1917671 (Refugee)

[2021] AATA 3802

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

1. 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).

2. 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.

1. 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.

2. 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 conduct the second hearing via MS Teams.  In addition, [Witness A variant], [Witness B] and [Witness C] appeared before the Tribunal at the second hearing to give evidence and make submission in support of the applicants. The Tribunal is satisfied the first applicant, the second applicant and each witness were given a fair opportunity to give evidence and present arguments.

3. The hearing was assisted by an interpreter in the Thai and English languages. The Tribunal was satisfied that the applicant understood the interpreter and questions to her during the course of the hearing and note that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding questions during the hearing.

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

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. 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.

3. 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.[1] 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.[2]

   [1] s.5H(1)(a) of the Act

   [2] s.5H(1)(b) of the Act

4. 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.

5. 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 (‘the complementary protection criterion’).[3] 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

[3]    s.36(2)(aa) of the Act

1. 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.

Applicant’s Identity and country of reference

1. The applicant’s protection visa application was lodged on 16 July 2018[4] (‘the protection application’). The applicant claims that he was born on [date] in [Town 2 in] Thailand.He claims to be an ethnic Thai and that his religion is Buddhism. He claims that he speaks English and reads writes and speaks Thai. The applicant’s protection visa application states that he is married[5], however, his evidence to the Tribunal was that is living in a de-facto relationship with [name] (the second applicant).

   [4]    Dep File [Number], Dep ID: [Number], Doc ID: [Number]

   [5]    Application for Protection dated 17 July 2018 @ p.16, [File Number] Dep ID: [Number], Doc ID: [Number]

2. The second applicant claimed that she was born on [date] in Nakhon Ratchasima Thailand. She speaks English and reads, writes, and speaks Thai.[6] The second applicant is an ethnic Thai and a Buddhist. Her evidence to the Tribunal is that the applicant and her are not formally married but living in a de-facto relationship.[7] The second applicant did not raise any claims for protection of her own. Rather, she relied on the claims made by the applicant.[8]   

   [6]    ibid

   [7]    ibid

   [8]    Application for Protection dated 17 July 2018 @ p.6, [File Number] Dep ID: [File Number], Doc ID: [Number]

3. The applicant and the second applicant both provided the Department with a certified copy of their Thai passports. [9]  The passports confirmed their evidence to the Tribunal in relation to their place and date of birth. Therefore, based on the documentation provided  and their oral evidence the Tribunal finds the applicant and the second applicant are  citizens of Thailand.

   [9]    Dep File [Number], Dep ID: [Number], Doc ID: [Number]

4. There is no further evidence before the Tribunal to suggest that the applicants have a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the Tribunal finds that the applicant and the second applicant are citizens of Thailand and that as such their protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.

Migration history

1. The applicant first arrived in Australia [in] February 2014 as the holder of a [Student] visa.[10] The second applicant arrived in Australia [in] March 2016 on a [visitor visa].[11] The applicants applied for a Protection visa on 16 July 2018.[12]

Claims for protection

[10] Movement Record, AAT File No: 1917671 Doc ID: [Number]

[11] Movement Record, AAT File No: 1917671 Doc ID: [Number]

[12] Dep File No: [Number], Dep ID: [Number], Doc ID: [Number]

1. The applicant’s claims for protection are contained in his responses to questions on the protection visa application form, lodged 6 December 2017[13] as follows:

   [13] ibid

   Why did you leave that country/those countries?

   ‘I left home as I was our with my friends one night and we accidently bumped into someone and spilt a drink on someone’s cloths , we apologised for the incident however the person demanded money to compensate his clothes however we did not have the money and he got his friends and beat us up. We were we discovered he was the son oof a very powerful politician in our community. They took our IDs and days later we have been sent death threats tour homes and they have already home invaded and beaten up one of my friends so severely that he is in the hospital fighting for his life. I was scared for my life so I fled the country to seek refuge here in Australia, where can have a better life.’ 

   What do you think will happen to you if you return to that country/those countries?

   ‘If I were to return the people would come and target me, where my life would become a living hell again as they would constantly harass me, and I am scared they are doing the same to my family and friends.’

   Did you experience harm in that country/those countries?

   ‘Yes. Yes I was beaten to near death, I had my hoe invaded and I have had death threats sent to me.’

   Did you seek help within that country/those countries after the harm?

   ‘No. I did not seek help as the people we ran into ae children from powerful figures in the community and the people do not want to be involved.’

   Did you move, or try to move, to another part of that country/those countries to seek safety?

   ‘No. I did not try to move to another part of the country as I could not outrun the people after us.”

   Do you think you will be harmed or mistreated if you return to that country/those countries?

   Yes. As I said previously the people would make my life miserable, beating me up, sending me death threats and destroying and taking anything, I own.’

   Do you think the authorities of that country/those countries can and will protect you if you go back?

   ‘No. No the authorities would not protect me as they are easily influenced by the money and power from the people that are targeting me and instead of helping me they would help my enemies as they will be bribed and influenced by money.’

   Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?

   ‘No. Relocation would not work as they just able to track me down with the wealth and influence they have.’

2. The delegate[14] summarised the applicant’s claims as follows:

(a)The applicants left their country as they were out with friends one night and accidently spilt a drink on someone’s clothes

(b)The person demanded money to compensate for his clothes however the applicants and their friends did not have the money. They were beaten.

(c)The applicant discovered the person was the son of a very powerful politician in the community. The applicants ID was taken, and death threats were sent to the applicant.

(d)One of the applicants’ friends was beaten so severely he needed to go to hospital. The applicant fled to Australia to have a better life.

(e)If the applicant returned to Thailand, they would be targeted and constantly harassed. They fear the person and their associates are targeting the applicants’ family and friends.

(f)The applicants did not seek help as the person who is targeting them are children from powerful figures in the community and people do not want to be involved.

(g)The authorities fear people targeting the applicant so they would not risk it. The community is corrupt.

The applicants evidence

[14] Protection Visa Decision Record dated 1 July 2019 @ p.3, AAT File No: 1917671 Doc ID: [Number]

1. The applicant was born on [date] in [Town 2] Thailand. His parents continue to live in [Town 2] Thailand. The applicant’s father is a retired farmer while his mother has been engaged in home duties. The applicant has [sibling] who is currently student and not married.

2. The applicant’s evidence was that attended High School until [grade] and then continued his studies via distance learning until [grade]. However, the applicant’s protection visa application states that he had attended High School at [a named] School in Thailand. The applicant did not attend college. Rather, he remained at home to work on the farm with his father.

3. The applicant’s evidence was that he came to Australia to study but was he was not able to afford the tuition fees. As a result, he commenced working as a farm labourer.

4. The applicant stated that he feared returning to Thailand because he had not completed his military service. He stated that upon his return he will be detained, arrested, and even tortured because he had not completed his military service. His evidence was that he left Thailand a long time ago and as a result had did not attend the ‘lottery’ by which the selection process for military service in Thailand is performed. His evidence was that warrant had been issued for his arrest. The applicant initially produced a document on the second applicant’s mobile phone which he claimed was a warrant for him to return to Thailand to perform his service his military service. The applicant subsequently provided the Tribunal with a hard copy of the document together with a copy that had been translated into English.[15]

   [15] AAT File No 1917671 Doc ID’s [Numbers]

5. The applicant’s evidence was that he wanted to remain in Australia so that he could work to send money to his family. Nevertheless, he claimed that he feared that if he was returned to Thailand he would be detained and forced to complete his military service upon his return to Thailand.

6. Despite the applicant’s claims that he feared being detained due not having completed his military service in Thailand, it was not referred to in his application for a protection visa..

7. The applicant’s evidence was that he arranged to come to Australia through a person he respected (known to him as [Mr A]). He claims that [Mr A] had suggested that he travel to Australia. Despite the applicant claiming that [Mr A] was an important person in his life he was not able to identify [Mr A] for the Tribunal other than to say that he lived in Sydney. The applicant’s evidence was that it was [Mr A] who had suggested the applicant make application for a protection visa so that he could remain in Australia.

8. The applicant’s evidence was that he completed the protection visa application with the assistance of [Mr A]. He stated that he answered the questions in the application and [Mr A] completed the form in accordance with his instructions. Nevertheless, the applicant was not able to explain why his claimed fear of being detained in Thailand due to not having completed his military service was not referred to in his protection application. The Tribunal notes, contrary to the applicant’s evidence, that the applicant’s protection visa application refers to a [Ms B] as having assisted the applicant in completing the protection visa application.[16]

   [16] Applicants Protection Visa Application dated 17 July 2018 @ p.10; Dep File No: [Number], Dep ID: [Number], Doc ID: [Number].

9. Nevertheless, the applicant denied all the claims as detailed in the protection visa application. His evidence was that his only claim for protection was his fear of having to complete his military service upon his return to Thailand as claimed.

The Second Applicants Evidence 

1. [The second applicant] evidence was that she was born on [date in] Thailand. Her parents are now divorced. He father, [an occupation 1], continues to live in Thailand. Her mother now lives in [Country 1]. The second applicant has [a sibling] who continues to live in Thailand [who] is married and works as [an occupation 2].

2. The second applicant arrived in Australia [in] March 2016. Her evidence was that she travelled to Australia because she wanted to work and earn an income. Her evidence was that she completed High School and initially attended College to study [a named course]. However, her evidence was that she was not able to continue her studies as she could not afford the tuition fees. As a result, she ceased her College studies after one term.

3. In Australia, the second applicant has been engaged as farm worker. She lives with the applicant in [Town 1]. Her evidence was that the applicant and her have been together for approximately six years and are living in a defacto relationship.

4. The second applicant’s evidence was that her claims were based on the applicant’s claims but did claim that that she cannot return to Thailand because, if she does return, she will not get the opportunity to return to Australia. Her evidence was that the applicant cannot return to Thailand because he will be forced to complete his military service in Thailand. The second applicant, on behalf of the applicant, provided the Tribunal with a copy of a document that the applicant claimed was a warrant for the applicant’s arrest due to not having completed his military service. The document was initially provided on her mobile phone. The applicants subsequently provided a hard copy of the document to the Tribunal together with a translated copy of the document.

5. The second applicant’s evidence was that she did not know anything about the claims made in the protection visa application. Her evidence was that she has paid a representative to prepare the document and that they made up the claims on the applicant’s and her behalf. Her evidence was that all the claims made in the protection visa application were incorrect.  

6. The second applicant stated that she did not want to return to Thailand because the economy in Thailand was bad. Her evidence was that the applicant and her had no work in Thailand and no money. As a result, she feared that the applicant would be detained or arrested if they returned to Thailand. As a result, they would suffer harm. She claimed that in Thailand a person needed a high level of education to be employed. She claimed that because she had not completed her College education, she would not be able to find employment or at least employment that would allow her to support herself.   

Evidence of [Witness A] and [Witness B].

1. [Witness A] and [Witness B] both gave evidence in support of the applicants. [Witness A] evidence was that she was in a relationship with [Witness B] and that they worked with the applicants.  Both [Witness A] and [Witness B] gave evidence to the effect that the applicant feared returning to Thailand because he had not completed his military service obligations. Their evidence was that they were not aware of any reason, such as his ethnicity or religion, as to why the applicant would be harmed upon serving his military service. Their evidence was that he feared being punished for not having completed his military service if he returned to Thailand.

Evidence of [Witness C]

1. [Witness C] gave evidence to the tribunal to the effect that he was the applicant’s employer and that the applicant was a good and reliable worker. He was not able to comment on the applicant’s claims save to say that he was with the applicant when he completed the protection application and that he is now aware that the applicant fears returning to Thailand because he would be forced to complete his military service. [Witness C] was not aware of any reason (for example his ethnicity or religion) as to why he would be harmed if the applicant completed his military service Thailand.  

COUNTRY INFORMATION

1. The Tribunal in accordance with the Ministerial direction No 84 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the DFAT report on Thailand dated 10 July 2020 (‘the DFAT Report’).[17]

   [17] DFAT Country Information Report Thailand 10 July 2020 

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant and the second applicant are people in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[18]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[19]

   [18] s.5AAA Migration Act 1958.

   [19]  MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.[20]

   [20]   Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[21] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

Accepted Facts

[21]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019)

1. Based on the applicant’s evidence and the documentary evidence provided to the department and the Tribunal, the Tribunal finds that:

(a)The applicant was born [on date] in [Town 2] Thailand.

(b)The second applicant was born [date] in Nakhon Ratchasima, Thailand 

(c)The applicant and the second applicant are ethnic Thai and Buddhists.[22]

(d)The applicant’s mother and father continue to live in [Town 2] Thailand.

(e)The applicant has a [sibling] who is a student and unmarried.

(f)The applicant attended High School at [a named] School in Thailand but has not completed any tertiary study.

(g)The second applicant’s parents are divorced. He father continues to live in Thailand and her mother lives in [Country 1].

(h)The second applicant has [a sibling] who lives in Thailand and works as [an occupation 2].

Applicant’s Refugee Claim

Relevant Grounds

[22] Ibid, p. 8

1. The applicant did not specifically submit that he fell within the scope of s.5J(1)(a) of the Act. Nevertheless, it was open to him to claim that he fell within s.5J(1)(a) of the Act by reason of his membership of a particular social group (PSG) as an evader of military service and as a result of his economic circumstances.

2. Members of a PSG must be recognised (generally by the persecutor or persecutors) as sharing a connection or falling under some general classification.[23] When a person claims to fear being persecuted by reasons of their membership of PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. Section 5L[24] states:

   [23] Applicant S v MIMA (2004) 217 CLR 387

   [24] Section 5L Migration Act 1958

   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.

1. The applicant claims that he is a member of a PSG by reason of him not completing his military service in Thailand. The established principle[25] has been (particularly for cases determined under the Convention) that where an applicant claims fear of conscription and its consequences it does not constitute a PSG. Nevertheless, in some circumstances the avoidance of military service can be considered a characteristic that the applicant shares with others and as a characteristic that distinguishes the group from the rest of society. That is, as an innate or immutable characteristic or something that is fundamental to their identity or conscience. In this case the applicant may be recognised as being part of a cognisable group[26] within Thai society if his evasion of military service was associated with other relevant motives for leaving or remaining outside his country. For example, his religion, ethnicity or as a conscientious objector.

   [25] Timic v MIMA [1998] FCA 1750; MIMA v Shaibo [2000] FCA 600; Trpeski v MIMA [2000] FCA 841;

   [26] S.5L(c)(iii) of the Act; Applicant A v MIEA (1997) 190 CLR 225 @ 241, 264–266, 285

2. In addition, it may be argued that the applicant being an able body male of a relevant age who has avoided military service is a member of a PSG.[27]  The question as to whether the applicant is a member of a PSG being able body and of the relevant age to be conscripted into military service is a question of the legal, social, cultural and religious norms[28] capable of being determined objectively by a third party.[29]  In Thailand, every male who reaches the age of 21 years is required to present for service military service subject to a medical test and exemptions to service as allowed under the Military Service Act 1954 referred to below.[30]

   [27] Applicant S v MIMA (2004) 217 CLR 387

   [28] Ibid, Applicant A (2002) 210 CLR 1 @ p13, p28, p43.

   [29] Applicant S v MIMA (2004) 217 CLR 387 @ [34]

   [30] Military Service Act 1954

3. The Tribunal is prepared to accept that the applicant constitutes a member of PSG as a young able-bodied man between the ages of 21 and 30 who are eligible, but avoided,  military service in Thailand. However, for the reasons expressed below, the Tribunal finds that military service in Thailand and any punishment the applicant would face upon his return to Thailand is a law of general application and therefore not persecution.

4. In addition, the applicants claim that if they are returned to Thailand, they would be seriously harmed by reason that they would suffer economic hardship to the extent that it would threaten their capacity to subsist. The applicants claim that the economy in Thailand is bad and that they would not be able to find work to support themselves if they returned to Thailand because they have no qualifications.  While the Tribunal has serious doubts that as people who will suffer economic hardship the applicant’s constitute members of PSG, for the purposes of this decision itis prepared to accept the applicant’s as a member of a PSG. However, for the reason expressed below the Tribunal has found that there is no real chance that would be seriously harmed by reason of their economic circumstances.  

Applicant’s well-founded fear.

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

2. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[31]

   [31] Chan Yee Kin v MIEA (1989) 169 CLR 379

3. In this case, the applicant claims that he fears being seriously harmed as a member of a PSG if he is returned to Thailand by reason that he fears having to complete his military service in Thailand. The Tribunal accepts that the applicant holds a subjective fear of being harmed if he is returned to Thailand by reason of having failed to complete his military service.  For the reasons expressed below the Tribunal finds that the applicant has a subjective fear of being harmed by reason of his failure to complete his military service as claimed. However, for the reasons expressed below the Tribunal has found that military service in Thailand is part of the general application of the law and as such it finds that the harm the applicant faces if he is returned to Thailand does not constitute ‘persecution’ as it does not involve ‘discriminatory treatment’ as required by s 5J(4)(c) of the Act .  

4. In addition, the applicants claim that they will suffer serious harm because of their economic circumstances if they are returned to Thailand.  For the reason expressed below the Tribunal finds that the applicants do not have a real chance of being seriously harmed, on an objective basis, by reason of their economic circumstances upon their return to Thailand.

Applicant’s Claim as a Refugee

Applicants written claims

1. The applicant written claims are detailed above. However, the evidence of the applicant and the second applicant is that these claims are incorrect. They claim their representative incorrectly completed the protection visa application form on their behalf. As such they denied that they had any altercation with a person in a night club the result of which they were targeted and constantly harassed as claimed.  The Tribunal accepts the applicant’s and second applicants’ evidence in relation to their written claims and accepts that the claims were fabricated by the applicant’s representative for the purposes of making the protection visa application. As a result, the Tribunal finds that here is no real chance the applicant will be seriously harmed by any person, including any child of a powerful figure as claimed, as a result of an altercation that occurred while out with friends. 

Military Service in Thailand

1. The applicant’s evidence was that he arrived in Australia [in] February 2014 when he was [age] years old. He claims that because he remained in Australia, he has failed to complete his military service in Thailand. As a result, he claims that if he is returned to Thailand, he will be seriously harmed by reason that he will be forced to complete his military service.

2. The applicant did not express a reason for him evading his military service other than the fact that he did not want to perform his military service as he wished to remain in Australia. The applicant claimed that he would be punished by the authorities upon his return and forced to complete his military service. The Tribunal specifically asked the Tribunal if there was any reason why he feared completing his military service such as his ethnicity or religion to which he replied that he simply did not want to perform his military service in Thailand. As a result, there was no evidence of the applicant holding a political opinion or religious view (as a conscientious objector or some other seriously held moral conviction),[32] for his refusal to perform his military service if he is returned to Thailand. His evidence was that he feared having to service military service in Thailand. 

   [32] Leonid Zakinov v John Gibson & Anor [1996] 696 FCA 1

3. The Handbook on Procedures and Criteria for Determining Refugee Status published by the Office of the United Nations High Commissioner for Refugees addresses the status of a deserter and draft-evader. It states:[33]-

   "A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution."

   [33] The Handbook on Procedures and Criteria for Determining Refugee Status published by the Office of the United Nations High Commissioner for Refugees (Re-edited Geneva, February 2019) @ [168].

4. It is for the applicant to identify the reason why he would be persecuted if he performs his military service. That is, there must be a basis upon which he holds a well-founded fear of persecution. In this case the applicant did not provide the Tribunal with any basis for his fear of performing military service in Thailand. For example, the applicant did not claim that he would be persecuted if he was forced to perform his military service in Thailand by reason of him being a contentious objector, his ethnic or cultural background. The applicant merely claimed that if he was forced to return to Thailand, he would be detained and forced to complete his military service.

5. The applicant provided the Tribunal with a document entitled ‘Certificate’ and dated [date]. The document stated that that the applicant  was registered for military service from [date].[34] During the course of the second hearing the applicant confirmed to the Tribunal that this document was evidence of him having been registered for military service at or about the time he turned [age] years of age. The Tribunal accepts that the applicant was registered for military service on or about [date] and became eligible for military service in or about [year] when he turned twenty-one (21) years of age.

   [34] Certificate ID No [Number]; AAT file 1917671 Doc ID [Number]

6. The applicant also provided the Tribunal with a document that he claimed was a warrant for his arrest for failing to attend for his military service. The document is dated [date].[35] The document states that ‘Since the date of [date] in order to proceed according to the law but not later than [date].’ On its face (as translated) it appears that the warrant expired on [a date in] 2021.  Nevertheless, the Tribunal accepts that the applicant was registered for military service and was eligible to enlisted into the military services upon attaining the age of twenty-one (21). The Tribunal accepts that the applicant did not report as required to undertake the lottery system for the purposes of being enlisted into the military service in Thailand.

   [35]  ibid

7. The country information[36] reports that the role of the Royal Thai Armed Forces is to protect the  sovereignty and territorial integrity of the Kingdom of Thailand, including the defence of the monarchy of Thailand, defending the monarchy against all foreign and domestic threats, ensuring public order and assisting victims of national disasters and drug control. [37] Nevertheless, its reported that some critics have claimed that, in reality, the role of the Thai armed forces is to safeguard ruling class from efforts to expand the democratic space, advance the interests of the upper echelons of the Thai military.[38] The Royal Thai Armed Forces has an estimated force strength of 605,000 personal of which approximately 360,000 are in active duty with the remainder being reserve personnel (approximately one (1) percent of the Thai population of 70 million ).[39] Conscription was introduced in Thailand in 1905.[40] According to section 50 of the Thai Constitution[41] it is a national duty of all citizens to serve in armed forces as provided by law.

   [36]  DFAT Report @ p.52;

   [37] Global Security.Org Ministry of Defence ibid

   [39] DFAT Report @ p.52.

   [40]   Chapter 4 of the 2007 Constitution of Thailand

   [41] Section 50 Chapter IV Duties of the Thai people, Thai Constitution 2017.

8. The Military Service Act 1954 provides that all men shall be eligible for military service at the age of 21 years.[42] An enlistment draft is conducted in April each year.[43] Those who are called up for the draft are required to report to their selection centre. An eligible draftee may volunteer to serve. If they don’t volunteer, they must then participate in the lottery.[44] Every year about 100,000 personnel are recruited.[45] Each selection centre is given a quota, and the number of individuals conscripted through the lottery at each selection centre will be the quota subtracted by the number of volunteers. Those in the lottery draw a card out of a box. Those who draw a black card are released from their military service requirement and issued a letter of exemption. Those who draw a red card are required to start their military service on the date stated on the card. Those with higher educational qualifications can seek a reduction in the time they are required to serve.

   [42] DFAT Report @ p.52

   [43] The Economist "Thais seem ever less impressed by the army" dated 9 May 2020, Aljazeera, ‘Red or black? Experiencing Thailand’s military draft’ dated 23 April 2019 by Caleb Quinley. Ibid, DFAT Report @ p.52

1. In 2018 the Royal Thai Armed Forces called up more than 500,000 men for selection to be allocated across all the services, of which 44,800 volunteered to serve. [46] After accepting the volunteers and dismissing those who were deemed ineligible, there remained a quota of approximately 60,000 recruits to be taken from the remaining 450,000 or so who entered the draft lottery. As such, the overall probability of drawing a red card in the lottery was approximately 13 percent.[47] It’s reported that from time to time, at some selection centres, all those who elected for the lottery were issued exemption cards due to the fact that their quota of recruits was met by enlisting volunteers.

   [46] Bangkok Post, "Image, pay draw volunteers for armed service" by Nanuam, Wassana dated 15 April 2018.   Ibid

The time a person is required to service depends on whether a person volunteers to enlist and their educational background. Those who volunteer serve a shorter period. Those without a high school diploma are required to serve two years regardless of whether they volunteered. High school graduates who volunteer are required to serve one year, while high school graduates who draw red cards are required to serve two years. Those with an associate degree or higher who volunteer serve six months.[48] Those with an associate degree or more who draw red cards can request a reduction in time of service of up to one year. University students can request for deferment of conscription until they are awarded their diploma or reach 26 years of age. In April 2020, only 5,460 out of 42,000 conscripts scheduled for discharge at the end of the month volunteered to remain in the military.[49]

[48] DFAT Report @ p.52

[49]  The Economist, "Thai’s seem ever less impressed by the army" dated 9 May 2020, Nikkei Asian,

It reported that while the government maintains the need for conscription[50] many in Thailand are opposed to conscription and question the need for military service in the absence of any immediate security threat.[51] In addition, there is a perception that the system is unfair[52] in circumstances where people from high income families are able to reduce or avoid military service by being enrolled in university or undergo training as “territorial defence students” at high school or even by bribing a government official.[53]

General law of application.

[50] Thai PBs, "PM insists mandatory conscription is still needed" dated  7 August 2018. /web.archive.org/web/20180829212134/  Bangkok Post, "Do away with conscription"  dated 24 March 2018. Thai PBS World, ‘Prayut shoots down bid to scrap military draft’ 12 November 2020. Ibid; DFAT Report @ p.53

1. In this case the applicant claims he will suffer persecuted if he was returned to Thailand by reason that he will be detained and punished for not participating in the military draft and will be required to complete military service. However, in MIMA v Yusuf (2001)[54] it was held that the applicant who claimed that he would be punished for avoiding military service upon his return to Armenia would not be persecuted due to the fact that requirement that it was a law of general application.[55] Enforcement of a generally applicable law does not ordinarily constitute persecution and as a result such a law does not ordinarily constitute discrimination.[56] In Applicant A, Brennan CJ stated:

   … the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[57]

   [54]  MIMA v Yusuf (2001) 206 CLR 323 @ [55], [97]

   [55] ibid.

   [56] Applicant A v MIEA (1997) 190 CLR 225 at 258 (referred to Yang v Carroll (1994) 852 F Supp 460 at 467 & Chen Shi Hai v MIMA (2000) 201 CLR 29@ [20]).

   [57]  Applicant A v MIEA (1997) 190 CLR 225 at 233.

2. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook) states:

   ‘Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.[58]

   [58] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019) (Handbook) at [56].

3. In this case the Thai Constitution[59] refers to the fact that every person ‘shall have a duty to serve in armed forces.’ As referred to above every Thai male is registered for military service and at the age of twenty-one (21) they are screened for physical disabilities and recruited for service via a lottery system.  All men aged 21 to 30 are liable for a two years' military service, with reservist duties applying afterwards. Buddhist monks, students in certain technical studies and naturalised students are exempted. Volunteers for military service, depending on a person’s education level serve less time being between six and 18 months. Volunteer soldiers with a bachelor's degree are in service for only six months and those who have diplomas or have completed the second year of the army's territorial defence training serve only one year.

   [59] Chapter 4 of the 2007 Constitution of Thailand

4. Its reported[60] that draft evasion is widespread. In 1999, it was reported that an estimated 30,000 persons evaded conscription with corruption being widespread for the purposes of avoiding military service. Pursuant to s.25 in conjunction with s.44 of the Military Service Act, failing to report oneself upon notice, can be punished with not more than 3 months imprisonment or a fine of 300 Thai Baht (approximately $AUD12.19)[61] or both. Section 27 and s. 45 of the Military Service Act provide that not attending military service upon selection can be punished with imprisonment of not more than 3 years. In this case the applicant confirmed to the Tribunal that he had failed to report for his military service and as such would be liable to the three-month imprisonment and/or fine of 300 Thai Baht. He maintained that upon his return he would be required to complete his military service.   

Military service as a legitimate purpose

[60]

[61] Calculated at .014 AUD to 1 Baht as at 5 August 2021prices provided by Morningstar 

1. It was open to the applicant to argue that conscription in Thailand is discriminatory in nature because it it targeted toward males of a certain age (that is between twenty-one (21) and thirty (30) years of age). The determination as to whether a national law can properly be regarded as appropriate and adapted for a legitimate purpose regard is given to international human rights standards as well as the laws and culture of the country.[62] In Chen Shi Hai v MIMA, it was stated that:

   ‘[w]hether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.’[63]

   [62] Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [45].

   [63]   Chen Shi Hai v MIMA (2000) 201 CLR 293 at 303.

2. The Military Service Act 1954 that requires that all men are required for present for national service upon which they are selected via the draft lottery. The process by which candidates are selected through the lottery system applies equally to all those eligible for military service and does not involve systematic and discriminatory conduct toward the applicant.

3. In Applicant S the High Court, notwithstanding the fact that it did not find the Taliban’s conscription policy  legitimate, observed that the objective of a conscription policy is to protect the nation as a legitimate national objective. [64]  As referred to above, the Thai military’s obligation (amongst other things) is to protect the sovereignty and territorial integrity of the Kingdom of Thailand. The Thai Constitution refers to the fact that it is the Thai people’s duty to service in the armed forces as provided by law. In these circumstances, the Tribunal finds that Thailand’s requirement of targeting able body males between twenty (21) years of age and thirty (30) years of age military service is appropriate and adapted to achieving the legitimate national objective of protecting the sovereignty and territorial integrity of the Kingdom of Thailand.

   [64] Applicant S v MIMA (2004) 217 CLR 387 at [47]–[49] & per McHugh J at [83].

4. The Tribunal accepts that the applicant has not serviced his military service and that he may be punished for failing to complete his military service, there is no evidence to suggest that the fact that the applicant would be punished for failing to present for his military service would constitute non-selective enforcement of a generally applicable law by the Thai authorities. While this would constitute systematic conduct, it is not discriminatory conduct toward the applicant personally. The laws that provide for punishment for avoidance of military service are appropriate and adapted to achieving a legitimate object of the Thai state. There is no evidence that the applicant would be targeted or treated differently for any reason expressed in ss.5J(1)(a) in the application of the laws relation to military service or as to any punishment for having avoided such service. 

5. Accordingly, the Tribunal finds that, in the event that the applicant is detained and punished for having failed to complete his military service it is as a result of the general law of Thailand and does not constitute discriminatory conduct against the applicant or his family. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution under s.5J of the Act if he is returned to Thailand.

Risk of physical, mental and sexual abuse during military service

1. The second applicant claimed that the applicant would be subjected to physical, mental and sexual abuse during military service. The applicants did not provide any evidence of direct knowledge of such abuse but did provide article by Amnesty International  in which abuse was reported in the military. Amnesty International  reported that conscripts into the Thai military have faced institutionalised abuse that has been covered up by the military. Recruits are said to have been subjected to physical mental and sexual abuse at the hand of commissioned officers, NCOs and trainers.[65] The Bangkok Post has reported human rights violations against draftees, as part of a culture of punishment. It reports that conscripts are transferred to work as servants or "service soldiers" at officers' and retired officers' homes. It reported in the past decade there have been nine reported cases that had been made public and claims that many others may have gone unreported.[66] While the government is not known to have prosecuted successfully any members of the security forces, Thai authorities have provided financial compensation to the victims or their families in exchange for their agreement not to pursue criminal prosecution against abusive officials[67].

   [65]  Amnesty International. ‘We Were Just Toys to Them; Physical, Mental, and Sexual Abuse of Conscripts in Thailand's Military’ dated. March 2020; Bangkok Post, Transform conscription to national service 30 September 2017 BY JOHN DRAPER & SIWACH SRIPOKANGKUL Human Rights Watch, Thailand: Army Conscript Beaten to Death, 4 April 2017, available at: 2 August 2021]

Nevertheless, Amnesty International reports that military service is seen as an opportunity for many, particular in rural communities, as young men are given the opportunity to develop skills and receive a monthly income. [68]

[68]  ibid

Therefore, based on the country information the Tribunal accepts that human rights violations do occur within the military services in Thailand. However, such action is not reported as being systematic or discriminatory in their nature. Rather, such acts have been performed by individuals within the military services on a random and opportunistic basis rather than as a coordinated, systematic, or discriminatory approach. As such there is no evidence that the applicant as a recruit will be persecuted in systematic or discriminatory manner upon serving his military service upon his return to Thailand. As a result, the Tribunal finds that the applicant does not have a well-founded fear of persecution as a result of serving of performing his military service upon his return to Thailand.   

Economic claims

1. The Tribunal has considered if there is any real chance that the applicant and the second will suffer serious harm arising from their economic situation for the reasons mentioned in s.5J(1)(a), upon being returned to Thailand in the foreseeable future. The second applicant’s evidence was that she did not want to return to Thailand because the economy in Thailand was bad. Her evidence was that the applicant and her had no work in Thailand and no money. He evidence was that she feared that applicant would be detained or arrested upon being returned to Thailand. As a result, he would not be able to work. The second applicant claimed that in Thailand a person needs a high level of education to be employed. Having not completed her college education, her evidence was that she would not be able to find employment or at least employment that would allow her to support herself.

2. The Tribunal accepts that the applicant and the second applicant were motivated to come to Australia to study and find employment to look after themselves and their families. However, the Tribunal does not accept that there is a real chance that the applicant or the second applicant will be seriously harmed if they are returned to Thailand.  The applicant and the second applicant are both youthful, fit, and motivated. They have been able enough to find work in Australia on a permanent basis. This strongly supports the evidence of [Witness C] (the applicants’ employer) that both the applicant and the second applicant have a good work ethic. As such, likely to be able to find employment in Thailand.  

3. The county information[69] reports that Thailand has experienced a high level of economic and social development in recent times. Since 2011 Thailand has been classified by the World bank as an upper middle-income economy. It has the second largest economy in South East Asia with the major economic sectors being services, manufacturing, and agriculture. [70] The current government was elected in May 2019 on an economic platform that included increased welfare and minimum wage improved health care and education and to assist agriculture workers.[71]  

   [69] DFAT Report @ p.10

   [70] ibid

   [71] ibid

4. Its reported that Thailand unemployment rate is among the lowest in the world at approximately 0.7 per cent.[72] Although the official unemployment rate does not include the large number of undocumented migrant workers in the country. More that half the labour force works in the services sector with approximately a third in agriculture and the balance in manufacturing.[73]

   [72] Op Cit @ p.11

   [73] ibid

5. Therefore, while the Tribunal acknowledges the applicant and the second applicant will face difficulties and challenges arising from finding work if they are returned to Thailand, it does not accept they will not be able to access paid employment given their overall motivation and work experience. The Tribunal acknowledges the second applicant fears that as a result of not having completed her college education she will not get a well-paid job and that she has the burden of generating an income for her family and that she has a genuine personally held fear regarding the cost of living being too high and the remuneration in low skilled work too low if he were to return to Thailand. This is particularly the case in circumstances where the applicant is likely to be required to complete his military service. However, the Tribunal has placed considerable weight on the country information that the Thailand economy is growing, is a sophisticated economy and has a low official unemployment rate. For these reasons, the prospects of finding work in Thailand based on the applicant’s and the second applicant’s  circumstances does not amount to them facing a harm that could be considered serious harm, in the sense that the applicant or the second applicant or their family will experience significant economic hardship or that they would be denied the ability to earn a living to the extent that would threaten their capacity to subsist or that they will be denied access to basic services,[74] In this case the Tribunal has not treated the instances of serious harm under section 5J(5) of the Act as definitive.

   [74]   Section 5J(5) of the Act

6. Accordingly, the applicant and the second applicant do not have a real chance of serious harm arising from their economic circumstances for reasons mentioned in s.5J(1)(a) or any other claimed reasons, if she was to return to Thailand from Australia, now or in the reasonably foreseeable future.

1. Having regard to all the circumstances and findings above, considered individually and cumulatively and having considered s5J of the Act alongside the available country information, the Tribunal finds that the applicant will not be persecuted in the event that he returns to Thailand for any reason pursuant to s5J(1)(a) of the Act. That is, the Tribunal finds that he does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason, and therefore does not have a well-founded fear of persecution.

2. As such, the Tribunal is not satisfied that the applicant or the second applicant are people in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

1. In considering whether the applicant and the second applicant meet the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.  In this case, the Tribunal accepts that the applicant is a citizen of Thailand and that Thailand is the ‘receiving country’ for these purposes.

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment as a result of him being punished for not having completed his military service and as a result of being required to complete his military service if he is returned to Thailand. While the Tribunal has had some difficulty with the applicants’ evidence as a result of the delay in making his protecting visa application and as to the validity of the warrant supplied to the Tribunal, the Tribunal has accepted that he had not completed his military service as claimed.   Nevertheless, for the reasons expressed above the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Thailand, there is a real risk that he will suffer significant harm on the basis that he has failed to complete his military service as claimed.

   Military Service- -risk to the general population