1924426 (Refugee)

1924426 (Refugee) [2022] AATA 719 (11 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1924426
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Christine Cody
DATE:11 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 February 2022 at 5:55pm
CATCHWORDS
REFUGEE – protection visa – Thailand –fear of loan sharks – regularly returned to Thailand – no harm suffered each time he returned to Thailand – no action taken to repay debt for 10 years – inconsistent, changing and vague evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 5AAA, 36, 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

The applicant claims to be a citizen of Thailand. He first arrived in Australia in 2009 and thereafter made some return trips to Thailand. He has held a number of different visas in Australia, including student visas.
The applicant lodged an application for a protection visa on 17 March 2019.
On 30 August 2019 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958.
This is an application for review of that decision. The relevant law is set out in Annexure A.
The Departmental file
The applicant submitted a protection visa application form and documents relating to his studies and work in Thailand; and his studies in Australia: a Statement of Attainment – Intensive General English course from August 2009 to February 2010 from a college in Sydney dated [February] 2010 and his IELTS English test result dated [in] September 2014. He also provided documents relating to his work in Australia: he was a part-time [supervisor] from August 2009 to January 2011 ([Business 1]); and a letter dated 10 May 2013 from [Business 2] (signed by his brother [Mr A], director) states that the applicant worked for [Business 2] as a [manager] from February 2011 to October 2012.
He also provided identity documents including his Australian driver’s licence; the biodata pages for his passports issued [in] 2019 and [in] 2014 as well as a complete copy of his new passport issued [in] 2019; and a copy of his Thai ID card issued [in] 2014.
Application form
According to his application form:
·The applicant was born in [year] in [District 1]/ in the State / Province of Nakhon Ratchasima. His nationality is Thai. His marital status is separated. He has family members in Australia including his brother [Mr A] who is an Australian citizen, and brother [Mr B] who also resides in Australia.
·He studied and worked in Thailand.
·The applicant’s last arrival in Australia (holding a student visa) was in [January] 2015.
The applicant made the following claims for protection.
The reasons the applicant left Thailand are set out as follows:
·He had claims from the person thathe borrowed money for his
business. The business was opening in [a suburb], Australia but the
business was not going well and closed down. He was unable to return them that money and I interest and they been trying to find him. If they find him and he still
cannot return the money they will give him trouble. He cannot even
stay in his hometown because they will also interrupting and
claim to his parent and family and this is why he is seeking the protection
in Australia.
·He had a big debt about 1,000,000 Thai Baht that his ex-wife accrued. She had been trying to [work as an Occupation 1] but she had the cheated from the [company] and took all the money of 1,000,000 Thai Baht away. They still cannot get it back until now and then his ex wife separated from him and left this amount of debt to him so that is why he still cannot go back to Thailand.
·As set out above his ex wife and he are divorced. She left him all the debt in Thailand also took their child away which is sad. That is why Australia is the best place for him and all his study and work means that he could work here if given an opportunity .
When asked whether he experienced harm in Thailand he said yes. When asked for further details he said:
The last time he returned to Thailand they tried to catch him and hit him and also to harm his parent. They try everything to harm him. No one can help him because his home town is in the country side also very hard to contact to police to help.
When asked whether he sought help within Thailand after the harm, he said no because:
This kind of people they are influential people as the world know that Thailand is still a lot of this kind of people and as I explain before my hometown is in the countryside that why there is very hard to get help from the government.
When asked if he moved, or tried to move, to another part of the country to seek safety, he said yes, he had moved to eastern Thailand in [City 1] and worked there, but they still found him and “I feel like the try to kill me then I try my best to hide from them until I find my way to come to Australia”.
When asked what he thinks will happen if he returns to Thailand he stated:
With this situation I can get kill and plus Thailand for now they have the bad system of protection and political so it is very hard to stay and hiding myself from harm. Yes I still can get harm and mistreatment all the time from the people that I owe them the money because they try to get they money back and get a lot of interest from me but if I can not pay them back they will harm and give me mistreatment. That will be the most dangerous thing for my life. Please help me.
The authorities could not, or would not, protect him because:
Firstly My home is very faraway from the city area and safe land also very hard to get help from police and the government on time.
Secondly As the world know Thailand now is under the government and political of military (Army) and very dangerous country plus the help is not going to the country area expect to my hometown.
The applicant would not be able to relocate within Thailand to an area where he would not be harmed because the people who want to harm him:
can find me every time and everywhere of Thailand as I given the information before that I try to move to the other side of Thailand but they still can catch me up.
The delegate’s decision record
The delegate noted that the applicant had a number of opportunities to specify the particulars of his claims but had not provided any further evidence or information.
The delegate considered that the country evidence indicated that there would be state protection available and that the applicant is thus not a refugee or entitled to complementary protection, stating:
I note the applicant has claimed the police are corrupt and susceptible to influence by criminal elements, however I place more weight on independent country information detailing the authorities’ actions against crime. I also consider that having influence does not mean in all circumstances an individual will not be punished for committing a crime noting that high profile loan sharks and officials have been prosecuted for crimes in the past. There are official mechanisms in place regarding witness protection.
With regard to the country information outlined above, I note that the crackdown on loan sharks is a high priority for the NCPO and other Government agencies in Thailand, as evidenced by the promulgation of new laws in 2017. Media reports show that arrests and prosecutions against loan sharks continue to take place and that the Thai Government has instituted other schemes to assist in transferring or mitigating debts from loan sharks. I further observe that the authorities in Thailand focus on criminal activity as a means of showing their competence as a government by enforcing crackdowns and taking action against certain types of criminal activity. It is noted that the final result of the March 2019 elections have not given absolute majority to any party in Thailand but it is likely that the Thai
Government will still focus on crime in the future. Given the levels of debt and economic inequality prevalent in Thailand, there is no indication that the Thai authorities will cease this level of attention on the problem of loan sharks in the foreseeable future.
While acknowledging country information, which indicates there is some corruption in the police and judicial systems, there is nothing before me to indicate that the applicant will not be able to obtain protection from the state authorities, were they to require protection against moneylenders or gangs commissioned by them. Further, based on the above country information the protection would be durable and consist of appropriate criminal laws, a reasonably effective police force and an impartial judicial system.
I am satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. Therefore, the applicant is not a refugee as defined in s5H of the Act and the criterion in s36(2)(a) of the Act is not satisfied for this reason.
There are no non-disclosure certificates on file.
The Tribunal
The applicant lodged an application for review form accompanied by a copy of the notification of the delegate’s refusal of his protection visa application lodged 17 March 2019.
In his application for review form the applicant stated that the delegate had misunderstood his reason to apply for protection. Thailand is not a safe country for him anymore and Thailand also has a bad political system as well as a fake election, fake prime minister. He has been away from Thailand for 10 years, and in these 10 years he has learned a lot and is qualified for his [Occupation 2], which is the type of occupation needed in Australia, he has lots to offer Australia. He also produced a College certificate from August 2019, [a Diploma], an IELTS test from December 2019 showing a score of 5.5, a successful Skills Assessment from July 2020, an AFP character check dated December 2020 with no disclosable outcomes. He also produced an offer of employment from a recruitment consultant for casual work in general labour from July 2021.
The applicant was requested to provide any relevant documents or information to the Tribunal as soon as possible.
He wrote to the Tribunal asking a number of practical questions, including whether he has the right to apply for a different visa based on his qualifications and experience; the registry directed him to the Department.
The Tribunal considered it was reasonable to conduct the hearing by MS Teams videoconference during the period of the COVID-19 pandemic restrictions in NSW in November 2021 and the applicant agreed to the hearing taking place in this manner. The applicant was invited to attend a hearing on 9 November 2021 by videoconference or telephone.
On 6 November 2021 the applicant provided submissions and documents to the Tribunal. He stated that the Department had considered that Thailand has a sufficient protection system offered by the police, the Prime Minister and the King. However, he states that the documents he attached show that recently in Thailand there has been corruption by police, the Prime Minister and the King. He states that he has tried to seek protection in Thailand but it is hopeless. He wants to seek protection in Australia where he can offer all of his work skills and experience noting that his skills are on the skilled occupation list of the Department. The documents attached include articles discussing the King and that people do not want to say anything negative or derogatory about him, noting also the “lese-majeste law” although everyone does talk about the King. It says that he is corrupt, and it refers to the history of the red shirts and yellow shirts and protests and changes in power. It notes that he has organised changes to the constitution allowing him to exercise more authority. An article referring to the death of a drug suspect refers to stories of police brutality (of people in custody) and corruption. An article noted that there had been a no confidence vote in the Prime Minister amid allegations of mismanagement of the economy, bungling of the provision of COVID-19 vaccines, abuses of human rights and fostering corruption. Concerning the targets of abuses, it is suggested that this includes a drug dealer, a student leader, a human rights lawyer and political activists; and police and water canon tanks would be deployed against protestors.
The applicant indicated in his Hearing Response that he did not seek the assistance of an interpreter in the Thai language. At hearing the Tribunal explained that effective communication was most important and if he wanted an interpreter it could be organised. The applicant was somewhat equivocal but, just in case, the Tribunal asked for an interpreter to be sourced. The applicant was happy to proceed before an interpreter was sourced. When an interpreter was found, the Tribunal asked whether there was any aspect of his earlier evidence that he would like to clarify or discuss now that the interpreter was present. He said no. The Tribunal was satisfied that the applicant was able to understand the proceedings and was able to give evidence and present arguments both when the hearing was conducted in English and when it was conducted with an interpreter.
The applicant’s evidence to the Tribunal included:
·     He first arrived in Australia on [date] July 2009; he first came here to study English. He studied English for 6 months then he did a Certificate IV and a Diploma. He met his (now ex) wife [named] in October 2010. He became a dependent upon her visa: she studied [a degree]. She is a Thai citizen. They have a child born in [Australia]. His wife left Australia, taking the child back to Thailand in 2015. She went back because she said she could not handle his problems with loan sharks. She doesn’t want to handle the problem anymore.
·     His brother [Mr A] is an Australian citizen who obtained his visa on the basis of marriage. His other brother in Australia is a dependent on his partner’s [visa].
·     His father lives in the family home in north east Thailand in [District 1]. His father works; he has a small business at [home]. Whenever the applicant went back to Thailand, he always stayed in the family home.
·     The applicant said that while in Australia he has been working and sending a little bit of money back to his father, but he couldn’t afford that much because as a student he only had permission to work 20 hours per week.
·     When asked if he owes anyone any money, he said “From the shark loan”. He borrowed from [a named person] in February 2011 the sum of $100,000 Australian (it is 2.5 million Thai baht). When asked the terms of the agreement, the applicant said that the only term was that he had to pay 10% interest in Thai money. There was no written agreement.
·     The Tribunal asked the applicant for the total amount he has paid off his debt and he said $7000 Australian. His first payment occurred in November 2011. When asked what else he had paid off, he said nothing.
·     When asked what the applicant thought would happen to him if he went back to Thailand, he said because they have been trying to pursue him in the past and sent abusive messages to his brother in the past as well. And they went to the family house and tried to threaten his father at home. This happened “continually” after the year 2013. When asked how often, he said between 2013 and 2014 about once/month, but after that more often. When asked what the threats are, he said that they say that if his father cannot contact him and if the applicant doesn’t give back all of the money, they will threaten his father more often. When asked if they say the same thing every time they come, he said yes. When asked if they say anything else to his father, he said that the behaviour gets more threatening and they are walking around the house, also chanting and calling names and more seriously and more often. Nothing else.
·     The applicant said that the reason he borrowed $100,000 Australian was to invest it in [Business 2], in 2011 with his brother. He said that he and his brother each contributed $70,000. The Tribunal put to him that he had a spare $30,000. He said he just kept that as a backup emergency. The Tribunal put to him that if he kept $30,000 aside then why did he only repay $7000 to the loan shark. He gave changing reasons including: he just wants to keep as much money with him as possible. He then said that they paid $15,000 to the ATO in 2020. He also said that he used the $30,000 to survive that time when he was in debt. He then said that he paid that money to a supplier.
·     The business failed in 2013 and his brother went away to do other things and they have had some issues in the business and it doesn’t ‘go along’.
·     The Tribunal put to the applicant that he had provided a letter from [Business 2] to the Department which states that he worked there as a [manager] from February 2011 to October 2012. It is signed by his brother [Mr A] who has signed it as a director; the letter makes no reference to the applicant being a director or owner of the business. He said there is a separate contract that he signed between himself and his brother with the [business’] lawyer. The Tribunal noted that he had not provided any such contract in these proceedings; the only evidence he had provided of his involvement in the [business] is as a [manager]. In response the applicant said that it was his mistake not to provide the contract between he and his brother, but he does have that document.
·     He asked for time to find the document on his phone and the Tribunal took a break to allow him to do so. Upon return he said that he could not locate the contract but he had located a tax invoice for the ATO. He stated this said that the total payable [in] June 2013 by the [business] is $11,843. This relates to the tax year ending June 2013. The Tribunal noted that he was showing this on the video; it asked him to send in the document; he did not however do so.
·     The Tribunal noted that he had not provided any documents prior to the hearing (despite being requested to do so) relating to his claim made in his protection visa application; instead he had provided study certificates and documents relating to his work experience which are not relevant to his claims. The applicant agreed that he had not sent in the contract or the document relating to the ATO debt. The Tribunal sought to understand why he said that besides the [Business 2] agreement he doesn’t have any other document that supports his claims. He said that in submitting the other documents he was trying to show his ability and his accumulated work experience in Australia which means that he has the qualities to work in Australia.
·     The Tribunal asked whether there was any other reason, worry or concern he has about returning to Thailand (apart from the loan shark debt and its consequences). He said that the local police are not helpful, because the loan shark pays money to the local police, they help one another. The police won’t protect him against the loan shark, also the present Prime Minister cannot do anything to help him with the loan shark situation. When asked if there was anything else, he said no.
·     The applicant told the Tribunal that he did not owe money to anyone else other than the loan shark (borrowed for his business).
·     When the Tribunal asked the applicant if there was anything else he had not told the Tribunal he said that he has a partner but that is not really relevant to the application. If he applies for another visa he will include his partner in it. She currently has a student visa.

Further relevant evidence is referred to below.
The Tribunal put to the applicant at hearing that, although it had not made up its mind, it has concerns with the credibility of his claims.
At the end of the hearing the applicant asked the Tribunal to please consider his experience which will show that he will be a helpful citizen. The Tribunal said that this is not relevant to the application before it which is an application for protection.
On 9 November 2021 the applicant sent an email to the Tribunal, providing a document that he described as “The attached document is the partnership agreement of business between me and my brother ([Mr A]) that I mentioned in the hearing”. As noted above he did not provide the document he had shown on the video screen from the ATO.
CONSIDERATION OF CLAIMS
Country of reference
The applicant produced a passport to the Department which shows that he is a Thai citizen. The Tribunal accepts that the applicant is a national of Thailand, and that the appropriate country of reference for the assessment of his refugee claims and the receiving country for the purposes of his complementary protection claims, is Thailand.
The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Concerns as to the credibility of the applicant’s claims
Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims
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 the 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.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 & Anor (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70]).
As Kirby J observed in Dranichnikov v MIMA:[1]
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[2]
[1] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at [1100].
[2] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].
The Tribunal has a number of concerns with the case that this applicant has advanced on the basis of inconsistent, changing and vague evidence. The Tribunal’s concerns are set out below.
Firstly, the Tribunal put to the applicant that the details in his protection visa application form are different to his claims to the Tribunal, including as follows:
· The Tribunal noted that in his application form he had stated that in order to seek safety, he had moved to eastern Thailand, to [City 1] and had worked there, but they still found him and he felt like they tried to kill him and he tried his best to hide from them until he found a way to come to Australia. This part of his application form was inconsistent with his evidence at hearing in several respects. That part of his application form indicated that he was trying to escape loan sharks while he was still living in Thailand, and that was why he came to Australia. This version was supported by his evidence at hearing; when the Tribunal asked whether he had ever worked in Thailand when he went back home to visit, and he said no. This however was inconsistent with his claim at hearing was that his debt to the loan shark only arose after he had moved to Australia and had borrowed money to open a [business] with his brother in 2011. This undermined his claim in his application form that he had moved to [City 1] to try to escape the loan sharks and was working there. Further, when giving his evidence he initially told the Tribunal that whenever he went back to Thailand, he always stayed at the family home; he did not claim that he had moved to [City 1] avoid/hide from the loan sharks on his visits back to Thailand. In response to these inconsistencies the applicant said that he doesn’t have anything to say and it has been some time, but if the information doesn’t help in this case then he doesn’t have anything else. While the Tribunal accepts that these events occurred some time ago, it would think that the applicant would give consistent evidence, and be able to explain, whether the debt (the reason why he faces persecution) and his moving to live and work in [City 1] occurred when he was living in Thailand or when he was living in Australia. The Tribunal considers that this undermines his claims.
· The Tribunal noted that in his (2018) application form, he had claimed to have a 1 million baht debt that his ex-wife had caused because she was trying to [work as an Occupation 1] and she had cheated the company and he owed the debt so he cannot go back to Thailand because she “gave” the debt to him. However, at hearing he made no mention of this significant debt as a reason why he could not return. In response the applicant claimed that his ex-wife has now taken this serious debt and managed it herself. The Tribunal does not find this persuasive. The applicant’s wife had been back in Thailand for 3 years at the time the applicant lodged his protection visa application. His evidence thus indicates that sometime after he lodged his protection visa application, she “took back” the debt from him. Although this was a serious debt that he claimed in his protection visa application form prevented him from returning to Thailand, he made no mention of transferring this debt back to his wife in the last few years when he was asked by the Tribunal to tell it anything else. The Tribunal considers that his omission to mention this large debt undermines that claim and his credibility.
Secondly, the Tribunal was concerned that the applicant was prepared to tell untruths during his evidence. When the Tribunal was asking about his migration history, he initially he said that he was always a dependent upon his wife’s student visa until 17 March 2019 (when he lodged his protection visa application), indicating that he was lawfully present. The Tribunal noted his evidence that she had returned home in 2015; it asked him to confirm he was saying that he had remained as a dependent on her visa until he lodged his protection visa application; he then said that when she left, he remained as a dependent on her student visa until he got his own student visa the following year, in April 2016. He studied a Certificate III [for] one year from April 2016 to April 2017. When asked he said he did not study after that, and his student visa expired in July 2017. He then acknowledged that he remained unlawfully present in Australia with no visa between April 2017 and March 2019, delaying 2 years before he lodged his protection visa application. He said that he sought help from his brother because it was illegal to work, and so he didn’t work between April 2017 and March 2019. His brother [Mr A] supported him. The Tribunal considered that his initial evidence, that he was always (lawfully present) a dependent upon his wife’s student visa, was not truthful and he only corrected this when the Tribunal asked further questions. The Tribunal considers that this undermines his credibility. The Tribunal’s concerns are heightened by his delay.
Thirdly, the Tribunal put to the applicant its concern about the agreement with the loan shark. The applicant told the Tribunal there was a single term of the agreement; to pay 10% interest. The Tribunal put to him that it would think there would be a term requiring him to repay the amount of the principal by some date; he did not agree, he said that if he doesn’t return the money then the interest is still 10%. The Tribunal finds it difficult to accept that the applicant borrowed a significant amount of money but claims that there was no due date to return the principal (he does not suggest that the borrowing was secured in any way). Its concern in this regard is heightened as the applicant claimed that as early as 2013, he was receiving demands for the principal to be repaid; indicating that it was a term of the loan agreement to repay the principal. The Tribunal considered that if there was a genuine loan agreement, the applicant would have known he had to repay the principal and he would have told the Tribunal that this was a term of the agreement.
The Tribunal was further concerned because, as put to the applicant, it did not seem to make sense that he would borrow such a significant amount of money from a loan shark. The applicant said that he just didn’t have enough experience. While the Tribunal accepts that people do borrow from loan sharks and can get into trouble for this reason, when having regard to its other concerns, it finds this difficult to accept.
Fourthly, the Tribunal had concerns that despite his written claims that the loan sharks are dangerous to his life, he has not repaid any money while he has been in Australia (except once), and in the meantime, they have been threatening his father that he must repay the money. Further, he gave evidence that he went back to visit in Thailand approximately every year between 2011 to 2015.
The applicant told the Tribunal that whenever he visited Thailand, he never saw /had any trouble from the loan sharks except in 2015. In July 2015 when he went back to Thailand for his mother’s funeral (he was there for one week) he said that he saw them but there were a lot of people, so he managed to get away. When asked what occurred, he said that the person tried to approach him and tried to harm him but because there were a lot of people, they could not do anything so they just told him to return the whole lot of the money or they will threaten him even more. The Tribunal put to the applicant that he had not paid them anything since November 2011; it does not make sense that he went back to visit every year given the danger he was in, and also it doesn’t make sense that they never found him and harmed him each time he returned to Thailand given his claim that he cannot escape from them. He then said he went back for 2 funerals, in 2013 and 2014 (his mother’s was in 2014, he said he made a mistake in saying those events occurred in 2015, it was when he went back in 2014). The reason he went back in 2015 was to see if it was safe and it wasn’t safe, so he came back here. The Tribunal put to the applicant that given they had finally located him in 2014, it is difficult to accept that they didn’t follow him/use their connections to the police to approach him/threaten/harm him. He said that following that incident he moved to another province and came back to Australia.
The applicant’s evidence was thus in all the times he visited, he was never harmed or even disturbed except for once; and that even in 2014 when he was approached and threatened by these highly dangerous people who are prepared to kill him, he escaped from harm yet still returned in 2015. The Tribunal considers the applicant’s regular returns to Thailand to be inconsistent with and to undermine his claims. The Tribunal’s concerns were heightened because his protection visa application form states that it was the last time he returned to Thailand (in 2015) that they tried to hit him and catch him and follow him to his hometown and also harm his father, but his evidence changed in this respect at hearing.
Fifthly, the Tribunal had concerns that the applicant’s evidence undermined the credibility of his claims. Although he said he was prepared to remain here unlawfully, he said he was obeying the law and not working, while he did not have the right to work for 2 years, leaving it to his brother to support him. Even if the Tribunal accepted the claim that he did not work for 2 years whilst unlawfully present, he told the Tribunal that he has worked and gained work experience for 6 years while in Australia (supporting his assertion that he would be an asset to Australia considering his work experience). The Tribunal put to him that if that was true, it did not understand why he had not paid any money to the loan shark since 2011 from the income he had (noting that in addition he had borrowed an extra $30,000 in case of an emergency, and even if it is accepted that he and his brother paid $15,000 to the ATO in 2020). His failure to pay the loan shark anything meant that he left his father in Thailand in a very vulnerable position. The Tribunal noted that loan sharks can turn to violence; the applicant himself claimed that for reason of non-payment he will be harmed/subject to a danger to his life/he will be killed if he returns. The Tribunal put to him that he has left his father to face the loan sharks while he had failed to pay any money since 2011 to appease them. In response the applicant said that he only has permission to work 20 hours, and this was not enough for him to survive in Australia.
The Tribunal noted his evidence at hearing was that about one year prior to the hearing he had received permission to work full time in Australia[3], and had been doing so; yet he has still not repaid anything to the loan sharks; while leaving his father, who is constantly being threatened (and is exposed to these violent loan sharks) in a very vulnerable position as he has not taken any steps to repay his debt for 10 years). In response the applicant said that he has saved some money that he plans to pay at the end of the year.
[3] The Tribunal had misread a document that the applicant had produced from [Company 1] dated 21 June 2013 and put to the applicant that he had worked earlier, in about 2013, on a full-time basis, as a [manager]; he said no. He then agreed with this, saying it was a mistake and “I put down full time but it was only part time”. He then said that the document he had produced was false. Only later did he recall that this company had offered him a sponsored position. Upon closer reading, the Tribunal accepts that the letter from the [manager] with [Company 1] dated 21 June 2013 states that the applicant is offered the full-time position of [manager] in a [specified business] which will be a 4-year period of employment once he obtains his 457 visa grant. The applicant signed the offer accepting it on 21 June 2013. The Tribunal accepts that this letter does not mean that the applicant had been working full time for that [business] in 2013.
The Tribunal considers that the applicant’s claim that he failed to repay anything to the violent and threatening loan sharks, leaving his father at their mercy, while he has been living in Australia, holidaying/visiting back in Thailand approximately every year, and earning money and not claiming protection, is difficult to accept.
The Tribunal put to him that it was concerned that because he wants to stay in Australia so much, he may have made up his protection visa claims so that he can stay and work. In response the applicant said that the reason is that the only way that he can clear his problems from the past is to work hard here so that he can pay the debt; this is the only way that he thinks he can solve the problem. The Tribunal did not find this explanation to be persuasive.
On the basis of the above concerns, the Tribunal does not accept that the applicant is a witness of truth in relation to his claims of past harm and future fears.
Other matters
The Tribunal has considered whether the applicant could have been nervous at hearing, however, even allowing for this, the Tribunal does not accept that this can explain the difficulties in his evidence.
Findings as to the applicant’s claims
As noted above, the applicant produced, post hearing, a document. It was typed, and signed, stated to be a partnership agreement between the applicant and his brother [Mr A], prepared by [a law firm], dated 2 November 2011. It states that they “wish to carry on the business of [Business 2] in partnership”; the profits and losses of the partnership will be shared equally; the partnership will keep accounts; the applicant will attend to [specified tasks] and his brother will attend to the administration and floor management of the business. While this supports, and the Tribunal is prepared to accept, that the applicant and his brother had a [specified] business, and that the applicant worked there, this does not mean that the applicant’s claim that he borrowed from a loan shark and got into significant debt to a loan shark is true. The Tribunal is prepared to accept that the [business] owed a debt of over $10,000 to the ATO; again this does not mean that the applicant’s claims relating to loan sharks are true.
On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant borrowed money from a loan shark, that his ex-wife owed money that she “gave” to him, that he or his family have faced adverse attention or harm or threats from a loan shark, that the applicant tried to relocate but was discovered. It does not accept that the applicant feared any harm on any occasion when he returned to Thailand after first coming to Australia in 2009, nor that anyone was following him/showing adverse interest in him. The Tribunal does not accept claims that flow from these claims. The Tribunal does not accept that the reason the applicant came to Australia was because he needed to escape Thailand. It does not accept that the applicant came to Australia to escape any harm or adverse interest in Thailand at any time, nor that he had or has a fear of returning to Thailand for any reason. The Tribunal does not accept that there has been any adverse interest in the applicant since he came to Australia. The Tribunal finds that he returned to Thailand on a number of occasions between 2011 and 2015 and that he faced no harm or adverse attention on those occasions. It does not accept that he was in hiding/avoiding harm when he returned to Thailand.
The Tribunal noted that it is required to have regard to the Department of Foreign Affairs (DFAT) Report which provides information as to the country conditions in Thailand. The Tribunal put to the applicant that if it did not accept his claims about debts and the claims that flow from those claims, then having regard to the country conditions it did not appear that he faces a real chance of serious harm or a real risk of significant harm. While the Tribunal acknowledges the country information in the DFAT report and produced by the applicant, to the effect that there can be corruption, police brutality and concerns about COVID vaccine rollouts, the Tribunal is not satisfied that the applicant has a profile which would lead to him being subject to a real chance of serious harm or a real risk of significant harm for any reason in Thailand. It is also not satisfied that there is a real chance or a real risk that he would need police protection and that he would be denied this. The Tribunal is also not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm because he has lived in Australia and has not been living in Thailand for over 10 years.

The Tribunal considers that the applicant has made up his claims.
On the evidence before it, the Tribunal does not accept that the applicant faces harm for any reason including debts, loan sharks, corruption, a claimed lack of protection, country conditions, human rights, political freedom, democracy, liberty or the economy. The Tribunal is not satisfied that the applicant has a genuine subjective fear of harm for any of these reasons, nor does the Tribunal accept that any of these factors in Thailand support an objective basis for this applicant to fear persecution.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal has not accepted the applicant’s claims as to debts owed to anyone including loan sharks. The Tribunal does not accept that the applicant has experienced any adverse interest or harm as claimed nor that his family were approached/targeted because of him. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for any reason including the political situation, human rights, political freedom, democracy, liberty or the economy.
The Tribunal does not accept that the applicant has the profile which would lead to him facing a real risk of significant harm for any reason in Thailand. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, 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 a receiving country, in this case Thailand, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(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 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) 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - 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 (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 below.
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 below.
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.
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.
…

[2022] AATA 719

11 February 2022

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