1917121 (Refugee)

[2021] AATA 5271

1917121 (Refugee) [2021] AATA 5271 (12 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917121

COUNTRY OF REFERENCE:                   Thailand

MEMBER:L. Symons

DATE:12 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 November 2021 at 5:17pm

CATCHWORDS

REFUGEE – Protection visa – Thailand – new claims at review – Red Shirt protester – social media comments on Thai prime minister and king – credibility issues – decision under review affirmed

LEGISLATION

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Thailand, arrived in Australia [in] August 2016 as the holder of a subclass 572 (Vocational Education and Training Sector) visa. This visa expired [in] April 2018. On 17 April 2018, she was granted a Bridging C visa in association with her application for a Protection visa. She was subsequently issued further Bridging C visas on 14 November 2018, 21 November 2018 and 7 December 2018.

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 12 April 2018. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 28 June 2019, she applied to the Tribunal for a review of that decision.

4. On 2 August 2021, the Tribunal wrote to the applicant and informed her that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited her to appear before it via video on 24 August 2021 to give evidence and present arguments relating to the issues arising in her case. On 13 August 2021, the Tribunal received a Response to Hearing Invitation in which she indicated that she would take part in the hearing. In response to the question ‘do you believe that you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation’, she responded ‘no’.

5. At 9.04pm on 23 August 2021, the applicant’s migration agent sent an email to the Tribunal requesting a postponement of the hearing on the basis that the applicant wished to attend a “face to face hearing”. He stated that she was unable to participate in a video hearing as she did not have a laptop. She has a telephone but has limited knowledge of how to use it, her internet connection on her telephone was not good in her current location and the signal is weak. She speaks little English, does not understand what is said and has no one to assist her as she is in lockdown. She was assisted by an unlicensed/unregistered person and had difficulty explaining her reasons to the Department.

6. The Tribunal carefully considered this request for a postponement of the hearing. However, in view of the fact that the applicant had undertaken tertiary studies in Australia, informed the Department that she and a friend were involved in running an online business and she had been corresponding with the Department and the Tribunal by email including, sending scanned documents by email, the Tribunal had difficulty accepting that she did not have a computer or access to a computer or had limited knowledge of how to use her telephone.

7. Further, as the applicant lived in metropolitan Sydney, the Tribunal had difficulty accepting that she had a poor internet connection and telephone reception. She had already indicated to the Tribunal in her Response to Hearing Invitation that she would be attending a video hearing and would have no difficulty participating in a video hearing. She had the opportunity to speak to the Tribunal “face to face” in a video hearing. It had also been over 2 years since she filed her application for review with the Tribunal and she had had plenty of time to obtain immigration advice and representation before the hearing.

8. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by video. 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 or telephone.

9. In view of the above, an officer of the Tribunal contacted the applicant’s migration agent by telephone at 9.54am on 24 August 2021 and informed him that the request for a postponement of the hearing had been considered and was denied. He was advised that the hearing would proceed as scheduled as a video hearing at 12.30pm on 24 August 2021 and he would have an opportunity to provide written post hearing submissions. This was confirmed in writing. The Tribunal subsequently received an email from the applicant’s migration agent indicating that the applicant was unable to access the video link but could access the telephone link but the signal was weak in her area.

10. The applicant appeared before the Tribunal via telephone on 24 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

11. The applicant was represented in relation to the review by her registered migration agent, [who] attended the hearing via video.

12. At the commencement of the hearing, the applicant confirmed that she was unable to participate in the hearing by video and the Tribunal agreed to conduct the hearing by telephone. Shortly after the commencement of the hearing, she stated “sorry Member, I could not hear. I lost the signal. Hello.” The line appeared to be clear and the Tribunal was able to hear her clearly. The Tribunal repeated what had been stated. A short time later, again during introductory explanations, she stated “sorry, I can’t hear you. Hello. Hello”.  The line again appeared to be clear and the Tribunal was able to hear her clearly. The Tribunal repeated what had been stated.

13. The Tribunal reminded the applicant that the hearing was an opportunity for her to speak to the Tribunal about her application and any concerns or fears she had about returning to Thailand. The Tribunal urged her not to waste the opportunity. She thereafter appeared to have no difficulty hearing the Tribunal’s questions and responding to them appropriately. The Tribunal was satisfied that she was able to participate in the hearing in a meaningful way.

14. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

    CRITERIA FOR A PROTECTION VISA

15. 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.

16. 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.

17. 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).

18. 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.

19. 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

20. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

21. The applicant’s claims in her application for a Protection visa are summarised as follows:

    ·     She was born on [date] at Bangkok in Thailand. She is a Thai citizen.

    ·     Thailand is not a safe country anymore because the government is corrupt and does not want resistance. 

    ·     She did not experience harm in Thailand.

    ·     If she is returned to Thailand, she believes it will be unsafe because it is politically unstable now that everything is controlled by the army.

    ·     She believes that she will be harmed or mistreated if she is returned to Thailand as she believes that Thailand is not safe anymore because “the government has conflicts and fighting each other”.

    ·     She does not think that Thai authorities can protect her if she goes back.

22. The applicant filed with the Department a copy of the biodata page of her Thai passport issued [in] 2016 and valid until [2021].

23. On 17 April 2018, the Department wrote to the applicant acknowledging receipt of her application for a Protection visa. She was also requested to provide additional information or documents to support her visa application within 28 days of receiving the letter. She was given three options for providing the additional information or documents; mail, ImmiAccount or in person when she attended her appointment to provide personal identifiers. She was informed that a decision could be made on her visa application at any time, after it was found to be a valid application, based on the information she had provided and without another opportunity to present any further information at an interview. No additional information or documents were provided to the Department.

24. On 25 June 2019, the Department refused the applicant’s application for a Protection visa on the basis that she is not a person in respect of whom Australia has protection obligations.     

    Receiving Country

25. The applicant claims to be a citizen of Thailand and has provided a copy of her Thai passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Thailand. The Tribunal finds that Thailand is her receiving country for the purpose of assessing her claims for protection under the refugee criteria and under the complementary protection criteria.

    Third Country Protection

26. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

27. The applicant gave evidence to the Tribunal that she prepared her application for a Protection visa. A friend helped her with translation of the document. She was satisfied that what was stated in her visa application was true and correct. When asked whether there had been any changes in her circumstances since she filed her visa application, she responded that even before the Covid 19 pandemic she had a change in her circumstances due to a comment she made about the Thai Prime Minister at the time and complained about the government. She shared a link on her friend’s [social media] page. When asked what the change was, she responded that her life and her family’s life have changed.

28. During the hearing, the Tribunal discussed with the applicant her background, her family, her education, where she lived in Thailand, her employment, why she left Thailand and why she fears returning to Thailand. The Tribunal found aspects of her evidence to be vague, evasive, implausible and unconvincing. She made significant new claims during the hearing. There were inconsistencies between her written and oral evidence. Her conduct in Australia was not consistent with her claims. The Tribunal finds that she is not a reliable witness for the following reasons:

29. In her application for a Protection visa, the applicant claimed that Thailand is not a safe country anymore because the government is corrupt and does not want resistance. She claimed that she did not experience harm in Thailand. She claimed that she believes that she will be harmed or mistreated if she is returned to Thailand as she believes that Thailand is not safe anymore because “the government has conflicts and fighting each other” (sic). She claimed that she does not think that Thai authorities can protect her if she goes back. During the hearing, she made new claims that she had a change in her circumstances with a Thai politician or the Thai Police due to a comment she made about the Thai Prime Minister at the time and complained about the government. She shared a link on her friend’s [social media] page.

30. The Tribunal discussed these claims with the applicant during the hearing. She gave evidence that the Thai government has made life more difficult for the Thai people. The people of Thailand have no income, money and a lower quality of life. When asked for more information, she repeated that the way the Thai government manages the country has resulted in “lower class people” having little or no income and some of them committing suicide.

31. The Tribunal asked the applicant how the change in circumstances affected her and her family. She responded that it affected them very much. When asked again how it affected them, she responded that her father passed away from [health] problems in 2017. Her mother became the primary income earner for the family. Her mother is now not able to go out and earn an income. She later stated that this was due to the Covid 19 pandemic.

32. The Tribunal asked the applicant whether she specifically had any problems. She responded that she and her family attended a protest a long time ago. There were red shirts and yellow shirts (parties) and she joined the red shirts. The red shirts lost and the yellow shirts tried to intimidate the red shirts. They tried to get rid of them and tried to get them to support the yellow shirts. When asked how they intimidated her, she responded that they threatened her and told her to stop supporting the red shirts and its leader (Thaksin Shinawatra) and to be careful if she was still supporting him. People in northern Thailand support the red shirts.

33. The Tribunal asked the applicant whether anything else happened besides the yellow shirts telling her to stop supporting Thaksin Shinawatra and the red shirts. She responded that the system changed and everything changed. When asked to be more specific, she responded that the gap between the higher class and the middle and lower classes increased. When asked whether this adversely affected everyone who was in the middle class and lower classes, she responded yes. When asked whether anything else happen to her personally other than being told not to support Thaksin Shinawartra and the red shirts, she responded that they threatened them not to make any comments online about Thaksin Shinawatra and his sister.

34. The Tribunal asked the applicant whether she posted anything on social media about the red shirts or the yellow shirts. She responded that she supported the red shirts because they help the lower class and give them opportunities to get jobs and earn an income after they graduate from school and University. When asked again whether she used social media to share her political views, she responded that she did last year (2020). She shared a link on [social media] with a group of friends who did not like the king. She then stated that she made a comment about the king to her friend. When asked whether she shared a link or made a comment, she responded both.

35. The Tribunal asked the applicant about the comment she made. She responded that she commented that the Thai Prime Minister is the puppet of the king. He does not live in Thailand but uses Thais to live happily and luxuriously overseas. She posted a link from her friend’s [social media] page on her [social media] page and then deleted it 2 or 3 days later. Someone in her group of friends suggested that she delete the link as it could adversely impact on her family in Thailand. She was worried about the well being of her family so she deleted it.

36. The applicant gave evidence that she has been following what is happening in politics in Thailand whilst living in Australia. When there are protests, she makes comments on social media. When asked who the comments are made to, she responded to her group of friends in the “support group”. She went to a protest with this group of people. When asked when this happened, she responded that it started in 2018 and is ongoing. She has been interested in these issues since Thaksin Shinawatra was the Prime Minister.

37. The Tribunal asked the applicant what she thought would happen if she returned to Thailand. She responded that she will get arrested. Normally if people make comments about the government it is not that bad in Thailand. It is not like making a comment about the royal family or the king. That is not acceptable in Thailand. When asked whether she had any problems because she made that comment, she responded that she is scared they will arrest her for making that comment. Her family will have no income if she is arrested. She does not know how her family will live.

38. The applicant gave evidence that she has been financially supporting her mother since she came to Australia. She has a son who lives with her mother. She looks after him. Prior to the Covid 19 pandemic her mother worked [but] is not working now.

39. The Tribunal asked the applicant whether, besides her fear of being arrested on her return to Thailand and her concern about how she will support her family if she returns to Thailand, there was any other reason why she did not want to return to Thailand. She responded that another reason is that everyone can see the situation in Thailand due to the Covid 19 pandemic. If she returns to Thailand with the current Covid 19 situation it is going to be worse. When asked why, she responded that she will not be able to get a job or earn any income if she returns to Thailand.  

1. The applicant stated that even though Thailand is not at war there is a war between the Thai government and the Thai people. It is not safe. She thinks Australia is the safest country. She requested that the Tribunal show kindness and generosity towards her and allow her to live here safety. When asked why she does not feel safe in Thailand, she responded that there are many criminals and illegal activities, murders and drug related offences happen there  every day. Outsiders think Thailand is beautiful but it is not what it looks like. When asked if she had told the Tribunal everything she wished to say, she responded that the “big thing” is about the royal family and the comment she made.

2. The applicant stated that she has freedom of speech in Australia. If she returns to Thailand she will get arrested if she speaks up for what she believes. She asked for further details, she responded that in Australia there are many (social media) platforms where she can put information about whoever she wants. If she returns to Thailand, it is limited. For instance, information about the king is limited.

3. The Tribunal has a number of concerns about the applicant’s claims and evidence. First, in her application for a Protection visa, she claimed that she did not experience harm in Thailand. However, during the hearing, she made new claims that she was a supporter of the red shirts and its leader, Thaksin Shinawarta, and attended a protest with her family a long time ago when he was Prime Minister. When the red shirts lost, their opponents, the yellow shirts, intimidated them, threatened them and tried to get rid of them.

4. The country information indicates that Thaksin Shinawatra became the Prime Minister of Thailand in 2001, the military removed him from power in a bloodless coup in September 2006, he has been in exile since the coup in September 2006 and remains abroad.[1] The Tribunal would expect that if the applicant had been a long term supporter of Thaksin Shinawatra and the red shirts, had been intimidated and threatened by the yellow shirts for this reason and feared returning to Thailand because of her political opinions, she would have mentioned this in her visa application in response to the questions ‘did this applicant experience harm in that country?’ (she answered ‘no’), why she would experience harm or mistreatment if she returns and from whom. 

   [1] DFAT Country Information Report on Thailand, 10 July 2020.

5. The applicant’s failure to mention these new claims in her visa applicant raises concerns in relation to her credibility and the veracity of these new claims.

6. Second, during the hearing, the applicant made a number of new claims. She initially claimed that there was a change in her circumstances since filing her application for a Protection visa due to a comment she made about the then Thai Prime Minister and complaint about the government. She subsequently claimed that the comment was about the Thai king. She then claimed that she had posted a link to a friend’s [social media] page as well as making a comment. She deleted her comment 2 or 3 days later on the suggestion of a friend who was part of the group of friends these comments were shared with.

7. The country information from DFAT indicates that since King Vajiralongkorn ascended the throne actions have been taken to strengthen and centralise the monarchy’s role in relation to the country’s economy, politics and military. Section 112 of the Criminal Code provides for a penalty of up to 15 years imprisonment for anyone who ‘defames, insults or threatens the king, the queen, the heir apparent or the regent’. DFAT notes that “in the years following the 2014 coup, Thai authorities applied section 112 broadly and prosecuted cases aggressively. In a media interview in December 2015, for example, the chief of the NCPO’s Legal Office said that commenting, sharing or pressing ‘Like’ on [social media] content that authorities considered offensive to the monarchy would be prosecuted under section 112. According to human rights advocates, at least 169 persons were prosecuted under section 112 between May 2014 and May 2019”.[2]

   [2] Ibid.

8. The applicant’s evidence is that she has been interested in politics in Thailand since Thaksin Shinawarta was Prime Minister (2001 to 2006), has been politically active, has continued her support of the red shirts and Thaksin Shinawarta and his sister after coming to Australia ([in] August 2016) and has been engaged with Thai politics on social media including making comments after protests. In these circumstances, the Tribunal would expect her to have been aware of the prosecutions in Thailand under section 112 of the Criminal Code and ensured that she did not make any comments about the king on social media particularly because she is concerned about the welfare of her family in Thailand. The Tribunal finds her claims in this regard to be implausible and has serious doubts that she made comments about the king.

9. Even if the Tribunal is wrong and the applicant did make a comment about the king on her [social media] page, her evidence is that the comment was shared among a group of likeminded friends or a “support group” as she referred to them. The Tribunal is therefore not satisfied that the comment was accessed by the general public and that the Thai authorities would be aware of it.  

10. Third, the applicant’s evidence is that she has been interested in Thai politics for a long time and continued this interest after coming to Australia in 2016. She has expressed her political opinions on social media and has posted comments after protests in Thailand. She made new claims during the hearing that she has freedom of speech in Australia but, if she returns to Thailand, she will get arrested if she speaks up for what she believes. When asked for more details, she responded that in Australia there are many social media platforms where she can put information about whoever she wants but will not be able to do that in Thailand.

11. At the end of the hearing, the Tribunal raised as issues with the applicant her failure to mention her claims in relation to her political activism in Thailand and in Australia in her visa application and her failure to provide any corroborating evidence of her political activism on social media. The Tribunal also raised as issues its concerns in relation to her credibility and the veracity of her claims. She requested time to respond and was granted 2 weeks after the hearing to provide further evidence. It is now considerably longer than 2 weeks since the hearing and the Tribunal has not received any evidence of her political activities on social media platforms or any statements from her friends in her “support group”. She has not contacted the Tribunal requested further time to provide corroborating evidence.

12. These issues raise further concerns in relation to the applicant’s credibility and the veracity of her claims.

13. Fourth, during the hearing, the applicant gave evidence that she has been financially supporting her mother since she came to Australia. Her mother has been looking after her son. Her mother was doing some work prior to the Covid 19 pandemic but is not able to work now. She was concerned that if she is arrested her family will have no income. She does not know how they will live. She was also concerned that if she returns to Thailand, she will not be able to get a job and earn an income. This was a repeated theme throughout the hearing. At the end of the hearing, she requested that the Tribunal give her a chance to “fight for her family”.

14. This raises concerns for the Tribunal that the applicant’s primary motivation to remain in Australia is so that she can work here, earn an income and financially support her family in Thailand. This also raises concerns in relation to her motivation for applying for a Protection visa and the credibility of her claims.

15. Fifth, the applicant’s immigration history also raises issues in relation to her motivation for applying for a Protection visa. The records of the Department indicate that she was granted a subclass 572 Student visa on 2 August 2016 to undertake a Diploma and an Advanced Diploma [in] Australia. She arrived in Australia [in] August 2016. Her Student visa was valid until 11 April 2018. The records of the Department of Education indicate that she enrolled in a General English course from 29 August 2016 to 20 January 2017 and completed that course. Her enrolment in the Diploma and Advanced Diploma[was] then changed and she enrolled in a Certificate III [from] 13 February 2017 to 13 August 2017 which she completed.

16. The records of the Department of Education indicate that the applicant then enrolled in a Certificate IV [from] 14 August 2017 to 11 February 2018 which she completed. She did not enrol in any course thereafter. She did not return to Thailand after completing her studies. However, she continued to work in Australia after completing her studies. She waited until her Student visa expired before she applied for a Protection visa. The Tribunal put this information to her, pursuant to s.424AA of the Act, and noted that it would expect that if she was at risk of harm in Thailand she would have obtained immigration advice and lodged an application for a Protection visa soon after her arrival in Australia [in] August 2016. The Tribunal noted that her delay until 12 April 2018 to apply for protection is of concern and her immigration history may lead it to the conclusion that she applied for a Protection visa to extend her stay in Australia and not because she is in need of protection.

17. The applicant requested and was granted further time to comment on or respond to this information. Her migration agent requested 2 weeks. The Tribunal granted the applicant 2 weeks to provide her comments on or response to this information. It has now been considerably longer than 2 weeks since the hearing and the Tribunal has not received any written comments or responses or a request for further time to comment or respond.

18. These issues raise further concerns in relation to the applicant’s credibility and the veracity of her claims.

    Other considerations

19. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Thailand and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

20. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that she has fabricated her material claims for the purpose of obtaining a Protection visa.

21. The Tribunal accepts that the applicant was born on [date] in Thailand. The Tribunal accepts that she completed a [degree] in Thailand. The Tribunal accepts that she has a son who is now aged [age] years. The Tribunal accepts that her mother has been taking care of her son. The Tribunal accepts that her father passed away in 2017. The Tribunal accepts that her mother did some work [prior] to the Covid 19 pandemic but has not been able to work since then.

22. The Tribunal accepts that since coming to Australia in 2016 the applicant has completed a General English course, a Certificate III [and] a [Certificate IV]. The Tribunal accepts that she has been working in Australia and has been financially supporting her family in Thailand. The Tribunal accepts that she has concerns that if she returns to Thailand she will not be able to get a job and support her family. The Tribunal accepts that she prefers to live in Australia than Thailand.

23. The Tribunal does not accept that the applicant was subject to intimidation and threats from yellow shirts in Thailand because of her support of the red shirts and Thaksin Shinawarta and his sister. The Tribunal accepts that she did not experience harm in Thailand. The Tribunal does not accept that she made a comment about the former Thai Prime Minister and/or the king on [social media] and that she shared a link on her friend’s [social media] page. The Tribunal does not accept that she made comments on social media platforms after protests in Thailand and expressed her political opinions on social media platforms.

24. The Tribunal is not satisfied, on the evidence before it, that the applicant will be harmed or mistreated if she is returned to Thailand because “the government has conflicts and fighting each other” (sic). The Tribunal does not accept that she was or is of adverse interest to the yellow shirts or the Thai authorities. 

25. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if she returns to Thailand now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

26. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of her actual or implied political opinion or any other reason set out in s.5J(1)(a) of the Act if she returns to Thailand now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

27. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

28. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Thailand now or in the reasonably foreseeable future. 

29. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

30. 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) or s.36(2)(aa) of the Act.

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

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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