1918119 (Refugee) - [2024] AATA 2754

1918119 (Refugee) [2024] AATA 2754 (2 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1918119
COUNTRY OF REFERENCE:                   Thailand
MEMBER:David James
DATE:2 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 July 2024 at 9:08am

CATCHWORDS
REFUGEE – protection visa – Thailand – borrowed large amount of money from gangsters – attacked and threatened, house damaged and equipment taken – police inaction – fear of beating, injury or death – no past harm or approach to police conceded at hearing – country information – effective law enforcement available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 5L, 5LA, 36(2)(a), (aa), (2A), (2B)(b), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 July 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Thailand, applied for the visas on 11 October 2018. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees as defined by s 5H of the Act and was therefore not satisfied that the applicants were persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Thailand, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 6 July 2019. The applicants provided a copy of the delegate’s decision with their application for review.
As noted above, the applicants provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] AATA 2754
Decision Date: 2 July 2024

CaseChat Overview and Summary

The applicants sought review of a delegate's decision to refuse their protection visas. The dispute centred on whether the applicants had a well-founded fear of persecution in Thailand, or a real risk of suffering significant harm upon return, due to their inability to repay a large debt to gangsters. The applicants claimed they had been attacked and threatened in Thailand, and feared further violence, injury, or death if returned, believing the Thai authorities would not provide effective assistance due to corruption.

The court was required to determine two primary issues. First, whether the applicants had a well-founded fear of persecution for one of the five prescribed reasons under section 5J(1) of the Migration Act 1958 (Cth), and if there was a real chance of such persecution occurring upon return to Thailand. Second, if they did not meet the criteria for refugee status, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Thailand, there was a real risk of the applicants suffering significant harm as defined in section 36(2A) of the Act.

The court considered documentary evidence, including the applicants' visa applications, pre-hearing information forms, and country information from the Department of Foreign Affairs and Trade (DFAT). The DFAT report indicated that while Thailand has laws against loansharking and corruption, these issues are widespread. It noted that loan shark operators include criminal gangs and corrupt officials, and that enforcers use various methods of coercion, including violence. The report also highlighted that while avenues for state protection exist, they can be ineffective, particularly when the alleged loan shark is a high-ranking or powerful individual, and that corruption within law enforcement is a serious and widespread problem. The Tribunal noted that the "real risk" test for significant harm imposes the same standard as the "real chance" test for well-founded fear.

The Tribunal affirmed the delegate's decision. It found that while loansharking and corruption are prevalent in Thailand, the available country information suggested that effective protection measures were available to the applicants. The Tribunal was not satisfied that the applicants had established a well-founded fear of persecution or a real risk of significant harm upon return to Thailand, considering the existence of legal frameworks and agencies designed to combat loansharking and corruption, despite their acknowledged limitations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicants were returned to Thailand they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and those submitted by the applicants to the Department and the Tribunal relating to the applicants’ claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:·The applicants’ protection visa application lodged on 11 October 2018 and the annexed copies of the applicants’ Thai passports; ·The applicants’ application for review of 6 July 2019 and the annexed Decision Record of 1 July 2019;·The applicants’ ‘Pre-hearing information form’ submitted to the Tribunal on 26 March 2024, in which the applicants’ recorded their ‘Claims for protection’ as being:We are afraid to go back to Thailand because before we came to Australia we were attacked and threatened if we didn’t’ return their money. Especially now that we have a [child] who is only [Age] years old, we are afraid that [s/he] will be insecure about this, therefore I will be request you to consider allowing us to continue living in Australia.And,·The administrative and movement records of the Department relating to the applicants.Claims for protection The applicants, in their visa application, made the following claims (as summarised) that:·They came to Austrlia on tourist visas because they had borrowed a large sum of money from gangsters and because they had no job and could not make any money in Thailand they could not repay the gangsters;·They did not try to move to another part of their country as “this is a matter of my parents and at that time I in Australia and until now continue to my studying, so the cases happened when I was already in Australia”; and·They fear returning to Thailand as they will be found by the gangsters and could be beaten, injured or killed and they do not believe the authorities will assist them as they are corrupt.As outlined above at paragraph 16, the applicants in their ‘Pre-hearing information form, further claimed that:·We are afraid to go back to Thailand because before we came to Australia we were attacked and threatened if we didn’t’ return their money. Especially now that we have a [child] who is only [Age] years old, we are afraid that [s/he] will be insecure about this, therefore I will be request you to consider allowing us to continue living in Australia.Department interview The applicants were not offered interviews by the Department.Delegates decision

Decision

Reasons for decision

The applicants were not offered interviews by the Department.Delegates decision The delegate’s decision of 1 July 2019 to refuse the protection visas was made on the information before the delegate. The delegate with reference to country information found that there are effective protection measures available to the applicants in Thailand and as such the applicants do not have a well-founded fear of persecution. Therefore, the delegate was not satisfied that the applicants met the criteria in s 5H(1) of the Act, and therefore they were not refugees. The delegate also found with reference to country information that the applicants could obtain, from an authority of Thailand, protection such that there would not be a real risk that the applicants will suffer significant harm as outlined in s 36(2B)(b) of the Act. Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Thailand, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act. Invitation to attend a hearing On 22 May 2024, the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 26 June 2024 at 9:30 am. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice. Country information The Tribunal has taken into account the DFAT Country Information Report Thailand, 18 December 2023 as relevant, including information under the heading of ‘Corruption’ at 2.27 to 2.30, it is reported that:Thailand is a signatory to the United Nations Convention Against corruption (CAC) (see Human Rights Framework) and has an outwardly strong legal framework to prevent and eliminate corruption. Nevertheless, corruption thrives in Thailand, ranked 101 out of 180 countries in Transparency International’s 2022 Corruption Perceptions Index. In 2020 (the most recent available figures), Transparency International found that a quarter of Thais had paid a bribe to access public services in the previous year, and 40 per cent of Thais thought the police were mostly, or all, corrupt.It is common to pay bribes or use personal connections to obtain identity documents (see Documentation), enrol children in school and escape traffic fines. Contributing factors include low public sector wages, a culture of gift exchange when doing business, and a tendency to view corruption as the actions of ‘bad individuals’ rather than as a systemic social or political issue.Local and foreign observers report that high-level corruption is common among senior officials, politicians, and the military. Despite justifying its overthrow of the Yingluck government with a promise to end corruption, the military-backed Prayuth government was involved in numerous scandals, including revelations the Deputy Prime Minister had accumulated an undeclared USD 685,000 (AUD 1 million) luxury watch collection, a lottery scam implicating a senior aide to the Prime Minister, and irregularities in the procurement of Chinese submarines by the Thai navy.The National Anti-Corruption Commission (NACC) is empowered to investigate allegations of corruption against politicians, judges, and government officials. Critics allege the NACC is highly politicised, and that it has ignored or dismissed alleged malfeasance by military-backed governments while aggressively pursuing complaints against their political opponents.Under the heading of ‘Victims of loan sharks’ at 3.112 to 3.118, where it is reported that:Loan sharking is a serious and widespread problem in Thailand, where it accounts for an estimated 20 per cent of total lending. At least half of those who owe money to loan sharks also have debts with formal lenders. In many cases, victims owe money to multiple lenders and borrow from one lender to pay off another. Victims range from factory workers and day labourers to small-scale farmers, economic migrants, and operators of SMEs. Loans range from as little as THB 3,000 (AUD 120) to THB 1 million (AUD 40,000) or more.Loan sharks typically charge extremely high interest, often calculated daily. For instance, a victim may take out a THB 5,000 (AUD 200) loan on which they must pay THB 125 (AUD 5) interest per day for 25 days, at which point they must repay the principal in full, an interest rate of more than 60 per cent. Borrowers often receive considerably less than the nominal amount borrowed: a victim may borrow THB 10,000 (AUD 400) and only receive THB 7,200 (AUD 300) due to ‘deductions’ charged by the loan shark.Small borrowers often hand over bank cards or identity documents as collateral. Farmers tend to secure their loans against land deeds. Many loans are not secured against assets, however, are guaranteed by a relative or village headman. Loans which are secured against assets, such as farm machinery, are typically easier to settle if the borrower defaults, since the lender can repossess the asset to pay off the debt. Military personnel sometimes fall victim to loansharking by senior officers, who lend them money to assist with the corrupt purchase of ranks; they are reportedly expected to repay their debts through further corruption.Loan sharking operators include criminal gangs, wealthy individuals, and corrupt officials. Some employ former police officers – known as ‘black helmets’ – as enforcers. Enforcers use a variety of methods to coerce borrowers into repaying their debts, including verbal harassment and threats of legal action, as well as vandalism, such as supergluing the locks on a property so the victim can’t access it. They may also use doxxing or post notices around a person’s workplace or home that they are a ‘bad person’ who doesn’t pay their debts. At the higher end, enforcers seize assets such as TVs and rice cookers, burn down victims’ homes or businesses, make violent threats (including sexual threats) against victims, family members and guarantors, and carry out physical attacks. DFAT is aware of cases where victims were severely beaten or forced into drug trafficking or sex work to repay their debts. Suicide rates among victims are high.Thailand criminalises loansharking under Civil Code 156, which limits the maximum interest chargeable on loans to 15 per cent, and Civil Code 2560, which makes loansharking a criminal offence, punishable by two years in prison. Loansharking victims can access support through agencies including the police, the Ministry of Interior and the Prime Minister’s Office. Victims can also contact the Center for Countering Abuse by Loan Sharks on a 24/7 hotline. Police investigate loansharking claims and loan sharks are regularly arrested and imprisoned: for instance, more than 100 people were arrested on suspicion of loansharking in the first half of 2022.Despite these protections, in-country sources reported that victims were often unaware of how to seek help, authorities were under-resourced to combat loansharking, and their efforts were often poorly coordinated. Corruption is a serious obstacle and local officials are often involved in loan sharking or turn a blind eye to it. It can be difficult or impossible for victims to access state protection where the alleged loan shark is a high-ranking official, military or police officer, or local powerbroker.DFAT assesses that victims of loan sharks are at high risk from criminal gangs of verbal, social and online harassment, and at moderate risk of violence, including assault, arson, and vandalism. While avenues exist to seek state protection, these are sometimes ineffective, especially where the loan shark is a high-ranking or powerful individual.Under the heading of ‘Police’ at 5.5 to 5.10, it is reported that: The Royal Thai Police (RTP) is the national police force of Thailand. It is governed by a Director-General who reports to the Office of the Prime Minister. The RTP employs an estimated 220,000 officers. The Metropolitan Police Bureau is responsible for policing in Bangkok, while the Provincial Police Division is responsible for policing in the remaining 76 provinces. The Border Patrol Police, a 40,000-strong paramilitary force, has special responsibility for policing in border areas, including combating insurgencies and suppressing transnational crime. Other RTP bodies include the Central Investigation Bureau (CIB); Narcotics Suppression Bureau; Police Education Bureau; Tourist Police Bureau; and Immigration Bureau.In October 2018, a new 1,600-strong police unit was created called the Ratchawallop Police Retainers, King’s Guards 904. This unit provides security to the royal family, carries out the king’s ‘royal wishes’, and collects information on ‘individuals and groups whose behaviours pose a threat to national security and the monarchy’. The effectiveness of Thai police at responding to criminal incidents varies. In-country sources reported that parts of the RTP were highly effective, including those involved in investigating drug trafficking and human trafficking and undertaking ‘kill or capture’ missions against dangerous criminals. Police at junior levels are low-paid and provide much of their own equipment, including their own guns. It is reportedly common for police to extract confessions under intimidation or torture to secure convictions. Some police supplement their income by moonlighting as security guards, while others are involved in illegal activities such as trafficking.Despite pledges by successive governments to tackle police corruption, it remains a serious, widespread problem. Efforts to reduce corruption among police have generally focused on encouraging “honest” behaviour by individual officers rather than addressing systemic issues. It can be difficult or impossible for a victim of crime to seek justice and protection from police when the perpetrator is a high-ranking or powerful individual. In September 2023, the RTP was widely criticised in Thai media following 25 officers’ failure to prevent (and possible collusion in) the murder of another officer who had reportedly refused to improperly transfer the relative of a local powerbroker.There are credible, well-documented reports of human rights abuses by Thai police, including torture and mistreatment, arbitrary detention and extra-judicial killings. People can file complaints of police abuse with the superior of the accused police officer, with the Office of the Inspector General, or with the Police Commissioner General. The NHRCT, the Lawyers’ Council of Thailand, the Office of the National Anticorruption Commission, the Supreme Court of Justice, the MOJ, the Office of the Prime Minister, and the Office of the Ombudsman also accept complaints of police abuse and corruption. Complaints about police abuse rarely result in punishment. Investigations are often superficial, and complainants are sometimes countersued for defamation by police.And under the heading of ‘Department of Special Investigations (DSI)’ at 5.11 and 5.12, it is reported that:Formed in 2002, the Department of Special Investigation (DSI) is a 1,600-strong investigative unit that sits within the Ministry of Justice and operates independently of the RTP. The DSI has a statutory remit to investigate serious crimes in the public interest, including complex criminal cases, those affecting national security, those involving organised crime, and those potentially implicating high-ranking government officials or police officers. It is empowered to instigate its own enquiries. Although the DSI is reportedly a well-funded and highly capable organisation, DSI officers are occasionally accused of corruption and misconduct. In January 2023, the head of the DSI was removed from his post, after reportedly failing to act against five DSI officers accused of accepting THB 9.5 million (AUD 400,000) in bribes to release 11 suspected Chinese gangsters operating from the former Nauru Consul General’s residence.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEIssues The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicants were returned to Thailand they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and those submitted by the applicants to the Department and the Tribunal relating to the applicants’ claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:·The applicants’ protection visa application lodged on 11 October 2018 and the annexed copies of the applicants’ Thai passports; ·The applicants’ application for review of 6 July 2019 and the annexed Decision Record of 1 July 2019;·The applicants’ ‘Pre-hearing information form’ submitted to the Tribunal on 26 March 2024, in which the applicants’ recorded their ‘Claims for protection’ as being:We are afraid to go back to Thailand because before we came to Australia we were attacked and threatened if we didn’t’ return their money. Especially now that we have a [child] who is only [Age] years old, we are afraid that [s/he] will be insecure about this, therefore I will be request you to consider allowing us to continue living in Australia.And,·The administrative and movement records of the Department relating to the applicants.Claims for protection The applicants, in their visa application, made the following claims (as summarised) that:·They came to Austrlia on tourist visas because they had borrowed a large sum of money from gangsters and because they had no job and could not make any money in Thailand they could not repay the gangsters;·They did not try to move to another part of their country as “this is a matter of my parents and at that time I in Australia and until now continue to my studying, so the cases happened when I was already in Australia”; and·They fear returning to Thailand as they will be found by the gangsters and could be beaten, injured or killed and they do not believe the authorities will assist them as they are corrupt.As outlined above at paragraph 16, the applicants in their ‘Pre-hearing information form, further claimed that:·We are afraid to go back to Thailand because before we came to Australia we were attacked and threatened if we didn’t’ return their money. Especially now that we have a [child] who is only [Age] years old, we are afraid that [s/he] will be insecure about this, therefore I will be request you to consider allowing us to continue living in Australia.Department interview