1921620 (Refugee)

[2024] AATA 3929

1921620 (Refugee) [2024] AATA 3929 (27 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Christopher Levingston (MARN: 9301108)

CASE NUMBER:  1921620

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Frank Russo

DATE:27 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2024 at 10:44am

CATCHWORDS

REFUGEE – Protection Visa – Thailand – applicant declined hearing invitation – applicant does not claim that she experienced harm in Thailand – daughter is an Australian citizen – applicant has not provided any information or evidence in support of her claim –applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 46, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Thailand, applied for the visa on 12 October 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

3. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in Thailand and, if not, whether 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 she will suffer significant harm.

4. The applicant was represented in relation to the review.

5. On 26 March 2024, the Tribunal sent the applicant correspondence requesting that she complete a pre-hearing information form and return it to the Tribunal within seven days.

6. On 9 April 2024 the applicant’s representative advised the applicant requested that the application for review be determined by the Tribunal ‘on the papers’. The Tribunal is satisfied that the applicant has consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. As noted above, the issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in Thailand and, if not, whether 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 she will suffer significant harm.

14. In support of her application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record and notice of the decision from the Department. On 9 April 2024 the applicant’s representative provided an email indicating that the applicant requested that the Tribunal determine the application for review on the papers. The applicant has not otherwise provided the Tribunal with any further evidence in support of her application for review.

15. The Tribunal also has a copy of the Department file, which includes a copy of the applicant’s Protection visa application, a copy of the biodata pages of the applicant’s Thai passport, a separate full copy of the applicant’s Thai passport, a certificate of registration of change to family name, NSW birth certificate of the applicant’s daughter and biodata pages of her daughter’s Australian passport, the biodata pages of the Australian passport of the father of the applicant’s daughter and a Thai change of name certificate. The Tribunal has had regard to the documents on that file.

16. The Tribunal, in reaching its decision, has taken into account all of the relevant evidence before it. It has also taken into account independent country information about Thailand.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims made in Protection visa application

18. In her Protection visa application, the applicant states that she is seeking protection in Australia so she does not have to return to Thailand. She states that she came to Australia on a Student visa. In response to Question 77, ‘What do you think will happen if you return to that country/those countries?’, the applicant states that her daughter, who is an Australian citizen, will be disadvantaged. In response to Question 78 of the visa application, the applicant declares that she did not experience harm in Thailand. In response to Question 81 of the visa application, the applicant declares that she does not think she will be harmed or mistreated if she returns to Thailand.

19. At Part B, Question 4 of her visa application from, the applicant declares her daughter, [name], as a family member who is not included in the Protection visa application. She declares that her daughter is not included in the visa application because her daughter is an Australian citizen. The applicant has also provided the Department with copies of the Australian birth certificate and Australian passport biodata pages of her daughter. At Question 42 the applicant provides the contact details of the father of her daughter, who is also an Australian citizen. She has also provided the Department with the biodata pages of the Australian passport of her daughter’s father.

    Delegate’s decision

20. The applicant provided the Tribunal with a copy of the delegate’s decision with her application for review. There is nothing in the delegate’s decision to indicate that the applicant was invited to attend an interview with the Department.

21. The delegate’s decision advises that on 7 November 2018 the applicant was sent an acknowledgement of a valid visa application, which advised that the applicant could provide additional information relating to her claims and how to provide this information. The letter also informed the applicant that the decision on her visa application could be made without another opportunity for her to present any further information. The applicant did not subsequently provide the Department with additional information about her claims.

22. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

    Analysis, findings and reasons

23. The Tribunal is satisfied on the basis of the copy of the applicant’s passport attached to her visa application, that she is a citizen of Thailand. It has assessed her against that country for determining both whether she has a well-founded fear of persecution for the purposes of s.36(2)(a) of the Act and the purposes of determining her ‘receiving country’ for the purposes of s.36(2)(aa) of the Act.

24. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

25. The mere fact that a person claims fear of persecution 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 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 of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

26. The applicant's claims contained in her visa application are not sufficiently detailed to enable the Tribunal to be satisfied that she faces a real chance of persecution in Thailand on any other basis. Nor are the claims contained in her visa application sufficiently detailed for the Tribunal to be satisfied 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 she will suffer significant harm.

27. On the basis of the applicant’s Thai passport, which she provided to the Department, I accept that she was born in Udon Thani, Thailand. On the basis of the birth certificate of the applicant’s daughter and the passports provided to the Department, I accept that the applicant has a daughter who was born in [year] and is an Australian citizen. The applicant declares in her visa application that she arrived in Australia holding a Student visa. On the basis of the applicant’s movement record, a copy of which is on the Tribunal file, I accept this to be the case.

28. The applicant does not claim that she experienced harm in Thailand, nor does she claim that she will be harmed or mistreated if she returns to Thailand. The applicant claims that if she returns to Thailand, her daughter who is an Australian citizen, will be disadvantaged. The applicant does not provide any further detail about why her daughter would be disadvantaged or how she will be disadvantaged. The applicant has not claimed to fear harm on return to Thailand because of her race, religion, nationality, political opinion or membership of a particular social group. The applicant has not explained how the very general claim she has made regarding disadvantage to her daughter would result in the applicant facing a real chance of persecution in Thailand on any basis, nor how it would give rise to 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 she will suffer significant harm.

29. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that she has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of her membership of a particular social group if she returns to Thailand in the foreseeable future. The applicant has not provided any information or evidence in support of her claim that her daughter will be disadvantaged if the applicant returns to Thailand, other than making a general assertion in her visa application which is not supported by any evidence other than identification documents, such as passports and a birth certificate. The applicant has also declared in her visa application that she does not believe she will experience any harm upon return to Thailand, and she has not provided any further claims or evidence to support a claim that she would experience any harm upon return to Thailand since making her Protection visa application. I am not satisfied that there is any evidence that the applicant would experience any persecution or harm upon return to Thailand. I am not satisfied that the applicant has a well-founded fear of persecution on the basis of her claim that her daughter will be disadvantaged if she returns to Thailand. I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if she returned to Thailand, now or in the reasonably foreseeable future.

30. 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).

31. 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). As noted above, the applicant has provided very limited information about her claims and the only supporting evidence provided is passport and other identification documents which establish that the applicant has a daughter who is an Australian citizen and was born in [year]. The applicant has declared in her visa application that she did not experience harm in Thailand and also declared that she does not think that she will be harmed or mistreated if she returns to Thailand. The applicant has not provided any information as to any future harm, other than making a general assertion that her daughter will be disadvantaged if the applicant returns to Thailand. The applicant has not provided any evidence or information as to how her daughter will be disadvantaged, nor of how this would result in any harm to the applicant.

32. On the basis of the evidence before the Tribunal, I do not accept that the applicant will suffer any harm on the basis of her claims, or for any other reason, upon return to Thailand. The Tribunal is not satisfied that there is a real risk that she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Thailand now or in the reasonably foreseeable future.

33. Accordingly, 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, there is a real risk that she will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act.

34. Given this, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSIONS

35. 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).

36. 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).

37. There is no suggestion that 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

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

    Frank Russo
    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.

    …