1918234 (Refugee)
[2024] AATA 3168
•2 August 2024
1918234 (Refugee) [2024] AATA 3168 (2 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1918234
COUNTRY OF REFERENCE: Thailand
MEMBER:Don Smyth
DATE:2 August 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 02 August 2024 at 3:29pm
CATCHWORDS
REFUGEE – protection visa – Thailand – written claims of politics, economics, crime and terrorism – claim at hearing of international and inter-religious relationship – no political activity or past harm – country information – terrorist attacks generally limited to southern provinces, while applicant lived in city – legal freedom and societal tolerance for religion – disapproval and non-acceptance by family not serious harm – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2Any 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
BACKGROUND
The applicant claims to be a citizen of Thailand and has provided a copy of the bio data page of her Thai passport. I accept that she is a national of Thailand.
The applicant applied for a protection visa on 9 August 2018. On 8 July 2019, a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
The applicant appeared before the Tribunal on 26 June 2024 to give evidence and present arguments.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
According to information provided in the protection visa application, the applicant was born in Prachuap Khiri Khan in [Year].
The applicant indicated in the application that she had lived at an address in Prachuap Khiri Khan from [Birth] to August 2018 (although she gave evidence at hearing about having lived in Bangkok), and that she had never married. She described her ethnic group as Thai and her religion as Buddhism.
The applicant referred in the application to undertaking home duties and to ‘self financial support’. (She gave further information about employment at hearing, as discussed below).
The applicant indicated that she had arrived in Australia as a Visitor [in] May 2018.
The applicant made written claims in the protection visa application. With regard to her reasons for leaving the country, she listed the following: terrorist, serious crime, lost confident to the country leader and political issue.
The applicant indicated that she had not experienced harm in Thailand. She indicated that she had not tried to move to another part of the country, stating that the central and south of Thailand was more dangerous than the north. She referred to a lot of Islamic terrorist activity.
With regard to what she thought would happen if she returned to Thailand, the applicant referred to being jobless and being unable to survive. She stated that she worried she would be the victim of terrorism and of crime.
The applicant indicated that she did not think the authorities could and would protect her if she went back. In this regard, she stated, ‘APPLICANT EVER LODGED REPORT TO THE RELATED DEPARTMENT BUT HAVE NO FURTHER ACTION.’ With regard to relocation, the applicant stated that she would like to relocate after everything was fine.
On 8 July 2019, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa.
Review Application
The applicant attached a copy of the delegate’s decision to her review application.
In her Response to hearing invitation, the applicant nominated [Mr A], whom she identified as her spouse, as a witness. With regard to the evidence this person would give, she stated that another reason she could not go back to Thailand was that her relationship with her spouse was not acceptable to her family members. She referred to them being of different religions, indicating that he was Catholic and she was Buddhist. With regard to documents to be relied on, the applicant referred to ‘country information, terrorist, crime, lost of confident to the country leader’.
The applicant submitted additional material in support of the review application, including the following:
· An extract from Law No.1 concerning marriages in [Country 1].
· A document from the Consulate General of [Country 1] on intermarriage in [Country 1].
· A document from Yale Global Online referring to an insurgent movement within the Thai Muslim community that has led to over 200 deaths in southern Thailand ‘this year’. The article referred to the new Yala Islamic College which it described as a breeding ground for radical separatists and to Thai Muslims studying abroad. It described the Thai government as being slow to respond to the security threat. Included with this document was an article of 27 May 2004 entitled ‘Waking Up to the Terror Threat in Southern Thailand’ (apparently from The Straits Times) which stated, for instance, that ‘a Muslim separatist uprising has so far this year left more than 200 dead’.
· An article of 27 August 2018 from the Puey Ungphakorn Institute for Economic Research entitled ‘Economic Impact of Political Instability in Thailand’. This refers to matters such as political changes, political instability and political conflict. It refers to the impact of political conflict on the economy and analyses political uncertainty and sources of political uncertainty in Thailand. It analyses the impact of political uncertainty on the macro-economy and financial markets.
· An article of 24 May 2023 entitled ‘What’s Behind the Growing Number of Attacks in Southern Thailand?’ The article referred to matters such as a bomb blast in Yala province. It referred to attacks in Narathiwat, Pattani, and Yala provinces in April 2023, noting that, while they did not lead to any human casualties, the attacks brought an end to the ceasefire agreement between the insurgent group and the Thai government. The article referred to a prediction that the violence in insurgency-hit Southern Thailand was primed to escalate. It referred to the conflict in Southern Thailand having claimed more than 7,000 lives and injured an estimated 13,500 people. The article referred to matters such as the history of the separatist insurgency, peace talks and political developments in 2023.
· An article of 3 March 2022 from the Australian Army Research Centre entitled ‘Irregular Warfare Observations from Southern Thailand’. This referred, for instance, to the ongoing Malay-Muslim secessionist insurgency in Southern Thailand as ‘a cogent challenge to the legitimacy of the Thai state in the southern provinces of Yala, Narathiwat and Pattani, and adjoining districts of neighbouring Songkhla’. It described Thai authorities as being no closer to a solution than in the early stages of the conflict and refers to the Southern Thai conflict as ‘one of the most serious, and most deadly, contemporary insurgencies in South-East Asia’. It referred to any cessation of violence as a distant possibility. The article addressed a range of matters including the historical precursors to the insurgency, repression of the Malay ethnic identity group, the relative economic deprivation in the southern provinces, the Thai security response and political instability. The article stated, “Today the insurgency continues but is now categorised more by discriminant violence and retaliatory attacks… than large-scale unrest. Violence in the southern provinces is now accepted by the Malay population as ‘normal’,… with one person killed a day considered ‘tolerable’.” The article observed that the violence is generally contained within the southern provinces.
· A letter of 19 June 2024, addressed to [Mr A] and providing an account balance for an account in the name of the applicant and [Mr A].
· A bank statement for another joint account in the names of the applicant and [Mr A]. The account covers the period from 10 to 29 February 2024.
· Documents relating to various flights apparently taken by the applicant and [Mr A]. These included return flights between Cairns and Perth in April 2024, and return flights between Cairns and Melbourne in February 2024.
· A document headed ‘Granny Flat Rent / Agreement’. The document identifies the applicant and [Mr A] as residents at a granny flat in [Town]. The agreement was signed in February 2024.
While I have summarised aspects of the documentation above, I have given careful consideration to all of this material.
On 25 June 2024, the applicant provided a further written statement. In the statement, the applicant stated that the reason she was not safe and secure in Thailand was because of ‘Terrorist, lost confident to the country leader, political issue, demonstration’. She stated that there was a lot of Islamic terrorist activity in the centre and south of Thailand. She stated that she was worried she would be the victim of terrorism and crime. She stated:
The risk I’m afraid of the terrorism is I will be:
- Jobless
- Can’t survive
- Worry will be the victim of the terrorist
- Worry will be the victim of the crime
The applicant also referred to ‘the political issue about the country leader because the minister under the coups’. She stated that one day on the way back home there was a demonstration. She referred to being worried about safety and trying to report to the police. She claimed that they said there was nothing they could do and she had to try another way to go home. The applicant stated that, at that time, she felt that her life was not safe there any more.
The applicant referred to the following as facts about terrorism in Thailand in 2018:
- The security situation in Thailand's southern provinces of Pattani, Yala, and Narathiwat deteriorated in December 2018.
- The Malay-Muslim secessionist faction known as the National Revolutionary Front was accused of perpetrating attacks in January 2019.
- The attacks targeted educational, Buddhist, and law enforcement targets, as well as a hospital.
- The situation occurred as the ruling Thai military junta restarted negotiations with Mara Patani, an umbrella organization of Thailand’s Muslim rebels in the south.
The applicant stated that the political situation had been complex and tumultuous in recent years, and that this may have led to a loss of confidence in the country's leadership. The military coup in 2014, followed by the controversial constitution and elections, had resulted in a divided society and concerns about democracy and human rights. The applicant stated that, in 2018, the junta's handling of various issues, including the southern insurgency, economic growth, and human rights, may have further eroded confidence in the government. The lack of transparency, accountability, and political freedom had led to widespread discontent and criticism.
The applicant referred to political events in Thailand in 2018, including protesters rallying against a housing project for Ministry of Justice government officials in Chiang Mai; protests against military rule marking the fourth anniversary of the 2014 Thai coup d'état; Thailand executing its first death sentence in nine years via lethal injection; and the military junta delaying lifting restrictions on free expression, association and assembly. The applicant stated that even now ‘the contentious politics still keep going but not that extreme as before but it never ending because of power and conflict of interest motive’.
The applicant referred to political events in Thailand in 2024, including the following:
- The Constitutional Court is to decide on a petition to dissolve the Move Forward Party, which won the largest number of seats in the May 2023 general elections.
- Thailand held a general election on May 14, 2023, under flawed and unfair constitutional and legal frameworks put in place by the National Council for Peace.
- The reformist Move Forward Party (MFP) won the largest number of seats, but the military-appointed Senate blocked it from forming a government.
- Thailand’s Senate election in June will not be decided by universal suffrage; only those who run for a seat can vote.
- Former Prime Minister Thaksin Shinawatra faces charges of lèse-majesté under Section 112 of the Thai penal code.
- Prime Minister Srettha Thavisin faces scrutiny as 40 senators requested the Constitutional Court to determine if his term should be ended due to the appointment of Pichit Chuenban.
The applicant stated that she now had another reason she could not go back. She stated that she and her boyfriend were different religions. She was a Buddhist and he was a Catholic. She indicated that neither of the families accepted that. The applicant stated that almost every time they were on the phone, her family did not like her boyfriend. The applicant stated: ‘I’m scared if I go back to Thailand with my partner if I can handle the toxic from family people around in situation having they wouldn’t understand and their opinions or religious belief can be very sensitive topic to psycho you everyday’.
The applicant stated that in Australia she trusted that she would be safe and physically secure and have freedom to decide how or who she wanted to be. She referred to not having people around you to control or judge or criticise because ‘in Australia people respects others rights + Recognizes and appreciates the diversity of people and their individual rights ,open-minded embraces diversity, listens to different perspectives, and is willing to learn and grow which I don’t have these in Thailand’.
The applicant appeared before the Tribunal to give evidence and present arguments at a hearing on 26 June 2024. Although it is not necessary to set this out in full, I have had regard to all of the applicant’s evidence at the hearing. Aspects of this evidence are referred to in my consideration, below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
At hearing, the applicant gave evidence about aspects of her background and family in Thailand. In summary, she indicated that she was born in a small village (which she named) in Prachuap Khiri Khan in Thailand and that the village was about one hour by car from the town of Prachauap Khiri Khan. She indicated that she had been living in Bangkok for about 6 years before coming to Australia. She gave evidence that she studied [subject] at [Workplace] in Bangkok from 2007 to 2011. When asked whether she had been living in Bangkok at that time, she indicated that after her graduation from university she returned to live at home for less than a year. Then she went to work in Bangkok. The applicant gave evidence to the effect that she was studying and living in Bangkok from 2007 to 2011, that she went back to her village in Prachuap Khiri Khan province for less than one year after graduating and that she then moved to Bangkok. She said she worked in Bangkok and on days off she went home. She confirmed that she was in Bangkok from 2012 or 2013, and that she was there for about 6 years before she left Thailand. With regard to employment in Bangkok, she indicated that she had worked as [an occupation 1] in the [section] of a [workplace] in a shopping centre. She worked at the [workplace] for about 5 years and did this right up until the time that she came to Australia. She indicated that she had rented a room in Bangkok and that she lived there right up until when she left Thailand. I accept her evidence in this regard.
With regard to her family, the applicant indicated that her parents were still living in the village in Prachuap Khiri Khan, that they worked on a farm and they rented a parcel of land to grow pineapples. The applicant indicated that she had contact with her parents roughly once a week. She said when her sister came home she video called so they got to talk because her parents did not quite know how to use the phone. The applicant indicated that she had one [sister] and one [brother]. She indicated that her sister lived in a place about 45 minutes from the village, that she was not married and that she was [an occupation 2]. When asked whether she spoke with her sister once a week, the applicant said that she talked more often with her younger sister and her sister called when she had problems. She indicated that her younger brother was [Age], that he lived with her parents and that he was married with [children]. With regard to work, she indicated that he helped her parents. The applicant indicated that she rarely spoke with her brother and mostly talked to her younger sister. I accept this evidence about the applicant’s family composition and circumstances, and about her contact with members of her family.
At the hearing, the applicant also gave evidence about her relationship with the witness, [Mr A], whom she described as her boyfriend. In summary, she gave evidence to the effect that they lived together but had not registered their relationship. She indicated that she had known [Mr A] since May 2023, that they worked together in [Town], that they lived in a granny flat at an address in [Town] and that they had been living together for 4 months. She indicated that [Mr A] was from [Country 1], and that he was in Australia on a working holiday visa. She gave his age and date of birth, and provided information about his university study in [Country 1]. She gave evidence about use of a joint bank account, indicating that they would transfer money each week for shared expenses. She confirmed that they had gone on trips together to Perth and Melbourne. As set out above, the applicant has provided a letter of 19 June 2024 and a bank statement, both relating to joint accounts in the name of the applicant and [Mr A]. She has also provided documents evidencing travel by the pair to Perth and Melbourne in 2024, as well as a ‘Granny Flat Rent / Agreement’. [Mr A] himself attended the Tribunal hearing and gave evidence, as discussed further below. I accept on the basis of the evidence before me that the applicant and [Mr A] are in a committed relationship. I accept the applicant’s evidence about the history of the relationship and accept that they are currently living together in [Town], operate joint bank accounts and engage in activities together such as travel. I am willing to accept that [Mr A] is from [Country 1] and that he is a Catholic. As discussed further below, the applicant gave evidence that she and [Mr A] wished to get married.
The applicant indicated at the hearing that she arrived in Australia [in] May 2018 and that she travelled on a visitor visa. When asked whether she had ever travelled outside Thailand previously, the applicant referred to having worked for a company there and said there were company trips to [Countries 2-4]. The applicant indicated that she was referring to the [workplace] for which she had worked for 5 years. She said it was like an annual party for employees. I accept her evidence about her arrival in Australia and her past travel. I accept also that she has not returned to Thailand since arriving in Australia.
Place to which the applicant is likely to return
As a preliminary matter, I have considered the question of the place in Thailand to which the applicant is likely to return.
Having carefully considered all of the applicant’s circumstances and all of her evidence, I find that it is likely that she would return to Bangkok and have assessed her claims on this basis. As discussed above, the applicant’s evidence indicated that she was studying and living in Bangkok from 2007 to 2011, that she went back to her village in Prachuap Khiri Khan for less than one year after graduating and that she then moved to Bangkok, living there for about 6 years before leaving Thailand. She worked there in a [workplace] for about 5 years right up until the time when she came to Australia. While it may be that she also visited her family in the village, I find that she lived in Bangkok for about 6 years before leaving Thailand and that she had been working there for about 5 years before coming to Australia. When I initially raised with the applicant at hearing whether it was likely she would return to Bangkok, the applicant confirmed this. Later, in the context of discussing economic matters, the applicant said that, if the economy was bad, people would move to the big cities and that would mean she would have to go to her hometown province. However, I do not accept this. As discussed further below, notwithstanding that there are some economic challenges in Thailand, I find to be remote the chance that the applicant would be jobless and unable to survive if she were to return to Bangkok. While DFAT has referred to some economic challenges in Thailand (as discussed below), I do not accept that such matters would mean that the applicant would have to return to the village or would cause her to do so. Having regard to all the circumstances, I find that Bangkok is the place the applicant would return to. It is the place where she went to find work in the past and where she lived and worked for a number of years before coming to Australia.
Terrorism in Thailand
I note that, when asked at the hearing about why she did not want to return to Thailand, the applicant said during the first year it was about terrorism and the political situation in Thailand that were not safe and were unstable. When asked about whether she was still worried about terrorism, the applicant said that about terrorism it was not as extreme as in the past but the political situation was illegitimate. When asked whether it was correct that she had not experienced harm in Thailand in the past, the applicant confirmed that this was right and said ‘no serious harm’.
At the hearing, I referred to aspects of the reports the applicant had given me in relation to terrorism and noted that these referred, for instance, to the security situation in Thailand’s southern provinces of Pattani, Yala and Narathiwat. I noted that there were reports in the material she had given me of attacks in those three provinces, including in 2023. I noted that one of the articles she had given me observed that the violence was generally contained within the southern provinces.
I also discussed with the applicant the gist of information from DFAT’s Country Information Report of December 2023. I noted, for instance, that DFAT stated the security situation in Thailand was generally stable with 2 exceptions, the ongoing insurgency in the southern border provinces (SBPs) and periodic political demonstrations that sometimes resulted in violence. It stated that Thailand’s SBPs of Pattani, Yala and Narathiwat had been affected by an armed insurgency since the 1940s. It stated that sources reported that the situation in the SBPs had improved significantly in recent years. DFAT assessed that civilians from both Malay Muslim and Thai Buddhist communities faced a low risk of violence from both state authorities and insurgent forces.[1] DFAT stated also that, while large-scale attacks were rare, terrorism was an ongoing concern in Thailand. It stated that most incidents related to the insurgency in the SBPs. DFAT did report that terrorist attacks had occasionally occurred in Bangkok and other major cities. In this regard, it referred to explosions in Bangkok in August 2019, bombings in popular tourist destinations in 2016 and a bombing at a shrine in Bangkok in 2016.[2] I also raised with the applicant that the US Department of State Country Reports on Terrorism for 2022 for Thailand stated that violence was limited to attacks attributed to ethnonationalist insurgents in the country’s Deep South, comprising the southernmost provinces of Pattani, Narathiwat, Yala, and parts of Songkhla. The State Department stated that violence levels in the Deep South in 2022 remained low and violence remained confined to Thailand’s southernmost provinces.[3] I put to the applicant that neither Bangkok where the applicant lived before she came to Australia nor Prachuap Khiri Khan would appear to be within those SBPs. After the gist of this information was put to her, the applicant said she understood that there was nothing serious right now but said that she was concerned that in the future those will happen again or not.
[1] DFAT, DFAT Country Information Report: Thailand (18 December 2023) at pp.11, 21 & 22
[2] Ibid. at p.11
[3] US Department of State, Country Reports on Terrorism 2022: Thailand
I have carefully considered all of the evidence in relation to this matter, including the reports provided by the applicant. I have had regard also to events referred to in the applicant’s submission as facts about terrorism in Thailand in 2018, including that the security situation in Thailand’s southern provinces of Pattani, Yala, and Narathiwat deteriorated in December 2018, that the Malay-Muslim secessionist faction known as the National Revolutionary Front was accused of perpetrating attacks in January 2019 and that this situation occurred as the military junta started negotiations with Mara Patani. I note that the articles submitted by the applicant include the document from Yale Global Online, and the articles entitled ‘Waking Up to the Terror Threat in Southern Thailand’, ‘What’s Behind the Growing Number of Attacks in Southern Thailand?’ and ‘Irregular Warfare Observations from Southern Thailand’. I accept that the material points to a long-running and violent insurgency in the south of Thailand and have had regard to the violence documented in the reports. I note, for instance, that the report from the Australian Army Research Centre referred to the ongoing Malay-Muslim secessionist insurgency in Southern Thailand as ‘a cogent challenge to the legitimacy of the Thai state in the southern provinces of Yala, Narathiwat and Pattani, and adjoining districts of neighbouring Songkhla’. It observed that the violence was generally contained within the southern provinces. This is consistent with the US Department of State country report on terrorism for 2022 which indicated that violence was limited to attacks attributed to ethnonationalist insurgents in the country’s Deep South, comprising the southernmost provinces of Pattani, Narathiwat, Yala and parts of Songkhla. The State Department indicated that violence levels in the Deep South in 2022 remained low and violence remained confined to Thailand’s southernmost provinces. As noted above, DFAT referred to Thailand’s SBPs of Pattani, Yala and Narathiwat as having been affected by an armed insurgency since the 1940s, but indicated that the situation in the SBPs had improved significantly in recent years. While it indicated that terrorism was an ongoing concern, it also reported that large-scale attacks were rare. It stated that most incidents related to the insurgency in the SBPs.
I am conscious that DFAT has reported that terrorism is an ongoing concern and that terrorist attacks occasionally occur in Bangkok and other cities. However, DFAT has also reported that large-scale attacks are rare. I note the claim by the applicant to the effect that the centre and south of Thailand have a lot of terrorist activity. However, I accept as reliable information such as that from the US Department of State’s 2022 report indicating that violence was limited to attacks attributed to ethnonationalist insurgents in the country’s Deep South, comprising the southernmost provinces of Pattani, Narathiwat, Yala, and parts of Songkhla. While the applicant has referred to the centre and south of Thailand as being more dangerous, the available information does not indicate that either her family’s village in Prachuap Khiri Khan or Bangkok are in those southernmost provinces that are reported to be particularly affected. I have found that the applicant would return to Bangkok. While I have had regard to the concerns expressed by the applicant about the future, I note that the DFAT information indicates that the situation in the SBPs has improved significantly in recent years. Having carefully considered all of the available information, I do not accept, looking to the reasonably foreseeable future, that terrorism in Thailand gives rise to a real chance that the applicant would suffer serious harm in Thailand. I am not satisfied that it gives rise to a real chance that the applicant would be persecuted for any of the reasons in s 5J(1)(a). Nor do I accept that terrorism gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk that the applicant will suffer significant harm.
Political Issues
As set out above, the applicant raised concern at the hearing about the political situation not being safe and stable. When asked about this, the applicant said that, even though the election had passed, it did not go according to the majority votes. When asked why she thought she would face a real chance of serious harm or significant harm, the applicant said that, if she went back to work in Bangkok, the political status would be that people might come out to protest again because they wanted to fight for democracy but the military government would not accept that. She said they did not want to lose their power. She confirmed that it was likely she would return to Bangkok if she had to go back to Thailand. When asked what made her think she would suffer serious or significant harm if she went back, the applicant referred to an event that occurred after work but said she was unsure when exactly this happened. She said she was on her way and she encountered a group of protesters. She said she tried to tell the authorities about this but they could not do anything about it and told her to change her course. The applicant indicated, when asked, that she had not been involved in politics.
I raised with the applicant at hearing the gist of information from DFAT’s December 2023 Country Information Report. I noted that DFAT said, for instance, that Thailand held national elections on 14 May 2023, for the second time since the restoration of democracy in 2019. The Asian Network for Free Elections described the elections as being ‘well-run’ and ‘mostly free and fair’. DFAT also reported that the progressive Move Forward Party won the most seats, although it could not secure sufficient support from the military-appointed senate to form government, and that Pheu Thai eventually took government at the head of a coalition which included military-backed parties it had previously sworn to exclude. DFAT referred to some problems such as human rights activists criticising the government for its frequent use of judicial harassment to silence critics. It stated that the space for political expression was generally wider under civilian government than military ones. Since Thailand’s return to democracy in 2019, Thai politics had featured robust exchanges of political views, and criticism of the government had been common and accepted. DFAT assessed that ordinary citizens were generally not at risk of official or societal discrimination or violence on the basis of political opinion, with the exception of critics of the monarchy, although it did assess that groups such as opposition politicians, protesters and whistleblowers faced risks on the basis of political opinion.[4] The applicant did not offer any comment after the gist of this information was put to her.
[4] DFAT, Country Information Report Thailand (18 December 2023) at pp.6, 9, 10 & 15
In considering the applicant’s claims, I have had regard also to the applicant’s submissions in relation to political matters. I note the political events in 2018 referred to by the applicant in her written submission to the Tribunal, including protests against a housing project, protests marking the fourth anniversary of the 2014 coup, the execution of a death sentence and delay by the then military junta in lifting restrictions. I accept that these events occurred. I note also the matters referred to by the applicant in her submission as ‘the latest political developments in Thailand in 2024’ and accept that the matters in those dot points have been reported. I note the applicant’s submissions about the military junta’s handling of various issues. I note the applicant’s submissions with regard to matters such as division in society and concerns about democracy and human rights, and her submissions to the effect that lack of transparency, accountability and political freedom had led to widespread discontent and criticism. I note also the report from the Puey Ungphakorn Institute for Economic Research on the economic impact of political instability in Thailand. I accept that there has been political instability in Thailand and that there have been ongoing political issues in Thailand as reflected, for instance, in concerns around the conduct of this year’s senate elections.[5] I note the applicant’s submissions to the effect that there is greater freedom and respect for rights in Australia than Thailand. I accept that there are ongoing concerns around matters such as democracy in Thailand and accept that there has been some division and discontent as reflected in DFAT’s reporting of periodic political demonstrations.
[5] See, for instance, S Phasuk, Thailand’s Upcoming Senate Election Fundamentally Flawed, Human Rights Watch (2 May 2024)
I note the applicant’s written claims about losing confidence in the country’s leader and political issues. However, the applicant’s evidence indicates that she has not been involved in political activity in Thailand. I do not accept that she has in any way engaged in political activity in Thailand or that she has any interest in being involved in politics. It may be that there was an event in which the applicant encountered a group of protesters and was advised by authorities to change her course. However, I do not accept on the evidence before me that she in any way suffered serious harm or significant harm in this event. While I am conscious of the reported flaws in the system, DFAT has reported that elections were held in May 2023 for the second time since the restoration of democracy in 2019, and the elections were reported to have been ‘mostly free and fair’. DFAT assessed that ordinary citizens were generally not at risk of official or societal discrimination or violence on the basis of political opinion, with the exception of critics of the monarchy, although it did assess that groups such as opposition politicians, protesters and whistleblowers faced risks on the basis of political opinion. I note that DFAT has reported that periodic political demonstrations sometimes result in violence and accept that such demonstrations may occur in the future. However, the applicant has not been involved in political activity in the past and I do not accept that she has any interest in being involved in politics. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that the applicant would be persecuted for reason of political opinion or in connection with politics in Thailand. While I accept that violent political demonstrations occur periodically, I do not accept that this gives rise to a real chance that the applicant would suffer serious harm for any reason. Nor do I accept that such matters give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk that the applicant will suffer significant harm. I do not accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in connection with political opinion or politics in Thailand.
For the sake of completeness, I have also considered the claim by the applicant to the effect that she lodged a report to the authorities but they failed to take any action. When asked about this at the hearing, the applicant indicated that she was referring to the occasion when she talked to the police about the protest. She said that there was a group of protesters and there were some officers there in that area and it was the way she needed to pass through and she tried to tell the officers there that she needed to pass through this way, please do something. They said they could not do anything and she would have to change the way. It may be that, in the context of a protest occurring, the authorities were not able to facilitate the applicant’s passage according to her preferred route and advised her to find another route. However, I do not accept that the applicant suffered any serious harm or significant harm in this incident, or that this constituted a failure by the authorities to protect the applicant. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that the Thai authorities would deny the applicant protection should she require it or otherwise persecute the applicant for any reason. Nor am I satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer any form of significant harm from the Thai authorities.
Crime
The applicant has claimed that she would be the victim of crime. When I raised with the applicant at hearing her claim that she was worried she would be the victim of terrorism or crime, the applicant referred to it being around the first two years when she came to Australia. When asked what she meant by crime, the applicant referred to just accidental incidents from the protesters. I sought to confirm that, when she talked about crime, she was concerned about being caught up in the activities of protesters. The applicant indicated that it was also about the bombings. I have considered above her claims in relation to terrorism in Thailand.
I raised with the applicant the gist of information from DFAT’s December 2023 Country Information Report. I put to her that DFAT stated that the security situation in Thailand is generally stable, with two exceptions, an ongoing insurgency in the SBPs and periodic political demonstrations which sometimes result in violence. DFAT stated that organised crime and corruption were significant problems and there was a large shadow economy, including trade in illicit drugs, human and wildlife trafficking, illegal logging, money laundering and counterfeiting. It stated that petty crime, scams and fraud were common, that Thailand had a high rate of gun ownership, and that seemingly minor interpersonal disputes could sometimes escalate into violence.[6] When asked whether there was anything else she wanted to say about crime and whether there was a real chance of serious harm or a real risk of significant harm, the applicant said in terms of risk she was not confident and she did not trust that if she returned she would be safe and would have a stable life. I also discussed with the applicant that I might have some doubt that crime or criminal activity related to any of the relevant 5 reasons (which I spelt out). I explained the effect of s 36(2B)(c). I put to the applicant that it might seem that, to the extent that there was a risk from things like crime or terrorism, that was a risk faced by the population generally rather than her personally. When asked whether she had any comments on that, the applicant said ‘no’. She said she agreed but she found living here was safe and stable both physically and mentally and also referred to her relationship with her boyfriend (a matter discussed further below).
[6] DFAT, Country Information Report Thailand (18 December 2023) at p.11
I have considered the applicant’s claims and evidence in relation to crime. I have had regard to the material from DFAT, including information to the effect that organised crime and corruption are significant problems, that there is a large shadow economy, that petty crime, scams and fraud are common, that Thailand has a high rate of gun ownership, and that seemingly minor interpersonal disputes could sometimes escalate into violence. I note also that the applicant has said that she does not trust that she would be safe and would have a stable life. However, I do not accept on the evidence before me that the applicant has in any way suffered serious harm or significant harm in relation to crime or criminal activity in the past. While she has referred to accidental incidents from protesters and has referred to an event in which she encountered a protest, I do not accept that she suffered serious or significant harm in that event. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that she would suffer serious harm in connection with crime in Thailand. I do not accept that crime or criminal activity in Thailand in any way gives rise to a real chance that the applicant would be persecuted for any of the reasons in s 5J(1)(a). Nor do I accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in connection with crime or criminal activity in Thailand.
Economic Matters
At the hearing, I raised with the applicant that she had made some claims about being jobless and being unable to survive. I noted that from what she said she was able to live in Bangkok and work there in the past, and it might seem likely that she would return to Bangkok if she went back to Thailand. I asked why she would be unable to live and work there as she had in the past. The applicant said there was a time when the political situation was intense and there were restrictions on the right to protest and there was a curfew that reduced their work hours and people had to go home. I asked the applicant when that was. She said when the military government was in power and people started to go against them. I raised with the applicant that it might appear there was not a military government in power now and that I might have some doubt that having reduced work hours because of a curfew would be serious or significant harm. The applicant said she was concerned that if there was a curfew the company would lay off employees because they would not be able to pay money to the same number of employees with reduced income.
I discussed with the applicant the gist of information on the Thai economy from the DFAT Country Information Report of December 2023. This included that DFAT stated that Thailand was classified as an upper-middle income economy; the economy contracted sharply during the COVID-19 pandemic, largely due to a halt in foreign tourism; and although tourism rebounded in 2022, 2023 GDP growth figures had been weaker than expected. DFAT stated that Thailand’s official unemployment rate was amongst the lowest in the world, at just 1.05 per cent, but that there was considerable unemployment and underemployment. DFAT referred to other economic challenges including low productivity, high levels of household debt, falling real wages, and a large shadow economy.[7] I raised with the applicant that I could see that there were some economic challenges in Thailand but I might doubt that they related to any of the relevant 5 reasons (which I spelt out). I might doubt that there was a real chance of persecution for any of those reasons arising from those economic challenges. I might also have some doubt that there was a real risk of significant harm. I discussed with the applicant the definition of significant harm. I raised with the applicant that, even though there might be economic challenges in the Thai economy, I might doubt that that amounted to any of the forms of significant harm. When the gist of this information was put to her, the applicant said if the economy in Thailand was bad people would move to big cities. That meant she would have to go to her hometown province. That would cost her some difficulties to live there because the family objected. The applicant said regarding the likelihood of the economy in Thailand she would need to plan whether she would be able to survive in a big city or not because it was highly competitive.
[7] DFAT, Country Information Report Thailand (18 December 2023) at p.7
I raised with the applicant also that, even though the DFAT information did refer to some challenges, it did indicate that the economy was growing. I noted that DFAT indicated that the bank of Thailand predicted growth of 2.8% for 2023, rebounding to 4.4% for 2024, and that the official unemployment rate was very low.[8] I put to her that it might seem that she had lived and worked in Bangkok in the past and I might wonder why she would not be able to go and do that again as she had in the past. When asked whether she wanted to say anything else about that, the applicant stated that she was trying to stay here because she thought there was freedom for her to choose the way she wanted to live her life without family members or people surrounding her who would control her or criticise her about the relationship with a person who did not have the same religion.
[8] Ibid.
I have considered carefully the applicant’s claims in this regard. Notwithstanding that the DFAT information indicates that the economy contracted sharply during the COVID-19 pandemic, it also indicates that the economy is now growing again. The official unemployment rate is very low, although the DFAT information indicates that there is considerable unemployment and underemployment as well as challenges such as falling real wages. The available evidence indicates that the applicant moved to Bangkok for work in the past and that she lived and worked in a [workplace] in Bangkok as [an occupation] for a period of approximately 5 years right up until the time when she came to Australia. It may be that there was a period in the past when there was a curfew and that this resulted in a reduction in work hours. However, I do not accept on the evidence before me that the applicant suffered serious harm or significant harm as a result of this. As discussed with the applicant, there were elections in 2023. While I accept that there are events such as periodic political demonstrations, I find to be highly speculative the applicant’s suggestion that a curfew in the future might lead to people being laid off and find the chance of this occurring to be remote. Notwithstanding the independent information about the economic challenges, I find to be remote the chance that the applicant would be jobless and unable to survive if she were to return to Bangkok where she has lived and worked for a number of years in the past. In my view, this is the place she would return to and is the place where she went to find work in the past. While I have considered the applicant’s submissions to the effect that she would have to go to her hometown province if the economy was bad, I do not accept that economic challenges of the type referred to in the DFAT report would mean that the applicant would have to return to her village or would cause her to do so. In making these findings, I have had regard to the report submitted by the applicant on the impact of political unrest on the economy and accept that political instability has an impact on the economy.
Even if political instability has had some impact on the Thai economy, I do not accept that the economic challenges in Thailand, such as those referred to by DFAT, give rise to a real chance that the applicant would be persecuted for any of the reasons in s 5J(1)(a) of the Act.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. I have had regard to the definition of ‘significant harm’ in s 36(2A) and the relevant definitions in s 5(1).
The evidence does not support a conclusion that there are substantial grounds for believing that there is a real risk that the applicant will be subjected to the death penalty or be arbitrarily deprived of life. I accept that there are some challenges in the Thai economy as discussed above. However, I do not accept that such matters involve the intentional infliction of pain or suffering such as to constitute cruel or inhuman treatment or punishment, or torture. Nor do I accept that they involve an act or omission that is intended to cause extreme humiliation such as to constitute degrading treatment or punishment. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk that the applicant will suffer significant harm with respect to employment or other economic matters.
Claim with respect to relationship with [Mr A]
The applicant has raised claims with respect to her relationship with [Mr A]. As noted above, I accept that the applicant is in a committed relationship with [Mr A].
In her evidence at the hearing, the applicant said that they wanted to get married but when returning to their countries they would not be able to do it. When asked why that was, the applicant said that it was about religion and her family and his family also disagreed. I put to the applicant that the information I had seen about Thailand seemed to suggest that there was no general ban on interfaith marriage.[9] The applicant said that was right but it was about families that do not agree. When I referred to information the applicant had submitted about [Country 1], she said that they would not be able to get legally married there because of their religions.
[9] ThaiLawForum, ‘Myanmar President Proposes Interfaith Marriage Ban’ (19 March 2024)
The applicant gave evidence to the effect that she had told her parents about the relationship at first when the relationship got serious. She said everyone in her family disagreed with this. They were wondering why it had to be someone who practised a different religion and why it could not be someone who practised the same religion because the religions’ teachings and ways of life were kind of different. Every time they talked or video called she had to try to hide from them that they lived together. The applicant confirmed that her parents knew she was in a relationship. She indicated that she had spoken to her sister about this. She said her sister kind of disagreed too and was saying it was going to be difficult to live life if parents were trying to stress that this was not right. She tried to block it. When asked what she meant by that, the applicant indicated that it was something like not wanting them to get married and wanting them to break up in the future. I raised with the applicant that, even though she had indicated that her family knew about the relationship, it might sound like they had not cut her off. The applicant agreed but said she tried to avoid conversations about the relationship. When asked what she was afraid would happen if she went back, she claimed that her family would not accept them. She said it was hard for her to have to choose between family either way. She said she was not sure if she would be able to cope with criticism which could happen every day.
I raised with the applicant that I might have some doubt that the sorts of things she had described would amount to serious harm or that there was a real chance that she would suffer harm amounting to serious harm from her family, or that they would amount to significant harm or give rise to a real risk of significant harm. When asked whether she had any comment, the applicant said she had no comment in particular. She said that she just feared whether she would be able to take that kind of pressure every day mentally. I asked the applicant about her statement to the effect that their opinions or religious beliefs could be a very sensitive topic to ‘psycho’ her every day. The applicant said it was about her parents disagreeing with different ways of life according to religious beliefs and they might criticise their way of life, say things about what they did not agree with. It would be the same topics every day. The applicant said she understood that it might not seem big or serious but there was fear in her mind about whether she would be able to handle that every day. When I discussed with the applicant return to Bangkok, she said that if she returned to Bangkok it was true she would be away from her family but there was more chance of her communicating with them or meeting them, not like here when she could video call them and could avoid topics about their relationship. I raised with the applicant that, even if she were to meet them or even if she were to go to her village, I might have some doubt that there was a real chance she would suffer serious or significant harm from her family. The applicant said she believed her parents would not hurt her or would not cause danger to her life but she was just afraid that she would not be able to handle the pressure. The applicant also said that if she had to move to Bangkok she might have to either break up or not contact her family to avoid potential issues.
I raised with the applicant that independent information I had seen might seem to suggest that there was generally religious freedom and tolerance in Thailand. I noted, for instance, that DFAT in its Country Information Report of December 2023 said that the Constitution prohibits unjust discrimination on the grounds of differences in religion; and that religious groups from all faiths could, with some minor exceptions in relation to Muslims, establish places of worship and practise their religions freely. DFAT stated that, with the exception of Muslims, it assessed that religious minority groups in Thailand were generally not at risk of official or societal discrimination on the basis of their religion.[10] I also raised with the applicant that I had seen information suggesting that there was an increasing number of intercultural marriages in Thailand and that many Thai citizens tended to marry foreigners.[11] I noted that I had also seen information suggesting that there had been a boom in transnational marriage in recent decades and an increase in Thai women marrying men from western countries, and that transnational marriage was generally approved of.[12] When the gist of this information was raised with her, the applicant said it might just be that her family or parents did not accept it but most people accepted it.
[10] DFAT, Country Information Report Thailand (18 December 2023) at pp.13-14
[11] S Supanichwatana & K Laeheem, ‘Social acceptance and adjustment of spouses in multicultural families to reduce violent behavioral conflicts in the Mueang district, Yala province’, Heliyon, 10(7), (15 April 2024)
[12] J McKenzie & K Xiong, ‘Fated for foreigners: Ecological realities shape perspectives ofThe applicant indicated that [Mr A] had not spoken with her family. In his evidence to the Tribunal, [Mr A] said it was a little bit hard for them. Both of their families did not accept their relationship. They needed to hide. He said that they knew about the relationship but did not agree. Almost every time they contacted them they just hid it. He said it was a little bit hard for him and his girlfriend. The applicant indicated that her family knew about the relationship but said they did not want to fight or make them angry with that. She referred to not letting them know they were living together.
Having regard to the evidence that has been provided by the applicant, as well as the evidence of [Mr A] himself, I accept that the applicant and [Mr A] are living together and are in a committed relationship. I accept that, while the applicant has told her parents she is in a relationship with [Mr A], she has not told her parents that she lives with [Mr A] and she and her partner avoid talking to their parents about the relationship. I have had regard to the evidence of the applicant and [Mr A] about their families’ attitudes to the relationship. I accept that neither the applicant’s family nor [Mr A]’s family has been accepting of the relationship. I accept the applicant’s evidence about the reaction of her parents and her sister in particular. I accept that, notwithstanding information indicating a generally high level of religious tolerance, the applicant’s family may be more conservative and have the attitudes the applicant has described. I note that the applicant has made submissions with respect to judgment and criticism, as well as submissions to the effect that there is a lack of respect for others’ rights, a lack of appreciation for diversity and a lack of open-mindedness in Thailand. However, I accept as reliable the information from DFAT which points to religious tolerance, stating that religious minority groups in Thailand are generally not at risk of official or societal discrimination on the basis of their religion. Independent information, as referred to above, also points to an increasing number of intercultural marriages. Nevertheless, I am willing to accept that the applicant’s family may be more conservative and may not be accepting of the relationship.
Having regard to the independent information, I do not accept that the applicant would be faced with a ban on interfaith marriage in Thailand.[13] The material submitted by the applicant includes an extract from [the Law] concerning marriages in [Country 1] and a document from the Consulate General of [Country 1] on intermarriage in [Country 1]. I am willing to accept that in [Country 1] marriage partners must have the same religion as suggested by this material. However, as discussed with the applicant at the hearing, I have assessed her claims against Thailand as her country of nationality.
[13] See ThaiLawForum, ‘Myanmar President Proposes Interfaith Marriage Ban’ (19 March 2024)
I have found that the applicant would return to Bangkok, the place where she lived for a number of years before coming to Australia, and consider that this would be away from her family in their village in Prachuap Khiri Khan. I accept that, if she were to do so, her relationship with [Mr A] might nevertheless come to the attention of her family in Thailand. I accept also that the applicant might wish to travel to her village and that she would have contact with her family. While I do not accept that she would be faced with her family on a daily basis, I accept that she would face criticism and disapproval from her family and a lack of acceptance of her relationship. I accept that mental harm can constitute serious harm or significant harm. I have had regard to the applicant’s evidence about the effect of matters such as criticism and pressure from her family. I note that the applicant has lived and worked independently from her family for a number of years in the past. Her evidence indicates that she is in a committed relationship with [Mr A], and I consider that she would be able to continue this relationship if she were to return to Thailand. While I accept that the applicant’s family have already expressed some disapproval, the evidence indicates that the applicant has nevertheless maintained contact with her family. I accept that the applicant would face criticism and disapproval from her family and a lack of acceptance of her relationship if she returns to Thailand, and I have considered the effect of this on the applicant. However, in all the circumstances I do not accept that this would rise to the level of serious harm. On the evidence before me and having regard to all the circumstances, I do not accept that there is a real chance that the applicant would suffer such harm from her family or anyone else in Thailand as to constitute serious harm (even when considered on a cumulative basis). In making this finding, I have had regard to the instances of serious harm in s 5J(5) of the Act, although I am conscious that this is not an exhaustive list.
I accept that the applicant is a Buddhist and is in a relationship with a Catholic, [Mr A]. However, looking to the reasonably foreseeable future, I am not satisfied that this gives rise to a real chance that the applicant would suffer serious harm in Thailand for reason of being a person in an interfaith or mixed relationship or a person in a relationship between a Buddhist and a Catholic, for reason of religion or for any other reason. I am not satisfied that her relationship with [Mr A] gives rise to a real chance that she would be persecuted for any of the reasons in s 5J(1)(a).
As outlined above, I accept that the applicant is a person of Buddhist faith who is in a relationship with a Catholic. I accept that she would face criticism and disapproval from her family and a lack of acceptance of her relationship. I have had regard to the applicant’s evidence about the effect of matters such as criticism and pressure from her family. As discussed above, the applicant has lived and worked independently from her family for a number of years in the past. Her evidence indicates that she is in a committed relationship with [Mr A], and I consider that she would be able to continue this relationship if she were to return to Thailand. While I accept that the applicant’s family have already expressed some disapproval, the evidence indicates that the applicant has nevertheless maintained contact with her family. I accept that the applicant would face criticism and disapproval from her family and a lack of acceptance of her relationship if she returns to Thailand, and I have considered the effect of this on the applicant. However, in all the circumstances I do not accept that this would be such as to constitute significant harm as defined in s 36(2A). Having carefully considered all the circumstances, I am not satisfied that the applicant’s relationship with [Mr A] gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk that the applicant will suffer harm amounting to significant harm as defined in s 36(2A) of the Act, from the applicant’s family or anyone else in Thailand.
I have considered the evidence of the applicant and [Mr A] about hiding aspects of their relationship from their parents, and have considered the applicant’s suggestion that, if she returned to Bangkok, she would have to break up with [Mr A] or not contact her family. I do not accept this. Even if the applicant were to have contact with her family (including by visiting them in the village) and even if they were aware of the relationship, I do not accept that this would give rise to a real chance that the applicant would be persecuted for any reason or that it would give rise to substantial grounds for believing that there is a real risk that she will suffer significant harm.
Cumulative Consideration – Refugee Criterion
I have considered the applicant’s claims in relation to both terrorism and crime. However, for reasons outlined above, I do not accept that either terrorism or crime in Thailand gives rise to a real chance that the applicant would be persecuted for any of the reasons in s 5J(1)(a).
I have considered the applicant’s claims about losing confidence in the country’s leader and political issues. The applicant has not been involved in political activity in the past and I do not accept that she has any interest in being involved in politics. I do not accept that there is a real chance that she would be persecuted for reason of political opinion or in connection with politics in Thailand. While I accept that political demonstrations occur, I do not accept that this gives rise to a real chance that the applicant would suffer serious harm for any reason.
I have considered the applicant’s claims about her relationship with [Mr A]. I accept that the applicant is in a relationship with [Mr A] and that he is of Catholic faith. However, I do not accept that this gives rise to a real chance that the applicant would suffer serious harm for reason of being a person in an interfaith or mixed relationship or a person in a relationship between a Buddhist and a Catholic, for reason of religion or for any other reason.
I have considered the applicant’s claims about economic matters but do not accept that such matters or economic challenges in Thailand give rise to a real chance that she would be persecuted for any of the reasons in s 5J(1)(a) of the Act.
I have carefully considered all of the applicant’s claims and circumstances, both individually and cumulatively. However, I am not satisfied, looking to the reasonably foreseeable future, that there is a real chance that the applicant would be persecuted for any of the reasons enumerated in s 5J(1)(a). I am not satisfied that she is a refugee as defined in s 5H(1).
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Cumulative Consideration – Complementary Protection Criterion
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
I have considered the applicant’s claims in relation to both terrorism and crime. However, for reasons outlined above, I do not accept that either terrorism or crime in Thailand gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk that she will suffer significant harm.
I have carefully considered the applicant’s claims about losing confidence in the country’s leader and political issues. The applicant has not been involved in political activity in the past and I do not accept that she has any interest in being involved in politics. I do not accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in connection with political opinion or politics in Thailand. While I accept that violent political demonstrations occur periodically, I do not accept that this gives rise to substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
I have considered the applicant’s claims about her relationship with [Mr A]. I accept that the applicant is in a relationship with [Mr A] and that he is of Catholic faith. However, I do not accept that this gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk that she will suffer significant harm from her family or anyone else in Thailand.
I have considered the applicant’s claims about economic matters but am not satisfied that such matters or economic challenges in Thailand give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Thailand, there is a real risk that she will suffer significant harm.
I have carefully considered all of the applicant’s claims and circumstances, both individually and cumulatively. However, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Thailand, there is a real risk that she will suffer significant harm.
I am 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.
Don Smyth
MemberATTACHMENT - 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.
…
transnational marriage in northern Thailand’, International Journal of Intercultural Relations 82 (2021) at pp.122 & 132
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