1919463 (Refugee)

Case [2024] AATA 3948

1919463 (Refugee) [2024] AATA 3948 (9 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919463

COUNTRY OF REFERENCE:                   Thailand

MEMBER:David James

DATE:9 July 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 July 2024 at 1:32pm

CATCHWORDS
REFUGEE – protection visa –Thailand – refused to sell family farm to a local businessman – applicant claimed he was abducted by a group of thugs and assaulted – sustained several injuries – threats made against his family – lack of evidence provided by the applicant – lack of creditability – applicant failed to attend Tribunal hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 411 (1) (c), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
 Prasad v MIEA (1985) 6 FCR 155

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Department) on 27 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of Thailand, applied for the visa on 6 September 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Thailand, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

  3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 17 July 2019. The applicant provided a copy of the delegate’s decision with their application for review.

  4. As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal…

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Details
AGLC
1919463 (Refugee) [2024] AATA 3948
Case
[2024] AATA 3948
Decision Date

CaseChat Overview and Summary

The applicant sought review of a decision to refuse his protection visa. The applicant claimed he was abducted and assaulted by thugs after refusing to sell his family farm to a local businessman connected to an underground network and government agencies. He alleged threats were made against him and his parents, and his farm and house were destroyed. He did not report the incident due to the businessman's connections and feared he could not relocate or hide from him in Thailand. The court was required to determine whether the applicant had a well-founded fear of persecution for one of the reasons specified in section 5J(1) of the Migration Act 1958 (Cth), and if there was a real chance of persecution upon return to Thailand. Alternatively, the court had to consider if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Thailand, the applicant faced a real risk of suffering significant harm as defined in section 36(2A) of the Act.

The court considered the documentary evidence before the Tribunal, including the applicant's visa application, passport, and administrative records. The delegate had previously refused the visa, finding that effective protection measures were available in Thailand and therefore the applicant did not have a well-founded fear of persecution, nor a real risk of significant harm. The Tribunal invited the applicant to a hearing, noting that it was unable to make a favourable decision based on the information alone. Despite attempts to contact the applicant via email and phone, including an email invitation to a hearing on 9 July 2024, the applicant failed to attend. The Tribunal noted that the applicant's email address was full, and a voicemail was left on his mobile. The Tribunal also forwarded emails to both his recorded and updated email addresses, requesting he submit a Form MR6.

Ultimately, the applicant failed to attend the Tribunal hearing or provide further information. The court affirmed the decision under review, finding that the applicant had not established a well-founded fear of persecution or a real risk of significant harm. The lack of attendance and evidence meant the applicant failed to discharge his onus of proof.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Thailand they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 6 September 2018 and the annexed copy of the applicant’s Thai passport; ·The applicant’s application for review of 17 July 2019 and the annexed Decision Record of 27 June 2019; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in his visa application, made the following claims (as summarised) that:·In 2017, while working and living on his family’s farm a local landowner and businessman who was connected to an ‘underground network’ and ‘government agencies’ tried to buy his family’s farm;·He refused to sell the farm to the businessman who became unhappy him;·One day after working on his farm he was abducted by a group of thugs and taken to an unknown location where he was assaulted. He sustained several injuries and the thugs threatened to kill him and harm his parents; they also destroyed the applicant’s farm and damaged his house; ·He did not report this incident to the authorities as the businessman was well connected;·The businessman repeatedly threatened the applicant and so he fled Thailand fearing for his safety;·He cannot relocate as he is unfamiliar with other places in Thailand and has lived all his life on his family’s farm. He cannot hide from the businessman as he is well connected and will find him; and·He cannot return to Thailand as he will be assaulted by the thugs, and they hill harm his parents.Department interview The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 27 June 2019 to refuse the protection visa was made on the information before the delegate. The delegate with reference to country information found that there are effective protection measures available to the applicant in Thailand and as such the applicant does not have a well-founded fear of persecution. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found with reference to country information that the applicant could obtain, from an authority of Thailand, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s 36(2B)(b). Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Thailand, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. Invitation to attend a hearing

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 27 June 2019 to refuse the protection visa was made on the information before the delegate. The delegate with reference to country information found that there are effective protection measures available to the applicant in Thailand and as such the applicant does not have a well-founded fear of persecution. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found with reference to country information that the applicant could obtain, from an authority of Thailand, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s 36(2B)(b). Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Thailand, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. Invitation to attend a hearing On 16 September 2021, the applicant emailed the Tribunal his updated contact details, including a new residential address, email address, and the mobile telephone number of [number deleted]. On 7 June 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 9 July 2024 at 9:30 am. This correspondence was emailed to the applicant’s updated email address as had been provided by him to the Tribunal on 16 September 2024. This email advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. Later, on 7 June 2024, the Tribunal received an email message indicating that the Tribunal’s email invitation had been returned to its sender with the message that the email recipient (the applicant) was ‘out of storage’. At 8:57 am on 11 June 2024, a Tribunal Officer called the applicant’s updated contact mobile telephone number of [number deleted]. This call was not answered and the Tribunal Officer left a message on the applicant’s voicemail requesting he contact the Tribunal in relation to his forthcoming scheduled review hearing. On 11 June 2024, the Tribunal forwarded emails to the applicant via his recorded email address and his updated email address which he had provided to the Tribunal on 16 September 2021. These emails said:Dear [Applicant’s name],I refer to the email below from the Tribunal to you on 6 June 2024. Please complete and submit a signed Form MR6 to the Tribunal as soon as possible.If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at MRDivision@aat.gov.au, or call 1800 228 333.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, 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 EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Thailand they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 6 September 2018 and the annexed copy of the applicant’s Thai passport; ·The applicant’s application for review of 17 July 2019 and the annexed Decision Record of 27 June 2019; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in his visa application, made the following claims (as summarised) that:·In 2017, while working and living on his family’s farm a local landowner and businessman who was connected to an ‘underground network’ and ‘government agencies’ tried to buy his family’s farm;·He refused to sell the farm to the businessman who became unhappy him;·One day after working on his farm he was abducted by a group of thugs and taken to an unknown location where he was assaulted. He sustained several injuries and the thugs threatened to kill him and harm his parents; they also destroyed the applicant’s farm and damaged his house; ·He did not report this incident to the authorities as the businessman was well connected;·The businessman repeatedly threatened the applicant and so he fled Thailand fearing for his safety;·He cannot relocate as he is unfamiliar with other places in Thailand and has lived all his life on his family’s farm. He cannot hide from the businessman as he is well connected and will find him; and·He cannot return to Thailand as he will be assaulted by the thugs, and they hill harm his parents.Department interview