1925873 (Refugee)

1925873 (Refugee) [2024] AATA 3858 (21 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul O'Connor (MARN: 0854511)
CASE NUMBER:  1925873
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Paul Noonan
DATE:21 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 August 2024 at 1:13pm

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from loan shark – borrowed to buy business stock, and unable to repay – death threats and manhandling, and continuing harassment of parents – vague and implausible claims – likely that lender has taken possession of business and stock – later student loan being repaid – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 April 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Thailand, applied for the visas on 27 April 2019. The delegate refused to grant the visas on the basis that the Thai authorities would provide them with protection should they require it such that there is not a real chance of persecution involving serious harm or a real risk of significant harm to them from loan sharks.
The applicants appeared before the Tribunal on 17 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The applicants supplied a copy of the delegate’s decision to the Tribunal for the purposes of their review application. They were not interviewed by the delegate.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity and country of reference
The first named applicant states that she was born in [Year] in Udon Thani, Thailand. She provided a copy of the biodata page of her Thai passport to the Department, a copy of which is retained on the Department file and which confirmed the applicant’s date and place of birth. There is no evidence to suggest this document is a bogus document and, as such, the Tribunal accepts the first named applicant’s identity, as did the delegate.
The second named applicant states that he was also born in [Year] in Udon Thani, Thailand. He provided a copy of the biodata page of his Thai passport to the Department, a copy of which is retained on the Department file and which confirmed the applicant’s date and place of birth. There is no evidence to suggest this document is a bogus document and, as such, the Tribunal accepts the second named applicant’s identity, as did the delegate.
There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided by the applicants, the Tribunal finds that the applicants are citizens of Thailand and, as such, their protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.
Applicants’ original claims
The second named applicant replicated the claims of the first named applicant. The first named applicant wrote in her claim to the Department on 27 April 2019 that (in summary) she fears harm because she owes a debt in Thailand and she has received death threats if she cannot repay the debt. The debt was incurred because of a failed business.
ASSESSMENT OF CLAIMS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claim to fear harm from a loan shark
The Tribunal accepts that the second named applicant borrowed 2 million baht from a man named [Mr A] (‘the lender’). This is based upon a translated loan agreement and [bank] statements reflecting transfers totalling this amount from the lender into the first named applicant’s bank account between 9 September 2018 and 12 September 2018. Interest is noted as 5% per month or 100,000 baht. The applicants state that the lender was [related to someone] at a [workplace] at which the second named applicant was employed as [an occupation]. It was this relationship which was the basis upon which the money was lent.
The Tribunal accepts that the first named applicant used this money to purchase a [business]. The Tribunal notes that 1.1 million baht was transferred to a [Ms B] on 24 to 25 September 2018. The first named applicant indicated to the Tribunal that this was the vendor of the business and noted her name was [Ms B]. The first named applicant supplied a translated copy of a business lease agreement between herself and [Ms B], effective from 24 September 2018 for a total lease payment of 1,100,000 baht.
The first named applicant supplied various stock invoices reflecting stock purchases for the business for October to December 2018.
The first named applicant’s bank statement reflects transfers to the lender of 100,000 baht on 31 October 2018, 100,000 baht on 30 November 2019, 60,000 baht on 30 December 2018, 60,000 baht on 30 January 2019 and 250,000 baht on 19 February 2019. The balance of her account after this transfer was 252,580.90 baht. No further bank statements were provided.
The first named applicant submitted that the takings of the business were insufficient to meet outgoings and service the debt. After the two shortfalls in interest repayments the lender came to their shop and threatened them and demanded full repayment. They were both manhandled by the lender and his accomplice. He said if the money is not repaid they would kill them. They went to see a doctor to document and treat their injuries. They reported the matter to the police but no action was taken. They panicked, shut the business and paid the lender 250,000 baht and ran away to Bangkok.
The Tribunal notes that translated medical certificates have been submitted, dated 18 February 2019. These reflect an examination of the second named applicant recording bruising and swelling to his chest and right shoulder injuries and bruises on the upper arms of the first named applicant.
The lender kept calling them to ask for the money back but as they had no money they decided to leave Thailand and travel to Australia which they did on 18 April 2019. Since being in Australia the lender continually harasses both sets of parents about the unpaid debt.
Despite accepting that the applicants borrowed the money in question the Tribunal does not accept as credible the applicants’ claim to still owe this money to the lender. This is for the following reasons:
·Firstly, when questioned about security given for such a substantial loan, the first named applicant stated there was none given. Rather, the loan was given on the basis of the second named applicant’s relationship with the lender and his status as [an occupation] with sufficient salary to act as security for the debt. This is simply implausible as the second named applicant supplied a copy of his [contract] which stated that his monthly salary was only 15,000 baht. The Tribunal does not accept that such a low salary would be sufficient security for the loan in question. It is far more plausible that the lender took security over the business and its stock. Indeed, the first named applicant gave evidence that the stock was repossessed by the lender which reflects that material security was in fact given.
·Secondly, when questioned about work in Australia, both applicants stated that they have been gainfully employed since being here. They also both finished tertiary studies in Thailand. The applicants then stated in answer to questions about how they afforded this study that they took out student loans. The second named applicant pays 20,000 baht a year off this loan from his earnings in Australia via direct debit. The first named applicant also gave evidence that she makes a yearly payment towards the repayment of her student debt. When asked why she makes this repayment she stated that a person in her village was a guarantor for the debt and she did not want them to be in any trouble. When asked about repayment of the claimed debt to the lender the applicants stated that they had not repatriated any money back to Thailand in satisfaction of this debt. The Tribunal put to the applicants that it may find it highly implausible that they would prioritise the repayment of student loans instead of the lender in circumstances where they have given evidence that their parents are being continually harassed and death threats have been issued. The applicants simply stated that they do not have enough money. The Tribunal considers that it is far more plausible that the applicants are repatriating money for the repayment of student debts only as these are the only debts they have outstanding.
·Thirdly, the business itself was generating average monthly income of 263,000 baht according to the first named applicant’s written statement and it held significant stock levels according to purchase invoices. Further, the applicants paid 1,100,000 baht for the business lease. As such, the business had significant intrinsic value which would be sufficient to meet the outstanding debt, when the forward payment of 250,000 baht made by the applicants is also taken into consideration.
On the basis of the above reasoning, the Tribunal is satisfied that the lender has taken possession of the business and its stock in full satisfaction of the debt. The Tribunal does not accept that the applicants have an outstanding debt to the lender or that the lender is continuously harassing their parents in Thailand about the debt. It follows that the Tribunal finds that the applicants do not face a real chance of serious harm for reason of owing a debt on their return to Thailand now or in the reasonably foreseeable future. Their fear of persecution on this basis is not well-founded.
The applicants made no other claims to fear persecution or harm should they be required to return to Thailand.
Complementary protection
In considering whether the applicants meet the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.
For the reasons set out above, the Tribunal has found there is not a real chance the applicants will suffer serious harm for reason of owing a debt to a loan shark if they return to Thailand, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[1] The Tribunal notes that this applies equally to the assessment of ‘well‑founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept there to be a real risk that the applicants would face significant harm if returned to Thailand for reason of owing a debt to a loan shark.
[1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Paul Noonan
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.
…

[2024] AATA 3858

21 August 2024

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