Chaiyaphum, Thailand. According to her protection visa application, the applicant’s ethnicity is Thai and her religion “Buddhist”. She resided in [a] District in Chaiyaphum from [birth] to January 2018. The applicant completed 13 years education, from May [year] to May [year], and can speak English. She was employed as a [occupation] in a[workplace] in Chaiyaphum from January 2015 to October 2017. She departed from [an] Airport on [date] January 2018, arriving in Australia on the same day. Her father, mother and sister are residing in Thailand.

11. The applicant presented her claims in her protection visa application, summarised as follows:

    ·She left Thailand because she wanted to escape from being sold as she was in debt to someone.

    ·She could not afford to pay so “he” gave her an opportunity to go somewhere instead of paying and she agreed.

    ·She did not think she was sold to be a prostitute.

    ·She could not take it anymore, so she escaped. “They” chased and found her everywhere.

    ·She did not move to another part of the country because she felt they would follow her.

    ·She felt unsafe and scared so decided to escape abroad.

    ·She is afraid if they find her, they will hurt her and kill her because she cannot pay the debt and ran away.

12. The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 6 December 2018.

13. The applicant appeared before the Tribunal on 26 April 2024 and gave oral evidence about her circumstances in Thailand, reasons she left the country and why she does not want to return there now. The evidence will be discussed below in the analysis and findings.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issues in this review are whether there is a real chance that, if she returns to Thailand, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Thailand, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

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

16. The applicant’s nationality is not in issue. She travelled to Australia on a valid Thai passport, which she presented to the Tribunal prior to the commencement of the hearing, and states that she is a national of Thailand. The Tribunal accepts on the evidence before it that Thailand is the applicant’s country of nationality and receiving country for the purposes of complementary protection.

17. The applicant claimed in the hearing she came to Australia in January 2018 because she owed money to a loan shark. The applicant explained that she used the money that she borrowed from the loan shark to buy clothes which she sold in a market located in the city of Chaiyaphum. The applicant confirmed in the hearing that the only harm that she fears if she returns to Thailand is from the loan shark that she allegedly owes money to.

18. The Tribunal does not accept the applicant’s claim regarding the money she borrowed from a loan shark is credible given the vagueness and implausibility of aspects of the applicant’s evidence, as discussed below. 

19. The Tribunal asked the applicant the name of the loan shark that she borrowed money from, and she responded that she did not know their name. She explained that some people at the market where she sold clothes had referred her to the loan shark. The loan shark would come to the market and that was how she met and talked with him. When the Tribunal queried how she came to meet the loan shark if she did not know his name, the applicant explained that someone introduced him to her. The Tribunal notes according to the applicant’s evidence in the hearing, she had allegedly borrowed money many times from this particular loan shark. The Tribunal finds it implausible that if the applicant had borrowed money on numerous occasions from this loan shark, who she claimed in the hearing she would meet and talk to in person when he attended the market, and whom she also claimed to have paid every week for an unspecified period of time, that she would not know this person’s name.

20. The Tribunal finds the applicant’s evidence regarding how much she borrowed from this loan shark and how many times she borrowed money from them to be ambiguous and unconvincing. The applicant initially claimed she had borrowed money from the loan shark around 2016 or 2017, when she sold clothes. When the Tribunal noted around 2016 or 2017 spanned a long period of time, the applicant stated she thought it was in 2017 because she came to Australia in 2018. When asked how much she borrowed from the loan shark, the applicant stated it was around 500,000 to 600,000 baht. When the Tribunal pressed the applicant by asking how much money she received from the loan shark, the applicant claimed to have borrowed a bit here and there totalling between 500,000 and 600,000. When asked how many times she borrowed money from the loan shark, she stated many times - 20,000’s, 30,000’s at a time and it all accumulated. The Tribunal asked the applicant how many times altogether she borrowed money from the loan shark, and she responded 10 times or around 7 to 8 times. The Tribunal finds the applicant’s evidence that she borrowed amounts of 20,000 and 30,000 baht between 7 to 10 times internally inconsistent with her claim to have borrowed between 500,000 and 600,000 Baht. Further, the applicant provided limited information regarding the terms of these numerous loans she allegedly took from this loan shark. When asked what the terms of the loans were, the applicant responded interest. While she claimed she was charged 15 per cent interest per week on the money she borrowed when pressed about how much interest she was being charged, the applicant was unable to provide any detail regarding how much she was required to pay the loan shark. Instead, the applicant responded that she usually did not have money to pay the loan so paid the interest. She subsequently explained that if she borrowed 30,000 baht, she would have to pay 15 per cent if she did not have money to pay. The Tribunal notes when it raised the vagueness in her evidence regarding when she allegedly borrowed money from the loan shark, how much she borrowed and how much she was required to repay as concerning, the applicant did not have any response or explanation.

21. The Tribunal has also taken into consideration the applicant’s evidence that she has had no contact with the loan shark she allegedly borrowed money from, and neither has her family, since she departed the country in January 2018. According to the applicant’s evidence, she had repaid the loan shark altogether 40,000-50,000 baht in interest and had ceased making payments in November 2017. The Tribunal notes information it put to the applicant from the DFAT country information report regarding the variety of methods used by loan sharks to coerce borrowers into repaying their debts including verbal harassment and threats of legal action, and using doxing or posting notices around a person’s workplace or home that they are a bad person who does not pay their debts. At the higher end, enforcers seize assets, burn down victims homes or businesses, make violent threats against victims, family members and guarantors and carry out physical attacks.[1] As the Tribunal put to the applicant, it has serious concerns that if she had not paid any money to the loan shark since November 2017, that the loan shark would not have tried to get in contact with her, or at the very least tried to find her through her family or targeted her family in an effort to get the money that she allegedly owed them. The Tribunal notes the applicant’s response that it was not that the loan shark did not try to locate her, it was just that she did not know if they tried to locate her, and they did not try to locate or target her family. The Tribunal finds this explanation unconvincing. The Tribunal finds the fact nothing has happened to the applicant’s family or that the loan shark has not contacted her family to try and locate her over the last 6 years she has been in Australia, further supports its finding that her claim regarding the debt she owes this loan shark is not credible.

22. For the reasons provided above, the Tribunal does not accept that the applicant borrowed money on numerous occasions from an unnamed loan shark who visited the market that she sold clothes at. As such, the Tribunal does not accept that when the applicant stopped making what appeared to be only interest payments on the money she allegedly borrowed in November 2017, the applicant was threatened by the loan shark. The Tribunal does not accept that the loan shark came to the market 2 to 3 weeks after she stopped paying, and threatened her in person, 2 to 3 times, including that he would sell her if she did not make the payment, as she claimed in the hearing. Nor does it accept that the loan shark grabbed her arm and squeezed it when he threatened her at the market. As the Tribunal finds the applicant’s claims regarding the debt that she allegedly owes this loan shark is not credible, the Tribunal does not accept that the applicant will be harassed by this loan shark because she has not paid, as she claimed in the hearing, or that she will be sold, hurt or killed by the loan shark because she did not pay her debt and ran away, as she claimed in her protection visa application.

23. The Tribunal notes the applicant’s evidence in the hearing that she did not complete her protection visa application form herself and was not sure of what was written in it. The Tribunal put to the applicant that it was claimed in the form that she was given an opportunity to go somewhere instead of paying and she agreed because she could not afford to pay her debt. The Tribunal also noted that it was stated in the form that she did not think she was sold to be a prostitute and escaped. The applicant responded that she believes when she told the agency about the threat to sell her to be a prostitute, that is what the agency implied and included in the application. The applicant confirmed that she did not agree to go somewhere else and start working as a prostitute to pay back her debt and that she escaped. The Tribunal asked the applicant if she provided the agency who completed her application with information regarding where she lived, her education, her employment, and other general details. Her evidence was that she just told them what happened to her but did not give them any details about her education, her family members or her employment. She claimed that they did not ask her where she worked or anything. Based on the applicant’s evidence in the hearing, the Tribunal places little weight on the information that was included in her protection visa application form. The Tribunal finds the only information contained in the application form which is consistent with the applicant’s oral evidence in the hearing is that she had allegedly had a debt to someone. However, for the reasons provided above, the Tribunal does not accept that the applicant owes money to a loan shark or to anyone else.  

24. As the Tribunal does not accept that the applicant borrowed any money from a loan shark, it does not accept that if she returns to Thailand, she faces a real chance of serious harm from the loan shark because she failed to repay her alleged debt. The Tribunal therefore finds that the applicant does not face a well-founded fear of persecution.

25. For the same reasons, the Tribunal does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Thailand, there is a real risk that the applicant will suffer significant harm from the loan shark that she allegedly borrowed money from because she owes them. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

    CONCLUSION

26. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

27. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

28. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Sydelle Muling
    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.

    …

    
    

[1] Department of Foreign Affairs and Trade, Country Information Report – Thailand, 18 December 2023 at 3.115.