1905923 (Refugee)

1905923 (Refugee) [2019] AATA 1126 (22 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905923
COUNTRY OF REFERENCE:                  Thailand
MEMBER:Christine Cody
DATE:22 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 May 2019 at 5:02pm

CATCHWORDS
REFUGEE – protection visa – Thailand – targeted by a well-connected politician – physical injuries and threats – credibility issues – travel history not consistent with fear of persecution – inconsistent evidence – delay in claiming protection – work history in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 March 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).The applicant, who claims to be a citizen of Thailand, applied for the visa on 7 March 2019. The relevant law is set out at Annexure A.
Migration history
The applicant’s migration history in relation to Australia is as follows[1]:
·     The applicant first arrived in Australia [in] February 2007 on a [student visa], under the name [Alias 1], valid till 10 September 2007 (according to his application form, at birth he was known as [Alias 2]). The applicant was granted a further [student visa] on 21 August 2007, and departed Australia [in] August 2008.
·     The applicant returned to Australia [in] May 2009, under the name [Alias 3], again on a [student visa] valid till 16 November 2009. The applicant was granted a [student visa] as a dependant valid till 15 March 2010, and was granted a further extension on the visa. The applicant departed Australia [in] July 2010.
·     The applicant arrived in Australia [in] December 2017 on a visitor visa FA600 under the name [applicant name] (current name). The applicant departed Australia [in] March 2018 and returned with the same visa [in] April 2018. The applicant departed again [in] July 2018, and returned [in] August 2018, again on the same visa. The applicant’s visitor visa ceased on 11 November 2018, and the applicant therefore became unlawful on 12 November 2018.
·     The applicant did not engage with the Department of Immigration (the Department) to regularise his immigration status nor did he depart Australia.
·     On 22 February 2019 the applicant was located by NSW Police for stationary Random Breath Test (RBT). He was referred to the Immigration Status Service (ISS) for a status check. The applicant was detained pursuant to s.189 of the Act as an unlawful non-citizen. He was transferred to [an] Immigration Detention Centre.
·     On 7 March 2019 he lodged a Protection Visa application. The applicant was placed in immigration detention on 22 February 2019, and applied for a protection visa on 7 March 2019.
[1] Sourced from a combination of two delegate’s decision records: the protection visa application refusal and the bridging visa application refusal (both of which were provided to the Tribunal by the applicant)
The Department
The Departmental file contains documents including the applicant’s protection visa application forms, an application for a bridging visa, the delegate’s decision record, and the record of the decision to refuse the bridging visa. The protection visa application form notes that the applicant provided a copy of his passport, Thai driver’s licence and National ID Card, as well as a NSW photocard.
According to the application form of 7 March 2019, the applicant’s background can be summarised as follows:
·     The applicant was born on [date] in [Town 1], Thailand. His ethnicity is Thai and he is a Buddhist. He speaks, reads and writes in Thai.
·     He lists four different given names, used at various times.
·     The applicant indicates that he is separated from his partner but gives no other details. He has a son (born [year]) who has the identical name as the applicant’s (current) name. His son lives in Thailand. He communicates with his relatives via [communication applications] and mobile phone, but does not indicate the frequency of communication.
·     The applicant lists only one address in Thailand, in [Town 2], in the province of Phayao, from 1980 to December 2017.
·     His passport was issued [in] 2017.
·     He travelled overseas in 2017: to [Country 1] [from] [April] 2017 to [May] 2017. He also visited [Country 2] from [in] May 2017.
·     He was not employed in Thailand.
·     The applicant left Thailand legally [in] December 2017, and arrived in Sydney, Australia [few days later].
·     He has an aunt (a Thai citizen) who is currently living in Australia. Since the applicant arrived in Australia, he has lived with his aunt in [NSW]. The applicant indicates that he is not employed in Australia; he is supported by his aunt. While not working, he has read books and taught himself English.
The applicant’s claims, according to his application form, are summarised as follows:
·     The applicant started a [business] in 2012 in the province of Phare[2], Thailand. The business was successful and affected the business of a very famous and well-connected local politician, [Mr A].
·     As a result, in 2015, the applicant was bashed by a group of men and threatened with a gun, and told he would be killed if he didn’t close down his business and leave the country. The applicant believes that the men worked for [Mr A] or his son.
·     The applicant ignored the threats, but the men damaged [various business assets] at his shop, giving him the clear message that he would soon be killed. They continued to send him death threats that he would be killed if he did not leave.
·     The applicant contacted the police when he had physical injuries and threats, but they did nothing, since [Mr A] is a powerful man in Phare.
·     The applicant closed his business in late 2015, and left Phare for the province of Phayao (his province of birth), staying at his sister’s house. The men continued to follow him and threaten physical harm and to kill him if he did not leave the country.
·     The times that the applicant returned to Thailand, he hid at his sister’s house, living in constant fear of being killed. Each time the men tracked him down and told him to leave or he would be killed. The men continued to demand he leave or be killed. Even on the last occasion they came to his sister’s house and demanded she hand the applicant over.
·     The applicant cannot relocate within Thailand as [Mr A] is a powerful politician. He already did relocate (to his sister’s house) where he was hunted and tracked down. [Mr A] is highly connected to people in power and the applicant will likely be killed or maimed if he ever goes back to Thailand to live.
·     He fears for his life and personal safety in Thailand and knows that he cannot obtain state protection or police assistance/protection.
[2] A spelling mistake on the application form recorded this as Prae (as told to the Tribunal by the applicant).
Further details of the applicant’s claims were provided in the decision record in relation to his bridging visa application (provided by the applicant to the Tribunal in the current proceedings). It was noted that the applicant did undertake a phone interview on 11 March 2019 in regards to his bridging visa application, during which he stated:
- He had a business in Thailand, but was threatened, physically injured, and hospitalised by his competitors.
- He reported the matter to the police, but they took no action. The applicant closed the business and left town, but the competitors kept following him.
- The applicant changed his name three times. His sister went to a fortune teller who suggested that he should change his name for a better future.
- The applicant said he has never worked in Australia. He looks after his uncle and aunt, and travels around. He runs an online business with his sister, who is still in Thailand, and earns around 50 million baht a month.
- Although the applicant also indicated that in Australia, he has worked at a restaurant and on a farm, and plans to open a restaurant, he later said that this was a mistake, and that he did not work on a farm but had travelled there with his uncle and aunt. The applicant indicates that he did some dishwashing at a friend’s restaurant in return for being taken to the restaurant as a treat.
According to that decision record (refusing the bridging visa application which would have allowed him to remain in the community), the delegate had concerns about the applicant’s truthfulness, and his work in Australia. One of the conditions the delegate was considering was 8101 (No Work) (mandatory). The delegate considered that during the bridging visa E interview with the delegate, on 11 March 2019, the applicant was not upfront about his work and provided conflicting information. He claimed to have access to 6 million baht in [a number of] separate bank accounts in Thailand (no source of this claimed money was provided) and the delegate found it hard to accept his claim of having access to 6 million baht when he is illegally working on a farm one day per week and/or working in a restaurant which he refuses to name. The delegate stated that having access to 6 million baht also appears to be inconsistent with the statement that he made in his tourist visa application. When the applicant was located by police, he was wearing a chef’s uniform; the delegate was not satisfied that his statements are credible; the delegate was not satisfied that he will not work and that he will abide by condition 8101.
It appears that the applicant was not otherwise interviewed specifically in regards to his protection visa application.
The delegate’s decision record
The Department refused the applicant’s protection visa application on 12 March 2019. The delegate considered that applicant’s claims did not fall within any of the five reasons for persecution in s.5J(1)(a) of the Act, and therefore was not a refugee.
When considering complementary protection, the delegate was not satisfied that the applicant faced a real risk of significant harm. The delegate referred to country information that indicates that the Thai police and military have shown a willingness to enforce the law and to combat corruption. There has been an increase in actual enforcement of law, indicating that the applicant could obtain effective protection from either the police or military. Furthermore, there are various bodies to which the applicant could report the police’s refusal to investigate, which could assist in ensuring the applicant is provided with protection. While noting that the law provides criminal penalties for corruption (although there was still sometimes impunity for corrupt officials), the delegate was satisfied that Thailand has a working criminal law and legal system and that a reasonably effective police and judicial system exists. The delegate did not consider that there was country information indicating that the state would be complicit in the sense of encouraging, condoning or tolerating the type of harm feared by the applicant. Further, the applicant had only attempted to relocate to his sister’s house in a neighbouring province, where [Mr A]’s men found him. The applicant made no attempt to relocate to a different province where he has no known associations, and there are no restrictions on freedom of movement in Thailand preventing him from doing so.
There are no certificates restricting disclosure of any material on the Department’s file.
The Tribunal has also had access to the Departmental bridging visa file which contains interviews with the applicant (essentially these were recorded where relevant in the bridging visa application decision record, which the applicant had already provided to the Tribunal).
The Tribunal
The applicant provided to the Tribunal an application for review form seeking the review of the delegate’s decision to refuse to grant him a protection visa. He provided a copy of the delegate’s decision record in that regard (as well as a copy of the bridging visa refusal dated 11 March 2019 and decision record for the refusal).
The applicant appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. The agent and a support person (friend) attended the hearing. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision.
The applicant’s evidence at hearing included the following:
·     He lived from birth at Phayao province until the age of [age], when he moved to Phare province, about 146km away. He resided there until 1999/2000, when he moved to Bangkok for [study], which he completed in 2003/2004. He then returned to Phare province where his mother and father were living. From that time, he remained living in Phare, his family had a [business] there. He worked in family business for two years after he finished his [study] until 2006/2007. Then he became a [deleted] and then came to Australia.
·     When he returned to Thailand he worked in the family business until he came to Australia in in 2009.
·     In 2010/2011 in Thailand he had his own [business].
·     His sister was looking after the family business. He was also helping because she was running a business in Bangkok (she moved there in 2012). The family business closed in 2015/2016; when asked why, he said it was because of the problems.
·     The applicant’s evidence about why he changed his name the first time was that his sister and Thai people believe if he changes his name things will be better for him. When asked what was wrong with his past name he said that his sister went to see a fortune teller who consulted a numbers book. The applicant said that it is difficult to explain why he changed his name. The Tribunal suggested that it is fairly significant to change names and did not know why he said he had difficulty explaining it. He said that he changed it three to four times. He claimed that on each occasion he changed his name officially with the government in Thailand.
·     His evidence about his studies in Australia was that the first time he came to Australia he didn’t complete his [studies]. The second time he came to Australia as a student he had difficulties in attempting to complete his [course]. When the Tribunal asked him why, he said words to the effect of: “Because the agencies couldn’t find a certificate or something like that. The old one”. The Tribunal put to him that given his evidence of his change of name (which he said he submitted to the Australian authorities) it should have been relatively straightforward to identify him from his previous trip and to complete his [course]. He then changed his evidence and said that he had to study the English language again. The Tribunal noted it was his claim that he had studied language for more than one year the last time he was in Australia; it asked why, when he returned, he had to continue these studies. He said he didn’t know why. The Tribunal noted that he would have paid a lot of money for a student visa and to study here and it is difficult to accept that he was paying for something but didn’t know the reason why. He said that he didn’t finish his [course]. Instead his girlfriend had a student visa, so he became a dependant and stayed here on that basis.
·     The bad people didn’t want to let him go, and pursued him, because he embarrassed them in society. They were upset with him. They have already assaulted other people in the community; they have been charged with shooting police, the police died, but they were not punished. The applicant said that he reported to police and nothing happened and he came to Australia, and although normally he could come back to Thailand anytime, on the most recent occasion they threatened him and came to his sister’s house. He is not confident that the police will protect him.
·     The applicant confirmed to the Tribunal that since he finished his [study] in 2003/2004, the only place he had lived was in Phare Province; he didn’t live anywhere else, and he operated the business in Phare. This, however, was inconsistent with his claim that after the troubles with his business, he fled to his sister’s house (in his hometown province of Phayao according to his written materials) and his claim in his statement and at hearing that he also moved to Bangkok and other provinces in Thailand. After the Tribunal put to the applicant that in his protection visa application form he stated that he moved back to Phayao and hid with his sister, he then changed his evidence and agreed he had gone back to his hometown, [Town 1], in 2015; he had moved to [Town 1] and built a house where he lived from mid-2015 to mid-2016. He lived in the house until there was a shooting and he had to leave. He went to live with his sister in Bangkok.
·     The applicant said that he fears, if he returns, the politician and his son. They will send gangsters to hurt him, and last time they threatened his sister. When asked if there was anything else concerning or worrying him if he went back, he said if he goes back to Thailand he will have to stay there in hiding because police can’t help him. He has no other fear or worry other than the gangster’s politician and son.
At the end of the hearing, while noting that it had not made up its mind, the Tribunal put to the applicant that it had concerns with the credibility of his claims. His agent also made submissions.
Post hearing
After the hearing the member was provided with an unsigned and undated typed statement of the applicant. Although apparently it was received by the Tribunal about one hour after the hearing had started, it was not brought to the member’s attention by Tribunal staff until after the hearing. The Tribunal notes that neither the applicant nor the agent mentioned at hearing that a statement was being provided at late notice, nor did they seek to ascertain whether the Tribunal had received it. The statement provides more details about his claims to fear harm as a result of his successful business; it does not raise any new issues.
The statement does contain an assertion that the applicant had also relocated to Bangkok (which was different to his application form where he claimed to have only relocated to [Town 1]). When the applicant gave evidence at hearing and claimed that he had relocated to Bangkok after his problems, the Tribunal put to the applicant that he did not appear to have said that previously, referring to his application form which only discussed relocation to one province. The applicant said that he had said it in “an earlier interview”; he did not however say he had made this claim in this new statement provided to the Tribunal that very day. In the circumstances however, given that the applicant is in detention, and that the statement is undated, the Tribunal is prepared to accept that the applicant made a claim at some time before the hearing that after his difficulties he became anxious and paranoid and needed to hide and he had moved to his sister’s house in Bangkok (and other cities) and overseas (as well as his province of birth Phayao).

Further evidence and submissions are set out below when relevant.
FINDINGS AND REASONS
Country of reference
The applicant, as noted above, has had a number of names. The Department noted that he had produced a passport in the name listed on the front of this decision record, and stated that there was no evidence before the delegate that this was a bogus document. Similarly, the Tribunal does not have evidence that this is a bogus document, and it is prepared to accept his name as on his passport and on the front of this decision record. The Tribunal accepts that the applicant is a national of Thailand and that the appropriate country of reference for assessing his refugee and complementary protection claims is Thailand.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
The Tribunal had a number of concerns about the applicant’s inconsistent, changing and unlikely evidence, and his delay in claiming protection in Australia. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned that the applicant’s actions did not appear consistent with his claims of having been threatened, shot at, losing his livelihood and being in fear of his life to the extent that he lived in hiding. The applicant said at hearing that from late 2016 he lived mainly at sister’s house in Bangkok unless he was overseas (short visits to [Country 1] and [Country 2]) or having a small occasional beach holiday in some other location in Thailand. The Tribunal put to the applicant that his travel and immigration history doesn’t really indicate someone who was shot at and fears persecution and is in hiding. The Tribunal noted that he was shot at in late 2016, but he didn’t make his final trip to Australia until August 2018, having spent four days away in [Country 1] on holiday, 15 days away in [Country 2] on holiday, travelled to Australia for three months and went home for two weeks, returning to Australia for three months and returning again to Thailand, where he remained for four weeks, finally returning to Australia. Further, he said that he was essentially living either at a house he built in [Town 1], or at his sister’s house in Bangkok, however if the people hunting him down (since 2015) included a well-connected, corrupt politician, it would not be very difficult to find him. The Tribunal put that it did not sound like he was “in hiding”. Further, he kept on returning to Thailand even after he was shot at and threatened to be killed.
The applicant’s evidence was changing as to what occurred on each occasion when he returned to Thailand from Australia. When the Tribunal expressed concern that he returned to Thailand on more than one occasion, his evidence was that nothing happened to him (other than living in fear) and that is why he kept going back. He said that he returned after having spent three months in Australia, he went back to Thailand (staying at his sister’s house) hoping that they would have given up the search. He only stayed for about two weeks and then returned to Australia. The second time he came back and stayed there for longer and returned to Australia. His sister was then informed that if the applicant returned and if she didn’t tell them, they would assault the family members. As put to the applicant however, in his protection visa application form he claimed that every time he went back they tracked him down and told him to leave or he would be killed. The Tribunal noted that this was inconsistent with this evidence to the Tribunal (that he had not been located). In response, the applicant said, “no comment”. The Tribunal considers that if the applicant’s claims were genuine, he would have been able to offer an explanation as to why his claims were so different concerning whether they tracked him down or not when he returned to Thailand; the Tribunal considers this undermines his claims.
The Tribunal noted that in his protection visa application he said that during the three visits to Thailand he was hiding himself at his sister’s house in [Town 1], and in constant fear of being killed each and every day he was there. The Tribunal noted his evidence at hearing (that she was living in Bangkok which is where he stayed), and said whether he stayed at his sister’s house in [Town 1] or in Bangkok, it was still his sister’s house, he was staying in a place where it would appear he could easily be found. He responded that he had nowhere else to go, he has relatives in Bangkok but he didn’t know where to live so he lived in his sister’s house. The Tribunal was not satisfied with this explanation, as it would appear he could have stayed elsewhere, a place where he would not be so easily located (given he had the funds/ability to go on holiday and travel around).
The Tribunal also put to him that, in the context of his claims, his actions and returns to Thailand seemed difficult to understand; instead it appears that he was holidaying and travelling to different places, not escaping persecution; and he came to Australia, wanted to stay, remained unlawfully, and only made his protection visa application when he was caught after being stopped for RBT.
The Tribunal asked if he could reconcile his actions and he responded that they continually came to search for him at his sister’s house and they found him each time. The Tribunal considers it highly unlikely that if the applicant was in hiding from people who sought to kill him that he would continually return to the same location (this is also inconsistent with his other evidence at hearing). It is not satisfied that his response explains his actions (and it is inconsistent with his other evidence at hearing).
It considers that his actions, including his continual returns to Thailand and his decision to reside with his sister where he could easily be located by well-connected killers, indicate that he was not seeking to flee persecution, and this undermines his claims.
Secondly, the Tribunal was concerned because different details were given at different times in relation to the applicant’s claims. For example, in his protection visa application he said that his own business was closed down in late 2015 and he moved to [Town 1] to avoid being harmed. There was no mention of his competitor’s business closing down.
However at hearing, he said that because his business was better than his competitor’s business, the competitor’s business closed down as he did not have customers. He said his competitor assaulted him after the business closed down because he was embarrassed. He then changed his evidence and said that he was assaulted before the competitor’s business closed down.
The Tribunal noted that his protection visa application made no reference to the competitor’s business being closed down; instead he had claimed that the competitor attacked the applicant and the applicant’s business because his business was being affected. The applicant responded by saying that previously he did not explain things in detail, that is why his first application was refused and he had no chance to explain that. The Tribunal asked whether he was suggesting that he didn’t get a chance to discuss his claims at interview, because he did actually attend an interview where his claims were discussed[3]. The Tribunal read out from the decision record (page 2) which discussed his evidence at interview; it noted that the applicant was applying for a protection visa because he fears for his life and personal safety in Thailand; he had a business in Thailand and had a conflict with competitors who threatened and injured him, he was hospitalised, reported to the police, no action was taken, so he closed the business and left town but they kept following him. The applicant then agreed that although he had an interview he didn’t mention it then, but he is mentioning it today because he wants to talk about it in more detail.
[3] Bridging visa interview as set out in the bridging visa refusal decision record provided to the Tribunal by the applicant.
The Tribunal has considered whether it should accept this explanation for this omission, however it is not prepared to do so, given, firstly, as set out below, that the claim did not seem credible, secondly, as set out below, the applicant also made the new claim of the family business having been shut down, and thirdly, it seems unlikely that the applicant would omit this information given his claim that it was this very factor which caused the competitor and his corrupt family members extreme embarrassment which led to them seeking to do serious harm to the applicant and to drive him from his homeland:
· New claim of closure of competitor’s business: The claim that the competitor’s business closed down seemed difficult to accept. In this regard, the applicant told the Tribunal that the competitor and his father (a politician) are very powerful and corrupt, “bad” men, with criminal links and against whom police action cannot be taken. In the circumstances, the Tribunal put to the applicant that it did not seem to make sense that, while suffering the embarrassment they do not want to suffer, they got to the stage of actually having to close down their business, while the applicant’s business remained ongoing. In this regard the applicant had given evidence that it was about four to five months after he was threatened, assaulted and hospitalised that his business closed down; he had remained operating his business for about two months in Phare, and then the competitor’s business closed down, and the applicant moved to [Town 1]. The applicant’s employees continued to operate the applicant’s business for a further two to three months on his behalf (in Phare). The Tribunal put to him that it did not understand why the competitor (given his criminal connections and power) would allow the applicant continue to operate his business for two months while the competitor’s business was struggling, and further, even after the competitor’s business closed down, the applicant claims that his employees were allowed to continue to operate the applicant’s business for an additional two to three months after. The Tribunal put to the applicant that this did not make sense; why would the competitor not force the applicant out of business before his own business was forced to close down. The applicant initially responded by saying he didn’t know; he then said that even if the competitor’s business closed before applicant’s, it doesn’t mean he will get customers and he does not really worry about that. They are bad people. The Tribunal does not accept this explanation given that he claimed that the sense of embarrassment in the eyes of society (relating to the competitor’s business) was a significant factor and given the applicant’s claim (in his written materials, which he omitted to mention at hearing until reminded by the Tribunal, as set out below) that the competitor was willing to physically destroy the assets of his business. If this was the case, it does not make sense that the competitor would endure the embarrassment of his own business being forced to close, while the applicant’s business continued to operate. The Tribunal considers that the applicant’s failure to mention in his written materials that his competitor’s business was forced to close, as well as the unlikely claim that the competitor (with access to violent and destructive tactics and means and being very adverse to the embarrassment of the closure of his business) was prepared to essentially allow the applicant’s business to continue operating for a further two months after his own business was destroyed, undermines the applicant’s claims and credibility.
· New claim of closure of family’s business: The Tribunal noted that in his initial evidence, he said that the family business had been closed due to his problems; the Tribunal noted that this indicated that there were two businesses (his and his family’s) closed whereas he only referred to one business in his protection visa application form. The Tribunal asked why and he said “they didn’t ask me”. The Tribunal repeated that it was referring to his written protection visa application form where he only referred to one business closing, not two. The Tribunal asked why he would not mention both businesses and he said he was handling the family while his sister was in Bangkok. The Tribunal repeated its question as to why he wouldn’t refer to the family business as well in his written application form. He responded that he said he thought it was only about his business that had a problem. The Tribunal notes that the applicant’s written claims did not however just mention him, he referred to his family members (his sister); it is not prepared to accept this explanation. The Tribunal considers that if the applicant’s family business was also destroyed as a result of the politician/gangsters who were and are after him, he would have mentioned this in his written claims. In particular, it notes that his reference to his business being destroyed was in response to the question: “Please provide reasons why this applicant left that country or those countries”; there would seem to be no reason why he would not have included the destruction of his family business in this form.
Further, the applicant gave inconsistent evidence about the destruction of his business assets. While claiming in his application form: “The men also harassed me and my business. They damaged my goods [and other assets]”, he omitted to mention that the destruction of his business assets was a reason why he had to close his business.
When the Tribunal asked the reasons why he had to close his business the applicant said there were only two reasons why he had to close his business down: firstly because the competitor had threatened his employees and they left; secondly because the applicant was being hunted. When the damage of his assets was put to him, he did not explain why he omitted to mention this; he just said that he was sure they were going to kill him. The Tribunal considers that this further inconsistency in the detail of his claims undermines his credibility.
Thirdly, the Tribunal was concerned that the applicant was not forthright about his circumstances and reasons for being in Australia, which was relevant to his delay in claiming protection, and his failure to do so until he was caught by the police during RBT.
The applicant’s initial claimed circumstances, when first pulled over by the authorities on 22 February 2019 was that he was holding a tourist visa, working for his uncle, and he was wearing a chef/kitchen uniform. He did not claim that he had a pending visa application[4] (as subsequently claimed).
[4] According to the bridging visa decision record and the applicant also did not say that he told the police this.
He said that he had been working in a restaurant but refused to give the name and address of restaurant. He then said that he usually worked on a farm, and he has been looking around because he wants to save money and open a restaurant; and then he changed his evidence and later said that he had only worked a day or two on a farm. He later said he had never worked in Australia, and that the interpreter had not interpreted correctly.
The Tribunal discussed with the applicant his work situation and what he had been noted as saying. The applicant said that he just went to the farm once to have a look. He said he was not wearing chef/kitchen-hand uniform; he was wearing the pants, and a normal t-shirt. He was just helping someone at the restaurant, he didn’t get paid, he just washed dishes and got food.
The Tribunal was concerned with the applicant’s changing evidence as to his work and it put to the applicant that he may have come to Australia and stayed unlawfully because he wanted to work. He said, “no”.
The Tribunal notes that when speaking with the Department, the applicant claimed he had instructed an agent to lodge a protection visa application before he became unlawfully present. At hearing he said that when he last came to Australia he paid money to an agent (November 2018) to lodge a protection visa application because he knew that his visa was going to expire, but they did not lodge the application; they told him to wait and then he couldn’t reach them. He said he has no documents to support this.
The Tribunal put to him that if he thought he had lodged a protection visa application, why did he not tell the police this when he was arrested; instead he said that he was holding a tourist visa and working for his uncle. He responded that he thought they asked him what type of visa he came on, not the type of visa he was holding.
The Tribunal also put to him that if his visa had expired and he was unlawfully present, it does not understand why he did not ask the agent for proof that he had a pending application to carry around with him. He appeared to be intelligent, aware his visa had expired; it is difficult to accept that he didn’t ask for any evidence that it was lodged. In response he agreed; he also said that he paid cash and didn’t get a receipt. The Tribunal considered this was also difficult to accept.
The Tribunal put to the applicant that if he had lodged a protection visa application he could have been granted the right to work; in the circumstances it is difficult to accept that he just waited to hear back from an agent and that he did not ask whether he could work while his application was pending, or why he didn’t ask the agent for evidence that he had the right to be in (and work in) Australia.
In response the applicant said that he doesn’t want to answer, because when he answers the Tribunal’s questions, it just leads to other problems. The Tribunal said to the applicant that it was just telling him what its concerns are and it is giving him the opportunity to comment.
The Tribunal is not prepared to accept the applicant’s explanations and it considers his evidence about instructing an agent to lodge a protection visa application (of which he says there is no record) to be highly unlikely, especially as he has a long-term history of applying for visas offshore and onshore and of having pending visa applications, and in travelling in and out of Australia. It is also not prepared to accept that a reason for his changing evidence was an interpreter, given that neither he not his agent provided evidence of this to the Tribunal, and given the other concerns. The Tribunal notes that the applicant arrived in Australia for the last time in August 2018, and it appears that he only applied for protection when he was caught unlawfully present in Australia by the police in February 2019. The Tribunal considers that the above indicates that he did not instruct an agent in November 2018; instead his visa expired, he became unlawfully present and his delay in lodging a protection visa application until he was detained undermines his credibility and his claims.

On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
When the Tribunal raised an inconsistency at hearing as to whether he resided in hiding with his sister at her house in [Town 1] (his application form) or at her home in Bangkok (his claim in evidence, he said she had been residing there since 2012), the applicant said that that part of his application form was incorrect. He said his former agent wrote that; the applicant didn’t read all of it before signing it, he just read the important parts. The Tribunal asked why he didn’t think where he escaped to was important and he said that his English wasn’t improved so he didn’t read it all. He then indicated he couldn’t understand English. The Tribunal then put to the applicant that it was his claim in his protection visa application form that instead of working while in Australia, he had been reading books and teaching himself English; further his earlier time in Australia was as a student and it was his claim that he had studied English twice in Australia for over one year. When the Tribunal asked whether he could understand the words, “I was living at my sister’s house in [Town 1]”, he then said he did understood those words, but the words are incorrect, he didn’t read that part of his claims, it should read “Bangkok”. The Tribunal is not prepared to accept the applicant’s changing explanations as to whether he did understand the application form, or as to whether he didn’t read it as it was unimportant. Given the applicant’s multiple student visas, his English language studies, his trips to and from Australia and the time he has spent residing in Australia, the Tribunal is not prepared to accept his (changing) explanation that his comprehension of English is poor or almost non-existent. It does not accept this as a reason for the inconsistencies arising from his application.
The agent made submissions at the end of the hearing that the applicant is a credible person and holding fear of what will happen if he goes back. Concerning inconsistent/incorrect evidence in the written materials, it could be that the previous agent was not diligent and the applicant was in a detention centre so he might not have been able to check the application fully or to have full instructions taken. He thinks that there may have been an error concerning [Town 1] and Bangkok but that should not affect whether the applicant meets the criteria. He is a member of a particular social group of “business owner and enemy of well-known gangster/politician” and police cannot protect him. Concerning complementary protection, he received threats or messages and an attempt to kill or maim him. In relation to the concerns that he may not have genuine fears and his delay and return visits, it is submitted that the periods were not too long. He held a one year visitor visa which allowed him to stay for three months at a time and although the applicant didn’t stay, he may have gone back so that he wouldn’t be unlawful after three months. The applicant learned English and was a former international student but he thinks that the applicant’s English is poor and maybe he failed to understand how to do many things. He may not have been exaggerating his fear when he said that he was in hiding and in constant fear of being killed; that might have been the state of his mentality.
The Tribunal has carefully considered these submissions in relation to its concerns above. While the Tribunal accepts that the applicant lodged his application in detention, it is not only concerned with inconsistencies in his written materials; it is also concerned with his evidence at hearing. While the Tribunal also notes that he does remain detained, which the Tribunal accepts could lead to some anxiety, it is not satisfied that any of these matters can explain the difficulties with his claims. Further, even if he went back to Thailand so that he would not become unlawful in Australia, this does not explain why, if he was in fear of his life, he spent such periods of time back in Thailand, nor why he chose to stay with his sister. The Tribunal is not satisfied that the applicant’s English is poor; it is also not satisfied on the evidence before it that the difficulties with the applicant’s written materials can be ascribed to a past agent.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.
Findings on the applicant’s claims
On the basis of the adverse credibility finding, the Tribunal is not prepared to accept that the applicant suffered as described in his written materials or his oral evidence. The Tribunal is not satisfied that the claims made by the applicant are true. It does not accept the applicant’s claims of past harm, targeting and adverse attention by the persons claimed or at all. It does not accept that he had a business which put a competitor out of business, that his business (or the family business) closed down because it was targeted by anyone, nor does it accept that the applicant received warnings or threats or was targeted for harm or injured or hospitalised or shot at or told to leave Thailand or threatened or subject to attempts to be killed. It does not accept that any change of name as done because he was in fear. The Tribunal does not accept that he travelled or left Thailand for reasons of fear nor that he lived in hiding with anxiety or paranoia; it does not accept that any of the harm or threats or adverse interest as claimed occurred, and it does not accept any claims flowing from these claims (including it does not accept that his sister received threats or visits, and it does not accept that the applicant tried and failed to obtain state protection).
The Tribunal finds that the applicant was prepared to make false and changing claims to support a protection visa application. It finds that he has not been honest about his financial situation in Australia or in Thailand. It finds that he has had sufficient funds to come to Australia and remain here on numerous occasions; it does not accept his claim that he has never worked in Australia.
The Tribunal does not accept that the applicant sought to lodge a protection visa application in November 2018. It finds that he was aware that his visa expired in November 2018 and that he remained in Australia, unlawfully present in Australia, and that he was working and seeking to earn money in Australia. While the Tribunal understands his desire to do better for himself, this does not assist the applicant in this case. It finds that he did not lodge a protection visa application until he was detained and found to be unlawfully present.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason including being targeted or threatened or as a member of a particular social group. The applicant only claimed to have a fear of harm from the politician and his son and gangsters/others who would do their bidding; the Tribunal has not accepted those claims.
The Tribunal considers that he will return and continue to work and live as he has done before in Thailand; it does not accept that he faces harm for any financial or economic reason.
The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Thailand, nor does it accept that there is a real chance or real risk of this upon return. The Tribunal is not satisfied that the applicant faces a real chance or real risk of requiring access to state protection.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis. Having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any adverse interest or harm as claimed. The Tribunal has found that the applicant is not a witness of truth concerning his circumstances, or his claims that he faces a real risk of significant harm.
The applicant has worked in Thailand and in Australia and it considers that upon return he will be able to work in Thailand. The Tribunal has not accepted his claims in relation to businesses in Thailand. The Tribunal is not satisfied that the applicant faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, 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 a receiving country, in this case Thailand, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted below.
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 below.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 1126

22 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice