1919463 (Refugee)

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

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).
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.
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.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 9 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was not represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
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 EVIDENCE
Issues
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
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 [email protected], or call 1800 228 333.
Later, on 11 June 2024, the Tribunal received email messages indicating that the Tribunal’s emails to the applicant’s recorded email address and his updated email address had been returned to its sender with the message that the email recipient (the applicant) was ‘out of storage’.
On 18 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.
On 19 June 2024, a Tribunal Officer again called the applicant’s recorded contact mobile telephone number of [number deleted]. This call was also not answered, and the Tribunal Officer left a message on the applicant’s voicemail again requesting he contact the Tribunal.
On 2 July 2024, the Tribunal sent an SMS Hearing Reminder to the applicant’s mobile telephone number of [number deleted] (the mobile number which the applicant had provided to the Tribunal as his updated contact number as has been outlined above at paragraph 19). The message read:
Reminder – Your AAT hearing is on 09/07/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
Review hearing - 9 July 2024
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
On the morning of the scheduled hearing, 9 July 2024, the Tribunal telephoned the applicant’s mobile number of [number deleted] which he had provided on his application for the review application and his updated telephone number of [number deleted], at 9:30 am. Both of these calls rang out and then diverted to voicemail. The Tribunal left messages on the voicemails identifying the Tribunal as the caller and indicating the reason for the call as being the applicant’s scheduled review hearing of today and further requesting that the applicant contact the Tribunal. The Tribunal again at 9:45 am and 10:00 am called the applicant’s two mobile numbers and again these calls rang out and the Tribunal left similar messages with the telephone number’s voicemail as had been earlier recorded.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with the invitation sent via email to the applicant’s updated email address as has been outlined above at paragraph 20 and follow-up emails sent to both the applicant’s nominated email address and his updated address as identified above at paragraph 23. Additionally, the Tribunal notes that a SMS hearing reminder was also sent to the applicant’s most recently nominated (updated) mobile telephone number, as is outlined above at paragraphs 27.
As noted above, the Tribunal also attempted to contact the applicant on the morning of the scheduled hearing by telephoning both his most recently updated mobile telephone number and the telephone number which he had recorded on his application for the review, as has been outlined above at paragraph 29.
The Tribunal finds that the applicant’s failure to maintain his nominated and updated email addresses in a manner that allowed messages to be received by the applicant and to not answer calls from or reply to messages from the Tribunal is evidence that the applicant has no intention in cooperating with and engaging with, the Tribunal, and/or in participating in a review hearing before the Tribunal. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Country information
The Tribunal has taken into account the DFAT Country Information Report Thailand, 18 January 2022 as relevant, including information under the heading of ‘Corruption’ at 2.27 to 2.30, it is reported that:
Thailand is a signatory to the United Nations Convention Against corruption (CAC) (see Human Rights Framework) and has an outwardly strong legal framework to prevent and eliminate corruption. Nevertheless, corruption thrives in Thailand, ranked 101 out of 180 countries in Transparency International’s 2022 Corruption Perceptions Index. In 2020 (the most recent available figures), Transparency International found that a quarter of Thais had paid a bribe to access public services in the previous year, and 40 per cent of Thais thought the police were mostly, or all, corrupt.
It is common to pay bribes or use personal connections to obtain identity documents (see Documentation), enrol children in school and escape traffic fines. Contributing factors include low public sector wages, a culture of gift exchange when doing business, and a tendency to view corruption as the actions of ‘bad individuals’ rather than as a systemic social or political issue.
Local and foreign observers report that high-level corruption is common among senior officials, politicians, and the military. Despite justifying its overthrow of the Yingluck government with a promise to end corruption, the military-backed Prayuth government was involved in numerous scandals, including revelations the Deputy Prime Minister had accumulated an undeclared USD 685,000 (AUD 1 million) luxury watch collection, a lottery scam implicating a senior aide to the Prime Minister, and irregularities in the procurement of Chinese submarines by the Thai navy.
The National Anti-Corruption Commission (NACC) is empowered to investigate allegations of corruption against politicians, judges, and government officials. Critics allege the NACC is highly politicised, and that it has ignored or dismissed alleged malfeasance by military-backed governments while aggressively pursuing complaints against their political opponents.
Under the heading of ‘Police’ at 5.5 to 5.10, it is reported that:
The Royal Thai Police (RTP) is the national police force of Thailand. It is governed by a Director-General who reports to the Office of the Prime Minister. The RTP employs an estimated 220,000 officers.
The Metropolitan Police Bureau is responsible for policing in Bangkok, while the Provincial Police Division is responsible for policing in the remaining 76 provinces. The Border Patrol Police, a 40,000-strong paramilitary force, has special responsibility for policing in border areas, including combating insurgencies and suppressing transnational crime. Other RTP bodies include the Central Investigation Bureau (CIB); Narcotics Suppression Bureau; Police Education Bureau; Tourist Police Bureau; and Immigration Bureau.
In October 2018, a new 1,600-strong police unit was created called the Ratchawallop Police Retainers, King’s Guards 904. This unit provides security to the royal family, carries out the king’s ‘royal wishes’, and collects information on ‘individuals and groups whose behaviours pose a threat to national security and the monarchy’.
The effectiveness of Thai police at responding to criminal incidents varies. In-country sources reported that parts of the RTP were highly effective, including those involved in investigating drug trafficking and human trafficking and undertaking ‘kill or capture’ missions against dangerous criminals. Police at junior levels are low-paid and provide much of their own equipment, including their own guns. It is reportedly common for police to extract confessions under intimidation or torture to secure convictions. Some police supplement their income by moonlighting as security guards, while others are involved in illegal activities such as trafficking.
Despite pledges by successive governments to tackle police corruption, it remains a serious, widespread problem. Efforts to reduce corruption among police have generally focused on encouraging “honest” behaviour by individual officers rather than addressing systemic issues. It can be difficult or impossible for a victim of crime to seek justice and protection from police when the perpetrator is a high-ranking or powerful individual. In September 2023, the RTP was widely criticised in Thai media following 25 officers’ failure to prevent (and possible collusion in) the murder of another officer who had reportedly refused to improperly transfer the relative of a local powerbroker.
There are credible, well-documented reports of human rights abuses by Thai police, including torture and mistreatment, arbitrary detention and extra-judicial killings. People can file complaints of police abuse with the superior of the accused police officer, with the Office of the Inspector General, or with the Police Commissioner General. The NHRCT, the Lawyers’ Council of Thailand, the Office of the National Anticorruption Commission, the Supreme Court of Justice, the MOJ, the Office of the Prime Minister, and the Office of the Ombudsman also accept complaints of police abuse and corruption. Complaints about police abuse rarely result in punishment. Investigations are often superficial, and complainants are sometimes countersued for defamation by police.
Under the heading of ‘Department of Special Investigations (DSI)’ at 5.11 and 5.12, it is reported that:
Formed in 2002, the Department of Special Investigation (DSI) is a 1,600-strong investigative unit that sits within the Ministry of Justice and operates independently of the RTP. The DSI has a statutory remit to investigate serious crimes in the public interest, including complex criminal cases, those affecting national security, those involving organised crime, and those potentially implicating high-ranking government officials or police officers. It is empowered to instigate its own enquiries.
Although the DSI is reportedly a well-funded and highly capable organisation, DSI officers are occasionally accused of corruption and misconduct. In January 2023, the head of the DSI was removed from his post, after reportedly failing to act against five DSI officers accused of accepting THB 9.5 million (AUD 400,000) in bribes to release 11 suspected Chinese gangsters operating from the former Nauru Consul General’s residence.
And under the heading of ‘Judiciary’ at 5.13 to 5.16, it is reported at 5.13, that:
The Constitution provides for the right to a fair and public trial and for the presumption of innocence. While most trials are public, courts may order closed trials in cases involving national security, the royal family, children, or sexual abuse. Defendants in ordinary criminal courts enjoy a broad range of legal rights, including access to a lawyer of their choosing, prompt detailed information on the charges against them, free assistance of an interpreter as necessary, the right to be present at trial, and the right to adequate time and facilities to prepare a defence. They also have the rights to not be compelled to testify or confess guilt, to confront witnesses, and to appeal. While these rights are generally respected, sometimes authorities reportedly do not afford all of them to defendants, particularly in small or remote provinces.
FINDINGS AND REASONS

The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Thailand and provided a copy of the bio data page of his Thai passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Thailand. Thailand is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which both provide useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal notes, as outlined below, that the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts of his case. In that regard, the Tribunal finds that the applicant’s claims are vague and lack any detailed description of the facts relied upon by the applicant in support of his claims.
The Tribunal further notes that notwithstanding having received a negative finding by the delegate, the applicant chose not to attend a hearing where he could have given evidence and made arguments. In that regard, the Tribunal notes that if the applicant had attended his scheduled hearing the Tribunal would have been able to ask the applicant questions and would have given the applicant an opportunity to provide further details as to the facts of his matter.
Fears of reprisals from a businessman who sought to purchase the applicant’s farmland – refugee claims
The applicant in his application for the visa claims that in 2017 a local landowner and businessman who was connected to an ‘underground network’ and ‘government agencies’ sought to purchase his family’s farm. He further claims that after refusing to sell the farm the businessman became angry with the applicant and later the applicant was abducted from his farm by thugs and taken to an unknown location where he was assaulted. He claims to have sustained several injuries and that these thugs threatened to kill him and harm his parents while destroying the farm and damaging the applicant’s house. He claims that the businessman repeatedly threatened him and that he did not report these incidents to the authorities as the businessman was well connected. He claims that he could not, nor can relocate as he is unfamiliar with other places in Thailand and so he escaped to Australia. He claims he cannot return to Thailand as he will be assaulted by the thugs, and they will also harm his parents.
The applicant has provided no evidence and/or information to the Department and/or the Tribunal as to the identity of this purported businessman, where he resides and what interests he has locally and why he had sought to purchase the applicant’s farm and for what price if any he offered to pay for the farm. Further, the applicant has not described how, and with which supposed ‘underground network’ and ‘government agencies’ this businessman was purportedly connected with and why the applicant purportedly feared these connections.
Given the serious nature of the applicant’s claims, the Tribunal finds that it is implausible that the applicant would not have a detailed recollection of the events and occurrences he claims to have experienced if these claims were in fact genuine. Further, the Tribunal finds that if these claims were in fact genuine that the applicant would have equally understood the significance of these events to his application and the need for him to have provided a detailed description of the facts he seeks to rely upon in support of his claims.
Noting the lack of detail provided by the applicant as outlined above, and further noting that the applicant has not provided any details as to his purported abduction and assault in which he claims to have sustained injuries; the Tribunal for the reasons outlined above, and below, rejects the applicant’s claims in their entirety on the basis of a lack of detail and as such credibility.
In regard to the applicant’s claims of having been abducted, assaulted and injured by ‘thugs’; the Tribunal notes that the applicant has not provided any information as to the number and description of the ‘thugs’ where, when, and how they abducted him; where he was taken in so far as any description but for claiming it was an ’unknown location’ and how he was so supposedly assaulted and what were the nature and seriousness of his purported injuries.
Additionally, the Tribunal notes that the applicant claims that this purported businessman repeatedly threatened him, yet he has not provided any details as to when, where, and the frequency and actual nature of these purported threats and why such threats caused the applicant to flee Thailand for Australia.
Furthermore, and most significantly in the view of the Tribunal, the applicant has claimed that he fears the ‘thugs’ will harm his parents. In this regard, the Tribunal notes that the applicant has not provided any information as to whether his parents have or have not sold the family farm in the applicant’s absence, and if they have not sold the farm, what if any interactions they have had with this purported businessman and/or his ‘thugs’.
Again, the Tribunal is of the view that such information as to what has happened to the family farm and whether his parents have been threatened and/or harmed, would, in the context of his claims, be matters that the applicant would appreciate as being highly relevant to his claims and matters that he would have appraised himself of through his continued weekly contact with his parents which he outlined in his application for the visa.
The Tribunal finds that the applicant’s failure to provide such details as has been outlined above, is consistent with the applicant’s claims not being genuine.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal has rejected the applicant’s claims in their entirety on the basis of a lack of credibility.
The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was in the reasonably foreseeable future to return to Thailand on account of his refusal to sell his family’s farm to a local businessman.
The Tribunal finds that the applicants’ fears in this regard are not well-founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore that the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, a lack of credibility, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Thailand.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3948

9 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction