1925007 (Refugee)

[2021] AATA 4469

1925007 (Refugee) [2021] AATA 4469 (21 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1925007

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Rodger Shanahan

DATE:21 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 21 October 2021 at 4:03pm

CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – supporter of previous government fearing harm by current military government – credibility – inconsistent claims and evidence and no corroborative evidence provided – voluntary return – no harm to family members – delay in applying for protection – applied when student visa expired – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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 28 August 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Thailand, applied for the visa on 11 October 2017.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   CLAIMS AND EVIDENCE

   Protection Visa Application

9. The following statements were made as part of the applicant’s protection visa application:

   My family and I were supporter of former Prime Ministers Thaksin Shinawatra and Yingluck Shinawatra. Current Military Government cracking down the their supporters and even kilning them by force. Both Shinawatras fled Thailand to save themselves and government now taking revenge on their supporters and torturing them in every way. My family is targeted by the military and I am a target. I would be prosecuted if I return to Thailand. As a Red shirt supporter, I would be put into death by the notorious military.

   I was targeted and humiliated by the military before I left Thailand. I was asked many questions and warned to stop supporting the Shinawatras.

   I tried to move to the North but still was checked by the authority and asked many questions because our names were in their list. I rather preferred to live in Bangkok and was looking to leave the country.

   I would be put into prison and eventually into death by the military Government because of my support to the Shinawatras. I will be harmed like thousands of Red shirt supporters who are in prisons and many of them are killed by the military government.

   AAT hearing

10. The applicant claimed that she was pregnant now and if she returned to Thailand it wouldn’t be fair for her from the mob and the government. Asked what would happen to her, she said she didn’t feel safe as she used to attend protests and the Thai government was a military one. Asked what specifically would happen to her she said they might harm her and shew as asked in what way. She claimed that she might be arrested or killed as the situation was not yet normal in Thailand. This might be done by the military people or the people who worked for the government – she said again she meant the military. Th military was against ‘the mob’ (anti-government demonstrators).

11. Asked why they would target her individually, she claimed that she attended a lot of rallies and they might think she was one of their leaders who opposed the government. Asked what group they would think she was a leader of, she claimed that it was the Red Shirts. She first had this fear of being arrested before she came to Australia, which is why she would like to live somewhere else. Asked to be more specific about when she feared being arrested and killed, she said she felt this way in June 2014.

12. She said the military had staged a coup and they had seen her in the rallies many times. Asked how many people attended these rallies and how they knew that she had attended these rallies, she said there were 100-200 on certain days. They were held at city hall and sometimes in Bangkok. It was put to her that there were more than this number in Bangkok and she agreed but in the province in the northeast there were 100-200 people. She attended more than 10 rallies.

13. She left Thailand [in] September 2014. Asked if she felt that she would be arrested or killed when she left Thailand she said she was afraid. Asked if she had returned to Thailand since then she said she did to visit her sick father in hospital. Asked why she returned if she thought she would be killed or arrested, she said her father was sick and in hospital and she stayed for one month in a different province from where she lived. She flew into Bangkok from Australia and then took a domestic flight.

14. She was not stopped by any Thai government authority when she flew into Bangkok. Asked why she thought anyone was interested in her given she claimed to fear being seriously harmed from June 2014 yet she returned for a month and departed without any problems, including entering and exiting through the main airport. She said she didn’t go out and stayed in the hospital. It was put to her that if she was of interest then her name would likely be on a list at the airport and yet she entered and left without problems.

15. She said her concern was about the military authorities in her province which is why she didn’t go there. Asked why she didn’t just live elsewhere, such as Bangkok, she said they would know her anywhere in Thailand. It was put to her that this made no sense as she entered and left through Bangkok airport in December 2015/January 2016 and nobody paid any attention to her so there appeared to be no problems. She said she didn’t feel safe her whole time there.

16. Asked when she applied for protection, she said it was 2017. Asked why there was such a delay, she said she still had a student visa that was valid until about October 2017. It was put to her that student visas didn’t give her permanent residence in the country, and she was asked why she didn’t apply for protection given she lived in fear since 2014, she said that she thought the fear would go away in Australia.

17. Asked if she had any evidence whatsoever that she attended a [protest such as photos, social media or anything, she said she changed her phone two-three times and wasn’t involved in social media. Asked if her friends or other members of the Red Shirts had photos given the evidence didn’t have to come from her phone, she said no one took photos and she didn’t contact them.

18. Asked if she had any evidence of a connection to the Red Shirts such as social media or any writing or anything, she said she wasn’t contacting the Red Shirts since she had been in Australia and didn’t want anything to do with them. Her parents were supporters but didn’t take part in the rallies. Nothing had happened to them because they were old and did not take part in rallies.

19. It was put to her that she had claimed in her protection visa that her family were targeted by the authorities but she said here today that they were not and was asked about the inconsistency. She claimed that because her father was sick and didn’t have anything to do with the Red Shirts – she was again asked about the inconsistency in her statements, and she said that this was before and her family was asked to stop.

20. It was put to her that she had no evidence that she was part of the red Shirts and had nothing to indicate that she had anything to do with them since she had been in Australia, so the Tribunal was concerned that she was not or had never been active. She repeated that she used to attend rallies and was afraid and didn’t want to live in Thailand and wanted to live elsewhere.

21. It was put to her that she claimed she last attended a rally seven years ago and was asked why she thought the Thai authorities would know or be interested seven years later. She said she was afraid and didn’t want to go back to Thailand and the government was still the same. She was again asked why she thought the Thai government would know she attended a rally more than seven years ago. She said that political opponents may know. Asked why they would associate her with the Red Shirts given she was never detained and there were no photos of her. She said that she didn’t feel safe in Thailand.

22. She said that she was pregnant and wanted to have her child before a decision was made. The father of her child was an Australian citizen residing in Australia. She was advised that this was not how the system worked and a decision would be made in days or weeks.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The applicant first arrived in Australia on a visitors visa [in] September 2014. She applied for a protection visa on 11 October 2017. The Tribunal sighted her Thai passport as proof of her identity and his claim will be assessed accordingly.

24. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams audio. The hearing was held during the COVID-19 pandemic. In arriving at this course of action the Tribunal had regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by this means.

25. The applicant is a [age] year-old pregnant Thai woman.  She claimed that she was a supporter of the former prime minister and would be prosecuted, jailed and possibly put to death by the military if she returned to Thailand.

26. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant. 

27. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness.

    Political Activism

28. I do not accept that the applicant was ever politically active in Thailand, that she was a member of the Red Shirts group, that she was or is of interest to the Thai authorities or that she would be prosecuted, jailed or killed because of it.

29. To begin with she has provided no evidence to support the claim about her participation with, or membership of the Red Shirts. She was unable to provide any evidence such as photographs or media/social media entries that could have supported the claim. I do not accept that this was because she had changed phones two or three times, didn’t use social media, none of her friends in Thailand took photos and that she didn’t contact them. This relies entirely on her uncorroborated oral evidence, and there are other aspects of her account that raise serious doubts as to the truthfulness of her claim.

30. Since being in Australia she has returned to Thailand on one occasion, leaving Australia in December 2015 and returning in January 2016. She flew into and out of Bangkok and then flew to the northern provinces. I note that she claimed to have gone to visit her ill father although no evidence of this was provided so I am unable to lend this reason much weight.

31. I give much greater weight to her willingness to enter and exit via the main Thai airport even though she claimed to have been fearful of the Thai authorities since June 2014. She also willingly flew into and stayed in the north even though she said in her statement that her name was on a list held by the Thai authorities. Although she claimed that she avoided her home province because that was where the concern was with respect to the Thai military. Yet this was inconsistent with her statement where she claimed that her name was on a list held in ‘the north’. It was also inconsistent with her claim at hearing that she couldn’t live in Bangkok because they would know her anywhere in Thailand.

32. There is also another inconsistency with respect to the attention paid to her parents. In her October 2017 statement she claimed that her family was targeted by the military yet at hearing she claimed that nothing happened to her parents because they were old and didn’t take part in rallies. I do not accept that the inconsistency was because her family was asked to stop – she never mentioned this in her October 2017 statement nor was it raised until the inconsistency was pointed out to her.  

33. I have also taken into account the lengthy delay in applying for protection in Australia. She stated that she was afraid in Thailand from June 2014, then came to Australia and didn’t apply for protection until more than three years later. A delay of this length is not indicative of someone who has fled their country fearing their life.

34. While I note that she claimed she didn’t apply because she was on a student visa, this did not preclude her from applying for protection. She also voluntarily returned to Thailand on her Thai passport during this period, during which time the fact that she had a student visa would not have provided her with any protection. This delay is not a primary reason for my disbelieving her claim, however it adds to other more substantive concerns outlined above.

35. Because I do not accept that the applicant is or was ever politically active in Thailand or has been in Australia, I do not accept that she would be of interest to the Thai authorities, let alone be arrested, jailed or killed.

36. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

37. Because I do not accept that the applicant has ever been a political activist or Red Shirt supporter in Thailand, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims.

38. I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

39. 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).

40. 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).

41. 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

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

    Rodger Shanahan
    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.

    …