1919221 (Refugee)

1919221 (Refugee) [2022] AATA 1196 (7 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1919221
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alison Murphy
DATE:7 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 March 2022 at 2:18pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fight with a member of parliament – inconsistent evidence – economic reasons –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 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 2 July 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Thailand, applied for the visas on 5 July 2018. The delegate refused to grant the visas on the basis that they were not satisfied the applicants were persons owed protection by Australia.
The applicants appeared before the Tribunal on 25 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
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–5LA, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether either or both of the applicants is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicants travelled to Australia on apparently genuine Thai passports, copies of which are contained on the Departmental file. They have at all times stated that they are citizens of Thailand and they have been assessed on that basis by the Department. The Tribunal finds the applicants are Thai citizens and has assessed their claims against Thailand as their country of nationality and the receiving country.
The applicants’ personal background
The first named applicant is a [age]-year-old male (the applicant husband) who is married to the second named applicant, a [age]-year-old female (the applicant wife). Prior to travelling to Australia they were living in Lamphun, Thailand.
The applicant husband gave evidence he completed Year 12 before commencing studies in a range of [courses]. He did not complete those courses but worked in the building and construction industry in Lamphun.
The applicants arrived in Australia on [date] February 2015 when the applicant wife was granted a student visa to study in Australia. At hearing the applicant wife told me she started [a] course on her arrival to Australia but didn’t complete that course or undertake any further studies in Australia because the family didn’t have enough money and she needed to work. She worked first in a [workplace] and later started working [at another workplace]. The applicant husband gave evidence that he is also working [at the same workplace] in Australia.
I accept each of the above matters to be true.
The applicants’ claims for protection
Only the applicant husband made claims for protection in the visa application. In summary he stated that he left Thailand because one night when he was out with a group of friends, his friends got drunk and argued with another group which led to a brawl. The other group was very angry and a couple of days later they started to send threats to the applicant and his friends. His friends were severely beaten to the point where they had to be hospitalised and two of them were almost killed. The applicant husband was also severely beaten a couple of times and the other group seemed to enjoy beating them up and told him they would not stop. The applicant claims to have fled the country scared for his future.
However at hearing the applicants gave very different reasons for leaving Thailand and seeking protection in Australia. The applicant husband stated that he came to Australia because his wife wanted to study and also because there were issues at home. When asked about the issues at home, the applicant husband stated that it was quite a long time ago but from what he remembered he had a fight with a member of parliament. When asked the name of that member of parliament, the applicant stated that he didn’t know their name but he just knew they were a member of parliament.
When asked what the fight was about, the applicant stated that it was about money, land and business because he was building a road near the house. When asked what happened, the applicant said he and the member of parliament had a pretty bad argument and were both in a bad temper. When asked to elaborate he said that at the beginning it got physical and later there were guns involved. When asked when this fight occurred the applicant stated that he couldn’t remember. When asked if this had anything to do with his travel to Australia, he stated that he said to his wife that it was better that they just came here and his family were worried and told him to go. When I expressed concern that he did not know the name of the member of parliament with whom he had this fight, the applicant said that in Thailand people didn’t use their real names, rather they just call them by their nicknames.
When I asked the applicant why he didn’t wish to return to Thailand, he stated that he was not ready at the moment because his mother is elderly, his sister is unwell and his nephew still had two years left of his studies. He said the economy in Thailand is bad and there is no future for him there so he wants his visa extended by another year so that his nephew could finish his studies and have a better future. He said if he returned to Thailand he would not be able to send money to his mother and sister and nephew who were depending on him.
Later in the hearing I spoke to the applicant wife. She stated that she hoped to return to Thailand, but not yet because of the issue they had with the member of parliament. When I asked what that issue was about, she said they had opened a [shop] as well as a bar when there was an argument about the affair with the member of parliament. When I asked about the affair, she said that the member of parliament liked her and because he was in a position of power they couldn’t really do much.
At hearing I discussed with the applicants that I was having difficulty accepting their evidence about a fight with the member of parliament to be true. I noted that they had given entirely different reasons for fearing harm in the protection visa application and discussed those claims with them. I noted that I was concerned the applicant husband couldn’t name the member of parliament whom he claims to have fought with, nor could he remember when that fight took place. I noted as well that the applicants were inconsistent in their evidence as to the cause of that fight, with the applicant husband claiming they fought about money and land while the applicant wife claimed they were fighting about her affair with the member of parliament. When I invited them to comment, the applicants declined to do so. The applicant husband said he had already said everything he had to say and he just wanted to stay in Australia legally and not live in hiding.
For the following reasons, I do not accept the applicant husband had a fight with a member of parliament while in Thailand which caused him to flee Thailand:
·Firstly, the applicant husband gave entirely different reasons for leaving Thailand in the protection visa application, namely that he feared harm from a group of people with whom he and his friends had been in a fight while drunk. He did not suggest that he feared harm from a member of parliament for any reason. When invited to comment, the applicants offered no explanation for the discrepancy in their claims;
·Secondly, I consider the applicant husband’s evidence about the fight with a member of parliament to be vague and lacking in detail. He was unable to remember the name of the member of parliament or when the fight occurred. He provided no meaningful detail about the fight or its consequences;
·Thirdly, the applicants gave inconsistent evidence as to the reason for the applicant husband’s fight with the member of parliament, with the applicant husband stating it was a fight about money, land and business while the applicant wife said the fight was about her affair with the member of parliament. Again, the applicants declined to comment on the apparent inconsistencies;
·Finally, both applicants gave evidence that they intended to return to Thailand, but not at the moment. The applicant husband stated that he was not ready to return at the moment because his mother is elderly and his sister unwell and his family rely on him financially. He said the economy in Thailand is bad and he wants his visa extended by another year so that his nephew could finish his studies and have a better future. He said if he returned to Thailand he would not be able to send money to his mother and sister and nephew who were depending on him. I accept those matters to be true and consider they constitute the real reasons the applicants travelled to Australia and wish to remain here.
For these reasons I do not accept either of the applicants faces a real chance of harm from a member of parliament if they return to Thailand, now or in the reasonably foreseeable future. At hearing neither of the applicants suggested that they had any fear of harm for reasons of the claims made in the protection visa application (being that the applicant husband and his friends were involved in a fight with a group of people while drunk and those people pursued and beat them). When I discussed these claims with them at the hearing, they did not suggest they were true, nor did they offer any reason for making such claims or why they differed from the claims advanced at hearing. For these reasons I do not accept either of the applicants faces a real chance of serious harm for the reasons given in the protection visa application if they return to Thailand, now or in the reasonably foreseeable future. For the reasons given above I do not accept there to be a real risk the applicants will suffer significant harm from a member of parliament or any other person or group as a necessary and foreseeable consequence of being returned to Thailand.
While I have accepted the applicants wish to remain in Australia in order to financially support their family in Thailand, I find that any economic disadvantage they may experience in Thailand is not for the essential and significant reasons of their race, religion, nationality, membership of a particular social group or political opinion. Therefore, the applicants do not meet the criterion set out in s 5J(1)(a) of the Act and it follows that they do not meet the criterion set out in s 36(2)(a).
As discussed with the applicants at hearing, economic conditions do not generally enliven Australia’s complementary protection obligations because those obligations are concerned with intentional or deliberate acts resulting in a real risk of significant harm.[1] For the reasons set out above I have not accepted that any person or group will intentionally try to harm the applicants if they return to Thailand.
[1] GLD18 v MHA [2020] FCAFC 2.
For these reasons, I do not accept there to be a real risk the applicants will suffer significant harm, as that term is exclusively defined in s 36(2A), as a necessary and foreseeable consequence of being returned to Thailand.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do 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 either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that either 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 applicants do not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Alison Murphy
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 of 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 of persecution would not exist if it were assumed that the fear of 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.
…

[2022] AATA 1196

7 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction