1927373 (Refugee)

1927373 (Refugee) [2024] AATA 4308 (29 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1927373
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Alexander Reilly
DATE:29 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 July 2024 at 3:11pm

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from son of local politician after accidental altercation – applicant and friends threatened and one friend beaten – no corroborative evidence, passage of time and no further contact – capacity to subsist – work history – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (5)(d), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 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 is a citizen of Thailand applied for the visa on 26 April 2019. The delegate refused to grant the visa on the basis that the applicant would receive protection from the Thai police and judiciary.
The applicant appeared before the Tribunal on 29 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
The applicant travelled to Australia on a Thai passport, a copy of which is contained on the departmental file. He has at all times stated that he is a citizen of Thailand and he has been assessed on that basis by the Department. The applicant departed Thailand by air from Bangkok. The Tribunal finds he is a Thai citizen and has assessed his claims against Thailand as his country of nationality and the receiving country.
The applicant’s background
The applicant grew up in the province of Thailand near Bangkok. He lived with his mother, his maternal grandmother and his younger brother.
He completed grade 9 in the school system and then completed his schooling to grade 12 in [an academy]. After his schooling he worked as [an occupation].
The applicant’s mother moved to Australia and remarried. She is now an Australian citizen. The applicant continued to live in Thailand with his grandmother and brother.
The applicant visited his mother and stepfather in Australia three times prior to travelling to Australia for a fourth time and making a claim for protection. He visited from August to November 2017, August to November 2018, and November 2018 to January 2019.
The applicant has not left Australia since he arrived [in] April 2019 and applied for a Protection visa on 29 April 2019. Since that time, the applicant’s brother and grandmother have passed away and he no longer has family in Thailand. The applicant currently lives with his mother and stepfather in the Northern Territory.
The applicant currently works for a company that makes [products] for [places].
The applicant’s claims for protection
In his Protection visa application, the applicant made the following claims:
-    He was out with friends one night. They accidentally spilled a drink on someone’s clothes.
-    The person demanded money for the damage to their clothes. The applicant and his friends had no money, so the friends of the person ‘beat them up’
-    They discovered that the person was the son of a powerful politician in their community.
-    The people took their IDs and later sent death threats to their homes. They beat up one of the applicant’s friends so severely that he was admitted to hospital fighting for his life.
-    The applicant fears that if he returns to Thailand, the people will make his life hell and would most likely kill him
-    The applicant did not seek help as the community does not want to oppose the people who are after him
-    The applicant did not try to move elsewhere in Thailand because he ‘is not able to escape from their network of connections’
-    The authorities would not protect him as they are not going to oppose the people after him
-    The applicant would not be able to relocate because of the ‘grasp’ that they have on him
At the hearing, the applicant confirmed that he had completed the application himself, but that someone he did not know had translated his statement from Thai into English. The Tribunal read out the claims to the applicant and he agreed that these were still the basis of his claim for protection at the hearing.
At the hearing the applicant provided evidence consistent with this statement in answer to the Tribunal’s questions. There were a few significant points of difference in the applicant’s evidence.
-    It was his friend that spilt the drink on the person and not the applicant. The applicant was involved in the verbal argument that ensued.
-    The applicant only mentioned one act of violence at the hearing, which was the incident during on the night of the incident that led to his friend going to hospital. The applicant was not personally attacked physically. He avoided the people by living out of his home at the houses of different friends for a month before seeking refuge in Australia.
-    He has had no contact with his friends that were involved in the incident since coming to Australia because he is ‘scared’ and ‘dares not to’.
In answer to the Tribunal’s questions, the applicant confirmed that he did not get physically hurt, although the people were ‘eyeing him off’ as if they wanted to hurt him. He confirmed that they came back to the restaurant, took his ID and threatened to kill him. His friend went to the hospital and warned him to be careful. He also confirmed, when it was put to him directly, that his friend’s home was invaded and he was beaten up was claimed in the original application.
The applicant had been living with his grandmother and younger brother at the time of the incident.
The Tribunal asked the applicant why he thought the people would still be interested in him after 5 years. He replied that:
I think if I return to Thailand, it wouldn’t be too late to revenge. [Even after 5 years], deep anger against me. I have to save my life first.
The Tribunal asked why they would want to seek revenge from him given that they only spilt a drink and it was not him who had done it. He replied that:
I am not sure because Thai people when they are angry it could be deep down. It could be my turn next.
The Tribunal put to the applicant that it found it hard to accept that the people would still be interest in him and invited the applicant to comment. The applicant responded;
If I am angry, that anger will stay with me for a long time. I think Thai people have this kind of feature. If I am hurt, I do not know what will happen to my future.
He confirmed that he did not go to the police because the peole might have links to the police. He did not know that they had links to the police, but because they are powerful, influential people, they might have links to the police.
The Tribunal asked why he could not go and live elsewhere in Thailand. He said that he did not know where to go. He had previously been to Bangkok and to the Tak province where he studied at the temple.
The Tribunal asked why he could not go back to Thailand to live and work? He replied that he has been in Australia for five years, he is getting old and he does not want to stay away from his mother and stepfather. He wants to take care of them when they are old.
Assessment of the applicant’s claims
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal accepts that the applicant was involved in an incident as he describes it while at a restaurant with his friends. The Tribunal is prepared to accept that his friend was injured and ended up in hospital, despite there being no corroborative evidence of this having occurred. The Tribunal is prepared to accept that the applicant was scared and travelled to Australia to avoid retribution from the people involved in the incident, and that he remains scared to return to Thailand because the people involved in the incident may still want to take revenge from him.
However, despite the applicant’s subjective fear, the Tribunal does not accept that the applicant faces any objective risk of harm from the people involved in the incident if he returns to Thailand. The applicant’s explanation for his fear of returning and facing retribution is that ‘it is not too lake for them to want to seek revenge’ and that people in Thailand can hold a grudge for a long time.
The Tribunal also does not accept that the people involved in the incident were influential people. There is nothing from the applicant’s evidence to suggest this. He was not able to name the people. The place that the incident occurred was a ‘small restaurant near his house’, not the type of place one would expect influential people to frequent.
Furthermore, the Tribunal does not accept that the people involved in the incident would have any interest in harming the applicant if he returned to Thailand. It is likely that the people involved have forgotten about the incident. Even if they remember it, it is highly unlikely they would still be looking for the applicant and his friends. Even if they were looking for the applicant, it is unlikely that they would recognise him, and seek to harm him.
The incident occurred over five years ago. It was a minor incident. The applicant has had no communication with the people involved, or anyone else to suggest that the people may still be interested in seeking revenge from him. Even at the time, there was no indication that the people involved in the incident were interested in him. The applicant stayed away from his home until he came to Australia. There was no evidence that the people had approached his grandmother or his brother at the applicant’s home in Thailand or that they had attempted to contact the applicant in Australia.
Refugee Protection
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).
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.
Based on the assessment of the applicant’s claims above, the Tribunal finds that there is only an extremely remote chance that the applicant will be harmed by the people who threatened him in the restaurant if he returns to Thailand. A ‘real chance’ of harm required for refugee protection is a substantial chance, as distinct from a remote or far-fetched possibility.[1] The Tribunal concludes that after five years in Australia there is no real chance that the people involved in the incident will remember the applicant, let alone seek revenge from him.
[1] Chan v MIEA (1989) 169 CLR 379.
The applicant also expressed concern about returning to Thailand as he has no family there. His grandmother and younger brother have both passed away. His mother and stepfather are Australian citizens and live in Australia. The applicant expressed concern about returning to Thailand because he is getting old, and because he wants to look after his mother and stepfather in Australia.
Under s 5J(5)(d), ‘significant economic hardship that threatens a person’s capacity to subsist’ can amount to serious harm. The applicant presented no evidence to suggest that he would not be able to make a subsistence living in Thailand. The applicant is [Age] years of age at the time of the hearing. He completed schooling to grade 12 in Thailand, he has worked at a [workplace] in Australia, and is currently employed to make [products]. The applicant had the resources, with the help of his mother and stepfather, to travel to Australia on three occasions before seeking protection on his fourth visit. The applicant has a supportive mother and stepfather who are Australian citizens. They have assisted him in the past and they are likely to assist him in the future if he experiences extreme poverty that threatens his capacity to subsist in Thailand.
The DFAT Country Information Report Thailand states:[2]
Thailand’s official unemployment rate is amongst the lowest in the world, at just 1.05 per cent. Analysts attribute this to a low birth rate, lack of unemployment benefits, and the practice of considering those working in Thailand’s large informal sector to be employed, regardless of how few hours per week they work. In practice, there is considerable unemployment and underemployment in Thailand, including among recent university graduates.
[2] Department of Foreign Affairs and Trade, DFAT Country Information report Thailand, [2.9].
Even if the applicant is unable to find employment, country information suggests that Thailand has expanded its welfare system over the past decade:[3]
Around 14.5 million Thais who are over 18 and earn less than THB 100,000 (AUD 4,200) per year are eligible for benefits under the state welfare card scheme. Benefits include a THB 300 (AUD 12) per month cash handout, THB 500 (AUD 20) credit for public transport, discounts for gas and utility bills, and additional cash handouts for the disabled and elderly.
[3] Department of Foreign Affairs and Trade, DFAT Country Information report Thailand, [2.10].
Furthermore, country information indicates ‘[p]overty has reduced significantly in the past 30 years, from 58 per cent to 6.8 per cent in 2020.’[4]
[4] Department of Foreign Affairs and Trade, DFAT Country Information report Thailand, [2.8].
From the evidence before the Tribunal, the Tribunal considers there is only a remote chance that the applicant will not be able to make a subsistence living if he returns to Thailand. Therefore, the Tribunal concludes that there is not a real chance of the applicant suffering serious harm as a result of financial impoverishment if he returns to Thailand.
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).
Complementary Protection
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.
The ‘real risk’ element of the test in s.36(2)(aa) is the same as the ‘real chance’ test for protection s.36(2)(a).[5]
[5] MIAC v SZQRB [2013] FCAFC 33
For the reasons discussed above, just as there is no ‘real chance’ the applicant will suffer harm if he returns to Thailand, there is no ‘real risk’ of significant harm for complementary protection.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).]
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alexander Reilly
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4308

29 July 2024

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Immigration

Administrative Law

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Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction