1908255 (Refugee)

[2019] AATA 4388

1908255 (Refugee) [2019] AATA 4388 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908255

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Roslyn Smidt

DATE:19 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 June 2019 at 11:42am

CATCHWORDS

REFUGEE – protection visa – Thailand – particular social group – homosexual men – victims of loan sharks – fear of killing – forced marriage – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65
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 Immigration on 29 March 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who is citizen of Thailand applied for the visa on 18 January 2019.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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.

   BACKGROUND

9. The applicant is [an age] year old divorced man from [District 1] in Chian Rai in Thailand. He was raised by his grandparents after his parents went to work in [Country 1]. His father returned to [District 1] where he and most of the applicant’s extended family live. His mother remarried and remained in [Country 1]. He has one sister who is married to a [Country 1] citizen and lives in [Country 1].  

10. The applicant left [District 1] to study at [a named] University and later [another] University.  He obtained a Bachelor’s degree after that he worked in Bangkok for [period] before moving to Muang City in Chian Rai Province where he worked until [year range] when he travelled to [Country 1] where he studied the language for [number] years and worked as [an occupation]. He later returned to Thailand to marry a woman chosen by this father. They lived briefly in [Country 1] before returning to Thailand where they lived in a village about 90 minutes from the village where he grew up. Prior to coming to Australia he worked for an agency which arranged for people to work in [another country]. He and his wife divorced before he came to Australia in 2015.

11. The applicant first arrived in Australia on a student visa in May 2015. This visa expired on 15 November 2017. He did not complete his studies. He worked in a [business] for some time. [In] September 2018 he was arrested in relation to drug offences and sentenced to seven months in prison. He was released from custody [in] January 2019. He applied for protection on 18 January 2019.

    CONSIDERATION OF THE APPLICANT’S CLAIMS AND EVIDENCE

12. The applicant claims that he would be at risk of harm if he returned to Thailand because he is gay and because he and his sister borrowed a significant sum of money from a loan shark to pay for his student visa and expenses in Australia which he has not been able to repay. He also claims that he has no money and will not be able to survive if he returns to Thailand.

    Claims relating to problems with a the loan shark

13. During his interview with the delegate the applicant said he and his sister had borrowed [loan amount] Thai baht from a loan shark who was a former military officer to fund his study in Australia. They used land bequeathed to them by their grandparents as security for this loan.  He claimed that his sister had told him that the loan shark had called her in [Country 1] and threatened to kill her if she ever returned to Thailand because the loan had not been paid. He said that he feared he would be killed if he returned to Thailand. He said that as Thailand is currently controlled by the military nobody would protect him.

14. The delegate advised the applicant of information regarding a number of government measures aimed at eliminating loan sharking operations in Thailand, including provision of alternatives sources of credit and police actions against loan shark syndicates including Government and military personnel who faced harsh penalties for involvement in these activities. In response the applicant appeared to maintain that he would be at risk of harm as a result of this debt but added that even if the loan shark did not harm him he would die at the airport because his father had rejected him and he had no money, no accommodation and no support in Thailand.

15. At the hearing I asked the applicant who had paid for his studies in Australia. He said that his mother had covered these costs. I asked him to confirm that she had paid for his fees, fares and all expenses, which he did, but then added that he and his sister had obtained a loan for his expenses in Australia. When asked how much they had borrowed his response was hesitant and confused. He said that it was over [amount] baht, maybe [larger amount] baht and then said that his sister had borrowed more but he did not know how much. I observed that [the larger amount] baht appeared to be about $[amount] Australian at current conversion rates. He said that he did not know.  He said that he and his sister had provided land they owned jointly as security for the loan

16. I asked the applicant who had loaned him this money. He said that he and his sister had borrowed it from a powerful person, but he had never met him and he could not provide any more details as his sister had made the arrangements. I asked why his sister had made the arrangements as she was in [Country 1] while he was in Thailand. He said that his sister had been in Thailand when the loan was arranged.

17. The applicant said that he had paid the pay the [amount] baht monthly interest on the loan until he was arrested in September 2018, but after that he was not working and could not pay. I observed that in cases of non-payment the person who had extended the loan would usually take the property offered as security and that would be the end of issue. He said that the land had been taken when he was in jail to cover the cost of the interest payments but the capital had not been paid. I asked him how much his land had been worth. He said that he did not know.  

18. The applicant said that in April 2018 after he stopped paying the interest on the loan the loan shark had threatened his [Relative 1] and damaged her property including a car. I asked if they had threatened anyone else. He said that they had only threatened his [Relative 1].

19. I noted that the applicant had told the delegate that his sister in [Country 1] had been threatened by telephone but he had not said anything about his [Relative 1] being threatened or attacked. He agreed that this was correct, but said he had only learned about the threats to his [Relative 1] after his interview with the delegate. He said that he had overlooked the threats to his sister when questioned during the hearing.

20. I do not accept that the applicant is indebted to a loan shark.

21. In the first place, he has given inconsistent evidence regarding his need for this loan. In his submissions to the Department he claimed that he and his sister had borrowed the money to pay for him to study in Australia. However, when I asked him who funded his study in Australia he initially said that his mother had covered all his costs, but then said that he had taken out a loan to cover his costs in Australia.

22. Secondly, his evidence regarding the amount of money which he and his sister borrowed, the person who gave them the loan and the value of the land provided as security was vague, inconsistent and unconvincing.  In his submissions to the Department he said that he and his sister had borrowed [loan amount] baht from a retired military officer. At the hearing he said that they had borrowed somewhere between [two specified amounts] baht or maybe more from a powerful man. He said that he could not provide any more details because his sister had made the arrangements. He was also unaware of the value of the land used as security for the loan. While I acknowledge that honest applicants sometimes provide slightly different accounts of past events, it is only six months since the applicant lodged his application for protection and I do not accept that he would have forgotten details such as the identity of the loan shark, particularly as he previously suggested that the loan shark’s background as a military officer meant that he would not be able access protection. Nor do I accept that a well-educated man in his [age range] would have no idea of the value of land which he used for security for a loan. 

23. Thirdly, he has given differing accounts of when he stopped repaying the loan and the problems which this caused.  At the hearing he said that he stopped paying when he was arrested in September 2018, but also said that his [Relative 1] had been threatened in April 2018 because the loan had not been repaid.  More significantly, in his submissions to the Department he said that the loan shark had telephoned his sister in [Country 1] and threatened to kill her if she returned to Thailand because the loan had not been repaid. At the hearing he claimed that his [Relative 1] had also been threatened and her property damaged because he had stopped repaying the loan, but despite being asked if anyone else had been threatened failed to mention the threats to his [Relative 1] until I reminded him of his earlier evidence at which time he said that he had forgotten.  As the applicant previously indicated that the threat against his sister was a major reason for his fear that he would be killed I do not accept that he would have forgotten this threat when asked about his fears at the hearing. While I might have accepted that he did not mentioned the problems faced by his [Relative 1] prior to the hearing because she was threatened following his interview with the delegate if this had been only problems with his evidence. However, in light of the other problems mentioned about and in particular his failure to mention the threats against his sister, I also reject this claim.

24. After considering all of the evidence, I am not satisfied that the applicant borrowed a large sum of money from a loan shark prior to leaving Thailand. I believe that he concocted this claim to support his application for protection. It follows that I am not satisfied that he faces a real chance of suffering serious or significant harm because he failed to repay money owed to a loan shark.

    Claims related to sexuality

25. There is no mention of problems related to sexuality in the applicant’s initial application for protection. During his interview with the delegate he said that he had not had any gay relationship prior to coming to Australia because he was afraid, but he had been an effeminate child and his father had taunted him because of this and other members of his family and community did not accept him. In about 2014 his father pressured to marry. He later revealed his sexuality to his wife. She was understanding of his situation and they divorced. They kept the divorced a secret, but his father now knows. Since coming to Australia he has had relationship with some men he met on social media. When asked about his fears on return to Thailand in relation to his sexuality he said that he feared he would suffer psychologically, that people would look down on him and he would not be able to be himself.

26. At the hearing the applicant again stated that he was gay and said that he had been pressured to marry by his father. I asked when he had last spoken to his father. He said that they had ceased communicating when he came to Australia to study. I asked what harm he feared in Thailand because of his sexuality. He said that he was not sure, but he was concerned that people in his village might not accept him. I observed that it appeared that he could live outside his village if he felt that he would not be accepted there. I also advised him that while I understood that his might cause him problems with his family and local community which would be distressing it was not my understanding that homosexuality was illegal in Thailand or that gay men were generally subjected to treatment amounting to serious or significant harm. He did not provide any further information regarding fears related to his homosexuality.

27. According to the Asian gay and lesbian web site Utopia Asia[1], homosexuality in Thailand is largely a non-issue, homosexuals are surprisingly integrated and into society and Thailand has three annual gay pride events in Bangkok, Pattaya, and Phuket. According to a Reuter’s article[2] from February 2019 Thailand is set to pass a law to legally recognize same-sex couples as civil partners.  The article notes that Thailand has built a reputation as a place with a relaxed attitude towards gender and sexual diversity since homosexuality was decriminalized in 1956, but also noted that according to activists, homosexuals may face discrimination and stigma in schools, the workplace and health facilities and are often rejected by their families.

    [1] Accessed on 19 June 2019

    [2] Gay couples to 'live more freely' with Thai civil unions, Reuters 17 February 2019 >

    I accept that the applicant is gay and that he may not be accepted by some members of his family and people in the village where his family resides and perhaps in other parts of Thailand. However, while I acknowledge that these problems can be significant in the life of individuals who experience them, in my view the nature and severity of the harm which he fears does not amount to serious or significant harm as defined in Australian law. In any event, the applicant lived outside his village for a number of years before coming to Australia and has not communicated with his father since he arrived in Australia and there is nothing in the evidence which suggests that he would be forced to live there, or indeed would choose to live there if he returns to Thailand. It is clear from the evidence set out above that gay men are not generally at risk of serious or significant harm in Thailand and after considering all of the evidence I am not satisfied that the applicant faces a real chance of suffering serious or significant harm because of his sexuality if he returns home within the reasonably foreseeable future.

    Claims relating to the applicant’s ability to earn an income

28. The applicant claims that he would have no money and would be destitute if he returned to Thailand because he has been rejected by his father and he would have no support if he returned to Thailand. At the hearing I noted that he had a university degree and that he had worked previously worked in Thailand and it appeared that he would be able to find work and support himself if he returned to his homeland. He indicated that he was concerned about his future.

29. While I accept that the applicant would be returning to Thailand with limited resources and that he would not receive any support from his father, there is no suggestion that he is estranged from his mother or sister in [Country 1] who have provided him with support and assistance in the past. Furthermore, he has a university degree and has worked in Thailand, [Country 1] and Australia.  I do not accept that he would destitute or unable to find employment if he returned to Thailand. I am therefore not satisfied that he faces a real chance of suffering serious or significant harm on return to Thailand for any reason linked to a lack of financial support or an inability to earn a livelihood.

    IS THE APPLICANT ENTITLED TO PROTECTION?

30. After considering the applicant’s claims singly and cumulatively, I am not satisfied he faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1) of the Act. Therefore I am not satisfied that he has a well-founded fear of persecution in Thailand now or in the reasonably foreseeable future.

31. After considering the applicant’s claims singly and cumulatively, I am not satisfied he faces a real risk of suffering significant harm on return to Thailand. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that he will suffer significant harm.

    CONCLUSIONS

32. 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).

1. 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).

2. 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

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

   Roslyn Smidt
   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.

   …

   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.

   …