1919549 (Refugee)

[2021] AATA 5672

1919549 (Refugee) [2021] AATA 5672 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1919549

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Mr S Norman

DATE:5 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 5 October 2021 at 1:30pm  

CATCHWORDS

REFUGEE – protection visa – Thailand – fear of harm from former boss after refusing to sell drugs on his behalf – verbal and physical attacks, and threats – no appearance at hearing or any other contact – applicant’s responsibility to provide relevant facts in sufficient detail – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65, 424(2), 426A

CASES

Luu v Renevier (1989) 91 ALR 39

MIEA v Guo (1997) 144 ALR 567

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MIEA (1994) 52 FCR 437

Yao-Jing Li v MIMA (1997) 74 FCR 275

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 dependants.

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 on 10 July 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant who claims to be a citizen of Thailand, had applied for the visa on 3 April 2019.

2. The Department delegate’s decision was lodged with the Tribunal.

3. By s.424(2) letter dated 4 August 2021 (dispatched by email), the applicant was requested to provide additional and/or updated information in support of his case – response due 18 August 2021. No response was received by the Tribunal.

4. By hearing invitation letter dated 4 August 2021 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his application, but 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 on 5 October 2021. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response or acknowledgement was received by the Tribunal.

5. As the hearing was to be conducted during the Sydney COVID-19 lockdown, the applicant was advised the hearing would proceed by telephone (no telephone number had been included in his Department or Tribunal submissions). By emails dated 17 September 2021, 22 September 2021, and 30 September 2021, the applicant was advised inter alia the hearing would proceed by way of teleconference, and he was requested to provide a telephone contact number. No response was received by the Tribunal.

6. On the day and time of the scheduled hearing, the applicant did not make his presence known to the Tribunal (the office building in which the Tribunal would ordinarily conduct hearings was locked down, however, I do not understand the applicant contacted the Tribunal by telephone, or by email, prior to this decision being finalised).

7. Therefore, 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.

   The applicant’s claims:

8. In his Protection visa (PV) application, the applicant stated:[1]

   ·     his former boss asked him to sell drugs on his behalf

   ·     when the applicant refused, he was physically and verbally attacked

   ·     he said that confronting his boss about the situation had made matters worse and his situation had escalated

   ·     when the applicant quit his position, his former boss threatened to kill him

   ·     bricks were then thrown at the applicant’s house so he fled to Australia (on a Student visa)

   ·     the applicant fears that his former boss will hunt him down in Thailand, then torture and kill him

   ·     the applicant did not seek help in Thailand because his former boss is wealthy and has community influence

   ·     the applicant did not relocate because his former boss is influential and wealthy and he has a network throughout the country and the authorities are fearful of him

   Assessing the applicant’s claims:

   [1] PDF – from p.42.

9. The Tribunal has seen a photocopy of the applicant’s passport on the Department file and I accept he is a citizen of Thailand, and that Thailand is the applicant’s receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that he was asked to sell illegal narcotics; or even if he was, that he was harmed for refusing to do so; or even if he was, that he was unable to safely and reasonably relocate within Thailand.

10. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is also materially applicable to the assessment of complementary protection claims.

11. That being said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that he will suffer significant harm.

12. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in Thailand.  

    Finding:

13. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. There is no suggestion the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).  

    DECISION

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

    Mr S Norman
    Member