1917587 (Refugee)

[2024] AATA 4461

1917587 (Refugee) [2024] AATA 4461 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Paul O’Connor (MARN: 0854511)

CASE NUMBER:  1917587

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Frank Russo

DATE:10 October 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 10 October 2024 at 11:17am

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from money lender with links to organised crime – borrowed for agricultural business – threats to repay – access to sufficient funds declared in student visa application – older child an applicant and younger Australian-born children not applicants – delay in applying for protection visa and return visit – inconsistent and exaggerated claims and evidence – prevalence of money lending and legal initiatives against criminal loansharking – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5L, 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.

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 26 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Thailand, applied for the visas on 4 December 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations.

3. The first named applicant (the applicant) is a [Age]-year-old Thai national. The second named applicant is the applicant’s husband, a [Age]-year-old Thai national. The third named applicant is the daughter of the applicant and second named applicant, an [Age]-year-old Thai national.

4. The applicants appeared before the Tribunal on 28 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing by video.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. The issue in this case is whether any of the applicants is a refugee, in particular whether any of the applicants has a well-founded fear of being persecuted in Thailand for one or more of the five reasons set out in s.5J(1) of the Act. If they do not meet the refugee criterion, the Tribunal must consider whether any of the applicants meets the criteria for complementary protection, in particular whether as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that they will suffer significant harm. The Tribunal also needs to consider whether the applicants satisfy s.36(2)(b) of the Act on the basis of being a member of the same family unit as a non-citizen who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa.

13. The applicants provided the Tribunal with copies of the delegate’s decision and notice of the decision from the Department.

14. On 29 July 2024, the applicants’ representative sent the Tribunal a request for postponement or adjournment of the hearing. The Tribunal granted the request.

15. The applicants sent a response to the hearing invitation.

16. On 26 August 2024 the applicants provided an email containing the applicants’ claims for protection, headed ‘reasons in summary’.

17. On 28 August 2024, the applicants provided an email containing the following attachments:

    a.Submission from the applicants’ representative;

    b.A statement from the applicant;

    c.Copy of the DFAT Country Information Report, Thailand, 18 December 2023;

    d.Copies of the following articles:

    i.‘Loan sharks now targeted by Srettha’, Bangkok Post, 9 December 2023;

    ii.Thailand: Many fall prey to loan sharks during pandemic due to lack of access to legitimate loans’, BenarNews, 19 September 2022;

    iii.‘Thai police go after loan sharks preying on vulnerable people amid pandemic’, Radio Free Asia, 17 September 2022; and

    iv.‘Nearly 100,000 People Indebted To Loan Sharks’, Thai Newsroom, 18 December 2023.

18. At the hearing the applicants provided copies of their Thai passports.

19. Following the hearing, on 12 September 2024 the applicant provided the following documents:

    a.Bank letters dated 31 July and 5 August 2014, used in the applicant’s Student visa application;

    b.Further submission from the applicant’s representative; and

    c.Two letters in Thai that have been labelled as letters advising that funds are not able to be used to pay debts.

20. The Tribunal has had regard to these documents. The Tribunal has also had regard to the documents on the Department file, which includes a system-generated copy of the Protection visa applications as well as copies of the applicants’ Thai passports.

21. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about Thailand.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity

23. The applicants provided the Department and the Tribunal with copies of their Thai passports. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicants are who they claim to be, that they are nationals of Thailand, which is also their receiving country.

24. The applicants claimed at the hearing that they do not have a right to enter and reside in any third country. On the basis of the information before the Tribunal, I accept this claim and find that the applicants do not have a right to enter and reside in any third country.

    Claims

    Claims made with visa application

25. In their Protection visa application, the applicant and second named applicant claim that they have huge debts to the mafia, with each owing 500,000 baht and their debts are increasing because of the interest. They claim that the mafia is hunting them to pay, and that if they do not pay, they will be harmed. They claim that while they are in Australia, they can send money and they are safe. They declare that they did experience harm in Thailand, and as to the type of harm experienced, they state ‘Torture and later on death’. They declare that they did not seek help from anyone in Thailand as no-one can be trusted and the police can be bribed and are connected to the mafia. They declare that they did not try to move to another part of Thailand as nowhere is safe in Thailand, and they can easily be found because of tips from the police. They claim that if they return to Thailand, they will be tortured to death.

26. The third named applicant claims that as the child of the applicant and second named applicant she would face a risk of harm in Thailand including torture and death. She claims that her parents cannot ask for help from the authorities. She claims that the authorities can be bribed by the mafia. She also claims that nowhere in Thailand is safe.

    Delegate’s decision

27. The applicants provided a copy of the delegate’s decision with their application for review. There is nothing in the delegate’s decision or the Department file to indicate that the applicants were invited by the Department to attend an interview. After considering the country information, the delegate was not satisfied that any of the applicants are refugees as defined by s.5H(1) of the Act. The delegate also considered that there is no real risk that any of the applicants will face significant harm, as defined by s.36(2A) of the Act, if they return to Thailand in the foreseeable future.

    Evidence at the hearing regarding preparation and contents of application

28. At the hearing, the applicant gave evidence that she remembered making the Protection visa application, which she stated she made with the help of her representative. She stated that the contents of the application form were read back to her by the representative, and they are true and correct. She stated that she spoke to the representative and then relayed the information back to her husband and daughter, the other applicants. She confirmed that she did not wish to make any changes to the visa application or make any additional claims.

29. The second and third named applicants confirmed that the application process was handled by the applicant.

    Evidence regarding the applicants’ background and travel

30. The applicant confirmed that she is a Thai national, that she is of Thai ethnicity and is Buddhist. Her family in Thailand includes her mother, step-father and [half-siblings]. She married the second named applicant in [Year] or [Year] when she was [Age]. She stated that she has three children. The third named applicant is her oldest child. Her other children were aged [Ages] at the time of the hearing, and were born in Australia. She gave evidence that she worked at a [workplace] in Thailand for approximately 16 years, and that when she was aged 22 or 23, she worked in [Country] briefly. She gave evidence that she arrived in Australia [in] October 2014, holding a Student visa. She was granted a second Student visa in 2015 and she completed courses in [Subjects 1-3]. She first arrived in Australia with the second named applicant. The stated that third named applicant remained in Thailand and in 2015 she returned to Thailand to bring the third named applicant to Australia.

31. The applicant confirmed that she applied for a third Student visa in September 2017. She confirmed that the application for the Student visa was refused by the Department and she lodged an application for review to this Tribunal. She stated that when she lodged the application for the Protection visa, her representative advised her to withdraw the application for review of the Student visa application.

    The applicant’s evidence regarding loan from the mafia or persons associated with the mafia

32. The Tribunal summarised the applicant’s claims as contained in her visa application. The applicant confirmed that these were correct. The applicant claimed that she acquired her debt in approximately 2011. She stated that she borrowed amounts of 100,000 baht or 200,000 baht at a time. The money was used for an investment her husband made in raising [animals], as well as to assist her in selling products such as [products] at a market. She stated that initially she was able to repay the amounts loaned as she sold products, but when she did not have adequate funds, she had to borrow more. She stated that the loans were joint loans which she and her husband took out. When asked who she borrowed the money from, she initially gave a vague and general response, stating that it was from someone who lends money and who has a lot of money. She then stated that this person was known locally by a word which means ‘brother’ in Chinese. She stated that people said that she could borrow from this person, but the interest would be high. She came to know about this person through word of mouth from other vendors and went to see this person at his house. She gave evidence that the interest rate for the loan was 20 per cent per day, and that someone would come to collect money on a daily basis. When asked whether she has a copy of a contract or other documentation for the loan, she stated that she has it, but the documents are in Thailand.

33. The applicant stated that when she was in Thailand, she paid off some of the loan, though not the full amount because of the high interest. Her and her husband’s debt was 300,000 baht in total when they left Thailand. She stated that the exchange rate at the time was about 28 or 29 baht per Australian Dollar. The Tribunal put to the applicant that this indicated that she and her husband owed the equivalent of approximately $10,000. The applicant responded that the debt would be multiplied at present.

34. The Tribunal put to the applicant that an interest rate of 20 per cent per day would make it impossible for her to pay off the debt. The applicant stated that she took the loan to obtain a flow of finance, and she thought she could pay off the principal debt by selling products, but she was only able to pay the interest. She stated that people would come to their house or shop to collect the money. She stated that she did not know how much her current debt is, and that it could be millions.

35. When asked why she believes the person she borrowed the money from is connected to the mafia, she stated that when others could not repay their debts, people were sent to harm them. She gave evidence that she was not physically harmed in Thailand, though she and her husband were told that if they do not pay again, someone would be sent to harm them. When asked if she has been threatened since departing for Australia, she stated that people have gone to her home to see relatives and threatened them. She stated that the people were searching for them and told family members that if the applicant and her husband return to Thailand, they would not let them live. She stated that this threat occurred one to two years after they left for Australia. The applicant confirmed that no members of her family have been harmed and that no other incidents occurred.

36. When asked if she had ever sought assistance from the police or authorities, she stated that the police knew the people who lent money to them. She heard from word of mouth that they bribed the police, and no-one could do anything against them. She stated that she could not move to another part of Thailand to avoid the harm because the people who wish to harm them would be able to trace them. She stated that they would also need money to move, so they would need to borrow more money.

37. The Tribunal questioned the applicant as to the delay in claiming protection, noting she arrived in Australia in October 2014 but did not claim protection until 3 December 2018. The applicant stated that they thought the matter might go ‘silent’ if they lived in Australia for some time, but after living in Australia for four years, enquiries were still being made about their whereabouts.

38. The Tribunal questioned the applicant about her education in Australia. She gave evidence that she completed a Diploma of [Subject 1] and then studied a Diploma of [Subjects 2 and 3] but did not complete the qualification. The Tribunal put to the applicant that she would have needed to show that she had access to sufficient funds in order to be granted the Student visa, including payment of her course fees. The Tribunal put to her whether these funds could have been used to pay off her debts. The applicant responded that the money used for her Student visa belonged to her relatives, not to her. She stated that half the money was from an aunt from her side of the family, and the other half was from an aunt from her husband’s side of the family. The applicant gave evidence that her Student visa application was arranged through an agent, and that the total cost was about 200,000 baht. She stated that if they used this money to pay off the debt, they would not have paid off the full amount and they could not have made an application to come to Australia. When asked why they had not paid off their debt given her evidence that their combined debt was only about $10,000 when they arrived in Australia, and both she and her husband had work rights, the applicant stated that there were costs involved in studying and living. She stated that they earned only enough to cover their expenses.

39. The Tribunal put to the applicant that approximately 10 years have passed since she arrived in Australia, and asked why she believes the person she borrowed money from will still be interested in recovering the debt. She stated that these people know that they came to live in Australia and therefore believe they would have money.

40. The Tribunal put to the applicant that she returned to Thailand in February 2016, which may indicate that she does not fear returning to Thailand for her claimed reasons. The Tribunal put to her that there is no evidence of any incidents which occurred, and therefore she may be of no interest to the person who loaned her money, or anyone associated with them. The applicant responded that they probably didn’t know that she returned. She stated that she went to Thailand to pick her daughter up and bring her to Australia, and that she didn’t tell anyone she was doing this because of her fear. She claimed that she borrowed the money in Chaiyaphum, where she lived at the time, and that when she departed Thailand, she took her daughter to live with her mother in Ratchaburi, which is where she picked up her daughter.

1. When asked whether there are any other reasons why she does not wish to return to Thailand, the applicant stated that it is safer living here and her children will get to study here. She stated that she has two children who were born in Australia. She also stated that if she returns to Thailand she would not have any assets.

   Evidence of the second named applicant

2. The second named applicant confirmed that the Protection visa application was handled by his wife, the applicant. He gave evidence that in the two to three years before coming to Australia he worked raising his own [animals] and selling [products] at marketplaces in Chaiyaphum. Prior to that he worked as a farmer for someone else. He gave evidence that his mother and [siblings] all live in Chaiyaphum and at the time he and his wife acquired their debts, they were living with his mother in Chaiyaphum.

3. The second named applicant confirmed that he arrived in Australia in 2014 as a dependent to his wife’s Student visa. When asked why he arrived in Australia, he stated that he and his wife had discussed that if they were able to make some money, they could pay off their debt. The second named applicant confirmed the claims made in the visa application and confirmed that he is not making any other claims.

4. The second named applicant stated that he could not recall exactly when he acquired the debt as it was a long time ago, though he stated that he wanted the money so he could raise [animals] approximately three years before he came to Australia. He stated that they borrowed the money from a Chaiyaphum local. When asked how he knew the person, he stated that the person is the one who distributes money throughout Chaiyaphum. He claimed that he knows this person is connected to the mafia because his neighbours’ car was damaged, and his neighbours could not report the matter to the police. He gave evidence that initially he and his wife borrowed 50,000 or 70,000 baht, which he used as capital for raising [animals] and selling [products], but they were unable to pay the interest, which was charged at 20 per cent per day. He stated that someone would come to their house to collect payments. He stated that he has no evidence of making these payments. He stated that he does not have a copy of a contract or loan documents as there never was any documentation of the loan. He stated that when he and his wife left Thailand, they owed 300,000 baht, but this was excluding interest. When asked how much the debt is now, he stated that it could be 1 million baht.

5. The second named applicant confirmed that he did not experience any harm in Thailand as a result of the debt but stated that he and his wife received threats. He told the Tribunal that people came to collect money from them, and if they did not have money to pay them, they might harm or damage something in his mother’s house. When asked whether he has been harmed or threatened in relation to the debt since arriving in Australia, he stated that they have not been in touch with the people to whom they owe the money, so they have no idea. When asked if any family members had been threatened of harmed, he stated that his older sister has a house located next to his mother’s house, and that about 8 or 9 months ago the debt collectors went there and claimed they would seize her farmland. He stated that both he and his wife are aware this happened. When asked whether there were any other incidents of harm or threats, he stated that when he called his older sister, she only mentioned this threat to seize the house or farmland.

6. The second named applicant gave evidence that he and his wife had not made any reports or sought assistance from the police. When asked why, he stated because they were at fault, and they knew that what they were doing involved a ‘grey’ area. He claimed that he and his wife would not be able to move to another part of Thailand to avoid harm as they could not escape from the people associated with the debt as they have some influence.

7. The second named applicant confirmed that his daughter, [the third applicant], remained in Thailand when he and his wife initially arrived in Australia, and that she was staying with the applicant’s mother in Ratchaburi until the applicant returned to Thailand to bring her to Australia.

8. When questioned about the delay in lodging the Protection visa application after arriving in Australia, the second named applicant stated that he was concerned that his child might be harmed, but did not otherwise explain the delay.

9. The Tribunal questioned the applicant about his employment in Australia. He gave evidence that he worked as [an occupation] in a [workplace] for about 7 to 8 years, then [doing a job task] in a [workplace] for one year. He stated that he supported his wife while she was studying. The Tribunal put to the second named applicant that for his wife to be granted her second Student visa, she would need to have shown that she had access to sufficient funds. When asked how his wife funded her studies, he stated that he did not know as his wife was responsible for everything. When asked if his wife had a sponsor, he stated that she was sponsored by her aunt, though he does not know what was discussed between them. He stated that he was not aware of any other sponsors.

10. The second named applicant confirmed that there were no other incidents in Thailand and no other reasons why he does not wish to return to Thailand.

    Evidence of the third named applicant

11. The third named applicant gave evidence that she was born in Thailand and came to Australia when she was [Age]. Prior to that she was living with her maternal grandmother in Ratchaburi. She stated that prior to that she lived with her parents and her paternal grandparents in Chaiyaphum. She confirmed that the Protection visa application was lodged by her parents on her behalf. When asked what she fears if she were to return to Thailand, she stated that she would have no-one there apart from her paternal grandparents. She stated that she also fears she would be captured and ransomed as a means of making her parents return to Thailand. She stated that she does not fear returning to Thailand for any other reasons.

12. The third named applicant was able to provide only limited evidence in support of the claims made by her parents. When asked whether she was aware of any incidents that had occurred in Thailand, she stated that two men in black clothing talked to her parents, but that is as much as she could recall. She was not aware of any incidents that occurred since her arrival in Australia, stating that her parents have not disclosed much to her. She stated that she is not aware of any incidents that happened to any members of her family. When asked why she believes she may be ransomed, she stated that this might be the easiest way for people to claim money from her parents.

    Concerns raised with the applicants and oral submissions

13. Following hearing evidence from each of the applicants, the Tribunal raised a number of potential concerns with each of the applicants and gave each of them an opportunity to respond to each concern. I have relied on only some of these concerns in making this decision, the details of which are set out below, including the applicants’ responses to each concern, where relevant.

14. The Tribunal also heard oral submissions from the applicants’ representative, which are summarised in my findings below, where relevant. The Tribunal also gave the applicants 14 days after the hearing to provide information. The additional documents provided are discussed in my findings below.

    FINDINGS AND REASONS

15. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims the applicant has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

16. The Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

17. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

18. I have carefully considered the claims made by the applicants in their Protection visa application and their evidence at the hearing. On the basis of the applicants’ passports, I accept that the applicant was born in Ratchaburi and the second and third named applicants were born in Chaiyaphum, Thailand. I also accept the applicant’s evidence that she arrived in Australia in October 2014, holding a 573 Student visa, and that her husband, the second named applicant, arrived with her as a dependant visa holder. I accept that she was granted a 572 Student visa on 23 October 2015, which was valid until 15 November 2017. The applicant applied for a third Student on 19 September 2017 and her application was refused by the Department. She appealed to this Tribunal for a review of the Student visa refusal decision, but withdrew her application for review. This information is consistent with the applicant’s Departmental movement records. I accept the applicant’s evidence that she completed an English language course and the Diploma of [Subject 1], and studied a Diploma of [Subjects 2 and 3] but did not complete the requirements for that course.

19. The applicant and second named applicant claim that they both borrowed money from a man in Chaiyaphum who has connections with the mafia. They both claim that they borrowed the money about three years before they left Thailand so the second named applicant could start [an animal] farming business and so the applicant could sell [products] at markets. They both claim that they obtained the debt through a series of instalments, and it was their intention to pay off the debt with products that they sold, but they were only able to pay the interest and not the principal loan amount because they were charged interest at a rate of 20 per cent per day. They claim that their total debt when they left Thailand was 300,000 baht, and they both confirmed that at the time this was the equivalent of about AUD 10,000. None of the applicants claim that they have been harmed as a result of the debt to people associated with the mafia, but the applicant and second named applicant claim that they were threatened with harm if they did not make payments. They claim that since they left Thailand, members of their family have also received threats. The third named applicant claims that she will be harmed upon return to Thailand as the daughter of the applicants, including that she may be kidnapped and ransomed so that her parents pay their debts.

20. The most recent DFAT report for Thailand indicates that loan sharking is a serious and widespread problem in Thailand, where it accounts for an estimated 20 per cent of total lending.[1] The report indicates that victims range from factory workers and day labourers to small-scale farmers, economic migrants and small to medium enterprises, and that loans can range from as little as 3,000 baht (AUD 120) to 1 million baht (AUD 40,000) or more.[2] DFAT advises that loan sharks typically charge extremely high interest which is often calculated daily. DFAT gives the example of a loan shark victim who takes out a loan of 5,000 baht (AUD 200) on which they must pay interest at a rate of 125 baht (AUD 5) per day for 25 days, at which point they must repay the entire amount, with an interest rate of more than 60 per cent.[3] DFAT indicates that small borrowers often hand over bank cards or identity documents as collateral, and farmers tend to secure their loans against land deeds. Many loans are not secured against assets, but are guaranteed by a relative of village head.[4]

    [1] DFAT Country Information Report, Thailand, 18 December 2023, para 3.112.

    [2] DFAT Country Information Report, Thailand, 18 December 2023, para 3.112.

    [3] DFAT Country Information Report, Thailand, 18 December 2023, para 3.113.

    [4] DFAT Country Information Report, Thailand, 18 December 2023, para 3.114.

21. DFAT advises that loan sharking operators include criminal gangs, wealthy individuals and corrupt officials, and that some employ former police officers, known as ‘black helmets’, as enforcers.[5] DFAT advises that enforcers use a variety of methods to coerce borrowers into repaying their debts, including:

    verbal harassment and threats of legal action, as well as vandalism, such as supergluing the locks on a property so the victim can’t access it. They may also use doxxing or post notices around a person’s workplace or home that they are a ‘bad person’ who doesn’t pay their debts. At the higher end, enforcers seize assets such as TVs and rice cookers, burn down victims’ homes or businesses, make violent threats (including sexual threats) against victims, family members and guarantors, and carry out physical attacks. DFAT is aware of cases where victims were severely beaten or forced into drug trafficking or sex work to repay their debts. Suicide rates among victims are high.[6]

    [5] DFAT Country Information Report, Thailand, 18 December 2023, para 3.115.

    [6] DFAT Country Information Report, Thailand, 18 December 2023, para 3.115.

22. DFAT advises that Thailand has criminalised loansharking under Civil Code 156, which limits the maximum interest chargeable on loans to 15 per cent, and Civil Code 2560, which makes loansharking a criminal offence, punishable by two years in prison.[7] It also advises that loansharking victims can access support through agencies including the police, the Ministry of Interior and the Prime Minister’s Office. There is also a 24/7 hotline. Police investigate loansharking claims and loan sharks are regularly arrested and imprisoned, with more than 100 people arrested on suspicion of loansharking in the first half of 2022.[8] DFAT advises that despite these protections, in-country sources reported that victims were often unaware of how to seek help, authorities were under-resourced to combat loansharking, and their efforts were often poorly coordinated, with corruption also being a serious issue.[9] DFAT advises that it can be difficult or impossible for victims to access state protection where the alleged loan shark is a high-ranking official, military or police officer, or local powerbroker.[10]

    [7] DFAT Country Information Report, Thailand, 18 December 2023, para 3.116.

    [8] DFAT Country Information Report, Thailand, 18 December 2023, para 3.116.

    [9] DFAT Country Information Report, Thailand, 18 December 2023, para 3.117.

    [10] DFAT Country Information Report, Thailand, 18 December 2023, para 3.117.

23. Overall, DFAT assesses that victims of loan sharks are at high risk from criminal gangs of verbal, social and online harassment, and at moderate risk of violence, including assault, arson, and vandalism.[11] DFAT advises that while there are avenues to seek state protection, these are sometimes ineffective, especially where the loan shark is a high-ranking or powerful individual.

    [11] DFAT Country Information Report, Thailand, 18 December 2023, para 3.118.

24. I have also considered the country information provided by the applicants and note that it is overall consistent with DFAT’s country information report. I also note that the media articles supplied indicate that action is being taken by Thai authorities to crack down on the activities of loan sharks. For instance, one of the more recent articles submitted is that from the Bangkok Post, which indicates that in December 2023 Thailand’s President declared a national crackdown of illegal loan sharks as a national priority. The article supports the advice from DFAT that there is a hotline for victims of loan sharks and indicates that the police and prosecutors can arrest those in question after complaints are made, and that the state will provide a mediation service to settle any outstanding debts. The December 2023 article from Thai Newsroom indicates that under this initiative, almost 100,000 people had registered with the government their debts with loan sharks. The article indicates that the loan settlement agreements aim to reach terms where debtors pay instalments at a reasonable rate, rather than the disproportionate amounts charged under the illegal agreements. The article states that Thailand’s Prime Minister advised the victims of loan sharks who have already paid amounts of loan money in excess of the debt’s principal amount to stop paying any more interest. The article indicates that debtors are encouraged to cooperate with the authorities, with the aim of completely settling their debts. The article from Radio Free Asia, published in September 2022, indicates that Thai authorities had taken steps to crack down on loan sharks who had thrived during the COVID-19 pandemic, including the arrests of nearly 100 people from January to June 2022 who were suspected of having links to illegal loan syndicates.

25. The fact that loan sharks operate in Thailand in the manner described by the country information does not on its own indicate that the applicants are at risk of harm from loan sharks if they return to Thailand. In this case, the Tribunal has serious concerns about the credibility of the evidence of the applicant and second named applicant.

26. There are differences between the claims the applicants made in their initial visa application, in their written statement of the applicant provided on the day of the hearing and the evidence the applicants provided at the hearing. In their visa application, the applicants claim that the applicant and second named applicant each owe 500,000 baht and their debt is increasing because of the interest which is payable. They also claim that the mafia is hunting for them to pay. Whereas at the hearing, the applicant and second named applicant claimed that when they left Thailand, they owed a total of 300,000 baht. They claimed that that they could owe millions at present. In response to this concern, the applicant claimed that the inconsistency is due to the amount of interest being taken into account. I have some trouble accepting this, given the applicants claim that they were being charged interest at a rate of 20 per cent per day, which after a delay of over four years in making the Protection visa application, would result in a debt of well over 500,000 baht each. I am, however, prepared to accept the submission by the applicants’ representative that there may have been an error on the part of his office in translating this information when preparing the visa application. I therefore make no adverse findings regarding this inconsistency.

1. I am, however, also concerned with the inconsistencies in the oral evidence of the applicant and second named applicant. This included inconsistent evidence regarding the amount of the initial loan which they borrowed, whether there was a contract for the loan and the timing of the threats which they received.

2. The Tribunal notes that the applicant gave evidence that her family members received a threat one to two years after she left for Australia, and she confirmed that there were no other threats. In contrast, the second named applicant gave evidence that the only threats he was aware of occurred about 8 or 9 months prior to the hearing, when debt collectors made threats to his sister about seizing her home and farmland. The second named applicant stated that his wife was aware of this incident, and he confirmed there were no other incidents. When this inconsistency was put to the applicants, the applicant stated that the debt collectors always approached her husband’s sister, and she always told them about this. She stated that they came and came, but it was her husband who talked to his sister about this. I do not find this explanation convincing. In particular, I note the applicant’s explanation about debt collectors approaching her sister-in-law more than once is inconsistent with the evidence given by the second named applicant that there was only one incident. I also note the inconsistent evidence of the applicant and second Named applicant as to whether they had any documentation for the loan, with the applicant claiming that she had a contract but left it in Thailand, and the second named applicant claiming that there was no such documentation.

3. I also have concerns that on the day of the hearing the applicant provided a statement in which she stated that the danger they face is severe and the mafia is actively seeking them to secure the repayments. She states that the mafia is hunting them and wants them dead. I do not find the details of this statement to be convincing, and at best find that the statements are greatly exaggerated. I find these statements to be inconsistent with the applicant’s evidence at the hearing that the only threats she is aware of were received one to two years after she left Australia, namely in 2015 or 2016.

4. I note for the sake of clarity that I make no adverse findings regarding any inconsistency in the evidence of the applicant and second named applicant regarding the applicant’s sponsorship arrangements for her Student visas. Following the hearing, the applicants provided evidence of sponsorship from two persons. The Tribunal also considers that the second named applicant may not have been aware of all of the sponsorship details for the applicant’s Student visa applications given he was a dependant to the visa applications.

5. Secondly, I have concerns regarding the claims of the applicant and second named applicant that they entered loans which attracted an interest rate of 20 per cent per day. I find this claim is not consistent with the country information, which indicates that while interest on loans from loan sharks may be calculated on a daily rate, an indicative rate is more than 60 per cent per month. I find it difficult to accept that the applicants would have agreed to loans which attracted a daily interest rate of 20 per cent or that they were able to pay the interest on such loans my selling some products. The Tribunal does not accept this explanation, considering it would have been readily apparent to the applicants that they would be unable to make the interest payments at such a high interest rate.

6. I have considered the written submission provided by the applicants’ representative after the hearing, in which he submits that the applicant meant to say the interest was charged at 20 per cent per month, and that she was stressed and could not think clearly at the hearing, and that the error was made because an initial loan for a small amount had been taken out at 20 per cent per day and was repaid within a week. I do not find this explanation convincing as both the applicant and second named applicant gave evidence that the loans attracted an interest rate of 20 per cent per day, the applicant was questioned about her evidence of a 20 per cent per day interest rate at the hearing, and all the applicants were given an opportunity to respond to this concern at the hearing.

7. Thirdly, I have concerns that the applicant returned to Thailand in 2016 for two weeks to collect her daughter, [the third applicant], and to bring her to Australia. All of the applicants gave evidence that this was the case. While I have had regard to the applicant’s evidence that she told no-one that she was going to Thailand and that she went to Ratchaburi, where her daughter was living with the applicant’s parents, I nevertheless consider this raises concerns about the applicant and second named applicant’s stated fears of returning to Thailand.

8. Fourthly, I find there is no convincing evidence that the applicant or second named applicant remain of interest to anyone from whom they borrowed money. The Tribunal put to the applicant that approximately 10 years have passed since their arrival in Australia, and there is no evidence that anyone is looking for them other than the inconsistent evidence they gave regarding persons making threats to their family members. The applicant were each given the opportunity to respond to this potential concern but gave no responses. I have had regard to the written submissions provided after the hearing, in which the applicant’s representative submits that debts are never forgiven in Asia and Thailand. I consider such submissions to be of a general nature and provide no convincing evidence that any of the applicants would be of interest to anyone after an absence of 10 years.

9. Fifthly, the Tribunal has concerns regarding the applicant and second named applicant’s evidence regarding the amount of their debt upon arrival in Australia and their stated reasons for choosing to arrive in Australia on Student visas instead of paying off the debt. In this regard, the applicant’s representative submitted that when the applicants arrived in Australia in 2014, there was no financial requirements for the applicant to meet as Thailand was at the time classified as an Assessment level 1 country for the purpose of Student visa applications, for the purpose of providing documentation to prove she had sufficient funds to support her stay in Australia while undertaking ELICOS or vocational courses, and it did not become an Assessment level 2 country until 2016 or 2017. The Tribunal notes, however, that the applicant applied for a second Student visa (TU-572) while she was onshore, and in making this application for a Student visa, she would have had to demonstrate that she had access to sufficient funds, which at the time was in the vicinity of $18,000 and the costs of her course fees. The Tribunal put to the applicants that, on the evidence of the applicant and second named applicant, when they arrived in Australia in 2014 their total debt was the equivalent of about AUD 10,000, and therefore they could have used the funds that were available for the purpose of the applicant’s study to pay the loan shark or his associates. The applicant also gave evidence that her travel to Australia was organised by an agent and the cost was about 200,000 baht, which is two-thirds of what she and the second named applicant claim they owed. In response to this concern, the applicant indicated that after she arrived in Australia, she had to study, and only her husband worked. She claimed that their expenses were high, so they had insufficient funds to pay off the debt. The second named applicant sated that he would like to live in Australia because two of his children have been born here and he would like them to live here because the living conditions are better, but he did not otherwise provide an explanation for why the funds used for the Student visa could not have been used to pay off their debt.

10. I note that following the hearing, the applicants provided documents including two letters which are in Thai, and which are labelled as ‘Leter (sic) advising will not allow money to be used to pay debt’ and ‘Leter (sic) advising will not allow money to be used to pay debt second person’. These are accompanied by a submission from the applicant’s representative which refers to these letters and argues that the applicant did not have control of the money held by her financial sponsors for the Student visa and the sponsors would not have agreed to the money being used to settle a debt. I give little weight to these letters, given they are in Thai and have not been translated, they were provided for the first time after the hearing when the applicant claims they were prepared for the purpose of one of her Student visa applications and would therefore have been available to the applicant, and the applicant was required to demonstrate to the Department that she had genuine access to funds for the Student visa application made in October 2015. The sponsorship letters provided by the applicant indicate that in August 2014, her sponsors held amounts of 704,790 baht and 535,824 baht in Thai banks. This exceeds the amount the applicant and second named applicant claim they owed when they arrived in Australia in October 2014, which was a total of 300,000 baht. I have considered the submissions from the applicants’ representative that the money was held by relatives of the applicant and was not used in the course of the applicant’s study, but I give little weight to this as the purpose of providing this information to the Department in the course of a Student visa application was to demonstrate that the applicant had access to those funds.

11. Given the total amount the applicant and second named applicant claim they owed when they first arrived in Australia, I have difficulty accepting that they feared remaining in Thailand because they had a debt which was the equivalent of about AUD 10,000, yet they chose to escape Thailand by coming to Australia on Student visas, which required the applicant to pay expenses, including the cost of course fees for ELICOS and vocational courses, visa costs and travel costs. I have concerns that the applicant claimed her costs in arriving in Australia were about 200,000 baht, which she paid to an agent. While I have had regard to the explanations from the applicants, I do not find their reasons for being unable to repay the debt convincing in light of the expenses involved in funding the applicant’s studies and stay in Australia.

12. A sixth concern is the applicants’ delay in claiming protection. I note that the applicant and second named applicant arrive din Australia [in] October 2014. The third named applicant arrived in Australia [in] March 2016. The Protection visa application was not lodged until 4 December 2018, over four years after the applicant and second named applicant arrived in Australia, and approximately 6 to 7 years after they claim they first incurred the debt. The Tribunal does not find the applicant’s explanation for this delay convincing or compelling, nor sufficient to explain a delay of over 9 months in applying for protection.

13. Delay in seeking a Protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. Even a three-month delay in lodging a Protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution. In Selvadurai v The Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, the Court observed in regard to a delay in lodgement of a Protection visa application: ‘In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant’s alleged fear of persecution. It is a rational consideration open on the material.’ In the Tribunal’s view, the applicants’ delay in lodging a Protection visa application further supports a finding that the basis for their claims for protection should not be accepted.

14. While some of the above concerns with the applicants’ evidence are relatively minor and considered in isolation would not have caused me to reject their claims entirely, others are more serious, and overall, I found their evidence unconvincing and lacking in credibility. After considering all of the evidence, including the concerns set out above, I do not accept that the applicant and second named applicant owe 300,000 baht to a loan shark or anyone connected to the mafia in Thailand. It follows that I do not accept that they genuinely fear harm from loan sharks, the mafia or anyone connected with loan sharks or the mafia in Thailand, nor that there is a real chance that they would experience serious or significant harm on return to Thailand because they owe money to loan sharks or to anyone else. It also follows that I do not accept that the third named applicant will be harmed on the basis that her parents owe money to a loan shark, the mafia or to anyone else.

    Do any of the applicants have a well-founded fear of persecution if they return to Thailand?

15. There is no evidence that any of the applicants have experienced harm in the past on the basis of their claims regarding the applicant and second named applicant having borrowed money from someone with connections to the mafia. While I am prepared to accept that the applicant and second named applicant may have borrowed money from a loan shark in the past, I am not satisfied that either of them currently owe money to a loan shark, nor that they or any members of their family have been threatened or harmed in the past. I also do not accept that any of the applicants would face a real chance of serious harm upon return to Thailand on the basis of the above claims regarding debts owed to a person or persons associated with the mafia.

16. In addition to the above concerns, I am not satisfied that the harm claimed is for one or more of the reasons set out in s.5J(1) of the Act. There is no claim that the persons the applicant or second named applicant owe money to are threatening any of the applicants or would harm them because of their race, religion, nationality, membership of a particular group or political opinion.

17. I have had regard to the oral and written submissions of the applicants’ representative that the applicants can be characterised as members of a particular social group, namely borrowers from loan sharks who have defaulted on their payment of a debt. He submits that this is a clearly defined group and is subject to harm.

18. While the refugee nexus of being a member of a particular social group can have a broad application, s.5L of the Act makes it plain that each member of the identified particular social group must share a characteristic, and that characteristic must either be innate or immutable or so fundamental to a member’s identity or conscience the member should not be forced to renounce it, or it must be a characteristic that distinguishes the group from society. The characteristic cannot be the fear of persecution. In this case, the common characteristic of the social group would be persons in Thailand who borrow money for the purpose of a visa application and cannot repay the debt.

19. This is not a characteristic that could be described as innate or immutable to each of the persons, but rather is based on something each member has done based on their individual circumstances. Nor can this be described as something done by the person because it is fundamental to the member’s identity or conscience. There is no evidence in the DFAT country information Report that borrowing money in Thailand and being unable to return the money is a feature recognised in Thai society as something that distinguishes that ‘group’ from other members of the community.

20. Accordingly, I am not satisfied that the applicants have a well-founded fear of persecution on the basis of the claimed fear of harm from persons they have borrowed money from, nor from persons that the third named applicant’s parents have borrowed from, nor anyone associated with such persons, including anyone associated with the mafia, as required for the purposes of the definition of a refugee contained in s.5H of the Act.

21. I have also considered the other claims made by the applicants at the hearing, including:

    a.The applicant’s claims that she does not want to return to Thailand because it is safer living here (I have considered this in a broader sense, in addition to the claims regarding her debts), she has two children born here, her children may have better study opportunities here and she will have no assets if she returns to Thailand;

    b.The second named applicant’s claims that two of his children were born in Australia and he would like them to live here because the living conditions are better; and

    c.The third-named applicant’s claim that if she returns to Thailand, she will have no-one there other than her grandparents.

22. I accept that the applicants would prefer to stay in Australia because two of the applicant and second named applicant’s children were born in Australia and they consider that living conditions here may be preferable to those in Thailand. While I also accept that they may experience some hardship in returning to Thailand, including some delays in finding work and readjusting to life in Thailand, including finding and establishing a home, I do not accept that any of these reasons would result in a real chance of serious harm to any of the applicants in the reasonably foreseeable future.

23. In view of the above findings, the Tribunal is not satisfied that any of the applicants face a real chance of serious harm because of their religion, race, nationality, political opinion, or membership of a particular social group in Thailand. Having considered all of the applicants’ claims, individually and cumulatively, and all of the evidence, I find there is no real chance that any of the applicants will suffer serious harm amounting to persecution from anyone for any reason, on return to Thailand, now or in the reasonably foreseeable future.

24. 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 under s.36(2)(a).

    Does Australia have protection obligations to any of the applicants under the complementary protection criterion?

25. Having concluded that none of the applicants meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

26. I am required to consider if the applicants will suffer significant harm on their return to Thailand. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

27. For the reasons set out above, the Tribunal does not accept that any of the applicants will experience any harm as a result of their claims regarding having outstanding debts to a person connected with the mafia, nor the third applicant’s claims that she would be harmed because her parents have debts to someone connected to the mafia.

28. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that any of them will be arbitrarily deprived of life, the death penalty will be carried out on they, they will be subjected to torture or cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to Thailand now or in the reasonably foreseeable future.

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

   CONCLUSION

2. 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

3. The Tribunal affirms the decision not to grant the applicants protection visas.

   Frank Russo
   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.

   …