1928011 (Refugee)

[2022] AATA 575

1928011 (Refugee) [2022] AATA 575 (10 January 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928011

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Jason Pennell

DATE OF DECISION:  10 January 2022

DATE CORRIGENDUM

SIGNED:31 January 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The date of the decision ‘10 January 2021’ is to be amended to read ‘10 January 2022.’

Statement made on 31 January 2022 at 9.59am

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1928011

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Jason Pennell

DATE:10 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2022 at 8.43am

CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – victim of loan shark – gang members – fear of physical assault – fear of killing – economic conditions – delay in applying for protection – state protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Pan v MIEA (1996) 64 FLR 151
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Thailand, applied for the visa on 10 December 2018. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

1. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing of the applicant’s review application remotely, that is by video or by telephone, determining it was reasonable to do so having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

2. By a letter dated 29 October 2021, the applicant was initially invited to appear before the Tribunal on 15 November 2021 by video. By an email dated 6 November 2021 the applicant requested that an interpreter be provided for her at hearing.  By a letter dated 8 November 2021 the Tribunal advised the applicant that due to circumstances beyond its control the hearing listed on 15 November 2021 was postponed. As a result, by a letter dated 23 November 2021 the Tribunal invited the applicant to a hearing by video on 4 January 2022 at 9.30 am.

3. On 15 December 2021 and 17 December 2021, the Tribunal attempted to contact the applicant visa MS Teams but was unsuccessful. On 23 December 2021 and 31 December 2021, the Tribunal sent a reminder of the hearing date and time to the applicant by text messages to the mobile phone number provided by the applicant to the Tribunal. The applicant claimed that she had forwarded an email dated 5 December 2021 requesting an interpreter at the hearing and responding to the hearing invitation but conceded that in fact it may have been the email dated 6 November 2021. Nevertheless, despite the Tribunal’s attempts to contact the applicant, it did not receive any correspondence from her in response to its invitation to attend the hearing on 4 January 2022 at 9.30 am.

4. On 4 January 2022 prior to the scheduled time of the hearing the Tribunal contacted the applicant by telephone for the purposes of commencing the hearing. The applicant advised the Tribunal that she was not ready to attend the hearing at 9.30 am as scheduled but would be available at 11.00 am. As a result, at the applicant’s request, the hearing was rescheduled to be conducted on 4 January 2022 at 11.00 am. Due to the applicant not being able to access the MS Teams invitation at the time of the hearing she agreed to the hearing being conducted via the telephone.

5. As a result, the applicant appeared before the Tribunal by telephone on 4 January 2022 at 11.00 am to give evidence and present arguments. The hearing was assisted by an interpreter in the Thai and English languages. During the hearing, the applicant confirmed that she was able to hear the interpreter and the Senior Member conducting the hearing. The Tribunal was satisfied that the applicant understood the interpreter and all the questions put to her during the hearing and notes that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding questions during the hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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–5LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. 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 (the Department), 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 identity

1. The applicant claims she was born on [date] (currently [age] years old) in [City 1], Thailand. The applicant claims to be a citizen of Thailand and does not hold any other citizenship and is not a national of any other country.  The applicant claims to follow Buddhism and to belong to Thai ethnic group.[1]

   [1] Application for Protection Visa dated 10 December 2018, Department File [Number], TRIM Reference [Number]

1. The applicant provided the Department with a copy of the biodata of her Thai passport which confirms the date and place of the applicant’s birth.[2]

   [2] Ibid, TRIM Reference [Number]

2. The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Thailand and as such her protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.

Migration history

1. The applicant first arrived in Australia [in] November 2013 on [Student] visa which ceased on 19 August 2015.  The applicant applied for a XA-866 Protection visa with the associated bridging visa on 10 December 2018.[3]

Claims for protection

[3] Department of Home Affairs - Mainframe Movement Records dated 22 December 2021, Tribunal Case Number 1928011, Doc ID [Number]

1. The applicant first submitted claims for protection[4] when she lodged her protection visa application with the Department on 10 December 2018 as follows:

   [4] Application for Protection Visa dated 10 December 2018, Department File [Number], TRIM Reference [Number], at 10–11

   ‘Provide reasons why this applicant left that country or those countries:

   I left THAILAND because I did not feel at home with the condition of the economy and government system in THAILAND , because from the THAILAND government there was no help for me, I previously had a business and now it was destroyed by cheating people, so I now have a lot of debt that I have I get a lot of death threats if I can’t repay my debt, so I hope the Australian government wants to hear and help me for what I say and I [the applicant]  ask the immigration minister to approve my application, thank you for your cooperation I really appreciate

   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 did not try to move to another part of the country because this is a matter of my parents and that time I in Australia until now to continue my studying. So, the cases happened when I already in Australia

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   If I return to my country, I will get caught by the groups of gengster and could be beaten injured or killed. They will search for me anywhere.  

   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

   Give details about why this applicant thinks the authorities could not, or would not, protect them.

   No because the authorities could not protect me because this is a matter of personal and gangsterism. Also, many authorities in corruptions activities.

   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?

   No

   Give details about why this applicant is unable to relocate.

   No. Unable to relocate because this is a matter of gensterism. I will experience the same problem.’ 

2. The delegate’s decision[5] summarised the applicant’s written protection claims as follows:

   ·Gangsters threatened her because she could not repay her debts.

   ·The Thai authorities will not protect her, as they are corrupt.

   ·If she were to return to Thailand, she will be beaten, injured or killed by gangsters.

Documentation

[5] Protection Visa Decision Record dated 30 September 2019, Department File [Number], TRIM Reference [Number], at 2

1. The applicant did not provide the Department with any documentation in support of the protection visa application and did not provide the Tribunal with any documents or written submissions.

Applicant’s evidence

1. The applicant claims she was born on [date] in [City 1], Thailand. She claims that she is a Buddhist, and she is an ethnic Thai.[6] The applicant claims that she can speak, read, and write in English and Thai.[7] The applicant claims that she is not married.[8]

   [6] Application for Protection Visa dated 10 December 2018, Department File [Number], TRIM Reference [Number]

   [7] Ibid, at 6

   [8] Ibid, at 2–3

2. The applicant’s evidence was that her parents remain living in [City 1], Thailand. Her father is a [farmer], and her mother was engaged in home duties. The applicant has a [brother] around the age of [age] years old. He lives with their parents and works in odd jobs.

3. The applicant’s evidence was that she attended school in Lampang Province and completed vocational school to the equivalent level of [grade]. The applicant’s evidence was that she obtained a [qualification on Occupation 1], however, she said she was not a qualified [Occupation 1], but rather [an Occupation 2]. Although she claimed that she no longer remembered what she had been taught.

4. The applicant’s evidence was that after school she remained at home and helped her parents [farming]. At or about the age of [age] years the applicant worked for approximately 12 months as a factory worker for a company known as [Employer 1] in the [specified business line]. The applicant’s evidence was that she then remained home for approximately 3 or 4 years to help look after her grandmother.

5. The applicant’s evidence was that she worked in Bangkok for approximately two (2) years in [Occupation 3] at [workplace].  In or about 2009 she claims that she travelled to [Country 1] where she worked for a company known as [Employer 2]. The Tribunal was not able to find any reference to a [company] in [Country 1] known as [Employer 2] through a search of the internet. The applicant’s evidence was that she then returned to Thailand for approximately 12 months prior to traveling to Australia.

6. The applicant’s evidence was that she initially travelled to Australia to study. She confirmed that she arrived in Australia [in] November 2013 on a student visa which ceased on 19 August 2015.  The applicant’s evidence was that she had entered into a loan agreement with a loan shark in Thailand for THB [amount] (approximately AUD83,000.00) for the purposes of financing her studies in Australia. Her evidence as that her parents had guaranteed the loan and provided their [farm] as security for the loan. The applicant was not able to tell the Tribunal what she studied in Australia or if she was in fact enrolled in a course. In addition, she was not able to tell the Tribunal the name of the loan shark or from whom she received the money. The applicant’s evidence that she had been working in Australia and contributing to the repayment of the loan. Her evidence was that approximately THB[amount] (approximately AUD20,000.00) remained owning on the loan. However, the applicant was not able to provide any evidence of the loan including details of any payments she claims to have made to her parents for the purposes of repaying the loan. She claims that she lost the loan documents while moving to a new house.

7. The applicant did not provide the Tribunal with any evidence of her having been threatened or harmed by the loan shark. In addition, she did not provide any evidence of her family having been threatened or harassed by the loan shark because of having entered the loan agreement as claimed.  

8. The applicant’s evidence was that the loan shark had taken the farm as repayment of the loan. The applicant was not able to explain to the Tribunal why she would be harmed in circumstances where the loan shark had taken over her parent’s’ [farm] as repayment of the loan. The applicant however stated that there was outstanding interest owed. Nevertheless, she conceded that given the passage of time and the fact that her parents’ [farm] had been taken by the loan shark as settlement of the loan, she would not be harmed if she was returned to Thailand.

9. Nevertheless, the applicant claimed that she would be harmed by the loan shark if she was returned to Thailand as claimed.  

COUNTRY INFORMATION

1. As noted above, in accordance with Direction No.84 made under s 499 of the Act the Tribunal has had regard to the country information assessments prepared by DFAT, being the DFAT report on Thailand dated 10 July 2020 (‘the DFAT Report’).[9] The Tribunal has considered the relevant country information from the DFAT report as set out in Annexure A of these reasons.

   [9] DFAT Country Information Report Thailand, 10 July 2020

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. 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 for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[10] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[11]

   [10] Section 5AAA of the Act

   [11] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration of the totality some evidence where a portion of it could reasonably have been accepted.[12]

   [12] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194

1. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[13] 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.

Accepted facts

[13] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019)

1. Based on the applicant’s evidence and the documentary evidence provided to the Department and the Tribunal, the Tribunal finds that the applicant:

   (a)was born on [date] in [City 1], Thailand.

   (b)is an ethnic Thai and Buddhist.

   (c)can speak, read and write in English and Thai.

   (d)is not married.

   (e)has a mother and father continuing to live in [City 1], Thailand.

   (f)has a [brother] who continues to live with her parents in [City 1], Thailand.

   (g)attended school in Lampang Province and completed vocational school ([Occupation 1]) to the equivalent level of [grade].

Applicant’s refugee claim

Relevant grounds

1. The applicant did not specifically submit that she fell within the scope of s 5J(1)(a) of the Act. Nevertheless, it was open to her to claim that she fell within s 5J(1)(a) of the Act by reason of her membership of a particular social group (PSG) as a victim of gangs in Thailand and as a result of her economic circumstances.

2. Members of a PSG must be recognised (generally by the persecutor or persecutors) as sharing a connection or falling under some general classification.[14] When a person claims to fear being persecuted by reasons 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[15] states:

   [14] Applicant S v MIMA (2004) 217 CLR 387

   [15] Section 5L of the Act

   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.

1. Section 5L provides that a person is to be a treated as a member of a PSG (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it or must distinguish the group from society.[16]

   [16] Section 5L of the Act; Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264–266 and Gummow J at 285

2. The Tribunal has reservations as to whether the applicant’s economic circumstances constitute a characteristic that can be innate or immutable or that it is so fundamental to her identity or conscience that she should not be forced to renounce it or that it distinguishes the group from society as required under the Act.[17] Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the applicant is a member of a PSG within the scope of s 5J(1)(a) of the Act.

Applicant’s well-founded fear

[17] Section 5L of the Act

1. An applicant must have a well-founded fear of persecution. 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 of these reasons in the event they are returned to their receiving country. In the case of a PSG, as claimed by the applicant, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[18]

   [18] Sections 5H(1) and 5J(1)(a) of the Act; see Applicant A v MIEA (1997) 190 CLR 225 at 240

2. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.[19] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.

   [19] Chan Yee Kin v MIEA (1989) 169 CLR 379

3. In this case, the applicant claims that she will be seriously harmed by gangsters threatening her because she could not repay her debts. For the reasons expressed below, the Tribunal finds that the applicant does not have a well-founded fear of persecution for the reasons claimed, either on a subjective or objective basis.

Applicant’s delay

1. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[20] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[21]

   [20] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370

   [21] Subramaniam v MIMA (1998) VG310 of 1997

2. In this case the applicant arrived in Australia [in] November 2013 on a student visa which ceased on 19 August 2015. Despite the applicant’s evidence that she had entered into the loan agreement with the loan shark prior to her departure from Thailand for Australia, she did not apply for a protection visa until 10 December 2018.[22] A period of over three (3) years after her arrival in Australia.

   [22] Department of Home Affairs - Mainframe Movement Records dated 22 December 2021, Tribunal Case Number 1928011, Doc ID [number]

3. The applicant did not provide any reasonable explanation for the delay in making her application for protection. She claimed that she did not dare apply for a protection visa when she first arrived because she feared being in trouble. In any event she claims that nobody helped her make the application.  The Tribunal notes that on the applicant’s own evidence the circumstances by which she claims to fear returning to Thailand existed at the time of her departure for Australia. That is, she had entered into the loan agreement with the loan shark.

4. However, where the applicant claims to have a well-founded fear of persecution because of threats from gangsters because she was not able to repay her debts as claimed it is reasonable to expect that she would have claimed protection upon her arrival in Australia. Therefore, based on the applicant’s delay in making her application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicant’s fear of persecution[23] as claimed. Given the extensive delay of approximately three (3) years from the time of her arrival in Australia until the time of making her application for a protection visa, the Tribunal has placed little weight on the applicant’s evidence in relation to her claim.

Applicant’s written claims

[23] Subramaniam v MIMA (1998) VG310 of 1997

1. The applicant’s claim as detailed in her protection visa application is detailed above. She claims that she left Thailand because she did not ‘feel at home’ with the economy and government system. She claimed that she had previously owned a business which was destroyed by ‘cheating people’ as a result of which she now has a lot of debt. The applicant did not provide any evidence to the Tribunal in support of the claim.  The applicant did not provide any evidence to the Tribunal in relation to the political situation in Thailand or in relation to the economic conditions in Thailand as claimed. In addition, the applicant did not provide any evidence of having owned or operated a business in Thailand. 

2. The country information reports that Thailand is a constitutional monarchy with King Vajiralongkorn (Rama X) the current head of State. While the monarchy in Thailand has limited formal power, it has great influence over Thai politics, the military, and the legal system.[24] A general election was held on 24 March 2019, the first since the coup in May 2014 upon which the National Council for Peace and Order (NCPO) ruled the country until July 2019.[25] It is reported that while fraud and intimidation were not in evidence during the elections, the process has been criticised by some observers.[26] It has been suggested that the NCPO failed to create the proper conditions for a free ad fair election given laws restricting freedom of speech, association and assembly together with media censorship and a lack of equal access to media.[27]   

   [24] DFAT Report at 16

   [25] Ibid

   [26] DFAT Report at 17

   [27] Ibid

3. The Tribunal notes the country information which indicates that Thailand has experienced rapid economic growth and social development in recent decades.[28] It is currently the second largest economy in Southeast Asia[29] and is classified by the World Bank as an upper middle-income economy.[30] The country has significantly increased its Gross National Income per capita having reduced poverty from 67% in 1986 to 7.8% in 2017. The major economic sectors are services (contributing 56.3% of gross domestic product (GDP) in 2018), manufacturing and agriculture.[31]

   [28] DFAT Report at 10

   [29] Ibid

   [30] Ibid

   [31] Ibid

4. It is reported that Thailand’s official unemployment rate (0.7% in January 2020) is one of the lowest in the world[32] with more than one third of the labour force being employed in the services sector. Agriculture is generally made up of small-scale farms and employs approximately a third of the labour force. The balance is employed in the manufacturing sector.[33]

   [32] DFAT Report at 11

   [33] Ibid

5. It was the applicant’s evidence that she entered the loan with a loan shark for the purposes of funding her study in Australia and not in relation to having conducted any business in Thailand as claimed in her application. Rather than having conducted a business, it was her evidence that she either worked or engaged in periods of time at home with her family. Therefore, based on the applicant’s own evidence the Tribunal does not accept that she conducted a business as claimed. As such it finds that there is no real chance that she will be seriously harmed as a result of having entered into a loan agreement with a loan shark for the purposes of conducting a business in Thailand as claimed.

1. The Tribunal has considered if there is any real chance that the applicant will suffer serious harm arising from her economic situation for the reasons mentioned in s 5J(1)(a) if she is returned to Thailand in the foreseeable future. The applicant’s evidence was that she liked living in Australia and that she did not want to return to Thailand. The applicant did not provide any evidence in relation to the condition of the economy in Thailand. Her evidence was that she had been employed in Thailand and in [Country 1] in addition to having spent time assisting her father on the farm and caring for her grandmother. While the Tribunal accepts that the applicant had a modest lifestyle, there was no evidence that she had suffered economic hardship to the extent that she was denied basic services or a capacity to earn a living to the extent that her ability to subsist was threatened.  There is no suggestion that the applicant would not be able to find work if she was returned to Thailand.  

2. The Tribunal accepts that the applicant was motivated to come to Australia to study and find employment to look after herself and her family. However, the Tribunal does not accept that there is a real chance that she will be seriously harmed if she is returned to Thailand.  The applicant is still young, healthy and motivated. Her evidence was that she has been working in Australia and supporting her family in Thailand.  In addition, she had previously been employed in Bangkok and [Country 1]. As such, it appears she has a good work ethic and, based on the available country information, the Tribunal finds that she would be able to find employment upon her return to Thailand. 

3. Therefore, while the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work upon her return to Thailand, it does not accept that she will not be able to access paid employment given her overall motivation and work experience. The Tribunal acknowledges that the applicant fears that because of not having obtained any higher education she will not get a well-paid job. In addition, she fears the burden of generating an income for her family and that she has a genuinely held fear regarding the cost of living being too high and the remuneration in low skilled work too low if she was to return to Thailand. Nevertheless, the Tribunal has placed considerable weight on the country information that the Thailand economy is growing, is a sophisticated economy and has a low official unemployment rate. For these reasons, the prospect of finding work in Thailand based on the applicant’s circumstances does not amount to her facing a harm that could be considered serious harm, in the sense that she or her family will experience significant economic hardship or that they would be denied the ability to earn a living to the extent that would threaten their capacity to subsist or that they will be denied access to basic services.[34] 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 there is no real chance that the applicant will be seriously harmed for her economic circumstances for reasons mentioned in s 5J(1)(a) or any other claimed reasons, if she was to return to Thailand from Australia, now or in the reasonably foreseeable future.

   [34] Section 5J(5) of the Act

4. The applicant did not provide any evidence in relation to her political views and made no mention that she would be harmed because of her political opinion. Therefore, based on the applicant’s own evidence in support of her claims and the available country information, the Tribunal finds that there is no real chance she will be seriously harmed because of the government system in Thailand as claimed.

   Applicant’s loan shark claim

1. The applicant claims that she borrowed money from a loan shark to fund her study in Australia. She claims that if she is returned to Thailand, she will be seriously harmed by the loan shark.

2. The country information reports that there is a persistent high level of debt in Thailand equating to approximately 78% of GDP.[35] It is noted that Thailand’s household debt is one of the highest in Asia.[36] A survey conducted by the University of the Thai Chamber of Commerce (UTCC) in late 2019 involving 1200 respondents, found 41% of household debt is ‘underground’ owed to loan sharks, with the remaining 59% the result of loans to traditional financial institutions. The reason for these debts varied, with individuals ‘borrowing for general spending, car and housing loans, credit card charges and existing debt repayments.[37] The same survey conducted in January 2021 found ‘2.6% is underground debt owed to loan sharks, and 20% is owed to a combination of formal lenders and loan sharks’.[38]

   [35] DFAT Report at 44–45 

   [36] Ibid

   [37] ‘Household debt up 7.4% in 2019 amid economic woes’, Bangkok Post, 29 November 2019,

   [38] ‘Household debt rises 42% to 12-year high’, Bangkok Post, January 2021,

3. It is reported that according to the Central Investigation Bureau of the Royal Thai Police[39] ‘most borrowers are low-income villagers or vendors up country’, and many turn to loan sharks after financial institutions reject them because they have no steady sources of income or assets to use as collateral. Generally, the loan is spent on consumer goods such as motorcycles, gold jewellery or mobile phones while others use the loans to raise funds for gambling.[40] It is reported that on average, customers borrow THB3,000-50,000. Low-income vendors may also require money to purchase goods for resale. While many of the people who borrow from loan sharks are low-income villagers or vendors, reports also highlighted the emerging prominence of loan sharks among urban factory workers in cities across Thailand for the reason of supplementing insufficient incomes to support their families.[41]

   [39] ‘Police target predatory lenders’, Bangkok Post, 23 July 2012,

   [40] Ibid

   [41] ‘Debt & Poverty: Trapped by loan sharks’, Bangkok Post, 19 December 2012, ‘Loan sharks now preying on salaried workers, Justice seminar told’, The Nation Thailand, 18 December 2012,

4. Loans provided by loan sharks in Thailand tend to be short term in nature with high interest rates, taken out by individuals to cover short term repayments or daily living expenses.[42]

   [42] DFAT Report at 44

5. Section 654 of Thailand’s Civil and Commercial Code (the Code) limits the amount of interest that lenders can charge at 15% per annum.[43] Loan sharks, however, frequently charge far higher interest rates than that allowed under the Code. The actual amounts charged by loan sharks vary, and while interest rates of between 8% and 20% per month are common, local media have reported instances of borrowers paying up to 20% per day or 200% per month.[44]

   [43] ‘Civil and Commercial Code: Book III Specific Contracts’, Government (Thailand), 1 January 1925 

   [44] ‘Are loan sharks preying on Thais?’, The ASEAN Post, 2 December 2019, ‘14 wealthy loan sharks taken in by Thai police as money lending menace and debt remain a big problem’, Thai Examiner, 10 February 2019, ‘Loan sharks now preying on salaried workers, Justice seminar told’, The Nation Thailand, 18 December 2012,

6. It is reported that loan sharks may harass, threaten, or physically assault debtors who fail to meet their repayments, or hire gangsters to do so on their behalf.[45] It is reported that a group known as the ‘black helmets’ are engaged to enforce debts for loan sharks in rural areas. This may be achieved by pressuring neighbours of the borrower or the local community to ensure the loan is repaid.[46]

   [45] DFAT Report at 44

   [46] Ibid

7. The Thai government has stated that dealing with loan sharks is a policy priority.[47]  In 2015-2016 the government introduced new forms of licensed, low-interest financial lending known as: ‘nano-finance’ for business related expenses and ‘pico-finance’ for personal and household related expenses.[48] These forms of lending are designed to deal with smaller loans than would typically be offered by other lenders and do not usually require the borrower to pledge a property or asset as collateral. To offset this risk, lenders can charge higher rates of interest than would otherwise be legal, up to 15% per month or 36% per annum.[49] The purpose of the loans is to meet the needs of those who would otherwise borrow from loan sharks and to provide a framework by which unlicensed lenders can legitimise their operations.[50] It is reported that by late 2019 approved pico-loans numbered 138,479 accounts totalling THB3.679 billion or an average of THB26,572 per account.[51]

   [47] SCB Economic Intelligence Center (SCB EIC) and SCB Securities (SCBS), ‘Can Nano Finance unleash the grassroots from loan shark problems?’, 1 April 2015,

   [48] ‘Loan shark debt down B20 billion’, Bangkok Post, 22 June 2017, ‘Nanofinance to fight loan sharks’, Bangkok Post, 13 October 2016 

   [49] ‘Reforms: Servicing Goes Digital’, RHB Securities (Thailand) PCL, 17 June 2019, at 13,

   [50] ‘Thailand a happy hunting ground for loan sharks’, The Nation Thailand, 22 October 2014, ‘Loan shark debt down B20 billion’, Bangkok Post, 22 June 2017,

   [51] Reforms: Servicing Goes Digital’, RHB Securities (Thailand) PCL, 17 June 2019, at 14; ‘14 wealthy loan sharks taken in by Thai police as money lending menace and debt remain a big problem’, Thai Examiner, 10 February 2019, ‘Licence applications for pico finance operators on the rise’, The Nation, 30 November 2019

1. The Thai government has also attempted to deal with the loan shark debts by providing funds to state owned financial institutions such as the Government Savings Bank (GSB) and the Bank for Agriculture and Agricultural Cooperatives (BAAC) to create financial products to assist borrowers, particularly those from low-income backgrounds.[52] Refinancing options are available to allow borrowers to deal with loan shark debts. Emergency funds are also available through the Village and Urban Community Fund as an alternative to borrowing from loan sharks, although borrowers typically need to have an income-generating project to qualify.[53] In addition it is reported that the Thai government has been directly intervening on behalf of debtors to facilitate the return of money and property that has been repossessed by loan sharks.[54]

   [52] GSB, BAAC to provide emergency loans’, Bangkok Post, 22 February 2017,

   [53] ‘Microfinance Regulation and Supervision Recommendations Report’, Asian Development Bank, October 2013, at 32–34

   [54] ‘Prawit to present land title deeds back to 684 loan-shark victims in Northeast’, The Nation Thailand, 14 August 2018, ‘Govt returns assets to loan shark prey’, Bangkok Post, 21 September 2018,

2. In addition, borrowers in Thailand can approach consumer protection organisations such as the Foundation for Consumers.[55] However the exact nature and extent of assistance is unknown.

   [55] ‘Fairer debt collection fees urged’, Bangkok Post, 10 October 2018, ‘Household debt up 7.4% in 2019 amid economic woes’, Bangkok Post, 29 November 2019 

3. Finally, it is reported that the Royal Thai Police (RTP) regularly conduct raids against loan sharks, especially those linked with criminal gangs. It is reported that fines between THB50,000 and THB200,000 and jail sentences of two (2) to three (3) years have been imposed. While the RTP does act against loan sharks, local media reports that the penalties are insufficient to deter the activity in a significant way.[56]

   [56] ‘Police target predatory lenders’, Bangkok Post, 23 July 2012, ‘Loan sharks smell blood’, Thai Enquirer, 4 March 2020, ‘Illegal lending app run by Chinese staff charging up to 20% interest per week taken out by immigration police’ Thai Examiner, 5 February 2021,

4. In this case the applicant’s evidence in relation to the loan was vague and lacking in detail. The applicant claimed she had borrowed the amount of THB[amount]. Based on the country information this appears more than what would normally be provided by a loan shark. Her evidence was that her parents had guaranteed the loan by providing their [farm] as security. Despite her evidence that the loan shark has taken the [farm] in settlement of the loan she claims that the amount of THB[amount] remained owning on the loan. Given the excessive amount of the loan as claimed by the applicant and the conflicting evidence provided by the applicant in relation to the settlement of the loan and the amount outstanding the Tribunal has concerns in relation to the applicant’s evidence as to the loan as claimed. While the Tribunal accepts, based on the country information, that it is possible for the applicant and her family to have entered a loan agreement with a loan shark, it does not accept that the loan amount borrowed was as claimed by the applicant. The Tribunal notes the applicant’s evidence to the Tribunal was that, given the passage of time and the fact that the loan shark had taken possession of the [farm], it was unlikely that she would be harmed if she was returned to Thailand.

5. Nevertheless, even if the loan remains on foot as claimed, it appears from the country information that the Thai government has provided financial facilities to allow the applicant and her family to repay the loan to avoid serious harm. Based on the country information, the Tribunal finds that it would be possible for the applicant to access the financial facility made available to borrowers of loan shark loans to avoid serious harm. As such it finds that there is no real chance the applicant would be seriously harmed by gangsters if she was returned to Thailand because of having borrowed money from a loan shark as claimed.

6. Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively and having considered s 5J of the Act alongside the available country information, the Tribunal finds that the applicant will not be persecuted if she returns to Thailand for any reason pursuant to s 5J(1)(a) of the Act. That is, the Tribunal finds that she does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason, and therefore does not have a well-founded fear of persecution.

7. As such, 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

1. In considering whether the applicant met the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.  In this case, the Tribunal accepts that the applicant is a citizen of Thailand and that Thailand is the ‘receiving country’ for these purposes.

2. The applicant claims that she satisfies the requirements under s 36(2)(aa) by reason that she faces a real risk of significant harm including deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment as a result of having borrowed money from a loan shark. The Tribunal has had some reservations with the applicant’s evidence as a result of the delay in making her protection visa application and due to the vague nature of her evidence and lack of specific detail concerning the loan. For example, the applicant was not able to inform the Tribunal of the name of the loan shark from whom she borrowed the money. In addition, the applicant was not able to provide any evidence to the Tribunal in relation to the loan including the loan documents or repayments relating to the loan. As a result, for the reasons expressed above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Thailand, there is a real risk that she will suffer significant harm on the basis that she has borrowed money from a loan shark in Thailand. Accordingly, the Tribunal finds that there is taken to be no real risk the applicant will suffer significant harm because of owing money to a loan shark if returned to Thailand.

Economic claims

1. The Tribunal has considered if there is any real risk that the applicant will suffer significant harm arising from her economic situation upon being returned to Thailand in the foreseeable future. As referred to above the applicant claimed that she wanted to stay in Australia because she liked it. She did not provide any evidence to the Tribunal as to why she may suffer serious or significant harm upon her return to Thailand because she did not ‘feel at home’ with the economy and government system.

2. As referred to above, the Tribunal accepts that the applicant was motivated to come to Australia to study and find employment to look after herself and her family. However, it does not accept that there is a real risk that she will be significantly harmed if she is returned to Thailand.  She is young, healthy and motivated. She has been able to find work in Bangkok, [Country 1] and Australia indicating that she has a good work ethic and will be able to find employment in Thailand.

3. The Tribunal refers to and relies on the country information[57] referred to above in considering the applicant’s refugee claim. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work upon being returned to Thailand, it does not accept she will not be able to access paid employment given her overall motivation and work experience. The Tribunal acknowledges that the applicant may fear that by not having attained a specific educational standard she will not be able to obtain a well-paid job and that she has the burden of generating an income for her family and that she has a genuine fear regarding the cost of living being too high and the remuneration in low-skilled work too low if she were to return to Thailand. However, as referred to above, the Tribunal has placed considerable weight on the country information that the Thailand economy is growing, is a sophisticated economy and that the official unemployment rate is low. For these reasons, the prospect of finding work in Thailand based on the applicant’s circumstances does not amount to significant harm.[58] As such the Tribunal finds that there is no real risk the applicant will be significantly harmed if she is returned to Thailand by reason of her economic circumstances.

   [57] DFAT Report at 10

   [58] Section 36(2A) of the Act

4. Finally, the applicant did not provide any evidence in relation to her political views and made no mention that she would be harmed because of her political opinion. Therefore, based on the applicant’s own evidence in support of her claims and the available country information, the Tribunal finds that there is no real risk she will be significantly harmed because of the government system in Thailand as claimed.

5. At no stage did the applicant advance any other reason in her written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

6. 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 Thailand, there is a real risk she will suffer significant harm as required by s 36(2)(aa). The Tribunal therefore finds that Australia does not owe her any protection obligations pursuant to s 36(2)(aa) of the Act.

CONCLUSIONS

1. 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) the Act.

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

3. 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

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

Jason Pennell
Senior Member

Annexure A – Extracts from DFAT Report

ECONOMIC OVERVIEW

2.12Thailand has experienced rapid economic and social development in recent decades. The World Bank has classified Thailand as an upper-middle income economy since 2011, recognising its achievements in increasing Gross National Income per capita, significantly reducing poverty (from 67 per cent in 1986 to 7.8 per cent in 2017, as measured by the upper-middle income class poverty line of USD5.50 per day), and successfully withstanding the 2008 Global Financial Crisis. Thailand has the second largest economy in Southeast Asia, behind only Indonesia.

2.13The major economic sectors are services, manufacturing and agriculture. The services sector continues to expand, contributing 56.3 per cent of Gross Domestic Product (GDP) in 2018. Tourism is a major industry and is the main source of foreign currency. According to official statistics, 38.28 million tourists visited Thailand in 2018, making the country one of the world’s top 10 travel destinations. China provides the largest number of tourists of any single country (27.5 per cent). The manufacturing sector accounts for 35 per cent of GDP and is well-diversified. The main industries are electronics, steel and automotive, with Thailand being an assembly hub for international car brands. Electrical components and appliances, computers, cement production, furniture and plastic products are also important sectors. The textile sector has declined in importance but remains significant. Although agriculture’s contribution to GDP is declining (8.7 per cent in 2018), it continues to employ around one-third of the labour force (see Employment). Thailand is one of the leading producers and exporters of rice, with other major crops including rubber, sugar, corn, jute, cotton and tobacco. Fishing also constitutes an important activity, and Thailand is a major exporter of farmed shrimp.

2.14Despite Thailand’s considerable economic achievements, there are a number of points of vulnerability. Ongoing bilateral trade disputes between the United States and China have affected overall trade levels, including those flowing through regional supply chains. The ongoing influence of the military in the recently elected government, and political uncertainty, continue to dampen business confidence. Thailand has deep-rooted structural problems around human capital and competition, and many observers have called for reform to the Education system to address the workforce skills deficit. The economy’s dependence on tourism means that any dip in tourist numbers represents a key economic vulnerability. Border closures and lockdowns associated with the 2020 novel coronavirus (COVID-19) pandemic have flattened Thailand’s tourist trade. Another risk comes from persistent high levels of household debt, equating to 78 per cent of GDP, with some analysts concerned that anaemic wage growth will curtail consumers’ ability to repay debt. A slowing economy (just 2.4 per cent growth in the 3rd quarter of 2019, and a reduced forecast from 3.3 per cent to 2.8 per cent for 2019 overall) risks Thailand’s appeal as an investment destination. Gross foreign flows were USD28.9 billion in the first half of 2019, compared to USD30.4 billion in the same period in 2018. These economic projections pre-dated COVID-19. Thailand’s economy is acutely vulnerable to the effects of COVID-19, given its reliance on external markets and tourism (the latter accounting for over 20 per cent of Thailand’s GDP in normal times). COVID-related restrictions and reduced global demand have impacted negatively on the country’s main economic growth drivers, and the IMF has forecast that Thailand’s economy may contract by 6.7 per cent in 2020, the worst of any of its ASEAN peers.

2.15The current government was elected in March 2019 on an economic platform that included pledges to increase welfare, raise the minimum wage, improve healthcare, assist agriculture workers, boost education and introduce minor tax reform. Special stimulus measures in response to the COVID-19 pandemic were introduced in April 2020, which provide financial support to individuals and businesses, additional support for temporary and contract workers and the self-employed, and funding for community infrastructure.

Employment

2.16Thailand’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.

2.17 More than half of the active labour force is estimated to work in the services sector. The agricultural sector, comprised mostly of small-scale farms, employs about one-third of the labour force. The remainder is employed in industry.

Corruption

2.18Thailand 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).

2.19Chapter 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.

2.20Despite 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.

2.21 According to international and domestic observers, many Thais see recent high-level prosecutions against the Shinawatra family and the Thaksin and Yingluck administrations as being politically motivated. Thaksin Shinawatra, now in self-exile overseas, was convicted of corruption charges in 2008. In August 2017, the Supreme Court found 20 defendants guilty of corruption-related crimes, sentencing the former commerce minister to 42 years’ imprisonment for malfeasance in administering government-to-government deals involving Chinese companies. The same court subsequently found Yingluck guilty in absentia of dereliction of duty for failing to address the corruption of officials in her government and sentenced her to five years in prison. Thailand continues to pursue Yingluck’s extradition from the United Kingdom. While enforcement of anti-corruption laws increased under the NCPO, corruption reportedly worsened during the period of military rule.

SECURITY SITUATION

2.53The security situation in Thailand is unpredictable and varies according to location, partly due to the uncertain political situation. While most of the country is generally peaceful, a long-running separatist insurgency in southern Thailand has caused numerous deaths and injuries (see Insurgency in Southern Border Provinces (SBPs)). Political demonstrations and protests in Bangkok have turned violent in the past but large-scale street-based protests have been rare since the 2014 coup. Petty crime is common. There is a risk of land mines and unexploded ordnance near the Thai-Cambodian border.

2.54Many border areas of Thailand are used as trafficking routes for both the import and export of illegal substances for international markets, including opium, heroin, methamphetamine, cannabis, and yaba (a methamphetamine-type stimulant). Such border areas are dangerous due to violence associated with the drug trade. There have been numerous credible reports of some military and police personnel being involved in the drug trade and related violence. A ‘war on drugs’ waged during the Thaksin Shinawatra era in the mid-2000s caused thousands of deaths while failing to have a significant impact on drug trafficking routes or the drug trade overall (see also Extra-Judicial Killings).

2.55While large-scale attacks are rare, terrorism is an ongoing concern in Thailand. The country’s relatively permissive visa requirements and porous borders make it vulnerable to exploitation as a transit hub for terrorists moving in and out of the region. In recent years, there have been a number of terrorism related incidents that have caused deaths and injuries, including:

-    In August 2019, a series of explosions occurred in public places throughout Bangkok, including outside several government buildings. The bombings, which caused seven injuries, coincided with an ASEAN summit taking place in Bangkok, and are believed to be linked with the conflict in the SBPs.

-    In March 2019, several improvised explosive devices (IEDs) exploded in Phatthalung and Satun provinces but did not cause any casualties.

-    In May 2017, IED attacks at a Bangkok military hospital and the National Theatre injured 26 people.

-    In August 2016, around 24 incidents with IEDs, arson, and other suspicious events killed four people and injured over 30. Several IEDs were detonated in popular tourist destinations, including Phuket, Phang Nag, Trang and Surat Thani.

-    In August 2015, a bomb blast at Bangkok’s Erawan Shrine killed 20 and injured 125. The bombing was allegedly carried out by Uighur people smugglers but remains unsolved.

2.56On the weekend of 8-9 February 2020, a rogue soldier carried out a mass shooting in and around a shopping mall in the northeastern city of Nakhon Ratchasima, killing 29 people and injuring 57 before being shot by security forces. The mass shooting was the worst such event in Thailand’s history, although events of this nature are rare.

Trafficking of Persons

2.57According to the US Department of State, Thailand is a destination, source, and transit country for human trafficking for both Thai nationals and foreigners. Traffickers reportedly subject victims to forced labour and sex trafficking in Thailand and abroad. Women, children, lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals, ethnic minorities and stateless persons are particularly vulnerable. Children from Thailand, Myanmar, Laos and Cambodia have been victims of sex trafficking in brothels, massage parlours, bars, karaoke lounges, hotels and private residences. Labour traffickers exploit migrant workers in commercial fishing and related industries, the poultry industry, manufacturing, construction, agriculture, domestic work and street begging. Labour traffickers often exploit migrants through debt-based coercion and fraudulent promises of well-paid employment, while some migrants are kidnapped and held for ransom. Traffickers use Thailand as a transit country for victims from a number of countries, including China, North Korea, Vietnam, Bangladesh, India and Myanmar. DFAT does not have any specific information in relation to migration routes of North Korean asylum seekers transiting through Thailand.

2.58In upgrading Thailand from Tier 3 to Tier 2 in its 2018 Trafficking in Persons Report, the US Department of State reported that the government had increased its efforts to eliminate trafficking, including through identifying more victims, sentencing convicted traffickers and complicit officials to significant prison terms, and developing manuals in partnership with civil society to standardise antitrafficking training and policies. Thailand retained its Tier 2 ranking in the US Department of State’s 2020 report. According to the Thai government, officials rescued a record 1,807 victims of human trafficking in 2019, an increase from 622 in 2018. Around half of those rescued in 2019 were women, most of whom had been labour trafficked. Nearly three-quarters were migrants from Myanmar bound for neighbouring Malaysia.

2.59Government-operated shelters provide victims of trafficking access to counselling, legal assistance, medical care, civil compensation, financial aid, witness protection, education or vocational training, and employment. The government operates 76 short stay shelters and nine long-term regional trafficking shelters, including four dedicated to adult male victims and families, four for female victims, and one for male child victims. Undocumented foreign victims of trafficking are reportedly required to remain in shelters while the government processes their applications for permits to stay and work in Thailand, and victims are not permitted to leave or carry personal communication devices without permission. Thai law permits foreign victims of trafficking and witnesses to stay and work in Thailand for up to two years upon the completion of legal proceedings against their traffickers. NGOs report, though, that the required shelter stays have deterred some victims from cooperating with law enforcement.

2.60According to international observers, Corruption continues to undermine anti-trafficking efforts, with some government officials and police directly complicit in trafficking crimes, including through accepting bribes or loans from business owners and brothels that exploit victims. Corrupt immigration officials reportedly facilitate trafficking by accepting bribes from brokers and smugglers along Thai borders. Credible reports indicate that corrupt officials protect brothels, other commercial sex venues, and fishing vessel owners from raids and inspections, and collude with traffickers. Some government officials reportedly profit from bribes and direct involvement in extortion from and exploitation of migrants. While there have been an increasing number of prosecutions in trafficking cases, in-country sources report that it is common for a low-level functionary to be paid to bear responsibility for the real perpetrators.

GROUPS OF INTEREST

Victims of Loan Sharks

3.116In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately. So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.

3.117DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.

STATE PROTECTION

5.1In-country sources report that the independence of state protection bodies has eroded over the past two decades, under both civilian and military rule, and that most Thais have limited confidence in their ability to access justice through them. Human rights observers report that state protection bodies are heavily politicised, and that politically motivated appointments and problematic management have negatively affected their overall performance. As earlier described, the NCPO routinely used state authorities to restrict the activities of political opponents. Human rights groups have consistently raised concerns that impunity forabuses committed by security authorities and other official bodies remains the norm, particularly in the SBPs. All state protection institutions are significantly subject to and affected by Corruption, particularly the police.

Military

5.2The 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.

5.3The 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.

5.4As noted in Recent history, the military has regularly intervened in politics in Thailand and continues to play a prominent role in all aspects of national life. The military is a deeply conservative institution, and one traditionally closely associated with the monarchy.

5.5Section 50 of the Constitution includes military service as a ‘national duty’. The Military Service Act (1954) mandates that men become eligible for military service at the age of 21, which takes place through a lottery system. Approximately 100,000 personnel are recruited each year through the system, with the length of time spent in the military varying. Those with university degrees normally serve for six months if they volunteer for service, but one year if drafted via lottery. Those who have completed secondary education will serve one year if they volunteer, or two years if drafted. Reports of bribery to avoid the draft or to leave the military early are common, although doing so carries a potential punishment of up to three years’ imprisonment.

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.

5.8In-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).

5.9A 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.

5.10Individuals 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).

INTERNAL RELOCATION

5.24Section 38 of the Constitution provides for freedom of internal movement, but allows for the restriction of this right by law in cases of national security, public order, public welfare, town or country planning, maintaining family status or for welfare of a minor. Thai citizens from all backgrounds can and do relocate internally for a variety of reasons. In particular, large numbers of Thais have relocated from rural areas to major cities in recent decades in search of employment opportunities.

5.25The government restricts the free internal movement of Stateless Persons who are not citizens but who hold government-issued identity cards. Authorities prohibit holders of these cards from travelling outside their home districts without prior permission from the district office, or outside their home provinces without permission from the governor. Offenders are subject to fines or a jail term of 45 to 60 days. Persons without identity cards may not travel at all. According to human rights organisations, police at inland checkpoints often ask for bribes in exchange for allowing stateless persons to move from one district to another. In addition, two groups – former Chinese civil war belligerents and their descendants living in the country for several decades, and children of Vietnamese immigrants residing in 13 northeastern provinces – live under laws and regulations restricting their movement, residence, education, and access to employment. The Chinese group is restricted to residence in the northern provinces of Chiang Mai, Chiang Rai and Mae Hong Son.

5.26As noted in Women, internal relocation may be more difficult for single women seeking to relocate with children. An individual facing adverse official attention, particularly prosecution in a politically sensitive case, is unlikely to be able to escape this through internal relocation. However, men facing adverse attention from non-state actors may be able to relocate internally successfully, depending on individual circumstances.

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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…