1917944 (Refugee)

1917944 (Refugee) [2022] AATA 1198 (28 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917944
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Amanda Paxton
DATE:28 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 February 2022 at 10:34am
CATCHWORDS
REFUGEE – protection visa – Thailand – race – Yao tribe – particular social group – member of an under-privileged class of people – threats of harm by loan shark – theft of farming produce – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Thailand, applied for the visa on 1 September 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act).
On 4 July 2019, the applicant validly applied to the Tribunal for review of the delegate’s decision to the Tribunal, attaching the delegate’s decision record and notification of the Department’s decision.
The applicant appeared before the Tribunal on 24 January 2022 to give evidence and present arguments. The hearing was scheduled to be held by videoconference via MS Teams as COVID-19 pandemic restrictions were in place. However, at the request of the applicant’s representative who was having difficulties with the video technology, the hearing proceeded by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.
The telephone audio was clear throughout the hearing. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing. The applicant indicated that he was satisfied he was able to hear and understand and give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. At commencement of the hearing, the applicant’s representative advised the Tribunal that the applicant’s first language is a dialect of the Yao people, a hill tribe in the Chiang Rai Province. However, the applicant indicated to the Tribunal that he understands and speaks Thai and both the applicant and the interpreter confirmed they had no difficulties understanding each other. The applicant was encouraged to seek clarification if that was necessary at any time. He did not make any such request. On a few occasions the interpreter sought clarification from the applicant. However, these clarifications were not related to language issues. At the end of the hearing, the applicant indicated he was satisfied the interpreting was accurate and the Tribunal was satisfied that the applicant had communicated his claims, and presented evidence and arguments.
The applicant was represented at hearing in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of persecution for a particular 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 of 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 sufficient 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: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
CONSIDERATION OF CLAIMS AND FINDINGS
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in Thailand and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Written claims for protection
In his Form 866C, Application for a protection visa, the applicant states he left Thailand because he had a loan from a person and that when he paid the money, they charged him big interest. He claimed he could not afford to pay the interest which kept on increasing. When he could not pay, they beat him and took things from him. He fears that when he can’t pay the interest every month they will come and beat him.
According to his Form 866C, the applicant sought help by going to the bank to get a loan, but they didn’t approve. He tried to move to another part of the country to seek safety, but they still looked for him and hired a gangster to search for him.
The applicant believes that if he returned to Thailand, he will be harmed and treated as a slave if they catch him.
He does not think the authorities can protect him. He tried to make a report when they came and beat him, and usually the authorities come late and can’t do anything.
The applicant does not think he can relocate within Thailand because he tried to move and they still chased him, therefore he moved to Australia so that he can find his own life and where he feels safe.
Post-hearing submission
In a post-hearing submission of 7 February 2022,[1] the applicant’s representative submitted the following.
[1] AAT 1917944, Doc Id. 94111675, 7 February 2022.
·     The applicant is a member of the Yao people of the highlands of China, Thailand, Vietnam, Lao and Myanmar, a group that has been subject to persecution and systematic harassment inflicted by the state bureaucracy and the society.
·     The Yao are mostly migratory farmers, who largely lack education and carry on a subsistence lifestyle. In the applicant’s case, he was not educated, and he could not express himself well in Thai; he could only speak Chinese (Yunan dialect).
·     The applicant’s oppressed social status led to his poverty which in turn led to his borrowing from loan sharks, which finally led to his being persecuted and harassed. It is submitted that DFAT information does not explain the situation of hill tribe farmers who are caught in debt traps set up by loan sharks and tolerated by local governments, these farmers turn to loan brokers for quick credits during planting (low) seasons and are expected to pay off the loans when crops were harvested.
·     Lenders are willing to lend because not only are loans secured (usually over land deeds), but farmers will always commit to sell to the lender (in this case he has become the buyer of the harvested crops).
·     The DFAT Country Report does not mention this monopsonist relationship; as supply is inelastic, the buyer (who is also the lender) dictates price, and borrowers like the applicant naturally would default his loan.
·     The applicant was personally hounded and harassed; and when he escaped Thailand, all the members of his family, [number] siblings, have been stalked and harassed and suffered too.
·     The applicant’s land was sold off and the title deed would be recycled in another new case of loan sharking.
·     The applicant’s debt was not extinguished when he fled Thailand. He is being hounded and harassed in Australia by his debtors from Thailand.
·     He will never ever be able to pay off the borrowed [amount] Thai baht when he returns to his home country.
·     The state cannot and will not protect him.
·     The applicant’s representative submitted that there is a real risk the applicant will be subject to significant harm on return to Thailand and that he is claiming protection under Australia’s complementary protection provisions.
Relevant Country information
In the following assessment, the Tribunal has taken into account country information provided by the DFAT Country Information Report for Thailand (‘the DFAT Report’), dated 10 July 2020.[2]
Victims of Loan Sharks
3.115In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.
3.116So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.
3.117DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.
[2] DFAT Country Information Report Thailand, 10 July 2020 [3.115 – 3.117].
Analysis and Reasons
At hearing, the applicant told the Tribunal that he was not sure whether the contents of his application were correct because his friend had helped him complete it and he was not able to communicate to his friend very well.
The applicant confirmed details provided in his Form 866C, that he was born on [date], in [village], Chiang Rai Province, that he speaks, reads, writes Thai and Chinese. At hearing he indicated that he is a member of a hill people, later identified by his representative as Yao people.
The applicant stated his parents have passed away but the is in touch with his step-mother sometimes. He told the Tribunal he has two siblings who live in Chiang Rai Province, brothers who have married out of the family.
As indicated in his Form 866C, the applicant gave evidence that he has divorced since coming to Australia in 2018. The Tribunal noted that no children are identified in his application, but he said the has three [children]. His children, students, live with their maternal grandmother and he is in touch with them. He stated he would return to this area if he had to return to Thailand to be near his children.
The applicant stated that he did not finish school but as the oldest brother he worked growing [produce] on a farm in the hills of Chiang Rai, Thailand, so his younger siblings could go to school.
The applicant said he came to Australia on a tourist visa valid for three months which did not permit him to work. When he arrived, he had some pocket money with him, so he rented a house and when heard that the government had a refugee visa he applied. He has been working on a [farm] since his arrival.
Yao background and language
On the oral evidence of the applicant it, the Tribunal accepts he is a member of the Yao hill people from the north of Thailand. On the same basis, the Tribunal accepts the applicant is not well educated and that a Chinese dialect is the applicant’s first language. Relevant to the conduct of this hearing and the applicant’s ability to give evidence and present arguments, the Tribunal has considered the post hearing submission that the applicant could not express himself well in Thai and could only speak Chinese (Yunan dialect).
In this consideration, the Tribunal takes into account that in the hearing response of 21 January 2022, completed by the applicant’s representative, request is made for assistance at hearing in Thai language. The Tribunal also takes into account that at hearing the applicant and interpreter stated that they did not have any difficulties understanding each other in Thai. While noting that at times the interpreter stated he did not understand what the applicant was trying to say, the interpreter stated this was not because he could not understand the applicant’s language but because his responses were confused. The Tribunal observed that the applicant discussed and responded appropriately to questions about his personal circumstances, his children and life crop farming in the hill country, simply but clearly in Thai. On the evidence before it, the Tribunal is satisfied the applicant and interpreter were able to communicate clearly in the Thai language.
As discussed at hearing, in assessing the credibility of the applicant’s claims, the Tribunal gives weight to the applicant’s oral evidence at hearing, and that, as below, the Tribunal had concerns about the credibility of the applicant’s evidence which was limited, shifting and containing significant omissions and internal inconsistencies. The Tribunal acknowledges that the applicant may not have been articulate at hearing, but for the reasons given above, the Tribunal is satisfied that these concerns could not be explained by language difficulties at hearing.
Fear of harm from a lender outside the banking system (loan shark)
The loan
The applicant told the Tribunal that he came to Australia because he had a loan at that time, and he was too afraid to live in Thailand. He said he fears return to Thailand because he may be harmed by a loan shark because he has not paid his loan.
The applicant gave evidence that when he was [age] (around 2015) he took out loans outside the banking system in order to invest in his agricultural crop because he needed money for pesticide and also for buying the seeds for the [Product 1] crop. He stated he borrowed [amount] Thai Baht (about AUD $[amount]) from a loan shark in his local neighbourhood. When the Tribunal commented that this appeared to be a very large amount to borrow for pesticide and seeds, he said he borrowed so much because he planned to expand the area of his crop and he knew of another hill tribe person who had borrowed from this person. As someone else had borrowed that amount, he wanted to borrow that too. The Tribunal notes the applicant’s reasons for taking the loan shifted over the course of the hearing, leading the Tribunal to hold concerns about the credibility of the nature of the applicant’s claimed loan. The Tribunal also considers the reasons the applicant provided for borrowing this large sum of money are unconvincing. The Tribunal finds it difficult to believe that the applicant, a small farmer who by his own account did not have the capital on a year-to-year basis to buy seed for his crop, would borrow such a large sum of money which would be difficult to repay from [a Product 1] crop for the reasons he provided, raising further doubts about the credibility of this claim.

The applicant stated that there were no terms for repayment of the loan but there was an interest rate of 30 percent. In response to the Tribunal’s observation that this interest rate appeared very high, the applicant stated he does not know why he agreed to this but suggested it was because someone else borrowed at a rate of 30%. He said he agreed to grow the crop and return the money to the person he borrowed from on the sale of the crop. The Tribunal finds it difficult to believe that the applicant would take out a loan of [amount] Thai baht on the basis of repayment of interest at the high rate of 30% because someone he knew had borrowed at this rate. This raised further doubts in the mind of the Tribunal about the credibility of this claim.
The Tribunal asked the applicant whether he had to provide anything as security for the loan and he responded, “no, nothing.” The applicant told the Tribunal that he did not own his land and did not have a title but that he leased it from the government. However, in submission at hearing, his representative said that the applicant had advised him that he had secured the loan of [amount] Thai baht against his land title. The Tribunal acknowledges that confusion in interpretation could arise between the terms, “title” and “lease”, but it concerns the Tribunal that when the applicant had opportunity to provide direct information about provision of a security, he stated that he did not provide one. The inconsistent evidence before it leads the Tribunal to doubt the reliability of the applicant as witness.
The theft of the applicant’s crop payment/contact with the police
The applicant stated that he planned to sell his produce ([Product 1]) and return the principal loan and interest to the lender. However, after he grew his [Product 1] crop and had given the produce to a buyer, the buyer disappeared with the payment from the sale of his [produce] so he could not repay the loan. The applicant said he did not report the theft to police when the buyer did not give him his payment for the crop because police in Thailand the police are not fair. At a later point at hearing, the applicant gave evidence that he did report the conduct of the buyer on this occasion. When the Tribunal asked what the police did, he made a confused response. The interpreter stated he found it difficult to interpret this response because it really did not make sense, not because he did not understand the words used. However, when the applicant was asked for more information, he stated that he went to the police, but they did not help him because he had no evidence that he sold the produce to the buyer. He stated that he had receipts for his transaction with the buyer, but he did not take these with him when he went to the police. The Tribunal considers the applicant’s responses in respect of reporting theft of his payment for this produce to be inconsistent.
The Tribunal takes into account the DFAT country information above, discussed with the applicant, that there is reportedly a strong overlap between loan sharks and police in rural areas, and that borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security, and the applicant’s comment that police in Thailand are different from police in Australia and that they like to take money from people and bully citizens. On this basis the Tribunal acknowledges that the applicant may have been reluctant to report his theft with police. However, overall, the Tribunal considered the applicant’s evidence about contact with the police when the buyer disappeared with his payment to be confused, inconsistent and implausible. These concerns lead the Tribunal to hold serious doubts about the credibility of the applicant’s claims in respect of the theft of payment for his crop.
Contact with/threats from loan shark
The applicant’s oral account of his dealings with the loan shark were inconsistent and confused. He said that when he told the loan shark what had happened to his crop payment and that he could not make the repayment, the lender said that he must find the money no matter what had happened. He tried to get money from the bank who agreed to lend him money but he could not find a guarantor required for a loan. When he told the loan shark he could not find the money, the loan shark said if he did not have money for him he would tell his underling to harm him. The Tribunal asked the applicant if he had any other contact with the loan shark after this time and he stated that he had not.
The applicant said that when he couldn’t find the money, the lender tried to find him but the applicant escaped to Chiang Mai province. He lived there for about two months but the loan shark managed to find him. He had no contact with the loan shark or underlings but he knows this because his friend told him that lender’s underlings were about to find him and say they might harm him, the lender threatening to use him as a slave.
The Tribunal mentioned that in his written application, it is stated that “they (the loan’s shark’s people) took things from him” and asked what this meant. He said the lender’s people went to his home and took some valuable items such as TV and motorcycle. He stated that this meant he had paid off his loan but not the interest. The Tribunal asked why he failed to mention this when the Tribunal asked about further contact with the loan shark. He said he had forgotten about this. As discussed with the applicant, the Tribunal finds this difficult to believe given the significance of this matter to his claims. It also concerns the Tribunal that this matter is relevant to the status of his claimed loan. The Tribunal formed the view that the applicant did not remember these events because they had not occurred as claimed.
In respect to the current status of the loan the Tribunal also notes that his representative submitted post-hearing that the applicant still owes the principal of [amount] Thai baht to the loan shark. It was also submitted post-hearing that the end result of the applicant’s dealings with the loan shark was that his land was sold off, but that the applicant’s debt obligation was not extinguished even after losing the land. At hearing the applicant told the Tribunal there was no-one working the land now. The Tribunal considers these claims are inconsistent with the applicant’s claims at hearing raising further concerns about the credibility of the applicant’s claims.
In submission at hearing and in post-hearing submission, the applicant’s representative told the Tribunal that the applicant had told him he had [number] siblings, and that they and the applicant’s children have been threatened by the loan shark. The applicant told the Tribunal that he did not mention that his family members had been threatened because he forgot. The Tribunal acknowledges that memory can lapse but, in this case, the Tribunal provided the applicant with prompts and opportunity to expand on his claims on a number of occasions and the Tribunal is not satisfied that the applicant would forget this important aspect of his claims if it was occurring as claimed.
In considering the applicant’s representative’s post hearing submission that the applicant is being hounded and harassed in Australia by his debtors from Thailand, the Tribunal takes into account the applicant’s evidence at hearing that he has had no further contact with the loan shark since a time prior to his departure. At hearing, the applicant was provided with opportunities to expand on contact with the loan shark and the basis for his fear of repercussions from failure to pay a loan debt on return to Thailand, but he omitted to did not provide this information. As discussed above, the Tribunal considers the applicant was able to communicate his evidence to the Tribunal at hearing and considers the shifting nature of his claims post-hearing raises concerns about the applicant’s credibility.
Findings in respect of the loan
The Tribunal has considered the totality of the evidence before it in respect of the applicant’s claim to fear harm from a loan shark, including the applicant’s evidence at hearing, submissions by the applicant’s representative and independent country information from DFAT. On the basis of the DFAT country information above discussed with the applicant that that short-term money lending through loan sharks is a common practice in Thailand, particularly in rural areas, the Tribunal accepts the applicant may have taken out loans with a loan shark in Thailand. However, considering cumulatively the various credibility issues outlined above, the Tribunal does not consider that the applicant has been truthful in his claims. On the evidence before it, the Tribunal is not satisfied as to any of the key substantive claims made by the applicant.
On this basis, the Tribunal does not accept that the applicant borrowed [amount] Thai baht from a loan shark on a 30% interest rate. The Tribunal does not accept that payment for the applicant’s [Product 1] crop was stolen by the buyer of his crop. The Tribunal does not accept that the applicant was denied assistance from the police for any reason. The Tribunal does not accept the applicant escaped the loan shark’s underlings by going to Chiang Mai province or by coming to Australia. The Tribunal does not accept the applicant has an ongoing debt of [amount] Thai baht or that a loan shark has pursued him to recover this loan, harassed and threatened him or that members of his family have also been harassed, or that he and family members continue to be harassed for this reason. The Tribunal does not accept the applicant’s land was sold and the title given to someone else. The Tribunal does not accept the applicant will be harmed and treated as a slave if they catch him.
After considering all of the applicant's claims in respect of fear of harm from a loan shark, both individually and cumulatively, the Tribunal does not accept there is a real chance the applicant faces serious harm if he were to return to Thailand now or in the reasonably foreseeable future, arising from his dealings with a loan shark. The Tribunal finds the applicant does not have a real chance of persecution for this reason if he returns to Thailand now or in the reasonably foreseeable future. On the same basis, the Tribunal does not accept the applicant has a real risk of significant harm at the hands of the loan shark on return to Thailand.
Fear of harm arising from his race/ membership of a particular social group.
In response to the Tribunal’s enquiry whether there was any other reasons or basis for the applicant to fear harm on return to Thailand, the applicant stated clearly that there is no other reason, except the debt and that he does not wish to return to Thailand yet. However, the applicant’s representative submitted that the applicant had not fully disclosed his situation and provided additional information as set out above.
The Tribunal has considered the claim that the applicant has been systematically harassed and persecuted, including mistreatment when seeking help from the police, because of his membership of an under-privileged class of people, the Yao people. It is submitted as evidence that his land has now been taken over by the lenders and yet he has not complained to the police for this reason. The Tribunal has considered whether the applicant has as a real chance of serious harm arising from persecution and mistreatment against him by authorities including police for reason of his race or social group as a member of the Yao people on return to Thailand.
As above, the Tribunal does not accept that the applicant has now lost his land or that he has not complained to the police for this or any other reason. However, the Tribunal sought comment from the applicant about DFAT’s assessment that, “While the traditional emphasis on Thai ethnic identity inevitably favours the ethnic Thai majority, DFAT assesses that ethnic minorities with Thai citizenship face a low risk of official and societal discrimination.” [3] The Tribunal put to the applicant that this information suggests that he would not receive poor treatment from the police as a member of the Yao hill people. The applicant agreed with this assessment, saying that “it is like that, that the ethnic minority live together with the majority.” The Tribunal considers this information, and the applicant’s evidence at hearing, supports the view that the applicant would not be denied police assistance for reason of his membership of a minority ethnic group, the Yao people. For this reason, the Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm on return to Thailand for reason of race or social group as member of the Yao hill people.
[3] DFAT, Country Information Report Vietnam, 11 January 2022, [3.4].
After considering all the applicant’s claims, both individually and cumulatively, the Tribunal is satisfied that if he were to return to Thailand there is not a real chance he will be seriously harmed for reason of his race, religion, nationality, political opinion or membership of any particular social group, now or in the reasonably foreseeable future. The Tribunal finds the applicant does not have a real chance of persecution if he returns to Thailand. The Tribunal finds the applicant does not have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act. For the same reasons the Tribunal is not satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
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.
…

[2022] AATA 1198

28 February 2022

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