1918119 (Refugee)

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.