1917271 (Refugee)

1917271 (Refugee) [2021] AATA 5469 (1 December 2021)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917271
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Nora Lamont
DATE OF DECISION:  1 December 2021
DATE CORRIGENDUM
SIGNED:15 February 2022
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
·At paragraph 2, the sentence ‘the delegate refused the applicants visas as’ is to be deleted.

Nora Lamont
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917271
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Nora Lamont
DATE:1 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 December 2021 at 9:37am
CATCHWORDS
REFUGEE – Protection visa – Thailand –applicant did not know what her claims were in her written application – applicant took money from a money lender –significant inconsistencies – applicant is not a witness of truth – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Thailand, applied for the visas on 4 July 2018. The delegate refused the applicants visas as
The primary applicant appeared before the Tribunal on 30 November 2021 at 2:00pm via telephone to give evidence and present arguments. The applicant was scheduled to have a video hearing but told the Tribunal she did not have the facility to hold a video hearing and wished to proceed with a telephone hearing. The secondary applicant did not appear or give evidence.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
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 is a Thai national born in [Thailand] who is currently employed doing farm work. Prior to arriving in Australia, she worked in a [workplace]. Her husband who did not appear and is also a Thai national and worked as a labourer. They do not have any children and the primary applicant has a sister in [Country 1] and a younger brother in Thailand. Her mother also remains in Thailand.
I have sighted both the primary and secondary applicants’ passports and they both travelled to Australia on Thai passports. I have no concerns with either of the applicant’s identities. Therefore, I have assessed their claims against Thailand as their country of nationality and their receiving country.
There are no non-disclosure documents on the applicants’ file.
Claims
The applicant’s claims as presented in her Form 866 can be summarised as follows: [1]
·I was out one night with friends and they got drunk, and they started to argue with another group, and it led to a brawl. I tried to stop the fight and apologised for their behaviour however the other group got angry. A couple days later they started to receive threats including herself.
·They jumped and severely beat two of her friends who had to be hospitalised almost killing them. I have been beaten up a couple of times they seem to enjoy it and told me they wouldn’t stop so I fled the country.
·If I return, they would make my life miserable and I would be depressed.
·Yes, I experienced harm I was severely beaten and my friends.
·I did not seek help as they are powerful people.
·I did not try to move as I did not have the money to leave.
Tribunal Hearing
[1] Form 866 page 29-30 Departmental folio
At the beginning of the hearing, I asked the applicant if everything in her application was true and correct to which she responded yes. I asked her if there were any mistakes, she wanted to point out to me and she said no. I asked her if someone helped her with her application and she said no.
I asked her who [Ms A] was as she was listed on the 956 as the authorised recipient. She said she was a friend of hers. She said [Ms A] writes applications for many people and she paid her $100. I told the applicant that [Ms A] was not a registered Migration Agent, or a Lawyer and she said she was here on a student visa but has since gone back to Thailand. I told the applicant that I had another applicant who had virtually the same claims and they were also written by [Ms A]. The applicant said what I am saying is true she may have gotten it mixed up.
At the beginning of the hearing, I asked her to tell me what her claims for protection were. She said she had a loan and then had problems. I told her that those were not her written claims. She said at the time that there were a lot of people involved in her application and she didn’t speak very good English so [Ms A] just wrote it.
I prompted the applicant by telling her what was in her claims for protection. She then said she has a dispute with some people in high society and she had a dispute with a child of a powerful. I asked what the powerful person’s name was, and she said she didn’t know but they were a child of a high-ranking police officer. She didn’t know him personally his nickname was [name deleted].
She said they got into a dispute and he pulled a gun and said I will finish you off. There was a brawl at a restaurant he didn’t hit her, but he hit her husband. I told the applicant this was the third version already today of her claims and that I was having trouble with her credibility. She said the dispute was the same as what was in the application.
She said she was with her husband and some other couples when the dispute happened. I asked what happened to the other people after the incident and she said nothing happened they are still living in Thailand and have had no issues.
I asked her what happened after the incident with the gun, and she said nothing happened. I asked her again and she said nothing happened. I asked her why she decided to come to Australia, and she said a friend told her to come to Australia and stay for a while. I asked her how long after the incident was it before she came to Australia and she said a year as she had to save money to come. I asked her if she ever saw this man again and she said no but her mother did at the market, and he asked her mother where she was. I asked her how he would know her mother and she said her mother is very well known.
I asked her why her husband the secondary applicant did not appear, and she said we didn’t know he was meant to come, and he has work.
During the hearing I asked her why she waited 12 months to leave Thailand if she was so concerned about this man. She said she tried to make a report, but she didn’t get anywhere. She said the police wouldn’t help. I asked her to explain why in her application it said she didn’t go to the police. She said she didn’t know what was written in her claims. I asked her what police station this man worked at she said she didn’t know.
I put to the applicant why she didn’t move somewhere else in Thailand and she responded the situation is better here and there are more opportunities. She said she has a sister in [Country 1] so if she has to go back to Thailand she will then go to [Country 1].
Findings
For the reasons that follow I did not find the applicant to be credible. First the applicant did not know what her claims were in her written application. When I asked at the beginning of the hearing what her claims were, she said she had money lender issues. It wasn’t until I told her what her written claims were that she dropped the money lender claims and changed her claims to reflect the written claims.
Secondly, there were so many inconsistencies in her claims. In her written claims she said she was beaten, and they enjoyed it. At the hearing she said she wasn’t beaten. In her written claims she said that her friends were beaten so badly they had to be hospitalised yet at the hearing she said nothing happened to them. In her evidence before the Tribunal, she said this man pulled a gun, this wasn’t in her written claims.
There are so many inconsistencies and it appeared to me she was making it up as she went along and when questioned about it, she said she didn’t know what was in her written claims. She didn’t know the name of this child of a police officer. She said she went to the police but in her written claims she did not. Her evidence was vague and at times evasive. She waited 12 months after the incident to come to Australia and nothing happened to her and by her own evidence she was working and saving money.
As the secondary applicant did not appear and as his claims are her claims I have assessed them both for purposes of the Act.
Given these concerns, and as discussed at the hearing, I do not accept the primary applicant is a credible witness. For the reasons set out above, I do not accept that the applicant took money from a money lender, had an altercation with the child of a high-ranking police officer, that she was beaten, that her husband was beaten and that her friends were beaten so badly they were hospitalised. It follows that I do not accept that the applicant had any incident whether it was in her written claims or in her oral evidence.
Given these findings I do not accept that if both the applicants return to Thailand, they will face a real chance of persecution from anyone including children of high ranking police officers, money lenders or their associates or anyone else. I find that the applicants do not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicants are not refugees within the meaning of s.5H(1).
Nor do I accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Thailand, there is a real risk that the applicants will suffer significant harm from money lenders, high ranking police officers or their children. The Tribunal is therefore not satisfied that the applicants meet the alternative provisions in s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Nora Lamont
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 5469

1 December 2021

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