1916772 (Refugee)

1916772 (Refugee) [2021] AATA 5089 (7 December 2021)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1916772
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Nicole Burns
DATE OF DECISION:  7 December 2021
DATE CORRIGENDUM
SIGNED:16 December 2021
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

In paragraph 13 replace the word ‘Malaysia’ with ‘Thailand’

Nicole Burns
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1916772
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Nicole Burns
DATE:7 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 December 2021 at 11:17am

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from money lenders – borrowed to set up business and travel – harassed, threatened and beaten, and pressured to take part in illegal activities – vague and inconsistent claims and evidence – regular repayments while in home country and while working in Australia – Australian citizen partner with health issues not a relevant consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Home Affairs on 17 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa on 24 December 2018.
The applicant appeared before the Tribunal via video link on 6 December 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The Tribunal exercised its discretion to hold the hearing by video, given the hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The hearing proceeded without any apparent communication problems. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant last travelled to Australia [in] November 2018 holding a valid Thai passport and states that she is a national of Thailand. The delegate did not indicate any concerns about her nationality or identity. Therefore the Tribunal has assessed the applicant’s claims against Thailand as her country of nationality.
The applicant is a [age]-year-old woman from Nong Khai, north-eastern Thailand. She presented her claims in her protection visa application, claiming in summary as follows:
·She was going through financial hardship and obtained a loan from some people in her community.
·These lenders are powerful and dangerous people and are involved in many illegal activities, and they wanted her to help them in child trafficking.
·She refused and the lenders have harassed, threatened and beat her, and she was depressed and unable to work properly.
·Her refusal has been taken personally, and the lenders will try to take revenge on her, and she fears that she will be physically tortured and that her life is at risk.
·She claims that the authorities could not protect her because the ‘goons’ are rich and have good contacts with the authorities, and due to corruption she does not feel safe and confident to seek help.
The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s.5J(1)(a) for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave oral evidence to the Tribunal about why she left Thailand and her fears about returning there, summarised as follows. She said she left school in Thailand when reasonably young (grade [level]) and thereafter worked either on a farm in her hometown or in a [workplace] in Bangkok, back and forth, over the years. She was working on a farm in Nong Khai and living in a house she owns with her younger brother in the period before she left Thailand in November 2018.
The applicant said she is scared of being harassed and possibly harmed by people she borrowed money from in Thailand if she has to return there. She explained that she borrowed 400,000[1] Thai Baht around five years ago from a person called [Mr A] to set up a small business selling [products] and to pay for visits to Australia. The agreement was to repay 10,000 Baht per month, with 5 per cent interest on the loan. She has paid off half the loan (that is 200,000 Baht), including by making regular monthly repayments from Australia (where she works at a [workplace]) except for around five months this year due to COVID-19 related lockdowns.
[1] Equivalent to AUD16,794 as at 7 December 2021,
The applicant said once in the past in Thailand (around four years ago) some ‘teenagers’ on motorcycles came to her house, threatened her with harm if she did not repay the money, and pushed her. She claimed they are linked to [Mr A] and she continues to receive threats from these people via a friend based in Thailand who telephones her and tells her as such: most recently on 5 December 2021 (the day before the hearing). The applicant was unable to explain why they continue to threaten her given her evidence that after the lockdown ended and she started work again, she has been repaying the loan.
The applicant told the Tribunal she also borrowed 500,000[2] Baht from a woman called [Ms B] who took out a bank loan in Thailand, not long before coming to Australia. The applicant used the money to pay for her trip to Australia and to pay some of her mortgage on her house in Nong Khai (where her brother currently resides). The agreement was the same: that is to repay 10,000 Baht a month, at 5 per cent interest. The applicant said she met the monthly repayments except for five months this year due to COVID lockdowns and being unable to work. She told [Ms B] at the time who was happy to give her an extension. Around 300,000 Baht remains outstanding on that loan.
[2] Equivalent to AUD20,992 as at 7 December 2021, >
At hearing the applicant acknowledged she could possibly negotiate repayments of the monies she owes to both [Ms B] and [Mr A] if she returns to Thailand, but worries they may quarrel.
The Tribunal has considered the applicant’s claims to have borrowed money from two individuals in the past and associated fears on return to Thailand if she is unable to repay the monies owed. It has concerns with her claims in this regard given inconsistencies between her oral evidence to the Tribunal and written claims in her protection visa application in key respects. For example in her application form she states that the money lenders were powerful, dangerous people involved in many illegal activities who wanted her to help them in child trafficking and when she refused they harassed, threatened and beat her. However in her oral evidence to the Tribunal she did not indicate they were dangerous people involved in illegal activities, and when asked specifically about whether she was being pressured to be involved in child trafficking the applicant appeared surprised. Further, she did not indicate that she had ever been beaten: when asked about this she said the teenagers on the motorbike pushed her, although the Tribunal notes she had not mentioned any physical contact at all earlier, just that they had verbally threatened her. At hearing the applicant said she spoke to someone who helped her fill in the application form. However she was unable to explain why they did not fill in the form in a way that accurately reflected her claims, as indicated at hearing.
Additionally the Tribunal found the applicant’s oral evidence about these matters vague and lacking in detail in some respects. For example she made a general statement that some teenagers on motorbikes threatened her around four years ago at her house but was unable to provide further detail or context, including explaining why they threatened her then given she had indicated she had been making the monthly repayments.
Furthermore the Tribunal finds the applicant’s claims that these teenagers continue to threaten her via a friend in Thailand (who reports as such to her over the phone), as recently as 5 December 2021 does not make sense given her claims that as soon as she started work again (after the lockdowns finished) she began making the necessary repayments.
Given these concerns, the Tribunal does not accept the applicant borrowed 400,000 Baht from [Mr A] or 500,000 Baht from [Ms B] in Thailand in the past, or that she has any outstanding debts to them. It follows that it also does not accept she received threats from people linked to [Mr A] in Thailand in the past or since she has been in Australia (via a friend over the telephone) as claimed at hearing or that these people pushed her on one occasion in Thailand. The Tribunal does not accept the applicant has any outstanding debts to these individuals and therefore finds that she does not face a real chance of serious harm from them on return to Thailand if she fails to repay them or for any other reason.
Other matters:
The Tribunal notes at hearing the applicant said she has an Australian citizen partner who she lives with in Australia who has recently had heart surgery. She asked to stay in Australia in order to help care for him. As noted at hearing, whilst understandable, this is not a relevant consideration in determining whether Australia owes the applicant protection in respect of her receiving country (Thailand).
Conclusion – refugee grounds
Having considered the applicant’s claims individually and cumulatively, for the reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Thailand for any refugee reason in the reasonably foreseeable future and that her fear of persecution is not well-founded.
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.5J of the Act.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Thailand and the Tribunal therefore finds that Thailand is the ‘receiving country’ for the purposes of s.5(1).
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience serious harm from [Ms B], [Mr A] or anyone linked to them because she owes them money or for any other reason if she returns to Thailand now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Thailand for any of these reasons.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
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.
Nicole Burns
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 5089

7 December 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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