1925878 (Refugee)

[2022] AATA 975

1925878 (Refugee) [2022] AATA 975 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1925878

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Peter Vlahos

DATE:21 February 2022

PLACE OF DECISION:  Melbourne

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

This Statement was made on 21^st February 2022 at 8.45AM

CATCHWORDS

REFUGEE – Protection visa – Thailand – fears harm and persecution from her nephew –effective protection measures are available to the applicant – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 6 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Thailand, applied for the visa on 17 April 2019. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.

3. On 15 September 2019 the applicant made an application to the Tribunal to review the delegate’s decision to refuse his application for Protection visa.

4. On 15 February 2022 a Tribunal hearing was held to review the delegate’s decision via the means of teleconference due to the state of emergency still in force in State of Victoria due to the persistence of the Covid-19 Pandemic.

5. The applicant did not provide any prepared statements or written evidence prior to the hearing and no witnesses were called to provide evidence in the applicant’s case or any written witness statements submitted.

6. The applicant was not represented at the hearing by a registered migration agent or legal counsel.

7. The applicant was assisted at the hearing by an interpreter in the Thai and English languages.

   CRITERIA FOR A PROTECTION VISA

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

9. 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.

10. 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).

11. 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.

12. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether Australia has protection obligations in respect of the [applicant]. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

    Country of origins and the applicant’s identity

15. Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (herein ‘the Department’) and to the Tribunal[1] and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Kingdom of Thailand and has had her claims assessed against that country in relation to claims made pursuant to sections 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence, the Tribunal accepts and finds the applicant’s identity as is claimed proven for the purposes of this decision.

    Department’s file

    [1] see, the AAT File for the Applicant’s Passport details as they were submitted to the Department and Tribunal

16. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the Department’s record of decision to the Tribunal with her application for review of a decision.

    BACKGROUND – THE APPLICANT’S MIGRATION & VISA HISTORY

17. On 13 March 2019 the applicant was granted a Subclass FA-600 visa for travel to Australia for tourism purposes. [In] April 2019 the applicant arrived in Australia on a Subclass FA-600 visa.[2] On the 24 April 2019 the applicant applied for a Protection visa[3] which was refused by the Department but was provided with that visa’s associated Bridging visa.

    [2] On 2 July 2019 the applicant’s Subclass FA-600 visa ceased.

    [3] see, Department of Home Affairs File no. [and] AAT File.

    EVIDENCE AT THE HEARING

    THE APPLICANT’S CLAIMS FOR PROTECTION

18. The applicant provided the Department with the following claims:[4]

    [4] see, Department of Home Affairs File [no.], Application for Protection Visa filed with the Department on 24 April 2019.

    §The applicant had to leave Thailand because she had informed the local Thai police about some people who were selling illegal narcotics/drugs in her village.

    §The applicant claimed that her nephew was addicted to narcotics and steals money from the family to purchase narcotics.

    §The applicant claims that there is a tendency in her village to use violence against those trading in narcotics/drugs.

    §The applicant claims that narcotics/drugs are too cheap.

    §The applicant informed the local police that the price of narcotics/drugs should be higher so as to discourage their use, but the police did not register her complaint.

    §The applicant did not know what to do as she lost faith in the police.

    §The applicant claims that some days after she lodged ‘the complaint’ someone came to her home uninvited and physically attacked her and threatened her and she had to leave the village.

    §The applicant claims that her family advised her to go to Australia because it would be safe for her.

    §The applicant claims that if she is returned to Thailand she will be killed and so, she requests Australia’s protection.

19. The applicant provided no other claims to the Department or to the Tribunal at the hearing. It was noted by the Tribunal that the Department had been provided with opportunities to specify the particulars of her claim to be a person in respect of whom Australia has protection obligations. The application form completed by the applicant stated that she should provide all the details about why she was seeking protection and, where possible, documentation to support her claims. It also stated (in the Application form) that the decision on her case may be made on the information provided in the application only and that it was important to include all the details relevant to her case and supporting documentation with the application.

20. In addition, on 06 May 2019 the applicant was sent an acknowledgement of valid application letter[5] by the Department which stated she could provide additional information relating to her claims. The applicant was provided with three channels for providing additional information: the Immi Account, mail or in person at the time of the collection of personal identifiers. The letter also informed the applicant that the decision on her application could be made without another opportunity to present any further information to the Department. At the time of Department’s decision, no additional information had been received by the Department.[6]

    [5] Ibid, Department of Home Affairs File [no.].

    [6] see, Delegate’s decision dated 6 September 2019, at p.2

21. The applicant was asked by the Tribunal to explain what had occurred in her village that caused her to leave and seek protection while in Australia? The applicant told the Tribunal that ‘she had an issue with her nephew…’ The applicant explained that her nephew lived in a house next to her home and one day, the applicant caught him attempting to steal her money. The applicant described her nephew as a person ‘who did drugs.’

22. The Tribunal was told that the applicant reported this matter to the local Thai police. The police, according to the applicant’s evidence ‘took a statement from her’ but ‘did nothing to the nephew.’

23. The Tribunal asked the applicant to explain as to why the local police took no action against the applicant’s nephew. The applicant told the Tribunal that she ‘…did not know’ as to why the police took no action.

24. The Tribunal was told that what followed was a ‘verbal argument with the nephew’ which became physical and threatening.

25. The applicant told the Tribunal that she sought refuge with her other family members. The Tribunal was told that she asked them to ‘come to live with her’ for a while until the problems with the nephew subsided.

26. The applicant explained that her family members, brother and parents (who were living at that time) told her that they were unable to assist her the applicant’s brother, the applicant said had his own work and his family to take care of and her parents (now both deceased) were old, frail and sick at the time.

27. The applicant was asked by the Tribunal – why she did not decide to relocate to another part of Thailand? The applicant told the Tribunal that she had not thought about this alternative and no one told her. However, she believed that wherever she chose to live, her nephew would locate her and cause her harm.

28. The applicant, was asked by the Tribunal – why did she believe the police took no interest in her concerns? The applicant told the Tribunal that ‘the police do not follow up…’ The applicant went on to say, that ‘she did not know whether the police talked to her nephew concerning this matter…’

29. The applicant was asked by the Tribunal – why are you afraid to return to Thailand? The applicant said that she afraid to return to Thailand because ‘her nephew is still there close to her home…’

30. The Tribunal asked the applicant for an explanation as to why she did not identify her assailant (her nephew) to the Department. In response, the applicant confirmed that her assailant was her nephew and not some other unidentified person or persons. Then, when asked why she did not tell the Department this, the applicant told the Tribunal that she ‘did not want him to get into trouble…’

31. The applicant was asked – if the applicant returns to Thailand in the near future does the applicant have fears about her nephew? The applicant was of the opinion, that the nephew would again threaten her. The applicant also told the Tribunal that it was ‘hard for her to live somewhere else…’ The applicant believed that her nephew could locate her in any part of Thailand (but offered the Tribunal no further clarification on this).

32. The Tribunal asked the applicant for an explanation – as to how her nephew (who according to the applicant could locate her anywhere) did not find out that she was leaving for Australia and not stopped from leaving at the airport. The applicant told the Tribunal that she had concealed her actions and intentions ‘very well…’

33. The applicant is currently working on a rural property, earning approximately AUD$[amount] per week. The applicant involved herself in similar work when in Thailand.

34. The applicant told the Tribunal that she had no further details to provide the Tribunal as far as it concerned her claims.

    COUNTRY INFORMATION – THAILAND – CRIMINAL ACTIONS – POLICE ENFORCEMENT AND THE RULE OF LAW

35. Official corruption is rampant in Thailand.[7] It ranges from bribery to outright police collusion. The interplay of drugs, prostitution, political paralysis, corruption and collusion, a culture of impunity,[8] international tourism and trade, traditional Buddhist tolerance[9] and tendency to ignore problems has led to an increasingly multifaceted and complex crime epidemic in the country. Juvenile delinquency has also been increasing in recent years.[10]

    Drug Trafficking in Thailand

    [7] "Country Reports on Human Rights Practices for 2016; Thailand". US Department of State. Retrieved 4 March 2017.

    [8] “Business Ant-Corruption Portal: Thailand”. Business Anti-Corruption Portal. GAN Integrity Solutions. Archived from original on 19 June 2014. Retrieved 2 July 2015.

    [9] “Overwhelming odds get better of efforts to stamp out prison drug trade” Bangkok Post. Thai Prison Life. 2012-09.09. Retrieved 6 March 2015

    [10] “Death Penalty abolished for young offenders.” Thai Prison Life. Thaiprisonlife.com.2012-08-30. Retrieved 2014.04.02.

36. In November 2015, The New York Times reported that in the fiscal year ending September 2015, the national police have seen a surge in thefts, burglaries, and robberies, more than 75,557 thefts and other property crimes in the fiscal year, 10.5 percent higher than the previous year. Violent crime was up 8.6 percent during the same period.[11] These figures have been contested by the police and by Amorn Wanichwiwatana, a criminologist at Chulalongkorn University, who said he was not aware of any significant uptick in crime since the military came to power. "I don’t think that’s the case. It's not possible," he said of the 60 percent increase reported by the Times. Crime statistics from the Royal Thai Police (RTP) show a statistically negligible increase of 1.9 percent over the same period, with 920 additional crimes reported after an overall decline since 2009.[12] Augmenting the crime prevention efforts of the RTP, there are an estimated 3,000-4,000 security companies in Thailand, deploying between 400,000-500,000 security guards nationwide.[13]

    [11] Charuvastra, Terranal; Ruiz, Todd (2015-12-09). “Data Contradicts New York Times on Crime Increase Under Junta. Khaosod English. Archived from original on 2016-02-04. Retrieved 9 December 2015.

    [12] Sukyingcharoenwong, Mayuree (5 March 2017). “Security guards, firms fret over cost from new law” (Print edition only). Sunday Nation at p.2. Retrieved 18 March 2017.

    [13] Ngamkham, Wassayos (2011.02.14). “Love, marriage and drug mules: Thai women are being tricked into drug trafficking” Bangkok post. Retrieved 2015.01.24.

37. Much of Thailand's crime is in urban areas where tourists congregate as they are easy targets, as well as where rampant prostitution and human trafficking feeds their vices. The prime areas of drug abuse are Bangkok, Phuket, and Pattaya, but not limited to these areas. The prime transit corridor for drugs entering northern Thailand is from the Golden Triangle, as well as from ethnically divided rebel-controlled areas within the fragmented state of Myanmar, especially Shan State. Thailand's international ports, like Laem Chabang near Pattaya, and Suvarnabhumi International Airport, have seen a number of African[14] and former Commonwealth of Independent States gangs, as well as other transnational gangs and drug mules involved in the trade.

    [14] Ibid

38. Thailand has a growing problem of drugs and the violence associated with it.[15] The drugs involved range from the traditional, kratom,[16] to ya ba, opium from Myanmar, and local herbal medicines.[17]

    [15] Winn, Patrick (2012-10-18). "Thailand: monks on meth". globalpost. Retrieved 7 March 2015

    [16] >

    A previous attempt to control the drug trade by declaring the 2003 War on Drugs, was met with allegations of Thaksin-allied, politically-inspired targeted killings, quotas of dead drug traffickers, and the targeting of innocent victims. Methamphetamine is so widely abused that animals, such as gibbons, slow lorises,[18] and elephants[19] are force-fed stimulants to make them work longer hours, sedated to allow petting and entertain tourists.

    [18]  "Police arrest Slow Loris owners in South Pattaya". Pattaya One. 2012-03-15. Archived from the original on 2014-04-13. Retrieved 2014-04-12.

    [19] "Massive Drug Smuggling in Thailand". Asia Sentinel. 2012-05-04. Archived from the original on August 21, 2013. Retrieved 2014-04-12.

39. In May 2012, it was discovered that nearly 50 million legal pseudoephedrine tablets had been stolen from Thai hospitals.[20] Two billion more tablets were smuggled in from Taiwan and South Korea, with forged documents showing two Thai companies importing some eight billion more.[21] They had reported the drugs to be imports of electronics and automobile parts. Thailand responded by close monitoring of the sale and distribution of pseudoephedrine.[22]

    [20] "Massive Drug Smuggling in Thailand". Asia Sentinel. 2012-05-04. Archived from the original on August 21, 2013. Retrieved 2014-04-12.

    [21] "Police arrest Slow Loris owners in South Pattaya". Pattaya One. 2012-03-15. Archived from the original on 2014-04-13. Retrieved 2014-04-12.

    [22]  "Massive Drug smuggling in Thailand". Asia Sentinel. 2012-05-04. Archived from the original on August 21, 2013. Retrieved 2014-04-12.

40. Druggings of tourists and locals alike by sex workers and thieves are an infrequent occurrence in major tourist centers like Pattaya or Phuket.[23]

    [23]  "Women drug, rob foreigners". Bangkok Post. 2015-02-08. Retrieved 11 November 2016.

1. A United Nations report on the situation in Thailand states, "Many of those now incarcerated in Thailand's prisons are likely to be low-level traders and drug users, as they are more easy targets for police, rather than large scale traffickers and organised criminals".[24]

   [24] Amidst deep concern for Thailand's drug policies, some space for open debate Transnational Institute, 2012; Winn, Patrick (8 September 2016). "Thailand is moving closer to decriminalizing meth". Public Radio International (PRI). Retrieved 30 October 2016.

2. In October 2021, the police from Laos seized more than 55 million amphetamine tablets and over 1.5 tons of crystal methamphetamine. The United Nations stated that the operation was the Asia's largest single drug bust in history.[25]

   Thailand’s war on Drugs – as assessed by Human Rights Watch[26]

   [25] Fuller, Thomas (2008-01-13). "In Bangkok, it's a tough life for elephants". New York Times. Retrieved 6 Mar 2015.

   [26]

3. In February 2003, the Thai government, under then Prime Minister Thaksin Shinawatra, launched a 'war on drugs', purportedly aimed at the suppression of drug trafficking and the prevention of drug use. In fact, a major outcome of this policy was arbitrary killings. In the first three months of the campaign there were some 2800 extrajudicial killings. In 2007, an official investigation found that more than half of those killed had no connection whatsoever to drugs.[27] Apart from the thousands who lost their lives, thousands more were forced into coercive "treatment" for drug addiction.[28]

   [27] ‘Most of those killed in war on drug not involved in drug (sic),' The Nation, November 27, 2007 (online at  In August 2007, the military-installed government of General Surayud Chalanont appointed a special committee to investigate the extrajudicial killings during the 2003 war on drugs. The committee's report - which has never been made public - said that of 2,819 people killed between February and April 2003, more than 1400 were unrelated to drug dealing or had no apparent reason for their killings. Human Rights Watch, ‘Thailand: Prosecute Anti-Drugs Police Identified in Abuses,' February 7, 2008, see  

   [28] Human Rights Watch, Not Enough Graves: The War on drugs, HIV/AIDS, and Violations of Human Rights, vol. 16, no. 8(c), June 2004,  pp. 32-33; Tassanai Vongchak et al., "The influence of Thailand's 2003 ‘war on drugs' policy on self-reported drug use among injection drug users in Chiang Mai, Thailand," International Journal of Drug Policy, vol. 16, 2005, p. 2.  

4. HIV prevention and treatment efforts were also seriously compromised with fear of arrest and mistreatment driving people who inject drugs away from essential harm reduction services.[29]

   [29] see, ‘Not Enough Graves’ at pp. 36-40.

5. In 2005, the UN Human Rights Committee raised serious concerns about the "extraordinarily large number of killings" that took place during the ‘war' and recommended that thorough and independent investigations be undertaken.[30] Then UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Asma Jahangir, sent an urgent communication to the Thai government in 2003.[31] In its response, Thailand said that every unnatural death would be thoroughly investigated in accordance with the law.[32] To date, none of the perpetrators of arbitrary killings have been brought to justice.

   [30] Concluding Observations of the Human Rights Committee: Thailand, UN Doc. No. CCPR/CO/84/THA, 8 July 2005, paras 10 & 11.  

   [31] Report of the Special Rapporteur on extrajudicial, summary and arbitrary executions: Summary of cases transmitted to governments and replies received UN Doc. No. E/CN.4/2004/7/Add.1, 24 March 2004, paras 557-558.  

   [32] ibid., para 558.  

6. In recent weeks, the government of Thailand has publicly threatened the resumption of killings. On 20 February, Interior Minister, Chalerm Yubamrung, told parliament that:

   “For drug dealers if they do not want to die, they had better quit staying on that road…drugs in my time as Interior Minister will follow the approach of [former Prime Minister] Thaksim. If that will lead to 3,000-4,000 deaths of those who break the law, then so be it. That has to be done…For those of you from the opposition party, I will say you care more about human rights than drug problems…”

7. Since this statement by the Interior Minister, Human Rights Watch is aware of at least four killings of alleged drug traffickers across Thailand - two in Chiang Mai, one in Kalasin, and one in Krabi.  

8. Given the events of 2003 and the impunity for perpetrators since then, the Thai government's plans raise immediate and urgent concerns.  

9. Drug law enforcement must accord with international human rights law, as stated repeatedly by the General Assembly and this year by the International Narcotics Control Board. A resumption of arbitrary killings would be a considerably retrograde step in Thailand's recent progress on human rights, such as its accession to the UN Convention Against Torture in October 2007. 

10. On Human Rights Day 2007, to commemorate the 60th anniversary of the Universal Declaration of Human Rights, Thailand reaffirmed at the UN Human Rights Council its "unwavering commitment to the cause of human rights".[33] There can be no exceptions to this commitment:  

    §All CND member states must unambiguously denounce any resumption of policies in Thailand that violate human rights.

    §The Thai government must announce publicly that it will not proceed with a renewal of killings and other human rights violations in the name of a “war on drugs”.

    §The Thai government must immediately and fully investigate the killings and other human rights abuses that took place in the context of the 2003 war on drugs and bring the perpetrators of human rights violations to justice.

    §The Thai government must adopt integrated and comprehensive drug strategies that comply fully with all human rights and fundamental freedoms.

    §All countries with close ties to Thailand should ensure that drug control measures adopted in Thailand are in full conformity with the principles and purposes of the Charter of the United Nations, including full respect for human rights.

    [33] Webcast available online at  5 March 2008).

11. Also, in 2017 it was reported in the international news outlets[34] that A Laotian man described as a major drug lord in Thailand and elsewhere in Southeast Asia pleaded not guilty Tuesday in a Bangkok court to charges that could carry the death penalty, including smuggling and possession. Xaysana Keopimpha, 41, had been dubbed an "ASEAN Drug Lord" and Thai authorities said he headed a network that supplied caffeine-laced methamphetamine tablets known as "yaba," which were produced in Myanmar, throughout the Mekong River region.

    [34] Reported by Benar News, an RFA-affiliated online news service – see,

12. Xaysana's Thai lawyer, Vorakorn Pongthanakul on Tuesday promised a strong defence of his client that would include challenging an earlier confession. Vorakorn said his client confessed to a police investigator because while Thai and Lao are similar languages, Xaysana does not understand it or the country's laws. The lawyer said his client was worried because he had never been convicted of any crime. As for possible bail, family members in Laos are going to decide whether to apply.

13. "Now Xaysana is indicted and is becoming a defendant . . . he and I, as his lawyer, agreed that he would plead innocent and we will fight all the charges," Vorakorn said following the arraignment in Bangkok North Criminal Court. "I felt somewhat heavyhearted because the charges carry the death penalty." The last execution in Thailand for any crime was in 2009.

14. Xaysana was arrested Jan. 19 at Bangkok's Suvahnbhumi Airport following a five-year investigation and a tip from Laos officials, according to Lt. Gen. Sommai Kongvisaisuk, who heads the Thai police's Narcotics Suppression Bureau.

15. A Malaysian suspect who was arrested by police in Malaysia in February, Kamarudin Bin Awang, was a trade partner of Xaysana, Thailand's counter-narcotics chief said back then, Sommai said at the time.

16. Assets seized - Xaysana led a flamboyant lifestyle prior to his arrest, hanging out with Thai celebrities and a soap opera star, according to reports. Lao authorities seized his assets including nine luxury vehicles, five houses and a 475-acre rubber plantation. Following his January arrest, Sommaly Thammavong, the daughter-in-law of former Lao Prime Minister Thongsing Thammavong distanced herself from rumoured ties, saying that a photo showing her and Thammavong's son with Xaysana was taken "by accident." The photo that circulated widely on Facebook shows only a casual social connection among the three, Sommaly Thammavong said at the time. "We have not done any business with him, and we didn't know what he was involved in," she said.

17. Arrest details - The Golden Triangle which straddles Thailand, Laos and Myanmar, was notorious for opium and heroin, but recently methamphetamine overtook production in the region, mostly in Myanmar and to a lesser degree in Laos. Police officials allege that Xaysana himself distributed the drug in Thailand and had a network of dealers peddling yaba in other countries. Thai police in 2016 captured four members of Xaysana's alleged drug network, seizing more than 5 million yaba pills, officials told reporters on Jan. 20, the day after they captured the alleged kingpin. Police arrested Xaysana and three associates after they arrived in Bangkok following a visit to the southern Thai resort town of Phuket. During that press conference, Sommai thanked Lao law-enforcement authorities for providing information that helped lead to the arrest. "Lao authorities said to us that if we couldn't arrest him here, they wouldn't be able to do anything in Laos," Sommai said, "Xaysana has enormous assets in Laos," he said, adding, "I don't know what's going on over there."

18. It was further reported in an article “Thai Police say they’ve gathered “Strong evidence” on Transnational drug trade”[35] that “Good news” will be reported soon on Thailand’s crackdown on transnational drug trade, at least that’s what police are saying today about the ramping up of the transnational drug rings and trafficking. Drug suppression operations have intensified over the past month with numerous drug seizures including several at Bangkok’s Suvarnabhumi Airport where methamphetamine and heroin were found hidden in packages en route to Australia and New Zealand.

    [35] Thai police say they've gathered "strong evidence" on transnational drug trade | Thaiger (thethaiger.com):

19. Deputy police commissioner Manoo Mekmok says that after recent arrests and drug seizures, police now have strong evidence, hinting that there will be “good news” reported by police in the future, particularly the trafficking of drugs through Thailand to other countries like Australia and New Zealand.

20. Recently, in separate cases, 11 suspects were arrested, and police seized a total of 516 kilograms of methamphetamine and 4.2 million amphetamine pills. The deputy police commissioner says officers now have “strong evidence.”

21. Last week, Justice Minister Somsak Thepsuthin annouced that the ministry is now working with foreign agencies to investigate transnational drug trafficking with routes in Thailand.

22. “Thailand is a major transit country in the transnational illegal drug trade, with the majority of methamphetamine and heroin produced in Myanmar’s portion of the Golden Triangle.”

23. The announcement follows last month’s major drug seizure at a port in Sydney where the Australian Border Force searched a Thai cargo ship and found a total of 300 kilograms of methamphetamine hidden inside electronic water heaters and barbecue grills.

24. Another major bust involving drugs trafficked from Thailand; a Thai man was arrested in South Korea on drug charges after authorities at Seoul’s Incheon Airport found more than 4 kilograms of methamphetamine hidden in protein supplements. Over the past week, a task force at Bangkok’s Suvarnabhumi Airport has reported a series of drug seizures where drugs were hidden in packages en route to Australia and New Zealand. In some packages, methamphetamine was stuffed in hollow metal motorcycle parts. In a couple of other parcels, the task force found heroin concealed in notebooks.

25. It was reported in the Bangkok Times[36] that a police officer and his wife were arrested on charges of selling illicit drugs after crystal methamphetamine were seized from his house in Phumphin district in the southern province. Police Senior Sargent-Major Pairat Yotmek, 52, attached to the Phumphin police station, was dismissed from the force pending a fact-finding investigation into his alleged involvement in the drug trade, Pol Major-General Sathit Phonphinit, chief of Surat Thani police, said.

    [36] Policeman and wife charged with drug dealing (bangkokpost.com)

26. Pol Snr Sgt-Major Pairat, based at a public service unit in tambon Leeled, was arrested along with his wife Chalermporn Sukhumthong 44, at their home in tambon by a team of officers from Border Patrol Police Company 417 and local officials.

27. Furthermore, in February 2021, Reuters reported[37] ‘Arrest in Thailand of second drug kingpin tightens dragnet on huge syndicate’ – a senior leader of a vast drug syndicate had been arrested. This was made possible due to a transnational dragnet tightening on the criminal syndicate – Sam Gor group which Thai police say dominated the US$70 billion Asia-Pacific drug trade. The October arrest of Hong Kong citizen Lee Chung Chak in Bangkok preceded another arrest in the Netherlands of Tse Chi Lop, China-born Canadian national who police suspected is the top leader of the syndicate, known as ‘The Company’. Lee, 65, is a former prison mate of Tse’s suspected of being involved in drug trafficking for four decades. A 2018 Australian Federal Police (AFP) document outlined the top 19 targets in the syndicate described Lee as a “senior project manager responsible for big ventures of border-controlled drugs.” These two arrests according to Reuters, on different continents within three months stem from a decade-long investigation by the AFP, which also leads the multinational Operation ‘Kungur’ task force targeting the syndicate. It was rare for suspected drug traffickers to be arrested and successfully prosecuted in the Asia-Pacific region. Reuters reported “the suspect was arrested by Thai Narcotics police on October 1^st based on an arrest warrant issued by a Thai court, which followed an extradition request by the Australian authorities.” Lieutenant-General Montri Yimyaen, head of Thailand’s Narcotics Suppression Bureau, told Reuters when asked about Lee. 

    [37]

28. The UN Resident Coordinator (in Thailand) of the UN Office on Drugs and Crime (UNODC) in a report issued on 20 September 2020, said[38] that “Thailand has made considerable progress in combating the opium trade over recent decades and represents global good practices. UNODC has a long-term partnership with the Thai government and other stakeholders to combat drug trafficking in the Golden Triangle and, from the military base at Doi Chang Mub overlooking Myanmar, joint patrols are conducted on a regular basis to counter trafficking.

    [38] Fighting drug trafficking in the Golden Triangle: a UN Resident Coordinator blog see UN News

29. In UNODC’s meetings on a recent trip to the province, the coordination group was impressed with local efforts to develop the region in a sustainable way. It really struck home how integrally linked development and improving people’s livelihoods are to fighting the drugs trade and tackling the corrosive effects drug abuse and criminality have on individuals and communities. While there are considerable challenges, particularly during the COVID-19 pandemic, we were also inspired by the community resilience and commitment to improve the welfare of all.

30. The border regions between Thailand and its neighbours, along the Mekong River, have experienced a continuous expansion of drug production, trafficking, and use, particularly of synthetic drugs, for the better part of a decade. In 2019, seizures of harmful methamphetamine in East and Southeast Asia reached 140 tons, with the vast majority produced in Myanmar’s Shan State, just across the border from Thailand. With the rise of production in Myanmar, its borders with Thailand and Laos have become one of the most significant drug trafficking points in the world.

31. It is estimated that drug production and trafficking in the region last year generated profits of at least $71 billion, with methamphetamine accounting for $61 billion, four times what it was six years ago. Today, the production and trafficking of methamphetamine is the financial backbone of transnational organized crime and the ethnic armed groups that they partner with for control of autonomous territories in Myanmar, fuelling conflict and insecurity in the country, and along its borders including with Thailand.

32. In addition, despite record amounts of methamphetamine seizures, the supply has surged and the price of the drug has recently dropped to its lowest point in a decade. One methamphetamine tablet, known as “yaba” in Thailand and the Mekong region, currently costs only about 50 baht ($1.60) in the northern area of Thailand, making the drug much more accessible to drug users or potential users.

33. In part, as a result of the low street price and affordability, Thailand has seen a significant increase in use, particularly among youth. Considering 80 per cent of the Thai prison population is incarcerated due to methamphetamine-related charges of one form or another, it is very evident that increased trafficking and decreased prices of the drug have accelerated and exacerbated challenges to the criminal justice system and related human rights in the country.

34. Border Liaison Offices supported by UNODC have been an important component in border management and control in the region, as well as a practical way to improve cross-border cooperation between authorities. Coordination efforts between police, customs, army, navy and border patrol police in the region have gathered and exchanged intelligence to take on organized criminal groups. Employing new technologies including X-ray devices, from hand-held to lorry-sized machines, Thai authorities have new tools to be used against illicit trafficking, including of drugs and precursor chemicals – vital to countering the destructive trade. The number of border checkpoints has been increased in response to COVID-19, reducing the transit of drugs through the province. However, criminal networks have very quickly adapted; traffickers have changed their routes to circumvent Chiang Rai and go through other provinces or via Laos and back into Thailand, with marginal increased costs and inconvenience affecting the trade.

35. However, as the opium trade has declined, the cross-border movement of synthetic drugs, and particularly methamphetamine, has grown substantially.

36. Chiang Rai’s economy will probably remain largely based on agriculture, tourism and cross-border trade for the foreseeable future. In the agriculture and tourism sectors, innovative approaches are providing examples for a sustainable future. The Mayor of Chiang Rai City, for example, is promoting an approach that supports sustainable and chemical-free agriculture, connecting Chiang Rai’s farmers with schools, hospitals and export markets.

1. Hill tribe villages have been encouraged, through civil society and social entrepreneurs, including the Mae Fah Luang Foundation, to move to alternative cash crops. More innovative support of this kind will help affected communities in Thailand, neighbouring countries and beyond, to move away from the drugs trade, towards sustainable livelihoods. There is a stark need for more alternative livelihoods, and crops, in agriculture-dependent communities, if they are to be a part of sustainable development.

2. We are fortunate to engage with so many partners working towards sustainable development in Chiang Rai and look forward to providing more support as we collectively build back better from the pandemic."

3. In an article[39] by the Secretary of the Criminal Court in Thailand, Krirkkiat Budhasathit, ‘Legal Approach to combatting illicit drugs Trafficking and money laundering in Thailand’ wrote the following concern Thailand’s war on drugs:

   [39]

   Methamphetamine is the most serious drug problem in Thailand and its become an epidemic in every region. The supply of methamphetamine, which comes from both inside and outside Thailand, has expanded intensively. Big syndicates mostly control the drug producers and traffickers because only the large and reliable wholesale traffickers can make direct contact with the manufacturers. These syndicated groups deliver methamphetamine and other drugs to medium and small-scale traffickers before distributing to retailers or users. In 2002, 95.9 million methamphetamine tablets were seized, which is the highest figure ever recorded.

   The methamphetamine is mainly produced around the Golden Triangle area and smuggled through the Thai northern border as the main route. Instead of carrying the drugs through the border channels, the drug traffickers use various methods to transport the drugs i.e. drug caravans escorted by armed forces, sneak into the jungles nearby the northern border and store the drugs at villages along the Thai border as a hub before distributing it to other areas.

   Moreover, there is evidence that during the last two years a huge amount of drug smuggling is taking place using sea routes. The drugs originate from the producing area in the north and are transported to a bay in the central part of Myanmar before being carried in fishing boats to the southern part of Thailand. Another main route is along the Mekong River, which is near to the producing area, to the north and north-eastern part of Thailand. For smuggling inside the country, the land route is popularly used to smuggle methamphetamine tablets from one place to another. The producers and smugglers are mostly hill tribes including Chinese haw and Thais and some of them are found to have a connection with overseas foreigners. Marijuana growing is found throughout the country, but its concentration is mostly in the north-eastern region. Local production may be enough for domestic demand but the total production is not sufficient to supply international markets. Meanwhile, smuggled marijuana from neighbouring countries to Thailand is not only delivered to international markets but distributed in the country as well. The eastern seashore is used as a main route to transport marijuana via Thailand to other countries. Large quantities of marijuana products are gathered in the sea-connected provinces before being loaded into fishing trawlers, to be carried through the Thai gulf and reloaded onto cargo ships waiting in the open sea. For marijuana abuse, the situation during this period is stable since this drug is quite cheap and available in all regions. In addition, it is not a hard-core drug like heroin or methamphetamine.

   The volatile substances epidemic tended to be less radical last year.

   Glue, thinner, and lacquer are still the three kinds of abused volatile substances in Thailand. People who abused these substances were the same groups, i.e., out of school youths, street kids, and some adults living in slums throughout the country. However, due to the heavy measures being taken against hard-core drugs, there is a possibility that the situation of volatile substance abuse will become more severe. The epidemic situation of club drugs like ecstasy, ketamine, and cocaine during this period seems to be more severe than the previous period. One reason is the price of these worldwide popular drugs tends to decrease each year. For example, the retail price of ecstasy in the early period ranged between 800- 1500 Baht per tablet but it recently costs between 350-600 Baht. The Thai authorities seized eight kilograms of cocaine in 2001, which was two times higher than in 2000. Ecstasy and cocaine are mainly smuggled by foreign drug traffickers from Europe and Latin America before distributing them to their drug networks in Thailand and neighbouring countries. Meanwhile, ketamine is imported from countries in South Asia and Eastern Europe. However, most ecstasy traffickers and dealers in Thailand have been recently known to distribute ketamine and cocaine at the same time. Ecstasy and ketamine are usually used together by drug abusers in entertainment places since both drugs have similar effects. Ecstasy is usually imported into the country from two sources: from overseas countries via international airports or seaports and from a neighbouring country in the south of Thailand. As ecstasy is increasingly spreading in Thailand and has a high price, some drug traffickers have tried to make ecstasy tablets in Thailand. For example, the police arrested a Canadian and his Thai wife in November 2001. They were charged with using his kitchen as a drug lab and they had a simple stamping machine to produce small quantities of ecstasy tablets. The raw materials, MDMA and precursors chemicals were smuggled from a European country. The police found 3,300 ecstasy tablets and 20 bottles of ketamine in their house during the raid. Major abusers of these club drugs were found to be youths, students, and wealthy people in big or tourist cities i.e., Bangkok, Phuket and Pattaya.

   Smuggling of precursors, chemicals and equipment used in drug manufacturing has become more serious along the Thai /Myanmar border. The manufacturers are provided chemicals and equipment from Thai conspirators. The crucial exit is at a permanent checkpoint in Mae Sai and Tachileik District, Chiang Rai Province. The Thai government set up the Precursor Chemical Control Committee in 1993 to formulate a national strategy on precursors control, to supervise the precursor control and implementation and to develop cohesive efforts among concerned chemical control agencies i.e. the Food and Drug Administration, Industrial Works Department, Customs Department, Department of Internal Trade, Police Narcotics Suppression Bureau, Office of Permanent Secretary of Ministry of Interior, Foreign Trade Department, Pharmaceutical Organization and the Office of Narcotics Control Board (ONCB). Twenty-three chemicals are controlled in accordance with the 1988 UN Convention and more than seven precursors and chemicals, which are not listed in the 1988 UN Convention are also put under control.

   Currently, caffeine has become one of the crucial substances because it is a major ingredient of methamphetamine tablets. Each tablet is generally composed of 60 mgs. of caffeine and 23 mgs. of methamphetamine and 7 mgs. of other binding substances. As a result, the government has enforced the Commodities Control Act 1952 to control the possession, transformation and transportation of caffeine throughout the countries as well as the Import and Export Act 1979 to control the import in and export of caffeine out of the country. Thai border authorities now severely control the smuggling of chemicals and equipment from Thailand to the producing sites along the border. According to the Commodities Control Act 1952, the possession, transformation and transportation of caffeine without permission is subject to imprisonment for 10 years.

   II. SPECIAL MEASURES AGAINST DRUG TRAFFICKING

   A.Controlled Delivery the Narcotics Act B.E. 2522 (1979) as amended in 2002 provides legal power to use controlled delivery channels by competent officials. Section 15 in Para I and II provide that: “No person shall produce, import, export, dispose of or possess narcotics of category I, unless the Minister permits as necessity for the use in government service. The application for the permission shall be in accordance with the rules, procedure and conditions prescribed in the Ministerial Regulations.” Since this Section was just amended at the end of 2002, there are no Ministerial Regulations issued yet. As a result, controlled delivery in Thailand is pending.

   B.Communication Interception Access to communication interception may be granted under the Narcotics Control Act B.E.2519 (1976) and the Anti-Money Laundering Act.

   This measure is a new part of the Narcotics Control Act 1976 as amended by the fourth revision in 2002. Section 14 four allows competent officials to intercept the communication of a suspect by the permission of the Chief Judge of the Criminal Court. The procedure begins when there is a reasonable ground that any information communicated via post, telegraph, phone, facsimile, computer, other communication instruments and electronic or other information technology communication is used or may be used for the purpose of the commission of a narcotics offence. The officials then request the approval of the Secretary-General of the ONCB and then submit a request to the Chief Judge for communication interception. The Chief Judge will consider the effect of individual rights and if he believes that there is reasonable ground that a narcotics offence has been or will be committed and the information may be received by granting the access and there is no other method more suitable and effective, the permission will be granted. The Chief Judge may permit the interception for a period not over 90 days each time and he may change the permission depending on the circumstances.

   The information obtained must be kept and used only for the investigation and as evidence in the prosecution case. Since this Section has just been added to the Narcotics Control Act and the ONCB is in the process of coordinating with competent officials to comply with the regulations to utilize this method, there are few requests submitted to the Chief Judge of the Criminal Court. The Anti-Money Laundering Act also provides the communication interception power. When there is a reasonable ground that an account at a financial institution; equipment or communication device; or any computer has been used or may be used for the commission of a money laundering offence, the competent official designated by the Secretary-General of the AMLO shall submit a petition to the Civil Court to grant access to the information of such sources. The Civil Court may grant access not longer than 90 days each time. The provisions under the Narcotics Control Act and the AML Act are quite similar; however, there are some differences. The power to grant access under the Narcotics Control Act vests solely with the Chief Judge of the Criminal Court, while all judges of the Civil Court may use such power under the AML Act. In addition, the Narcotics Control Act clearly mentions that information obtained by the access may be used in the investigation and as evidence in the trial of narcotic cases. The AML Act does not have the same provisions.

   C.Utilization of Informants To suppress illicit drug trafficking effectively, information is very important.

   The ONCB and the AMLO generally accepts the utilization of informants. The ONCB provides rewards to informants who give information relating to narcotics according to the Prime Ministerial Office Regulation Re: Rewards in Narcotics Case B.E. 2537 (1994). The Regulation rules that the reward may be paid to an informant who informs the competent official and it leads to the arrest and seizure of the narcotics. The reward is calculated according to the weight or number of tablets seized. For example, the informant will receive 10 Baht for each gram of seized heroin or 5,000 Baht per 500 tablets of Methamphetamine (for the portion over 500 tablets, the reward is 3 Baht each). The reward will be paid from the ONCB budget. The informant, who gives information about property related to the commission of a narcotics offence, will receive not over 10 % of the appraisal value of the forfeited property less the expenses for appraisal or auction sale. In this case, the reward will be paid from the Narcotics Control Fund. The AMLO will reward the informant, who gives information in the predicate offence or money laundering offence, or information concerning assets related to the commission of an offence. However, there must be a proceeding against any property in such case in order to qualify the informant for a reward. The AMLO uses its annual budget to pay the reward.

   D.Witness Protection

   The Witness Protection in Criminal Case Act B.E. 2546 (2003) will be effective by the end of this year. This Act will provide general protection to witnesses and their relatives. The general protection is to safeguard the witness or provide a cover name, address, picture or any personal identifying information as the case may be. Moreover, in some particular cases i.e. offences related to drugs, anti-money laundering, anti-corruption, customs or organized crime, the witness may receive special protection by requesting it from the Minister of Justice. The special protection includes providing suitable shelter, an allowance, education or a change of name or any registration records. The responsibility of witness protection will vest with the Witness Protection Office, Ministry of Justice.

   III. LEGAL FRAMEWORK TO COMBAT DRUGS

   Overview of Criminal Litigation in Thailand

   The main provisions of criminal procedural law are contained in the Criminal Procedure Code B.E. 2478 (1935). This Code generally applies to trials of criminal cases, including drugs cases, in all Courts of Justice. However, asset forfeiture under the Anti-Money Laundering Act B.E. 2542 (1999) will be tried in the Civil Court and subject to the Civil Procedure Code. Usually, four types of personnel of the law are involved in criminal proceedings. They are police officers, prosecutors, lawyers, and judges. The investigation and inquiry in order to find offenders and establish their guilt is the responsibility of the police officers. In many drug cases, the police officers may be teamed up with officials of the Office of the Narcotics Control Board (ONCB) or the Anti-Money Laundering Office (AMLO). When the investigation and inquiry is finished, the file of the inquiry will be submitted to the prosecutor for consideration and the offender will be indicted if the prosecutor concludes that there is enough evidence to support a conviction. As regards criminal cases, the court in a district where an accused resides or is arrested, or where an inquiry official makes an inquiry has jurisdiction over the cases. Nevertheless, the Criminal Court, which is situated in Bangkok, has discretion either to try or adjudicate criminal cases arising outside its territorial jurisdiction brought before it or to transfer them to the court having territorial jurisdiction. At the trial, it is the burden of the prosecutor to prove beyond a reasonable doubt to the court that the defendant is guilty as charged. The court will conduct a trial by hearing evidence from both sides in open court and in the presence of the defendant. It should also be added that the accused or defendant is entitled to full legal representation. In certain cases, it is obligatory on the part of the judge to call upon and appoint a lawyer in his/her defence.

   B.Narcotics Control framework

   The narcotics control laws of Thailand may be classified into three groups:

   Laws on Designating Powers and Duties of Competent Authorities Narcotics Control Act B.E. 2519 (1976)

   This Act codified the establishment of the Narcotics Control Board (NCB), the establishment of the Office of the Narcotics Control Board (ONCB), and the empowerment of the NCB, ONCB, and competent officials.

   Act on Authorizing Naval Officials for the Suppression of Some Offences Committed at Sea (No. 4) 1991

   This Act authorizes naval officers to inspect, search, and force a vessel suspected of having narcotic drugs to remove cargo or things in the vessel for examination. The Act also empowers them to seize or force the vessel or conduct any actions in order to bring the vessel to a convenient place for inspection, inquiry, or prosecution. The naval official may seize the vessel until a final non-prosecution order is issued or otherwise ordered by the court in case the accused is prosecuted, and may arrest and hold in custody the accused, not exceeding seven days. After that the accused has to be released or sent to the inquiry official together with the file of inquiry.

   Act on Measures for Suppression of Offenders in an Offence Relating to Narcotics B.E.2534 (1991)

   This Act codifies the provisions of the three significant measures to tackle illicit drug trafficking. These are 1) forfeiture of assets 2) conspiracy, and 3) expansion of jurisdiction. These measures are effective tools to eradicate drug trafficking networks because if they do not have vast assets, they cannot continue large-scale operations.

   Laws on Controlling Narcotics and Drugs Psychotropic Substances Act 1975

   This Act codified the control of psychotropic substances by classifying psychotropic substances into four categories (schedule I-IV). The Act directly resulted from the Convention of Psychotropic Substances 1971 of which Thailand is a Party.

   Narcotics Act 1979

   This Act codified the control of narcotic drugs by classifying them into five categories depending on the degree of their harmful effects in order to establish the proper punishment for offenders committing drug offences in each category.

   Emergency Decree on Controlling the Use of Volatile Substances 1990

   This Emergency Decree codified the control of volatile substances by establishing offences and punishment.

   Commodities Control Act, 1952 (No.11 as amended in 2000)

   This Act codified the control of certain commodities, which are essential chemicals and precursors likely to be used in producing narcotic drugs in 76 provinces of Thailand, e.g., caffeine.

   3.Law to Rehabilitate Drug Abusers Narcotic Addict Rehabilitation Act B.E. 2545 (2002)

   In the past, Thailand had two drug addict treatment and rehabilitation systems: 1) Voluntary System for drug addicts to voluntarily apply for treatment in various treatment centres, and 2) Correctional System for drug addicts who were sentenced to be imprisoned or on probation. However, they were not effective enough. The relapse rate of the addicts was very high or nearly 100%. Therefore, the Narcotic Addict Rehabilitation Act 2002 was enacted and enforces a compulsory system to improve the effectiveness and efficiency of the drug addict’s rehabilitation, or to help them stop using narcotic drugs as much as possible with two major objectives: 1) drug users or addicts are required to be treated and rehabilitated properly, and 2) if the result of the rehabilitation is satisfactory, the drug addicted offenders shall be relieved from the alleged offence and be released at liberty so that they will not have a criminal record as a drug offender and can be reintegrated into society happily. This Act codifies the establishment of the Narcotic Addict Rehabilitation committee and their power and duties, localities for identification and rehabilitation, alleged offences, the procedure for identification of alleged drug offenders, the requirement of the procedure of rehabilitation and the assessment of rehabilitation results.

4. Also, other measures have been introduced making it more difficult to conceal any assets gained and accumulated by the dealing with the manufacture, importation, and sale of illicit narcotics. Indeed, Thai legislators are particularly focused on tracing any exchange money that has it origins in the drugs trade.[40]

   [40] see, Krirkkiat Budhasathit, ‘Legal approach to combatting illicit drug trafficking and Money laundering in Thailand’ speech delivered at the 125^th Training Course.

   The Effectiveness of the Police in Thailand[41]

   [41] This information is referenced from the Delegate’s decision record at pp. 2-5

1. The United States Department of State Bureau of Diplomatic Security report ‘Thailand 2018 crime and safety report – Bangkok’ indicates that though the police force’s effectiveness remains uneven across the country, being generally better in larger cities than smaller towns and provinces, the RTP carry out a range of standard policing duties.

2. The ability of the police to conduct follow-up criminal investigations is, however, hampered by a lack of funding, inadequate training, corruption, and frequent rotations that prevent them from operating effectively.[42]Corruption is widespread among police[43] and reports continue of police abusing prisoners and detainees, usually with impunity.[44] NGOs report that police sometimes torture and beat suspects to obtain confessions, while newspapers report numerous cases of citizens accusing police and other security officers of brutality.[45]There is evidence that public confidence in the police is low in Thailand due to the aforementioned issues.[46]

   [42] ‘Thailand 2018 Crime and Safety Report – Bangkok’, United States Department of State Bureau of Diplomatic Security, 26 March 2019, 20190408151216 

   [43] ‘Country Reports on Human Rights Practices for 2018 - Thailand', US Department of State, 13 March 2019, sect.1c, p.5, 20190314092700 

   [44] 'Country Reports on Human Rights Practices for 2018 - Thailand', US Department of State, 13 March 2019, sect.4, p.27, 20190314092700 

   [45] ‘Country Reports on Human Rights Practices for 2017 – Thailand’, US Department of State, 20 April 2018, p.3. OGD95BE927697  

   [46] 'A critique of the internal complaints system of the Thai police', Dhiyathad Prateeppornnarong and Richard Young, Policing and Society, 25 July 2017, 20190410165911 

3. An academic source from 2017 suggests that influential individuals can sway the police. However, this does not mean that that they can always engage in malpractices without facing consequences:[47]

   From the Thai perspective, ‘influential figures’ refer to those who are in authority and/or enjoy wealth and privilege either at local or national levels (e.g., politicians or senior police officers). Another aspect to this phenomenon is that those complainants who themselves are perceived to be within the favour of the influential may have their complaints taken more seriously. The seasoned social researcher interviewed for this research argued that ‘… if any complainants have connections with the police, they will be treated with care’. It is not invariably the case, however, that those with influence can engage in malpractice with impunity.

   [47] 'A critique of the internal complaints system of the Thai police', Policing and Society, 25 July 2017, 20190410165911 

4. There is also evidence that the authorities take action against police misconduct. From October 2015 to August 2016, the RTP disciplinary division reported authorities subjected over 3,000 police officers to disciplinary actions, an increase from 2015.[48] Offences included misbehaviour, dereliction of duty, harming people or suspects, drug use, embezzlement, gambling and illegal weapon possession.[49]The dismissal of 221 officers followed.[50] The US State Department Report of 2017 reported that corruption remained widespread among police. However, authorities arrested police officers and convicted them of corruption, drug trafficking and smuggling.[51] Multiple mechanisms exists for people to issue complaints against police abuse, including the office of the National Anticorruption Commission, the Supreme Court of Justice, the Office of the Prime Minister and the Office of the Ombudsman.

   [48] ‘Thailand - Country Report on Human Rights Practices 2016’, US Department of State, 3 March 2017, Sect.1c, p.3, OGD95BE926856 

   [49] ‘Thailand - Country Report on Human Rights Practices 2016’, US Department of State, 3 March 2017, Sect.1c, p.3, OGD95BE926856 

   [50] ‘Thailand - Country Report on Human Rights Practices 2016’, US Department of State, 3 March 2017, Sect.1c, p.3, OGD95BE926856  

   [51] ‘Country Reports on Human Rights Practices for 2017 – Thailand’, US Department of State, 20 April 2018, p.26, OGD95BE927697 

5. Although there are issues in implementation and availability, Thailand has a Witness Protection Act which was passed in 2003 and provides funding and legislation to facilitate the protection of witnesses.[52]

   [52] 'THA103320.E: Thailand: Crime situation, including organized crime; efforts to address police corruption; state protection for witnesses of crime', Immigration and Refugee Board of Canada, 12 January 2010, 1578 

6. Both the interim constitution and the 2017 constitution provides for an independent judiciary, and throughout 2018, the government generally respected judicial independence and impartiality.[53] In ordinary criminal courts, defendants enjoy a wide range of legal rights, including access to a lawyer of their choosing and prompt and detailed information of the charges. However, defendants are not always afforded all of these rights, particularly in small or remote provinces.[54] Following a recent visit, the Office of the United Nations High Commissioner for Human Rights (OHCHR) appeared to endorse the standards of Thai courts, stating that individuals could seek remedy from them and noting the expeditious nature in which Courts of First Instance and Courts of Appeal determine cases.[55]

   [53] 'Country Reports on Human Rights Practices for 2018 - Thailand', US Department of State, 13 March 2019, sect.1e, p. 8, 20190314092700 

   [54] 'Country Reports on Human Rights Practices for 2018 - Thailand', US Department of State, 13 March 2019, sect.1e, p. 9, 20190314092700 

   [55] ‘Statement at the end of visit to Thailand by the United Nations Working Group on Business and Human Rights’, OHCHR, 4 April 2018, p.9, CIS7B83941735 

7. As of August 2018, Thailand has the world’s sixth highest prison population (360,000 inmates) and the world’s fifth highest incarceration rates which suggests that crimes are committed and convicted regularly.[56] There is evidence that the Government has in the past implemented crackdowns on crime as a display of capability to the country’s population.[57] For example the authorities have taken action against loan sharks and this type of organised crime in T recent years.[58]In December 2016, Thai police broke up the country’s biggest loan shark syndicate.[59]The syndicate had 86 branches across the country and was reported to have been assisted by over 1,000 state officials.[60]

   [56] ‘Highest to Lowest - Prison Population Total’, World Prison Brief, 17 September 2018, CXBB8A1DA35419; ‘Highest to Lowest - Prison Population Rate’, World Prison Brief, 17 September 2018, CXBB8A1DA35416 

   [57] ‘Thai Junta Launches Crackdown on Organized Crime’, Voice of America, 5 November 2015, 20190411151018. 

   [58] ‘Thai police bust massive loan shark racket’, Inquirer, 23 December 2016, CX6A26A6E15538 

   [59]  Ibid

   [60]  Ibid

   FINDINGS AND REASONS FOR DECISION

   The issue of credibility

8. The Tribunal is aware of the importance of adopting a reasonable approach in its findings of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining ‘credibility’. The Tribunal notes in particular, the cautionary noted expressed by Foster J at [194]:

   “…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could have been reasonably accepted…”

9. The Tribunal also acknowledges and accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” see: the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for determining Refugee Status, Geneva, (1992) at paragraph [196]. However, the Handbook, states at paragraph [204]:

   “…the benefit of doubt should, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts…”

10. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of applicant (or applicants). When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.  The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to access the claim on the basis that it might be possibly true: see, MIMA v Rajalingam (1993) 93 FCR 220.

11. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion made by an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey and Kopalapillai v MIMMA (1998) 86 FCR 547.

    Assessment of the Applicant’s claims

12. The applicant has claimed she will face harm and persecution from her nephew who lives in close proximity to her and is well-connected with individuals who are involved in criminal activities in particular, the sale of illegal narcotics. The applicant also claims that her nephew is a drug addict and was caught by the applicant one day trying to steal personal items from her home to sell for money to enable him to buy drugs. The applicant reported her nephew’s dealings with drug dealers to the local police, but claimed they (the police) were not interested to investigate. This report to the police caused the applicant to be assaulted by her nephew which resulted in her leaving her home, seeking refuge in her village with relatives and later leaving for Australia. The applicant fears to return to Thailand because see believes the police are not interested in assisting her or providing her with protection. However, the applicant’s version of events and the affect they have had on her as submitted to the Tribunal, for the reasons that follow, raises issues of credibility.

13. First, the applicant told the Tribunal that one day returning to her home, she found her nephew who lived in a house next to hers, stealing property that belong to the applicant. The applicant told the Tribunal that her nephew was a ‘drug addict’ and fed his expensive habit by stealing and then selling the stolen items to others for money in order to fund his expensive habit. What followed according to the applicant was a verbal argument and the nephew left. Then, the applicant reported the incident to the police and the nephew having found out about this returned on another occasion, assaulted the applicant causing her to seek refuge with relatives in her village and fearing to return to her home. The applicant added that she could not live indefinitely with her relatives or family in the village because they had their own lives to live. She also said she could not live with her parents as they were old and ill. She also told the Tribunal that her nephew and those he was involved with could locate her throughout Thailand. Therefore, her ‘family’ decided that the best alternative for her was to leave as she did for Australia. The Tribunal does not accept the applicant’s explanation as the truth or credible. The applicant from her own evidence to the Tribunal explaining as to how she left Thailand admitted that she left Thailand because her nephew ‘did not know that she was leaving Thailand for Australia…’ this indicates to the Tribunal, that the applicant’s claims of fearing that her nephew will find her whereabouts ‘wherever’ she goes within Thailand is not, the truth. If the applicant’s nephew knew her whereabouts, he would have located her in her village (if there was a nephew seeking retribution for a report made to Police – which was not the truth) and if the nephew was connected in any way to other criminals with vast networks throughout Thailand as was claimed, the applicant would not have been able to prepare herself to leave Thailand when she did. Her whereabouts would have been discovered and her fate sealed. That was not the case here. The entire claim of a nephew with a drug habit and with criminal ties was concocted by the applicant in an attempt to attract Australia’s protection obligations under the Act. An attempt that in the opinion of the Tribunal fails. Therefore, the Tribunal concludes and finds that the applicant did not face harm as she claimed or will face harm or persecution from a nephew (who was a drug addict) who she reported to police for theft, nor that nephew is connect with local criminals who have networks throughout Thailand and will harm her for the reasons stated or for any other reason or reasons as provided for by s.5J(1)(a) of the Act.

14. Second, the applicant claimed that she reported her nephew to the local police, but the police took the details of the incident in question but did nothing. The Tribunal asked the applicant to explain as to why the police refused to take an interest in her matter. In response, the applicant provided no explanation. Again, the claim as submitted to the Tribunal by the applicant concern the alleged inaction of the local Thai police lacks credibility when one refers to the country information provided by the Tribunal and incorporated within this decision. Though ‘corruption’ is in existence in Thailand within the police and other state institutions, the authorities from what the Tribunal referenced seem committed to combatting criminal syndicates involved with the narcotics trade and money laundering. The legislative framework is vast and retributive in its approach in reality and in some instances, this reality is very harsh on the lawbreakers. Police in general, in Thailand are effective in maintaining public order but may have a limited capacity in some areas involving investigations. Law personnel are present in significant numbers across the country and have been supplemented where and when necessary by the military. Moreover, while the Tribunal acknowledges that there are difficulties and inadequacies in police in Thailand generally speaking, having regard to the information available, the Tribunal finds that the protection of the kind the applicant desires is available and provided by the authorities in Thailand and consists of a durable and effective public order protection system as required by s. 5LA (2)(c) of the Act. The Tribunal considers on the evidence before the Tribunal that this protection is durable and effective and that there is no evidence the civilian or military authorities in Thailand would deny the applicant that assistance and protection should she require it. The Tribunal does not accept the claim made by the applicant that the Thai law enforcement authorities were not interested in investigating or in intervening in a situation involving the maintenance of public order, the stopping of crimes or the protection of an individual when threatened or assaulted by criminals. Therefore, the Tribunal concludes and finds that effective protection measures as defined by s. 5LA are available to the applicant in Thailand.

15. Therefore, the applicant does not have a well-founded fear of persecution in accordance with s. 5J(2) of the Act.

16. 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).

17. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s 36(2)(aa). For the reasons given by the Tribunal in paragraphs [94] to [95] above, the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Thailand, there is a real risk that she will suffer significant harm from her nephew (who is addicted to drugs) or from criminals her nephew is connected with who have effective networks throughout Thailand because she reported her nephew to police, nor that the Thai authorities were unwilling or disinterested in providing her with protection if, and when she required it.  

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

19. 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

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

Peter Vlahos
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.

…