1919762 (Refugee)
[2021] AATA 5256
•20 December 2021
1919762 (Refugee) [2021] AATA 5256 (20 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1919762
COUNTRY OF REFERENCE: Thailand
MEMBER:Jason Pennell
DATE:20 December 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 December 2021 at 2.48pm
CATCHWORDS
REFUGEE – protection visa – Thailand – failure to appear before the Tribunal – membership of a particular social group – victim of a gang – extortion – effective protection measures are available to the applicant – relocation available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S v MIMA (2004) 217 CLR 387
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 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 13 September 2018. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant did not appear before the Tribunal on 20 December 2021 to give evidence and present arguments. On 30 November 2021 the applicant was sent an invitation to appear at the hearing on 20 December 2021 at 9.30am. Prior to the hearing date the Tribunal sent the applicant two text messages on 13 December 2021 and 17 December 2021 reminding him of the hearing date and time. The Tribunal did not receive any correspondence or communication from the applicant advising that he was unable to attend the hearing on 20 December 2021 as listed.
The Tribunal has considered the applicant’s claims for protection as detailed in his application for a protection visa. In circumstances where the applicant has been provided the opportunity of appearing before the Tribunal to present evidence and make submissions in support of his claims for protection and has failed to appear, the Tribunal has decided to exercise its discretion pursuant to section 426A of the Act, to make its decision on this review application without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S CLAIMS AND EVIDENCE
Applicant’s Identity and Country of Reference.
The applicant claims that he was born on [date] in [City 1], Thailand.[1] The applicant has provided a copy of the biodata page of his Thai passport, [number], to the department[2]. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.
[1] Protection visa application form, Dept File [deleted], Doc ID no: [deleted]
[2] Applicant’s passport, Dept file [deleted], Doc ID no: [deleted]
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that he is a citizen of Thailand and as such his protection claim will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.
Applicant’s Migration History
The applicant arrived in Australia [in] August 2018 and has not departed since. Prior to arriving in Australia, the applicant has not travelled outside of Thailand[3].
Applicant’s claims for protection
[3] Ibid.
The applicant first submitted claims for protection when he applied to the department for protection on 13 September 2018[4]. The applicant’s claims are as follows:
[4] Protection visa application form, Dept file [deleted], Doc ID no: [deleted]
I am seeking protection in Australia so that I do not have to return to
‘Thailand’
Why did you leave that country/those countries?
‘After I finished my studies, I worked as a contractor and laborer to support myself and my partner. I worked very hard to earn money and stay away from trouble. After many years and saving some money, I started my own food stall and continue selling items at the market stall. I wanted to earn an honest living and take care of my partner and be a good person. There are many gangs, and they have many connections with criminals and the government. They always come and take money from me and other people trying to earn money. They beat me up and destroy my stall if I cannot give them money. Many times, I was beaten by them. I tried to look for help but nobody can help me. The police don't want to help because they are afraid of them. One day I cannot stand so I beat them back and hurt their gang member. Later many people came and destroy my stall. They threatened to kill me and my partner. We tried to hide at a friend's house and protect ourselves there. They found us and continue to beat me up and also touched my partner's body. My partner very angry and decided to leave me. I am very afraid and in danger and I have to run away.’
What do you think will happen to you if you return to that country/those countries?
‘If I return to Thailand, they will find me and harm me and will kill me.’
Did you experience harm in that country/those countries?
‘Yes. I was beaten many times and injured all over my body. They even use weapons like sticks and sometimes use knifes to try to attack me. They destroy my stall. They are the people who collect money from market stalls for protection money. They know many people from the government and are not afraid of the police. They are more fierce than the police.’
Did you seek help within that country/those countries after the harm?
‘No. I tried to seek help from the government officers, but they will not help me because they are also very afraid of the gangs who knows many mafia and corrupt government people.’
Did you move, or try to move, to another part of that country/those countries to seek safety?
‘No. Thailand is a small country. We have no where to run and escape. They gangs can find us if we go to other parts of Thailand as we will not be like local residents and people will know that we are from other place. Also, the gangs have many contacts all over Thailand. They can easily find us in Thailand.’
Do you think you will be harmed or mistreated if you return to that country/those countries?
‘Yes. They will beat me and even kil me. They will even use weapons like sticks and knifes to try to attack me. They have already destroyed my stall. It was because after I suffer many times being beaten by them and injured many times, I beat them back and hurt one of their gang members. They are the people who collect money from market stalls for protection money. They know many people from the government and are not afraid of the police. They are more fierce than the police.’
Do you think the authorities of that country/those countries can and will protect you if you go back?
‘No. The authorities there are also afraid of these people as they know many different connections with the mafia and government people.’
Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?
‘Yes. The only safe place that I can relocate is in Australia. This country is very safe and the government is good. They are not afraid of the gangs and the bad people from my country cannot come here and harm people like me. Australia is a country that can give a person a chance to live a life without fear. I need to live in a place that I can feel safe and be secured and that no harm will come to me. Australia is the only place in the world that can protect people as it is very powerful and well known that bad people are afraid of Australia. Australia is like the policeman of the world.’
The delegate summarised the applicant’s claims as[5]:
[5] Protection visa application form, Dept file [deleted], Doc ID no: [deleted]
·The applicant formerly owned a food stall in a local market.
·The applicant claims that protection gangs used to extort money from him and would beat him and damage his stall if he didn’t pay them in a timely manner.
·The applicant was beaten up several times and no one came to assist him.
·The applicant couldn’t seek protection from the police as these gangs are too influential.
·One time the applicant retaliated and fought a gang member, injuring them. Later that day, other members of the gang returned and destroyed the applicant’s stall. They threatened to kill him and his partner.
·The applicant and his partner hid in a friend’s house, however, were located by the gang
·Members who assaulted both of them. After this incident the applicant’s partner left him.
·The applicant cannot relocate as the gangs are well connected and can easily find him.
·The applicant was in in fear for their life and escaped from Thailand.
·The applicant fears if they return to Thailand, they will be located by these gang members who will kill him.
Applicant’s Evidence
The applicant was born on [date] in [City 1], Thailand.[6] The applicant is unmarried and has no children. He has not included any family members, relatives or personal contacts in Australia on his protection application form but has indicated that he has a brother who resides in Thailand. He claims to telephone his brother occasionally[7].
[6] Protection visa application form, Dept file [deleted], Doc ID no: [deleted]
[7] Ibid.
The applicant completed only four years of primary schooling in Thailand. He claims to be currently unemployed and has indicated that he has been supporting himself with savings since arriving in Australia in 2018. Prior to arriving in Australia, he ran a food stall and was self-employed as a contractor in Thailand[8].
[8] Ibid.
The applicant has stated that he can speak, read and write in Thai and English. In his application for a protection visa he claims to be of Thai ethnicity and Buddhist[9].
[9] Protection visa application form, Dept file [deleted], Doc ID no: [deleted]
The applicant completed elementary school at [School 1] in [District 1], Thailand from [year] until [year]. According to the applicant’s application for protection visa he did not attend College or University. He claims that after he left school he worked in various odd jobs as a self-employed contractor within Sakon Nakhon Province. He claims that he worked very hard to earn money and to keep out of trouble. In or about 2005 he started his own food stall business selling cooked food and snacks near the [District 2] market in Sakon Nakhon Province.
The applicant claims that there are many gangs in Thailand which have connections in business and government. He claims that they took money from him and others who were earning an honest living. He claims that he was repeatedly beaten, and his stall was destroyed if he refused or was unable to give them the money they demanded.
The applicant claims that he was not able to obtain any help. He claims that the police did not help because they are afraid of the gangs themselves. He claims that on one occasion he stood up to the gang members and hurt one of them. Later they returned and destroyed his stall. They threatened to kill the applicant and his partner at the time. The applicant claims that he and his partner tried to hide but they found them and beat the applicant and ‘touched’ his partner.
The applicant claims that if he returns to Thailand the gang members will find him, harm him and kill him.
Documentation
The applicant has not submitted any supporting evidence to the Tribunal[10]
[10] Case file, Doc ID no.: 1234567
COUNTRY INFORMATION
The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the DFAT report on Thailand dated 10 July 2020 (‘the DFAT Report’) and in particular to that part of the report as re-produced in Annexure ‘A’ of these reasons.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. 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 the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[11]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[12]
[11] s.5AAA Migration Act 1958.
[12] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.[13]
[13] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194
If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
[14] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019)
In this case the applicant did not appear before the Tribunal. Had the applicant appeared, the Tribunal would have asked him questions about his claims, including when and how often he was threatened by the gang members as claimed, his ability to earn a living in Thailand and the possibility of him relocating to some other part of the country. The applicant made particular claims relating to the threat from gang members to harm and kill him in his application for protection. The applicant did not provide the Tribunal with any further statements or supporting documentation in relation to any of his claims.
Accepted Facts
Based on the applicant’s claims as provided in his protection visa application, the Tribunal finds that the applicant:
(a)was born [date] in [City 1], Thailand[15].
(b)is an ethnic Thai and a Buddhist[16].
(c)speaks, reads and writes Thai and English.
(d)attended elementary school at [School 1] in [District 1], Thailand from [year] until [year].
(e)Initially worked various odd jobs as a self-employed contractor.
(f)from 2005 owned and operated a food stall business near the [District 2] market in Sakon Nakhon Province.
Applicant’s Refugee Claim
Relevant Grounds
[15] Protection visa application form, Dept file [deleted], Doc ID no: [deleted]
[16] Protection visa application form, Dept file [deleted], Doc ID no: [deleted]
The applicant did not specifically submit that he fell within the scope of s.5J(1)(a) of the Act. Nevertheless, it was open to him to claim that he fell within s.5J(1)(a) of the Act by reason of his membership of a particular social group (PSG) as a victim of having been targeted by a gang.
Members of a PSG must be recognised (generally by the persecutor or persecutors) as sharing a connection or falling under some general classification.[17] When a person claims to fear being persecuted by reasons of their membership of PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. Section 5L[18] states:
[17] Applicant S v MIMA (2004) 217 CLR 387
[18] Section 5L Migration Act 1958
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.
The Tribunal has reservations as to whether the applicant’s claims that he has been threatened by gang members does constitute a member of a PSG pursuant to s.5J(1)(a) of the Act. Nevertheless, for the purposes of this decision the Tribunal is prepared to accept that the applicant constitutes a member of PSG. However, for the reason expressed below the Tribunal has found that there is no real chance he will be seriously harmed upon his return to Thailand.
Applicant’s well-founded fear.
Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.
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 though the possibility of the persecution occurring is well below 50 per cent.[19]
[19] Chan Yee Kin v MIEA (1989) 169 CLR 379
In this case, the applicant claims that he fears being seriously harmed as a member of a PSG if he is returned to Thailand by reason that he will be harmed or killed by gang members. The Tribunal accepts that the applicant may hold a subjective fear of being harmed if he is returned to Thailand by reason of being threatened by gang members. However, for the reason below the Tribunal finds that applicant does not have a real chance of being seriously harmed, on an objective basis, by reason of being threatened by gang members upon his return to Thailand.
Applicant’s Claim as a Refugee- Threats by gang members.
The applicant claims that he will be harmed and even killed by gang members if he is returned to Thailand. His evidence was that from 2005 he owned and operated a fall stall business near the [District 2] market in Sakon Nakhon Province. He claims that gang members extorted money from him and would beat him and damage his stall if he didn’t pay them in a timely manner. In his application for a protection visa, the applicant claims that he was beaten up several times and no one came to assist him. He claims that he was unable to seek protection from the police as these gangs are too influential. On one occasion he claims that he resisted the gang’s demands and fought a gang member, injuring them after which other members of the gang returned to his stall and destroyed it. He claims that they threatened to kill both him and his partner at the time.
The Tribunal notes that, according to the applicant’s own claims, prior to commencing the food stall business he worked as a contractor performing odd jobs from which he claims he was able to ‘earn money and stay out of trouble.’ The Tribunal notes that the applicant did not experience any issues with gang members while he was working as a self-employed contractor. The applicant’s claims arise because of gang members extorting money while he owned and operated his own food stall. Had the applicant appeared before the Tribunal, it would have questioned him as to when and how the gang members approached him. Nevertheless, from his claims as expressed in his application form, he does not appear to have encountered the gang members while working as an independent contractor. In addition, there is no evidence provided by the applicant in relation to how long the gang members had extorted money form him. The Tribunal notes that he operated the food stall from 2005 until his departure for Australia in August 2018, a period of approximately thirteen (13) years. There is no evidence as to the frequency and the timeframe in which the gang members extorted money from him as claimed.
The applicant claims that he was not able to receive any help and the police were unwilling to assist him. The country information reports that in the context of loan sharks there is overlap between loan sharks and police in rural areas, and that borrowers are unlikely to be able to receive assistance in the event of receiving a threat or losing their security. According to DFAT there are no official moves to address the issue in a substantial manner. DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.
It’s reported[20] that the Royal Thai Police Force (RTP) has an estimated 220,000 to 230,000 members of which 90 percent are male. RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility.[21] The PPD is divided into nine regions that cover all the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas). Other RTP bodies include the Central Investigation Bureau (CIB), which assists the RTP’s provincial and metropolitan components in preventing and suppressing criminal activity and in minimising threats to national security; the Narcotics Suppression Bureau; the Police Education Bureau.[22]
[20] DFAT Report at p.53
[21] DFAT Report at p.53
[22] DFAT Report at p.53
It reported that the professionalism of the RTP varies considerably across its branches, nevertheless it generally provides a higher standard of law enforcement than other regional police services. Policing remains regionally focused with a response focus mentality rather than on prevention.[23] A culture of patronage and nepotism has led to some promotions and desirable postings going to those who can afford to ‘purchase’ them. Police at junior levels are low-paid and are required to provide much of their own equipment. As a result, they tend to supplement their income as security guards or through activities such as trafficking. [24] As a result, corruption is an issue within the RTP. [25]
[23] DFAT Report at p.53
[24] DFAT Report at p.53
[25] DFAT Report at p.53
The country information[26] suggests that influential sources can sway the police. Nevertheless, this does not mean that they can engage in malpractice without consequences. It’s reported that ‘influential figures, ‘ that is those in authority and/or privileged either at a local or national level can influence the police. As such any complaint that have connections with police will be taken more seriously. [27] Nevertheless, it’s also reported that authorities act against police misconduct. From October 2015 to August 2016 the RTP disciplinary branch reported over 3000 police officers to disciplinary actions.[28] The offences included misbehaviour dereliction of duty, harming people or suspects drug use gambling embezzlement and illegal weapon possession.[29] In addition, authorities have taken steps to investigate and punish officials who committed human rights abuses. Nevertheless, official impunity continues to be a problem.[30] However, authorities have arrested police officers and convicted them of corruption, drug offences and smuggling.[31]
[26] Policing and Society ‘A critique of the internal complaints system of the Thai police force’ Richard Young, Dhiyathad Prateeppornnarong University of Birmingham 25 July 2017
[27] ibid
[28] US State Department, ‘Thailand - Country Report on Human Rights Practices 2016, 2 March 2017;
[29] ibid
[30] US STATE DEPARTMENT, ‘2020 Country Reports on Human Rights Practices: Thailand
[31] US State Department, ‘Thailand - Country Report on Human Rights Practices 2016, 2 March 2017;
Therefore, based on the country information, while the Tribunal accepts that there is corruption in the Thailand police force, it does not accept that the applicant would not be afforded effective protection by the RTP. The applicant claims that the police did not help him. However, the applicant did not provide any evidence of his complaint to police. That is, when it was made and under what circumstances. These are all issues that would have been explored with the applicant if he had of appeared before the Tribunal. Therefore, while it’s possible that if the applicant was threatened by gang members as claimed, the RTP may not provide him adequate protection, However, on the applicant’s evidence as provided in his application there is no evidence that the RTP would not provide him adequate protection as suggested by the applicant. There is evidence by the applicant that suggests the police were aquatinted with or involved with the threats by the gang as alleged. As such the Tribunal accepts that the applicant would be afforded effective protection by the RTP upon his return to Thailand. As such, the Tribunal finds the RTP does provide the applicant effective protection and as such there is no real chance, he will be seriously harmed if he is returned to Thailand.
Therefore, having considered the operation of s.5J(2) alongside the available country information, together with the applicant’s own evidence, the Tribunal is satisfied that, effective protection measures are available to the applicant in Thailand. The Tribunal finds that that the effective protection measures are available to the applicant by the State[32] and that the State is able and willing to provide such protection.[33] The applicant can access the available protection and the protection provided is durable.
[32] s.5LA(1)(a) of the Act
[33] S.5LA(1)(b) of the Act
From the available country information, the Tribunal finds that Thailand has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[34]Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as victim of gang members in Thailand as claimed or any related claim or any other reason.
[34] S.5LA(2)
Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant as a victim of a gang.
However, in circumstances where the applicant’s claim relates to him having owned and operated a food stall, there appears little reason as to why he would be harmed by gang members if he is returned to Thailand. The applicant no longer runs and operates a food stall, and it has been several years since he did so. The applicant’s evidence in his application was that he worked as a self-employed contractor without any incident from the gang members. On his own evidence he was able to earn enough money to support his partner and was able save money to own and operate the food stall. If the applicant had appeared before the Tribunal, it would have asked him if he would be able to recommence work as an independent contractor. Therefore, in the absence of any evidence to the contrary the Tribunal finds that the applicant would be able to re-commence work as an independent contractor upon his return to Thailand.
Had the applicant appeared before the Tribunal, it would have asked him about the amount of money extorted from him. However, based on the applicant’s claim, the Tribunal is of the view that the amount of money taken from him would be relatively small. In circumstances where the applicant no longer operates the food stall business and has been absent from the country for over three (3) years, the Tribunal does not accept that the gang members will maintain any interest in him as claimed. As such the Tribunal does not accept that the applicant will be seriously harmed if he is returned to Thailand.
In addition, if the applicant had appeared before the Tribunal, it would have asked him about the possibility of him relocating to another area of Thailand, including Bangkok. From the applicant’s protection visa application, he appears to have no family remaining in [City 1], Thailand. As such, there appears to be no reason why he could not relocate to a larger city, such as Bangkok. The applicant claims that the gangs operate everywhere in Thailand and that they would easily find him. However, in circumstances where the applicant was conducting a small food stall business the Tribunal does not accept that the gang members would continue to search for him all over the country. The amount of money extorted from the applicant could only have been relatively low. Therefore, in circumstances where he no longer operates the food stall business and has been absent from the country for over three (3) years, the Tribunal does not accept that gang members will be searching for him as claimed. As such, the Tribunal finds that the applicant would be able relocate to another city within Thailand. As such it finds that there is no real chance the applicant will be seriously harmed if he is returned to Thailand by reason of the fact that he can relocate to a major centre such as Bangkok.
As a result, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he returns to Thailand. Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant in relation to any threat from gang members in Thailand.
Complimentary protection.
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
For the reasons stated above, the Tribunal has not accepted the applicant’s evidence that he will be seriously harmed by gang members because he is no longer operating his business and the length of time he has been departed for the country, if he is returned to Thailand. As such, the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s.36(2A)(c) and (d). Accordingly, the Tribunal finds that there is no real risk the applicant will be significantly harmed by if he returns to Thailand because of threats from gang members as claimed.
In circumstances where the Tribunal accepts he been threatened by gang members as claimed and as a result there is a real risk of significant harm to the applicant then under s.36(2B) of the Act there is no real risk of significant harm if the applicant can ‘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’[35] To satisfy s.36(2B)(b)[36], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[37] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[38] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, section 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.
[35] s.36(2B)(b) of the Migration Act 1958
[36] MIAC v MZYYL (2012) 207 FCR 211
[37] MIAC v MZYYL (2012) 207 FCR 211 at [40].
[38] In MIAC v MZYYL (2012) 207 FCR 211
Having considered the country information, the accepted circumstances of the applicant and his own evidence to the Tribunal as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state authorities available to the applicant, if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the RTP will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Thailand, protection such that there would not be a real risk that she will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Thailand and does not satisfy s.36(2)(aa) in this regard.
In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country, that there is a real risk that they will suffer significant harm of any kind.
In addition, the Tribunal has found that the applicant can relocate to another area of Thailand such as Bangkok. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the circumstances of the applicant and the impact upon that person of relocation within his or her country.[39] In this case the Tribunal has found that due to the likely relatively small amounts of money involved, the fact that he no longer operates the food stall business and he has been absent for the country for approximately three (3) years the gang members would not continue to search for him in other parts of the country. Accordingly, the Tribunal finds that there is no real risk the applicant will be seriously harmed, by reason of the fact that it would be reasonable for him relocate to another part of the country.
[39] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
At no stage did the applicant advance any other reason, such as his race, nationality, or religion, in his written or oral claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
Having considered his claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand that there is a real risk he will suffer significant, including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).
CONCLUSION
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 the Act for the reasons mentioned in s.5J(2). Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does 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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) based on being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Pennell
Senior Member
Annexure ‘A’
Royal Thai Police (RTP)
5.6 The Royal Thai Police (RTP) is the national police force of Thailand. The RTP has an estimated force strength of between 220,000-230,000, of whom more than 90 per cent are male. Headquartered in Bangkok, the RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility. The PPD is divided into nine regions that cover all of the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas).
5.8 In-country sources report that the professionalism of the RTP varies considerably across its various branches, but that in general the RTP provides a higher standard of law enforcement than other regional police services. The CIB has reportedly improved considerably in relation to crime scene preservation, forensics and disaster victim identification, while other branches have performed well in relation to combating child exploitation and human trafficking.
5.9A number of factors combine to limit the RTP’s performance, however. Historical mistrust between the military and police was a contributing factor in the NCPO’s decision to grant the RTA policing powers, which has weakened the RTP’s authority. Policing remains very regionally focused and there is no national database or central registry for court results. Changes in laws and procedures are not always communicated to officers on the ground. There remains a ‘response’-focused mentality towards investigating crimes that have already occurred, rather than implementing robust preventative measures. A culture of patronage and nepotism results in some promotions and desirable postings going to those who can afford to ‘purchase’ them. Police at junior levels are low-paid and have to provide much of their own equipment, including their own guns. Some therefore supplement their income through ‘moonlighting’ as security for bars, while some become involved in activities such as trafficking. The mandatory retirement age of 60 increases the incentive for officers to make money from their position while they are able to do so. There have been a large number of high-profile Corruption prosecutions against serving police officers, and frequent reports of abuse by police against prisoners and detainees, generally with impunity. Human rights observers report that most Thais do not hold the RTP in high esteem as an institution.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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