1926329 (Refugee) - [2022] AATA 745

1926329 (Refugee) [2022] AATA 745 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1926329
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Jason Pennell
DATE:3 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 February 2022 at 3.21pm

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of the political and economic situation – no evidence of harm suffered – applicant is of little or no interest to the authorities – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa on 7 October 2018. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(2)(a) or (aa) of the Act. The applicant provided the Tribunal with a copy of the delegate’s decision on 19 September 2019.
The Tribunal wrote to the applicant on 29 October 2021 to invite the applicant to a hearing scheduled for 15 November 2021. The applicant responded by email on 7 November 2021 with a completed ‘Response to hearing invitation’ in which he stated that he would not participate in the hearing and ticked the box consenting to the Tribunal deciding his application for review on the papers without a hearing. As a result, based on the applicant’s correspondence the Tribunal was satisfied that the applicant had provided the necessary consent to enliven the Tribunals power to determine the application without a hearing.[1]
[1] In Minister of immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 per Spender, French and Cowdroy JJ at [65] and [74]
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.[2]
[2] see Attachment B.
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.[3]
[3] see Attachment B.

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANT’S CLAIMS AND EVIDENCE
Identity and country of reference

The applicant claims that he was born on [date] in Chai Nat, Thailand[4] and provided a copy of the biodata page of his Thai passport to the Department[5] that 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 applicant’s identity.
[4] Protection visa application form, Department file [number], Doc ID no: 6317268
[5] Applicant’s passport, Department file [number], Doc ID no: 6317269
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that he is a citizen of Thailand and as such his protection claim will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.

Migration history

The applicant arrived in Australia on [date] June 2017 on a visitor visa and has not departed since. He initially applied for protection on 12 May 2018, but this application was deemed to be invalid as he failed to attend the required biometrics appointment. The applicant subsequently submitted a further application for protection on 7 October 2018[6].
[6] Department ICSE records
The applicant lodged a Form 1005 on 17 April 2019 to the Department to obtain work rights on his bridging visa based on financial hardship. This is accompanied by a statutory declaration and bank statement issued by [Bank 1] in support of his request. The Department found this request to be invalid[7].
[7] Form 1005, Department file [number], Doc ID no: 6317276
On 4 June 2019 the applicant submitted a further Form 1005 for work rights based on financial hardship (the Bridging visa C application) where he included details of his spouse, [Ms A]. The applicant claimed that he and his wife were working [in] Melbourne. The applicant provided the following material with his application[8]:
[8] Form 1005, Department file [number], Doc ID no: 6317269
(a)a copy of [Ms A]’s passport;
(b)a translated marriage registration certificate issued in Thailand;
(c)a statement from the applicant regarding the applicant’s and his wife’s financial status;
(d)a Residential Tenancy Agreement;
(e)a bank statement issued by [Bank 1];
(f)a personal loan agreement form;
(g)several receipts in the applicant’s name;
(h)a utility service bill issued by [telecommunication service provider];
(i)vehicle registration renewal and payment receipt;
(j)infringement notices (9) issued by Victoria Police and receipts;
(k)car insurance confirmation of amendment;
(l)photographs.
The Department notified the applicant of the grant of his Bridging visa C with no conditions on 19 June 2019.

Applicant’s evidence

As the applicant exercised his right to have this application determined without a hearing, the Tribunal has relied on the evidence provided by the applicant in his application for a protection visa and the documents supplied by the applicant in support of his claim.
The applicant claims that he was born on [date] in Chai Nat, Thailand.[9] He claims to be of Thai ethnicity and a Buddhist[10]. In addition, he claims that he speaks, reads and writes Thai.
[9] Protection visa application form, Department file [number], Doc ID no: 6317268
[10] Ibid
The applicant claims that he completed [a] course in June 2000 at [College 1] in Thailand[11].
[11] Ibid
The applicant claims in his protection visa application that he is separated and that he has some extended family in Thailand who he contacts on occasion.[12] The applicant does not refer to having any children in his protection visa application. However, in his Bridging visa C application, the applicant included details of his spouse, [Ms A], and provided a certificate of marriage in Thailand [dated] May 2012. The certificate of marriage registration states that both the applicant and his wife were previously married.[13] In addition, he claimed that he and his wife have two children who continue to reside in [Country 1]. Therefore, based on the applicant’s Bridging visa C application and the document provided by the applicant in support of the application, the Tribunal finds that the applicant is married with two children who continue to reside in [Country 1].
[12] Protection visa application form, Department file [number], Doc ID no: 6317268
[13] Form 1005, Department file [number], Doc ID no: 6317269
The applicant states in his protection visa application that between July 2000 and June 2017 he travelled from Thailand to [Country 1] for work. He was employed in [Country 1] in [a specified] industry, [performing specified work tasks] until 2007, and then as a [manager] for a [business] until 2017. The Tribunal accepts and finds that the applicant has previously worked in [Country 1] in the [specified] industry and as a [manager] as claimed.
He claims in his protection application that he has not been employed since arriving in Australia in 2017 and that he has supported himself with personal savings.[14] However, in his Bridging visa C application he states that he has been working as a farmer [with] his wife. In circumstances where the applicant has sought and obtained working rights with his bridging visa, the Tribunal finds that he has been working as a farm hand since his arrival in Australia.

Applicant’s claims

[14] Protection visa application form, Department file [number], Doc ID no: 6317268

The applicant first submitted claims for protection when he applied to the Department for protection on 7 October 2018[15]. The applicant’s claims are as follows:
[15] Ibid
Provide reasons why this applicant left that country or those countries:
‘because the political in Thailand is unstable and control by army make me not safe to live in Thailand.’
Did this applicant experience harm in that country or those countries?
‘No’
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
‘Yes. I moved to working in [Country 1] but the different culture and I am not [Country 1] citizen can not get protect for [Country 1]'s government’
Explain what the applicant thinks will happen to them if they return to that country or those countries:
‘I believe that if I return back to Thailand and not good for me because economic and political in Thailand is not good and people still anti government to get election but the informed that don't have any plan in the near future.’
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
‘No’
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
‘No. believe that I have to protect by myself because have corruption in the government and they don't care people who live in Thailand’
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
‘Yes. I think the best place to protect me is Australia’
The delegate summarised the applicant’s claims as:[16]
· The political situation is unstable, and the army’s control makes it unsafe for the applicant to live in Thailand.
· The government is corrupt, and the economic situation is also not good in Thailand.
[16] Department decision record, [number]

COUNTRY INFORMATION

The Tribunal, in accordance withMinisterial Direction No.84, made under s 499 of the Act, also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT Country Information Report on Thailand dated 10 July 2020 (the DFAT Report) and, in particular, to those parts of the DFAT Report reproduced in Attachment A of this decision.

ASSESSMENT OF CLAIMS AND FINDINGS

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

When assessing claims the Tribunal must make findings of fact in relation to the claims. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant's case. It is the responsibility of the applicant to specify all the particulars in support of their claim that they are a person in respect of whom Australia has protection obligations and to provide sufficient evidence in support of the claim. The Tribunal is not responsible or obliged to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[17]. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant[18].
[17] Section 5AAA, Migration Act 1958
[18] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v
MIEA (1985) 6 FCR 155 at 169-70
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility[19]. Care must be taken not to exclude from consideration the totality of some evidence in circumstances where a portion could reasonably be accepted. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt[20]. However, such a benefit 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.
[19] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan
(1996) 40 ALD 445 per Foster J at p482
[20] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for
Determining Refugee Status, Geneva, 1992 at para 196

Applicant’s refugee claim

Relevant grounds

The applicant did not specifically submit that he fell within the scope of s 5J(1)(a) of the Act. Nevertheless, it was open to him to claim that he has a well-founded fear of persecution within the scope s 5J(1) of the Act by reason of his political opinion. He claims that he fears harm by the Thai government because it is controlled by the army and corrupt.
To fall within the scope of s 5J(1) of the Act, the applicant’s political opinion does not necessarily have to be one that is held by the applicant. It is sufficient for his political opinion to be imputed to him by the persecutor.[21] Therefore, while the applicant did not provide any details of his political opinion beyond the fact that he believed the government in Thailand was controlled by the military and corrupt, it was open to him to claim that he holds a well-founded fear of being persecuted by the authorities in Thailand because of his political opinion. As a result, the Tribunal accepts that his claim of having a well-founded fear of persecution because of his political opinion falls within s 5J(1)(a) of the Act.
[21] MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416] per Gaudron J and at [433] per McHugh J
In addition, it was open to him to claim that he fell within s 5J(1)(a) of the Act by reason of his membership of a particular social group (PSG) as a person who fears the political and economic situation in Thailand.
Members of a PSG must be recognised (generally by the persecutor or persecutors) as sharing a connection or falling under some general classification.[22] When a person claims to fear being persecuted by reason of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. Section 5L of the Act states:
[22]    Applicant S v MIMA (2004) 217 CLR 387
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.

The Tribunal has some difficulty accepting that the applicant, as a person who fears the political and economic situation in Thailand, is a member of a particular social group pursuant to s 5L of the Act. The Tribunal is not convinced that the applicant’s financial circumstances is a shared characteristic that can be considered innate and immutable. Nor is it a characteristic that is so fundamental to a member’s identity or conscience that he should not be forced to renounce it. Finally, his financial position is not a characteristic that would be considered as distinguishing him or the group from the rest of society. Nevertheless, the Tribunal is prepared, for the purposes of this decision, to accept that the applicant is a member of a particular social group pursuant to s 5J(1)(a) of the Act.

Applicant’s well-founded fear

Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

In Chan v MIEA[23] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[24]
[23] (1989) 169 CLR 379 at [396]
[24] (1989) 169 CLR 379 at [396]; see also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted if he returns to Thailand.
However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [25]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[25] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that:^[26]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[26] MIEA v Guo (1997) 191 CLR 559 at [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293]
Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below the Tribunal does not accept that the applicant has a well-founded fear of persecution on either a subjective or an objective basis if he is returned to Thailand.

Applicant’s fear of the government

The applicant claims that the political situation in in Thailand is unstable. He claims that the government is corrupt and controlled by the military, which makes him feel unsafe to live in Thailand. The applicant did not provide any details in relation to the basis of his fear concerning the government and the political situation in Thailand. The applicant did not claim to have been engaged in the political process. In addition, he did not claim that he had been affiliated with any political party or had engaged in protests either in Australia or in Thailand.
The country information reports that Thailand is a constitutional monarchy, with King Vajiralongkorn (Rama X) the current Head of State. While the monarchy has limited formal power, it is highly influential over Thai politics, the military, and the legal system. Article 3 of the Constitution provides that sovereign power belongs to the Thai people, and that the King as Head of State shall exercise such power through the National Assembly, the Council of Ministers and the Courts in accordance with the Constitution. The National Assembly consists of a Westminster-style House of Representatives, consisting of 500 elected members[27], and Senate, consisting of 250 appointed members.
[27] DFAT reports that of the 500 members in the House of Representatives, 350 are elected on a single-member constituency basis and 150 from party lists of political members. Voters cast a single vote for their constituency member, which is then also used in the calculation of the party list seats. The House of Representatives has a four-year term
It is reported[28] that Thai politics has been generally characterised by divisions between supporters (‘red-shirts’) and opponents (‘yellow-shirts’) of Thaksin Shinawatra, who became Prime Minister in 2001. Although popular with Thailand’s urban and rural poor for his social programs, opponents criticised his perceived authoritarian style, the increase in human rights abuses and corruption that occurred during his time in power. The military removed Thaksin from power in a bloodless coup in September 2006, but his party won the next general election in December 2007[29]. Political polarisation between Thaksin supporters and opponents led to protracted protests, occasional deadly clashes, and political paralysis in the years following (see Protesters and Demonstrators). Elections in July 2011 returned the pro-Thaksin forces to power under the leadership of his sister Yingluck, but mass protests and street battles broke out again in 2013. The military staged a bloodless coup in May 2014, bringing to power a military junta known as the National Council for Peace and Order (NCPO) headed by General Prayut Chan-ocha. It is reported[30] that the widespread demonstrations, political instability and associated political violence ceased under NCPO rule. However, NCPO rule has led to a reduction in some political and social freedoms.
[28] DFAT Report at p.8
[29] Thaksin went into exile after the 2006 coup and remains abroad
[30] DFAT Report at p.9
On 7 March 2019, the Constitutional Court dissolved the anti-NCPO (and Thaksin-aligned) Thai Raksa Chart party over its nomination of Princess Ubolratana as its prime-ministerial candidate. The court also banned party executives from running in an election for 10 years, or from setting up or standing as executives of any new party for 10 years. It is reported that in its judgement, the court emphasised the importance of the traditional separation of palace and politics to preserve the neutrality of the monarchy and maintain national unity.
While it was reported that fraud or intimidation were not in evidence, some reporters were critical of the election process. Human Rights Watch (HRW) claimed that due to laws restricting freedom of speech, association and assembly, as well as media censorship and lack of equal access to the media, the NCPO had failed to create conditions for a free and fair election.[31] Following the election, the Open Forum for Democracy Foundation determined that the poll had not been free and fair due to the election commission having been unprepared for overseas advance voting, poorly trained polling staff and lack of voluntary observers at polling stations to detect potential fraud.[32]
[31] DFAT report at 16
[32] DFAT report at 16
Thailand is a signatory to the United Nations Convention Against Corruption (CAC). The Thailand Constitution[33] commits the State to educating citizens on the dangers resulting from dishonest acts and wrongful conduct in both public and private sectors, and to providing efficient measures and mechanisms to rigorously prevent and eliminate corruption.[34] The Criminal Code in Thailand criminalises embezzlement, trading in influence, and both active and passive bribery of public officials.[35] Penalties for actively bribing an individual include imprisonment of up to five years and a maximum fine of THB10,000 (AUD 480). Passive bribery can (theoretically) incur the death penalty or life imprisonment, and/or a fine of up to THB40,000 (AUD1,920).[36] Finally, the Thai National Anti-Corruption Commission (NACC) is empowered and mandated to investigate and prepare opinions into allegations of corruption against politicians, judges or government officials.[37] Financial disclosure laws and regulations require elected and appointed public officials to disclose assets and income according to standardised tests, although NCPO members were not required to comply with these rules during the period of military rule.
[33] Article 63 of the Thailand Constitution.
[34] DFAT report at 16
[35] DFAT report at 12
[36] DFAT report at 16
[37] DFAT report at 16
Nevertheless, its reported[38] that despite its strong legal framework and institutions established to combat corruption, there are high risks of corruption in most sectors. A national survey in 2017 found that almost 80 per cent of Thais believed most or all the police force was corrupt, while half of Thais felt that most or all local government councillors were corrupt.[39] Irregular payments are reportedly common when dealing with public services, with corruption among public officials fuelled by low wages and a cultural inclination towards giving and accepting gifts as a natural part of doing business. International observers report that businesses and individuals commonly pay irregular payments and bribes to obtain favourable judicial decisions.[40]
[38] DFAT report at 16
[39] DFAT report at 16
[40] DFAT report at 16
Based on the available country information, the Tribunal accepts that despite its strong legal framework and institutions, corruption exists within the Thai authorities. In addition, based on the available country information, the Tribunal accepts and finds that the military has played a central role in Thai politics since it seized power in 1947.[41] However, the applicant did not provide any detail as to any harm he had suffered because of action taken against him by the government. There was no evidence that the applicant had been engaged in the political process, held a position within a political party or had participated in protests against the government. The applicant did not provide any detail of harm he had suffered because of corruption within the government as claimed. In addition, he did not provide any evidence of harm suffered because of him being of interest to the Thai authorities. The Tribunal notes that the applicant has been able to obtain a passport and depart the country without any difficulty. As such, even if the applicant does hold antigovernment sentiments, the fact that he has been able to obtain a passport and leave and enter the country without difficulty indicates that he is of little or no interest to the authorities. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Thailand by reason of his claim that the political situation in Thailand is unstable due to the government being corrupt and controlled by the military.

Applicant’s fear of economy
[41] DFAT report at 8

The applicant claims that he will suffer harm because the economic situation in Thailand is poor. The relevant test for serious harm for economic hardship pursuant to s 5J(5) of the Act is that it must threaten a person’s ability to subsist. The level of economic hardship must challenge the applicant’s ability to exist.[42] A denial of basic services must reach a level of severity that it threatens the person’s ability to subsist. That is, a denial of access to a particular occupation is not sufficient to amount to persecution if other employment opportunities are available.[43]
[42] SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143
[43] Lek Kim Sroun v Minister of Immigration, Local Government Ethnic Affairs [1993] FCA 493 at [31]
The country information[44] reports that Thailand has experienced rapid economic growth in recent decades. In 2011 the World Bank classified Thailand as an upper middle-income economy. The major economic sectors are services, manufacturing and agriculture. It is reported that the services sector continues to expand, contributing to 56.3 per cent of the Gross Domestic Product (GDP) in 2018.[45] It is reported that more than half the labour force works in the service sector.[46] It is reported that Thailand’s unemployment rate is 0.7 per cent, one of the lowest in the world.[47] The current government was elected in 2019 on an economic platform that included increasing welfare, raising the minimum wage and improving health care, boosting education, assisting agricultural workers and providing tax reform.
[44] DFAT Report at p.10
[45] DFAT Report at p.10
[46] DFAT Report at p.11
[47] DFAT Report at p.11
The applicant claimed that he completed [a] course in June 2000 at [College 1] in Thailand[48] and that he had worked in [Country 1] in [a specified] industry, and as a [manager], from 2001 to 2017. In addition, his evidence in his Bridging visa C application was that he was working as a farm hand in Australia.
[48] Ibid
While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work if he is to return to Thailand, it does not accept he will not be able to access paid employment given his work experience and motivation to find work. The Tribunal acknowledges the applicant has a genuine personally held fear in relation to the Thai economy, which presumably includes the cost of living being too high and the remuneration being too low for unskilled work if he was to return to Thailand. However, the Tribunal has placed considerable weight on the country information that the Thai economy is growing, having experienced rapid economic and social development. In this regard, the Tribunal notes the relatively low unemployment rate in Thailand. The applicant is qualified and has considerable work experience. For these reasons, the Tribunal finds that the applicant will be able to find employment if he is returned to Thailand. As such, the Tribunal finds that the prospects of finding work in Thailand based on the applicant’s circumstances does not amount to the applicant facing a harm that will amount to serious harm, in the sense that he will experience significant economic hardship or deny him the ability to earn a living that threatens his capacity to subsist, or that he will be denied access to basic services, where the denial threatens his capacity to subsist. In this case, the Tribunal has not treated the instances of serious harm under s 5J(5) of the Act as definitive.
Accordingly, the Tribunal finds that the applicant would not face a real chance of serious harm arising from his economic circumstances for reasons mentioned in s 5J(1)(a) or any other claimed reasons, if he was to return to Thailand from Australia, now or in the reasonably foreseeable future.
Having assessed all the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now or in the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1) of the Act if he is returned to Thailand and does not satisfy the criterion in s 36(2)(a).

Complementary protection

The Tribunal also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'.[49] The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
[49] MIAC v SZQRB [2013] FCAFC 33
The Tribunal has made earlier findings that the applicant does not face a real risk of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment, for reasons based on the applicant’s economic circumstances.
The Tribunal has considered if there are any reasons to believe the applicant will face a real risk of significant harm arising from his economic circumstances as contemplated by s 36(2)(aa). Significant harm is different from the concept of serious harm as required by s 5J(4)(b) in the context of s 36(2)(a).[50] The Tribunal has already made a finding that the applicant has the capacity and inclination to find work. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support himself and his family, it does not accept the applicant will not be able to find paid employment anywhere in Thailand, given his overall experience, as a necessary and foreseeable consequence of being removed from Australia, or that those challenges amount to significant harm as required by s 36(2A).
[50] In MZZIA v MIBP [2014] FCCA 717 at [34] (Judge Riethmuller,16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms (e.g. a risk of being killed is sufficient to fulfil both.)
Furthermore, the Tribunal finds there is no intention on the part of the Thailand Government in its role of managing the economy in combination with market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. The Tribunal, accordingly, does not have substantial reasons for believing the applicant faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Thailand, based on the applicant’s economic circumstances, that will amount to significant harm, including being subjected to cruel or inhuman treatment or punishment or being subject to degrading treatment or punishment.
The Tribunal has not accepted, for the reason detailed above, that the applicant has a real chance of serious harm because of the political situation in Thailand, including his claim that the government is corrupt and controlled by the military. As a result, for the reasons expressed under the applicant’s refugee claim, the Tribunal finds that there is no real risk he will be significantly harmed if he returns to Thailand because of his claim that the government is corrupt and controlled by the military as claimed.

At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. Therefore, the Tribunal finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm as required by s 36(2)(aa).

Conclusions

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 the Act for the reasons mentioned in s 5J(1)(a). Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa) and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on 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 criteria in s 36(2).

DECISION

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

Jason Pennell

Senior Member

Attachment ‘A’
DFAT Country Information Report Thailand – 10 July 2020

Employment
2.16 Thailand’s official unemployment rate of 0.7 per cent in January 2020 is among the lowest in the world. Analysts attribute this figure to: a low birth rate, which means a decreasing number of people join the workforce annually; a lack of social insurance in the form of unemployment benefits that creates a high incentive to find work of any nature; and the practice of considering those working in Thailand’s large informal sector to be employed (this includes street vendors, motorcycle taxis, and other self-employed people, and accounts for more than half of the total workforce). Official unemployment figures also do not take into account the large number of undocumented migrant workers in the country: there are an estimated 4.9 million non-Thai individuals residing and working in Thailand, including approximately 3.9 million low-skilled workers from Cambodia, Laos and Myanmar, many of whom have an irregular status. In reality, there is considerable unemployment and underemployment in Thailand, including off-season unemployment in the agriculture sector.
Corruption
2.18 Thailand is a signatory to the United Nations Convention Against Corruption (CAC). Section 63 of the Constitution commits the State to educating citizens on the dangers resulting from dishonest acts and wrongful conduct in both public and private sectors, and to providing efficient measures and mechanisms to rigorously prevent and eliminate corruption. The Organic Act on Counter Corruption (1999), the Offences Relating to the Submission of Bids to State Agencies Act (1999), and the Criminal Code are the major legislative tools covering corruption offences. The Criminal Code criminalises embezzlement, trading in influence, and both active and passive bribery of public officials. Penalties for actively bribing an individual include imprisonment of up to five years and a maximum fine of THB10,000 (AUD 480). Passive bribery can (theoretically) incur the death penalty or life imprisonment, and/or a fine of up to THB40,000 (AUD1,920).
2.19 Chapter XII, Part 4 of the Constitution (Articles 232-237) outlines the composition, functions, and mandate of the National Anti-Corruption Commission (NACC). The NACC is empowered and mandated to investigate and prepare opinions into allegations of corruption against politicians, judges, or government officials. Financial disclosure laws and regulations require elected and appointed public officials to disclose assets and income according to standardised tests, although NCPO members were not required to comply with these rules during the period of military rule.
2.20 Despite the strong legal framework and institutions established to combat corruption, GAN Integrity analysts report that there are high risks of corruption in most sectors. A national survey in 2017 found that almost 80 per cent of Thais believed most or all of the police force was corrupt, while half of Thais felt that most or all local government councillors were corrupt. Irregular payments are reportedly common when dealing with public services, with corruption among public officials fuelled by low wages and a cultural inclination towards giving and accepting gifts as a natural part of doing business. International observers report that businesses and individuals commonly pay irregular payments and bribes in order to obtain favourable judicial decisions.
Military
5.2 The Thai military is comprised of five branches – the Royal Thai Army, Royal Thai Navy, Royal Thai Air Force, Royal Thai Armed Forces (joint headquarters), and Ministry of Defence. The army is the largest and most prominent branch. The King is the official Head of the armed forces. While the military is overseen by the Minister of Defence, each branch is highly independent and autonomous. The military is responsible for: protecting the sovereignty and territorial integrity of Thailand; defending the monarchy against all foreign and domestic threats; ensuring public order; and assisting victims of national disasters. In 2019, the Thai military had an estimated force strength of 605,000 personnel, of which 360,000 were active and the remainder in reserve. More than one million Thais reach military age (21) annually. Global Firepower ranked Thailand’s military 23rd out of 137 countries in its annual military strength rankings.
5.3 The Ministry of Defence requires service members to receive human rights training. Routine training occurs at various levels, including for officers, non-commissioned officers, enlisted personnel and recruits. Military officers who deploy in support of counterinsurgency operations in the SBPs receive specific human rights training, including training for detailed, situation-specific contingencies. As noted in Insurgency in Southern Border Provinces (SBPs), however, despite numerous reports of the military and other state security forces committing serious human rights abuses in connection with the insurgency, no member of the state security forces has ever been held accountable as a result. Although there have been occasional convictions of military personnel, these have always been overturned on appeal.
Royal Thai Police (RTP)
5.6The Royal Thai Police (RTP) is the national police force of Thailand. The RTP has an estimated force strength of between 220,000-230,000, of whom more than 90 per cent are male. Headquartered in Bangkok, the RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility. The PPD is divided into nine regions that cover all of the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas). Other RTP bodies include the Central Investigation Bureau (CIB), which assists the RTP’s provincial and metropolitan components in preventing and suppressing criminal activity and in minimising threats to national security; the Narcotics Suppression Bureau; the Police Education Bureau; the Tourist Police Bureau; and the Immigration Bureau.
5.7 In October 2018, a new 1,600-strong police unit was created to provide security to the royal family, carry out the king’s ‘royal wishes’, and collect information on ‘individuals and groups whose behaviours pose a threat to national security and the monarchy’. Initially known as the Special Service Division, the new unit’s name was changed in January 2019 to the Ratchawallop Police Retainers, King’s Guards 904.
5.8 In-country sources report that the professionalism of the RTP varies considerably across its various branches, but that in general the RTP provides a higher standard of law enforcement than other regional police services. The CIB has reportedly improved considerably in relation to crime scene preservation, forensics and disaster victim identification; while other branches have performed well in relation to combating child exploitation and human trafficking (see relevant sections).
5.9 A number of factors combine to limit the RTP’s performance, however. Historical mistrust between the military and police was a contributing factor in the NCPO’s decision to grant the RTA policing powers (see previous section), which has weakened the RTP’s authority. Policing remains very regionally focused and there is no national database or central registry for court results. Changes in laws and procedures are not always communicated to officers on the ground. There remains a ‘response’-focused mentality towards investigating crimes that have already occurred, rather than implementing robust preventative measures. A culture of patronage and nepotism results in some promotions and desirable postings going to those who can afford to ‘purchase’ them. Police at junior levels are low-paid and have to provide much of their own equipment, including their own guns. Some therefore supplement their income through ‘moonlighting’ as security for bars, while some become involved in activities such as trafficking. The mandatory retirement age of 60 increases the incentive for officers to make money from their position while they are able to do so. There have been a large number of high-profile Corruption prosecutions against serving police officers, and frequent reports of abuse by police against prisoners and detainees, generally with impunity. Human rights observers report that most Thais do not hold the RTP in high esteem as an institution.
5.10 Individuals can file complaints of police abuse directly with the superior of the accused police officer, with the Office of the Inspector General, or with the police commissioner general. The NHRCT, the Lawyers’ Council of Thailand, the Office of the National Anticorruption Commission, the Supreme Court of Justice, the MOJ, the Office of the Prime Minister, and the Office of the Ombudsman also accept complaints of police abuse and corruption. Human rights observers report that few complaints alleging police abuse result in punishment of alleged offenders, however, and there have been numerous examples of investigations lasting years without resolution. Human rights groups have criticised in particular the superficial nature of police and judicial investigations into incidents of alleged Torture and other mistreatment by security forces and reported deficiencies in official investigations into Deaths in Custody. In-country sources also report that they are seeing a pattern in which police who have been accused of abuses have responded by bringing defamation charges against the victims (see also Torture).

ATTACHMENT B - 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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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.
…

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Citations

1926329 (Refugee) [2022] AATA 745

Cases Citing This Decision

0

Cases Cited

12

Statutory Material Cited

0

Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22