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1917671 (Refugee)

1917671 (Refugee)

Case [2021] AATA 3802 12 August 2021

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1917671 (Refugee) [2021] AATA 3802 (12 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:1917671

COUNTRY OF REFERENCE: Thailand
MEMBER:Jason Pennell
DATE:12 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 12 August 2021 at 11.56am

CATCHWORDS

REFUGEE – protection visa – Thailand – particular social group – evasion of military service – physical assault – home invasion – law of general application – economic reasons – fear of arrest – abuse during military service – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A (2002) 210 CLR 1
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
BBK15 v MIBP (2016) 241 FCR 150
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
Leonid Zakinov v John Gibson & Anor [1996] 696 FCA 1
MZAAJ v MIBP [2015] FCA 478
MIEA v Guo (1997) 191 CLR 559
MIMA v Shaibo [2000] FCA 600
MIMA v Yusuf (2001) 206 CLR 323
Pan v MIEA (1996) 64 FLR 151
Prasad v MIEA (1985) 6 FCR 155
SZSPT v MIBP [2014] FCA 1245
SZTES v MIBP [2014] FCCA 1765
Timic v MIMA [1998] FCA 1750
Trpeski v MIMA [2000] FCA 841

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 July 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Thailand, applied for the visas on 16 July 2018. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

The applicant and [name] (‘the second applicant’) appeared before the Tribunal on 26 May 2021 to give evidence and present arguments. In addition, [Witness A] also appeared before the Tribunal to give evidence and make submission in support of the applicant.
The applicant and the second applicant also appeared before the Tribunal via MS Teams on 3 August 2021 to give evidence and present arguments (the second hearing). The applicants were invited to a second hearing for the purposes of clarifying evidence in relation to their claim. In circumstances where the applicant were required to travel from [Town 1] and in light of the difficulty of conducting in person hearings during the COVID-19 pandemic, the Tribunal determined that it was reasonable to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1917671 (Refugee)

Details

AGLC: 1917671 (Refugee) [2021] AATA 3802
Case: [2021] AATA 3802
Decision Date: 12 August 2021

CaseChat Overview and Summary

The applicant, a national of Thailand, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in Thailand due to a fear of being arrested and subjected to abuse during mandatory military service, and also feared physical assault and home invasion by individuals associated with the military. The applicant contended that these fears placed them within a particular social group for the purposes of the *Migration Act 1958* (Cth).

The Federal Circuit Court was required to determine whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, as defined by international refugee law and applied within Australia's migration framework. Specifically, the court had to consider whether the applicant's claimed fear of arrest and abuse during military service, or the threat of physical assault and home invasion, constituted persecution for reasons of membership in a particular social group, and whether the Thai law of general application regarding military conscription and the enforcement of criminal laws was relevant to this assessment.

The court reasoned that while the applicant's fear of arrest for evading military service was based on a law of general application, the potential for abuse during military service, coupled with the threat of physical assault and home invasion, could, in certain circumstances, amount to persecution. However, the court found that the evidence presented did not sufficiently establish that the applicant's fear was *because of* membership in a particular social group, as opposed to general economic reasons or a fear of ordinary criminal activity. The court applied the principles established in refugee law concerning the definition of a "particular social group" and the distinction between persecution and general hardship or the consequences of breaching general laws.

The decision under review was affirmed.

Orders