1918119 (Refugee)

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 records the delegate’s decision to refuse the applicants protection visas having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicants appeared before the Tribunal on 26 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicants were not represented 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.
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 when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
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 EVIDENCE
Issues
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
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.

The Tribunal has also considered reports of recent police operations targeting loan sharks in Thailand including the report of ‘Asean Now’ of 15 June 2024, titled ‘Cyber Police Bust Laon Shark Charging 3% Daily Interest’ in which it is reported that:
In an extensive operation, cyber police arrested an online loan shark who was charging an exorbitant 3% interest rate per day, using threats and public shaming as intimidation tactics. The clampdown revealed numerous incriminating items linked to the illegal venture.
The operation, overseen by Cyber Police Chief Worawat Watnakornbancha, stemmed from a search warrant issued by the Trang Provincial Court. The raid, executed in Trang Province, led to the apprehension of 22-year-old Nichanan. Seized items included a mobile phone, 35 loan agreements, customer lists in six notebooks, and nine posters advertising fast loans.
Nichanan is accused of running a high-interest loan business without authorization. The investigation began when Cyber Police Division 5 discovered a Facebook account offering loans with an illegal daily interest rate of 3%, targeting individuals for amounts up to 100,000 baht. Non-payment was met with threats, public shaming on Facebook, or property destruction.
The cyber police tracked and identified the Facebook account and its owner, leading to the raid. Nichanan is now in custody at Sikao Police Station, facing charges and further investigation.
This operation is part of a broader initiative to eliminate illegal loan practices and protect citizens from predatory lenders. Authorities are committed to ensuring financial businesses conform to legal frameworks, thus safeguarding individuals from exploitative financial practices.
In a related matter, a mother faced with a staggering debt of 2.6 million baht, resulting from a 10,000 baht loan taken 12 years ago for her child's school fees, highlights the severe impact of excessive interest rates. The debt spiraled out of control, prompting the mother to seek aid through the "Survive – Sai Mai Must Survive" Facebook page.
The crackdown and related stories underscore the increasing threat posed by online loan sharks exploiting vulnerable individuals through social media. The authorities are determined to prevent such exploitation through continued vigilance and enforcement.[1]
[1] ‘Cyber Police Bust Loan Shark Charging 3% Daily Interest’, Asean Now, 15 June 2024, at >
The Tribunal also notes that the Business & Human Rights Resource Centre’s, 19 September 2022 article, ‘Thailand: Many fall prey to loan sharks during pandemic due to lack of access to legitimate loans’ indicates that the Royal Thai Police continue to mount successful anti loan shark operations. It is in part reported in this article, that:
In June 2020, three months into Thailand’s COVID-19 lockdown, the Royal Thai Police established the Center for Countering Abuse by Loan Sharks after receiving increasing complaints from victims reporting physical intimidation.
So far, police have investigated more than 7,000 cases. The center’s hotline had received about 4,000 calls a month for eight months ending in June, but could only respond to a quarter of them because of a lack of resources.
Still, police arrested 833 loan shark suspects in those eight months, froze 254 bank accounts, impounded hundreds of cars and motorcycles and seized 1.49 million baht ($49,780) in cash. The center estimated the value of assets confiscated to be more than 31 million baht ($852,600)…[2]
[2] ‘Thailand: Many fall prey to loan sharks during pandemic due to lack of access to legitimate loans’, 19 September 2022, Business & Human Rights Resource Centre, at -of-access-to-legitimate-loans/
Review hearing – 25 June 2024
The Tribunal hearing was conducted at the Brisbane Registry in the English and Thai languages.
The Tribunal explained to the applicants that the hearing would consider the applicants’ application for a protection visa afresh. The first applicant in reply to the applicants being questioned by the Tribunal as to their understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria told the Tribunal that the criteria had not been explained to them, and so they did not have an understanding of the criteria.
The Tribunal then provided a brief outline of the refugee and complimentary protection criteria to the applicants, who then through the first applicant acknowledged that they understood the criteria.
The first applicant under questioning told the Tribunal that they (the applicants) had arrived in Melbourne, Australia on tourist visas [in] August 2018 and upon a friend recommending them they had obtained employment on a small [workplace] in the suburb of [Suburb 1] for about six months. He told the Tribunal that after the [specified period] finished, he and the second applicant moved to [City] where he worked on a [workplace] for a year or so before they moved to [Town] where they continue to live and where he works on a [workplace] while the second applicant works as [an occupation] at nearby [Suburb 1].
The first applicant told the Tribunal that prior to travelling to Australia he was a farmer working his family’s rice farm in the Kamphaneg province of Thailand. He explained that his elderly parents still reside on a small plot on the family farm and his [brother] lives and works elsewhere. He told the Tribunal he had borrowed some money and because he had not kept up with the repayments the remainder of the family farm had been forfeited to their neighbour a loan shark who had leant them 5 million Thai Baht, which he said was roughly the equivalent of AUS $ 220,000.00. He told the Tribunal that the family farm had been seized by the loan shark in 2019, after they had travelled to Australia and had stopped making loan repayments.
The first applicant told the Tribunal that they had come to Australia because they could not make the repayments on their loan. He explained that as a rice farmer there were droughts and other expenses and they found themselves unable to make regular repayments, so they decided to escape and find ways to make money here in Australia. He further explained that in Thailand they could not earn enough money from the farm and there were no other occupations open to them that would allow them to make the repayments on their loan.
Under questioning, the applicant told the Tribunal that they had originally borrowed 1.7 million Thai Baht and then a further 2 million Thai Baht to fund new business ventures. He explained that a loan agreement was entered in to with the loan shark, a wealthy local neighbour whose nickname was ‘[Nickname]. The agreement provided for monthly repayments of 20,000 Thai Baht per 1 million Thai Baht of the debt and offered the applicants’ farmland as collateral.
The first applicant told the Tribunal that they had not started their new business as they had spent the money that they borrowed on other things including running their family rice farm, so they borrowed further amounts from the loan shark in accordance with their agreement and their principal debt increased to 5 million Thai Baht.
Under further questioning the first and second applicants told the Tribunal that as they were unable to make the regular payments some representatives of the loan shark came to their farm and threatened them with harm and damaged their house, a tractor and took some of their property.
The second applicant told the Tribunal that they had at one stage reported these incidents to the local police who took no action because there had been a loan agreement between the applicants and the loan shark. Under questioning, the applicants told the Tribunal that they had not further pursued their complaints with the police or made any complaints about the police response but instead decided to leave Thailand for Australia so they could obtain employment and earn a better income.
Under questioning the first applicant told the Tribunal that he and the second applicant had not been harmed in Thailand, but they had been the subject of threats of harm by the loan shark. He further explained that notwithstanding having stopped making repayments six months after arriving in Australia the loan shark had not harmed his parents although he had taken possession of most of the family farm except the plot where his parents reside in their house. He further told the Tribunal that the loan shark had since their departure from Thailand occasionally called upon his parents and enquired as to whether the applicant had or was intending to return to Thailand.
The Tribunal then discussed the DFAT and other country information as has been outlined above at paragraphs 21 to 23, and in particular highlighted the efforts of the Police in Thailand and the Ministry of Justice’s Department of Special Investigations in relation to loan sharks, organised crime and corruption. In reply, the first applicant told the Tribunal that he was not sure whether the Thai authorities could protect them from harm if he and the second applicant and their child returned to Thailand.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Vietnam and provided a copy of the bio data page of his Vietnamese passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Vietnam. Vietnam is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[3] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[4] This is consistent with the established proposition that it is for the applicant to make his or her own case.[5]
[3] Section 5AAA of the Act.
[4] Ibid (with effect from 14 April 2015).
[5] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[6] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[7]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[6] Fox v Percy (2003) 214 CLR 118
[7] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[8] A similar approach is taken in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[10] which both provide useful guidance for this Tribunal.
[8] SZLVZ v MIAC [2008] FCA 1816 at [25].
[9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[10] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal having had the benefit of the observing the applicants give oral evidence and answer the questions before the Tribunal at the review hearing found that the applicants gave evidence consistent with their claims and answered questions promptly and with sufficient detail for the Tribunal to satisfy itself of the facts of their matter. In that regard, the Tribunal found the applicants to be honest reliable witnesses and accurate historians as to their experiences in Thailand and the arrangements that they entered into with the informal money lender (loan shark) and their difficulties in repaying their loan.
Debts to a loan shark – particular social group (PSG) – ‘victims of an illegal money lender (loan shark) threatened with harm and demands for repayment of a loan’– refugee claims
The applicants claim that they came to Australia because they had borrowed a large sum of money from a loan shark and because they did not have jobs and could not make any money in Thailand they could not repay the loan shark. Although they did not try move to another part of their country or pursue complaints to the Thai authorities they fear returning to Thailand as they believe they will be caught by the loan shark and could be beaten, injured or killed and they do not believe the authorities will protect them as they are corrupt.
At the hearing, it was the first applicant’s evidence, that was also adopted and accepted by the second applicant, that after entering into a loan agreement with a local loan shark in which they agreed to make monthly repayments of 20,000 Thai Baht they had over a period of time drawn down further funds resulting in them owing a principal balance to the loan shark of 5 million Thai Baht. They told the Tribunal that they had offered the family rice farm as collateral on the loan and after being unable to meet their repayments they had escaped Thailand for Australia. Once in Australia they initially continued to make repayments for about six months and after that time the loan shark seized the majority of the family farm leaving one plot of land and the family home with the first applicant’s parents.
The applicants told the Tribunal at the hearing that they had not been harmed by the loan shark and/or his agents but that they had been threatened by them prior to them having escaped to Australia. They further told the Tribunal at the hearing that although they had not been harmed, agents of the loan shark had damaged some of their property at the family farm and taken some items from the farm because of their non-payment of their agreed loan repayments.
Under questioning the applicants claimed to have reported this conduct to the local police who given the existence of a loan agreement did not take any action. However, when pressed by the Tribunal the applicants also agreed that they had not further pursued their complaints with the police and did not make any complaints to other authorities about the apparent inaction of the local police.
Having accepted the applicants’ evidence as to their debt to the local loan shark and having been subjected to threats and some property damage and theft after they had been unable to continue making loan repayments as had been agreed, the Tribunal has considered the provisions of s 5L of the Act. Section 5L of the Act provides that a person is to be treated as a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic, and that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
In its consideration of the information and evidence before it, the Tribunal finds that the applicants can be found to be members of a PSG, being ‘victims of an illegal money lender (loan shark) threatened with harm and demands for repayment of a loan’.
However, given the applicants evidence, that; first, they had only been threatened with harm and not harmed in Thailand, and; that the first applicant’s parents had not been threatened and/or harmed notwithstanding the loan shark having taken possession of the majority of the family farm which had been offered as collateral on the loan. And second, that the applicants’ evidence was that they were not sure, what if anything, would happen to them if they returned to Thailand in circumstances of not being able to repay the loan. Together with the country information as has been outlined above at paragraphs 21 to 23; the Tribunal finds that there are effective protection measures available to the applicants in Thailand.
In this regard, the Tribunal finds that such protection measures are as is outlined in s 5LA of the Act. The Tribunal finds that the applicants notwithstanding that there is some corruption within the Thai police can access such protection and such protection is durable and it consists of an appropriate criminal law, a reasonably effective police force which is complemented by the Ministry of Justice’s Department Special Investigations and an impartial judiciary. Further, given the media articles outlined above at paragraphs 22 and 23 the Tribunal finds that the authorities in Thailand have shown a continued willingness and success in combatting loan sharks such that the applicant would not face a real chance of persecution involving serious harm on account of their membership of the PSG being ‘victims of an illegal money lender (loan shark) threatened with harm and demands for repayment of a loan’.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicants do not face a real chance of persecution involving serious harm if they were in the reasonably foreseeable future to return to Thailand.
The Tribunal finds that the applicants’ fears in this regard are not well-founded.
Complementary protection considerations
Additionally, the Tribunal has separately considered whether the applicants will face a real risk of suffering significant harm as a result of their loan and inability to repay same to a local loan shark.

In this regard, the Tribunal notes, as has been outlined above at paragraphs 50 and 51, that although the DFAT country information indicates that there is some corruption in the police, law enforcement and judiciary systems of Thailand there is no information and/or evidence before the Tribunal to suggest that the applicants will not be able to avail themselves of protection from the Thai authorities if they so needed to do so, in relation to their debts to a local loan shark so that they would not be at a real risk of suffering significant harm as defined in s 36(2A) of the Act, s 36(2B)(b) of the Act.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, that there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicants’ claims of fear of persecution in their entirety and having considered all of the applicants’ claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. Therefore, the Tribunal finds that the applicants do not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicants’ fears of persecution are not well-founded as required by s 5J of the Act and therefore the applicants are not refugees within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicants are eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s’ claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicants meet the refugee criterion, and that the applicants if they so need to do so, can obtain protection from an authority of Thailand, that it is also not satisfied that the applicants meet the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicants satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicants do not meet the refugee and complimentary criteria and do not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicants have a right to enter and reside in a country other than Thailand.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David James
Senior 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.
…

[2024] AATA 2754

2 July 2024

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