1918158 (Refugee)

1918158 (Refugee) [2021] AATA 3960 (30 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1918158

COUNTRY OF REFERENCE: Thailand
MEMBER:Roslyn Smidt
DATE:30 August 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 August 2021 at 9:16 AM
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – victims of loan sharks – forgery – government actions against loan sharks – applicant’s business dissolved – loans without any collateral – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
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 1 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant, who is citizen of Thailand, applied for the visa on 4 April 2019.
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 (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.
BACKGROUND
The applicant is [an age]-year-old man from Thailand. He is separated from his wife.
The applicant arrived in Australia on student visa [in] July 2011. He returned to Thailand for a month in June 2015, for about two weeks in May 2016, and finally from [February] 2019 to [March] 2019.
CLAIMS AND EVIDENCE
In his initial application the applicant claimed that after he departed Thailand, someone forged his name and took out a loan with a loan shark who belongs to a large criminal enterprise sometimes called the Thai mafia. The loan shark is now demanding he repay the loan. He cannot afford this and he fears he will be assaulted or killed if he returns to Thailand. He will not be protected.
The applicant was provided with an opportunity to provide additional evidence in support of his application prior to the delegate’s decision but failed to do so.
The delegate found that the applicant was not entitled to protection in Australia because he could access effective protection in Thailand.
In her decision the delegate provided a detailed overview of the situation in relation to loan sharks in Thailand. She noted evidence which states that household debt is common in Thailand and around 15% of households resort to loan sharks to cover these debts. Such loans are readily available but come with a high interest rate and in most cases require collateral such as property or vehicles or other assets which may be seized if repayments are not made. She also noted evidence that the Thai authorities had implemented a number of measures to address the problems associated with loan sharks in recent years including increasing the provision of welfare, providing greater access to legal loans and increasing channels for debtors to file complaints against illegal lenders. Criminal lawsuits have been filed against major loan‑shark operators who demand illegal interest rates and increased penalties have been imposed for some illegal activities. In some instances, victims have successfully used the courts to ensure they repay no more than the legal interest rate. The delegate noted that while there were numerous problems with law enforcement in Thailand, the police had have had significant success in actions against loan sharks in recent years. Actions taken have included seizing and freezing assets, raiding the offices of loan sharks, and returning hundreds of title deeds for land and other assets which had been held as collateral by loan sharks to people who had taken out loans.
A copy of the delegate’s decision was provided to the Tribunal.
The applicant attended a hearing of the Tribunal on 26 August 2021.
I asked the applicant about his life in Thailand. He said that he had worked as [an Occupation 1] prior to leaving Thailand in 2011 and he had been involved in sales. He has never owned a home or assets of any value in Thailand.
I noted that the applicant had claimed that he was at risk of harm in Thailand because someone had taken out a loan in his name without his permission. He confirmed that this was correct. He said that someone he used to work with had taken out a loan for 1 million baht (about AUD42,000) using his name. I asked how this had been done. He said that before leaving Thailand, he and two other men had owned [a] company and the company had taken out the loan in 2016, and as he was one of the owners he was involved with the loan.
The applicant’s evidence regarding how this loan was obtained and how he came to be responsible for the debt was confused. He said that in 2014 the company bought some equipment which they were to pay for in instalments. They were unable to pay these instalments and in 2016 they took out a loan to cover these costs. They were unable to provide any collateral because the company had no assets. The loan was based on trust and the value of the company itself. The company was dissolved shortly after this.
Nothing had been paid to the loan shark at that time the company was dissolved, so the applicant then took out a loan in his own name with another loan shark. This appears to have occurred in 2016. I asked why he had done this. He said that the others were unqualified and he did not want to have his reputation spoiled. He also spoke about a case of some kind which appears to have been linked to cheating by the company and indicated that he needed to repay the first loan to avoid problems with the government because he had not paid his tax and because he was concerned that the Thai government would force him to return to Thailand.
I asked the applicant how he had obtained a loan to pay off the debt incurred by his partners. He said he obtained a high interest loan from a loan shark. He was not asked for collateral. It was done on trust. He speculated that the loan shark thought he would be able to pay because he was in Australia. He also said that he had not taken out a single loan for the entire amount but had taken out three loans worth about [amount] baht. However, the debts were all with the same loan shark. He said that he had made payments on this loan until 2019, but these payments had only covered the interest and none of the principal had been repaid. He stopped making payments after his visit to Thailand in 2019.
I asked the applicant what he feared would happen to him if he returned to Thailand. He said that he did not the government. He feared that the loan sharks would harm him. He said that they had contacted him through his sister and warned that if he did not pay the loan, he would be harmed in some way.
I asked the applicant why he had not sought help from the Thai authorities as it appeared that they could provide some assistance. He said that he had wanted to repay the loan, but it was too much. I asked again why he had not approached the Thai authorities for assistance if he was being threatened. He said that the situation was very bad and his evidence was not strong enough.
I advised the applicant that I had difficulty accepting his claims. I noted that his evidence during the hearing was significantly different from the evidence he had provided to the Department. He said that his claims were not inconsistent and any differences were the result of his lack of English language skills. I also advised him that I had difficultly accepting that he would have taken out a large loan to repay a debt which had been incurred in his name without his consent and that I had difficulty accepting that a loan shark would have loaned him or his business a large sum of money without any collateral or some evidence of their ability to repay the amount borrowed. The applicant maintained that his claims were true.
FINDINGS OF FACT
I did not find the applicant to be a truthful or a credible witness.
In the first place, there are significant differences between the claims the applicant made in his initial application and the evidence he provided at the hearing. According to his initial statement, someone forged his name and took out a loan with a loan shark after he left Thailand. According to his evidence to the Department, a business which he owned with two others took out a large loan in 2016 which he was jointly responsible and he r took out loans to repay this loan because the company had dissolved and could not make the payments. The applicant claims that any differences between this initial application and his evidence at the hearing are the result of his poor English language skills. I do not accept this explanation. He had resided in Australia for nearly eight years when he applied for protection, most of it while on student visa and studying English or in English. I do not accept that he lacked the language skills to provide a reasonably complete and accurate account of his claims in his initial application. I believe there are inconsistences in his evidence because his claims are untrue.
Secondly, the applicant’s evidence at the hearing was confused and unconvincing. For example, when I asked why he had taken out a loan to cover a debt incurred without his knowledge or consent, he said that it was because the other parties to the loan did not have qualifications, because he was concerned for his reputation and because of problems related to cheating by the company and his own non-payment of taxes. While these reasons are not necessarily mutually exclusive, the applicant appeared to be suggesting alternative explanations, and I found his failure to provide a coherent account of his reasons for taking out loans to repay the original debt a strong indication that he was not providing a truthful account of events. Furthermore, I find the claim that he took out a loan which he clearly did not have the capacity to repay in order to clear a debt incurred by others in his name or partly in his name implausible.
Thirdly, I found the applicant’s claim that loan sharks provided large loans to his company and later to him as an individual without any collateral or evidence of their capacity to repay their loan implausible. As noted above, the evidence suggests that loan sharks normally require collateral in the form of title deeds for property or other guarantees. In reaching this conclusion, I have noted his claim that no collateral was needed because he was charged a high interest rate. The evidence suggests that borrowers are charged high rates of interest even with collateral. I have also considered his claim that the loan shark assumed that he was wealthy because he was in Australia. However, I do not accept that a loan shark would have agreed to provide a loan of over AUD40,000 to someone who was not even in the country without some form of security or evidence of ability to pay. And I do not accept that the applicant would have been able to overcome this problem by taking out three separate loans with the same loan shark.
While some of the problems with the applicant’s evidence are relatively minor and considered in isolation would not have caused me to reject his claims entirely, others are more serious, and overall, I found his evidence unconvincing and lacking in credibility. After considering all of the evidence, I do not accept that the applicant owes 1 million baht to a loan shark in Thailand. It follows that I do not accept that he genuinely fears harm from loan sharks in Thailand or that there is a real chance that he would experience serious or significant harm on return to Thailand because he owes money to loan sharks.
There is no suggestion that the applicant fears harm in Thailand for any other reason. I am therefore not satisfied that he faces a real chance of experiencing serious or significant harm for any reason if he returns to Thailand now or in the reasonably foreseeable future.
DOES THE APPLICANT MEET THE REFUGEE CRITERION?
I am not satisfied that the applicant faces a real chance of suffering serious harm for any of the reasons in s 5J(1), if he returns to Thailand now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution in Thailand for any of the reasons set out in s 5J(1).
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?
I am not satisfied that the applicant faces a real risk of suffering significant harm on return to Thailand for any reason. Therefore, I am not satisfied that 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.
CONCLUDING PARAGRAPHS
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.
Roslyn Smidt
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.
…

[2021] AATA 3960

30 August 2021

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice