1930715 (Refugee)

[2020] AATA 4093

1930715 (Refugee) [2020] AATA 4093 (28 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1930715

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Jason Pennell

DATE:28 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 28 July 2020 at 5.07pm

CATCHWORDS

REFUGEE – protection visa – Thailand – particular social group – persons threatened for refusing to sell land as demanded – forced land sale – fear of killing – fear of physical assault – arson attack – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 29 October 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant who claims to be a citizen of Thailand, applied for the visa on 25 April 2019. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Migration Act 1958 (the Act).

3.The applicant applied for review of the delegate’s decision to refuse her protection visa application to the Migration and Refugee Division of the Administrative Appeals Tribunal on 29 October 2019 and provided a copy of the delegate’s decision as part of her application.

4.The applicant appeared before the Tribunal by telephone on 18 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter.

5.For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

6.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

7.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.

8.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).

9.Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

10.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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

12.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.

Applicant’s identity 

1. The applicant claimed that she was born on [date] in [Town 1 in] Ubon Ratchathani, Thailand.[1]  She provided a copy of the biodata page of her Thai Passport to the department which confirmed the date and place of her birth as claimed. There is no evidence to suggest her passport was a bogus document and, as such, the Tribunal accepts the applicant’s identity.

Country of reference

[1] Department file [numbers], Doc Id [number]

1. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that he is a citizen of Thailand and as such her protection claim will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.

2. The Tribunal is also satisfied, based on the evidence before it, that the applicant does not have a right to enter and reside in any other country[2] and, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s. 36(3).

Applicant’s Migration History

1. The applicant claims that she was born [on date] in [Town 1 in] Ubon Ratchathani, Thailand. 

2. The applicant entered Australia on a valid Thai passport [in] June 2018 on a [temporary] visa. She departed Australia [in] August 2018 and re-entered on the same [visa] [in] October 2018. She again departed Australia [in] December 2018 and returned [in] March 2019, again on the same [visa]. The applicant has not departed Australia since arriving [in] March 2019.

Claims for protection

1. The applicant submitted claims for protection when she applied to the department for protection on 25 April 2019 as follows:

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

   ‘I was forced to sale my land which is it my belonging and I want to keep it for my family but the one who want to buy my land he really want it and threaten me and try to burn my house to fired me out. Lucky that I noticed and stop the fire before damage. A few week after the fire he come to my house against and ask me to sell again and said if I refuse again this time, he guarantee that day will be my last day of breath for me.’

   Did this applicant experience harm in that country or those countries?

   ‘Yes’

   ‘He tried to burn my property.’

   Did this applicant seek help within the country or those countries after the harm?

   ‘Yes’

   ‘No, I don’t believe in Thailand’s Law system.’

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

‘Yes’

‘I don’t have any place to go.’

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

‘He will kill me.’

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

‘Yes’

‘He will kill me.’

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

‘No’

‘No, I don’t believe in Thailand’s Law system.’

1. The delegate’s decision[3] summarised the applicant’s claims as:

   [3] Protection Visa Decision Record dated 29 October 2019 @ p.2

   (a)The applicant received threats to sell her land from ‘the one’ who wanted to buy it.

   (b)The person set fire on the applicant’s house which the applicant was able to stop before damage was done.

   (c)A few weeks after the fire incident, ‘he’ came to the applicant’s house again asking her to sell her land. The applicant refused again and ‘he guarantees that that day will be last day of breath for me’. (sic)

   (d)The applicant does not believe in Thailand’s legal system.

   (e)The applicant does not have any place to move to in Thailand.

   (f)The applicant thinks that ‘he will kill me(her)’ if she returned to Thailand.

   (g)Because ‘he’ will be able to locate the applicant and because ‘he is a rich man who can pay to government and can do everything in Thailand’ (sic) she is not able to relocate.

Applicant’s evidence.

1. The applicant was born on [date] in [Town 1], Ubon Ratchathani Thailand. The applicant claims that she is ethnic Thai and a Buddhist. In addition, she claims that she speaks, reads and writes Thai.

2. The applicant’s evidence was that her parents continue to live in Thailand, but now live in [Town 2], Thailand. She claimed that they worked as farmers but are now retired.  The applicant has [specified siblings], all of whom continue to live in Thailand.

3. The applicant’s evidence was that she has never married, however, she stated that she had been in a long-term relationship prior to traveling to Australia. She believes that her ex-partner remains living in Thailand but states she no longer has any contact with him. The applicant claimed that she does not have any contacts or relatives in or outside of Australia.

4. The applicant’s evidence was that she attended [School 1] in Ubon Ratchathani. He evidence was that she completed [grade] in [year]. The applicant did not continue her studies after leaving school.

5. However, her evidence to the Tribunal was that after school she worked [in] a [business] for approximately [number] years. She stated that she also worked from time to time on her parent’s farm. In her application the applicant also claims that she worked in the [specified] Industry as a [an occupation 1] for a business known as [name] from 2005 until 2019.

6. The applicant arrived in Australia initially on a [temporary] visa [in] June 2018 and stayed for approximately three months. She then returned in October 2018 and stayed for about two months. The applicant then returned [in] March 2019 and has not left since.

7. The applicant claims that she owns a parcel of farmland in Ubon Ratchathani, Thailand (‘the property’). She stated that the property was given to her by her parents approximately five years ago and that she had built a house on it. Despite the applicant claiming that she owned the property, she was not able to provide the Tribunal with its address. In addition, she was not able to provide the Tribunal with any proof of ownership of the land or any other independent evidence that she owns or has any possessory right to the property as claimed.

8. The applicant initially stated that she owned the property but, when questioned by the Tribunal about the nature of her ownership she stated that her parents remained the registered owners of the of the property and that she held a right to possess the property.

9. The Tribunal put to the applicant that there are four type of ownership/possession of land in Thailand[4] being:

   (a)Nosor 4 (freehold title) - This type of title grants the holder of this document full rights over the land, to deal with or to use it to the exclusion of others. Thus, if you're planning to buy land in Thailand, this type of title deed is the best and most credible title deed to hold.

   (b)Norsor 3 Gor – This is land that is ‘awaiting' a full title deed. The land is measured by the Land Department, and therefore has exact boundaries, and as such may be sold, transferred, or mortgaged in the same manner as land with a freehold title deed, if it is ready to be a full title deed.

   (c)Norsor 3 – This is land which has not been measured by the Land Department. As such it has no exact boundaries. It cannot be sold or transferred until it has been converted to either a Norsor 3 Gor or Nosor 4 title.

   (d)Possessory Right- Land with a possessory right has never been substantiated by the Land Department and is only recognized by tax payments at the Local Administrative Office.

   [4]    Siam Legal, >

   In response the applicant’s evidence was that she had a right to possess the property and that her parents had arranged for her interest to be recorded with the local council. However, the applicant was not able to provide to the Tribunal any documentary evidence or other independent evidence of her right to own or occupy the property. The applicant stated that her mother had promised her the land as the eldest in her family but had not arranged for the transfer of the title due to the cost of transferring land. 

10. The applicant claims that in or about April 2018 she was approached by a person to sell the property. She claimed that this person had purchased the land surrounding the property and wanted to consolidate it with the rest of his land for re-development and sale. She claimed that he wanted the property to be able to build a factory. The applicant was not able to tell the Tribunal the name of the person who had approached her but stated that he was a local politician and that his first name was [Mr A] (the local politician) but could not recall his full name.

11. The Tribunal notes that the initial offer to purchase the property was made to the applicant prior to her departure for Australia.  

12. The applicant claimed that in or about January 2019, after her return to Thailand, representatives of the local politician (approximately 10 men) approached her to sell the property. She claimed that the she refused the offer as the price they offered was too low. In any event, she claimed that she did not wish to sell the property as she wished to hold it for her family. The applicant was not able to tell the Tribunal the day upon which she was approached by the local politicians’ representatives but said ‘it may have been the [a day in] January 2019.’ As a result, the applicant claimed that the local politician tried to burn down her house but stated that she had managed to put the fire out before it reached her home. She was not able to tell the Tribunal the day or time upon which the fire occurred. After which she claimed that she lived in fear. She claimed that she called the police but said that nobody cared.

13. The applicant then claimed that in February 2019 representatives of the local politician again approached her to sell the property. She was not able to tell the Tribunal the day or time she was approached. She claimed that they came around harassing her on motorcycles, shooting in the air and letting off firecrackers as an effort to force her to sell the land.

14. The applicant then claimed that another local politician (know to the applicant as [Mr B]) continued to come to her home about three days per week with two or three others asking when she was going to sign over the property. As a result, she travelled to Australia.  The applicant claimed that if she returns to Thailand, she fears that she will be kidnapped and killed.

COUNTRY INFORMATION

1. The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the DFAT report on Thailand dated 10 July 2020 (‘the DFAT Report’).[5]

Overview of Thai Police:

[5]    DFAT Country Information Report Thailand 10 July 2020  

1. The Royal Thai Police and the Royal Thai Armed Forces are responsible for law enforcement in Thailand[6]. The police are made up of approximately 230,000 officers separated into regions and services, exercising different powers. The Crime Suppression Division (CSD) is one of the largest components and is responsible for investigations of criminal offenses as well as riots and public disorders, sabotage, counterfeiting, fraud, illegal gambling operations, drug trafficking, and the investigation of organized crime. Still, police effectiveness remains uneven across the country and is hampered by a range of factors and corruption and misconduct are widespread among police. The ability of police to conduct follow-up criminal investigations is hampered by a lack of funding, inadequate training, corruption, and frequent rotations that prevent them from operating effectively.[7] In August 2018, Thailand had the sixth highest prison population (360,000 inmates) globally and the  fifth highest incarceration rates, suggesting that where crimes are committed they are convicted and punishments are widely imposed[8]. There is also evidence that the Government cracks down on crime as a display of capability and competence to the country’s people[9].

   [6]     Thailand 2018 Crime and Safety Report – Bangkok’, United States Department of State Bureau of Diplomatic Security, 10 June 2020

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

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

   [9]     Thai Junta Launches Crackdown on Organized Crime’, Voice of America, 5 November 2015, accessed 24 June 2020

2. Reports suggest that Thai security forces commit human rights abuses including extra-judicial killings, torture and arbitrary detentions. Official impunity continues to be a problem, most notably in the southern provinces where martial law remains in effect.[10]

Corruption:

[10]    2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, 11 March 2020, Exec. Summ., p.1,

1. Corruption remains one of the government’s priorities and areas of reform. Thailand has been reviewing legislation since becoming a party to the UNCAC in 2011.[11] In 2014, Prime Minister Prayut Chan-o-cha declared war on corruption after setting up the National Council for Peace and Order (NCPO) to govern Thailand[12]. In fact, with seven government agencies formed to combat corruption Thailand has displayed commitment to cleaning up corruption. However, according to the Bangkok Post, Thailand remains at 36 points on the Transparency International’s 2018 Corruption Perceptions Index for 2018 on a scale of 100 (very clean) to 0 (very corrupt)[13] which suggests that the nation has a while to go.

   [11]    Human Rights Council Working Group on the Universal Periodic Review Twenty-fifth session 2–13 May 2016 (p. 127)

   [12]    “Corruption before and after the NCPO” The Asean Post, accessed 10 June 2020

   [13]    ‘Corruption rises in Thailand, global watchdog says’ Bangkok Post, accessed 10 June 2020

1. Corruption is not uncommon among police and reports often surface of prisoner and detainee abuse by police, usually with impunity[14]. Accordingly, it has been suggested that public confidence in the police is low in Thailand[15]. Furthermore, it is noted that police will treat complaints from those with influence with more care and it has been suggested that figures of authority or privilege can ‘engage in malpractice with impunity’[16].

   [14]    ‘Military authorities can still arbitrarily detain civilians’, Thai Lawyers for Human Rights, accessed 12 June 2020

   [15]    ‘A critique of the internal complaints system of the Thai police', Dhiyathad Prateeppornnarong and Richard Young, Policing and Society, accessed 12 June 2020

   [16] Ibid.

2. However, authorities have also demonstrated that they take action against police misconduct. From October 2015 to August 2016, there were over 3,000 police officers subjected to disciplinary actions, which resulted in dismissal of 221 officers[17]. Mechanisms to lodge complaints against police conduct include the National Anticorruption Commission, the Supreme Court of Justice, the Office of the Prime Minister and the Office of the Ombudsman.

Separation of police and judiciary

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

1. Thai law provides for an independent judiciary; however, this is not always upheld. The 2017 constitution provides for an independent judiciary, and that the government generally respects judicial independence and impartiality.[18] In practice, courts are ‘politicized and corruption is common’.[19] Human rights groups express concern about the government’s influence on independent judicial processes.[20] Other relevant significant human rights issues include unlawful and arbitrary killings by the governments or its agents, forced disappearances on behalf of the government and arbitrary arrest by government authorities and political influence over the judiciary[21]. Although the report acknowledges that “authorities took some steps to investigate and punish officials who committed human rights abuses” and noted there were no official reports of disappearances by government authorities from January to September of 2019.[22]

   [18] ‘2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, 11 March 2020, Sect.1e, p.8, 20200312132543

   [19] ‘Freedom on the Net 2019 – Thailand’, Freedom House, 5 November 2019, Sect.C1, 20191106111647

   [20]  2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, 11 March 2020, Sect.1e, p.8, 20200312132543

   [21] 2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, accessed 10 June 2020

   [22] 2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, accessed 10 June 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 of 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[23]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[24]

   [23] s.5AAA Migration Act 1958.

   [24]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[25] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [25]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. 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.[26] 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.

Applicant’s Refugee Claim

Relevant Grounds

[26]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. The applicant did not specifically submit that she fell within the scope of s.5J(1)(a) of the Act. However, based on the applicant’s claims it may have been possible for her to claim that she fell within s.5J(1)(a) of the Act by reason of her membership of a particular social group.  That is, as a person who is threatened as a result of refusing to sell, transfer or depart with land as demanded. 

2. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (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.[27] While the Tribunal has reservations that being threatened as a result of failing or refusing to sell land as demanded represents a common element or characteristic that unites the applicant with a group, and sets her and the group apart from society at large, it is prepared for the purposes of this decision to accept that the applicant is a member of a particular social group pursuant to s.5J(1)(a) of the Act.

Applicant’s well-founded fear.

[27]   Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

1. 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 social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

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 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. In this case the applicant claims that she has been threatened with serious harm by reason of the fact that she has refused to sell land in Thailand as demanded. Accordingly, she claims that there is a real chance she will suffer serious harm by representatives of an unidentified person, who she claims to be a local politician, if she returns to Thailand. For the reasons expressed below the Tribunal has serious concerns about the applicant’s evidence in relation to the harm she claims she will suffer if she returns to Thailand and, as such, does not accept that the applicant holds a subjective fear of returning to Thailand as claimed. 

Accepted Facts

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

   (a)the applicant was born on [date] in [Town 1], Ubon Ratchathani Thailand.

   (b)the applicant is ethnic Thai and a Buddhist.

   (c)the applicant speaks, reads and writes Thai.

   (d)the applicant’s parents continue to live in [Town 2] Thailand and are retired farmers.

   (e)the applicant has [specified siblings] all of whom continue to live in Thailand.

(f)The applicant is not married.

(g)the applicant attended [School 1] in Ubon Ratchathani completing [grade] in [year].

(h)the applicant worked [in] a [business] for approximately [number] years and in the in the [specified] Industry as [an occupation 1] from 2005 until 2019.

Applicant’s Claim as a Refugee

1. The applicant claims that there is a real chance she will be seriously harmed if she is returned to Thailand by reason of the fact that she has refused to sell land in the Ubon Ratchathani, Thailand. The applicant claims that the land was her parents’ and that they promised her land as the eldest in the family about five years ago. The applicant claims that her interests in the land have been recorded with the local council, but she was not able to provide any documentary evidence, or any other independent evidence, of her right to ownership or possession of any land in Thailand. In addition, despite claiming that the property had been her parents’ and that she had she had built a house on the land, the applicant was not able to tell the Tribunal the address of the property.

2. The applicant claims that a local politician, know to her by only his first name, [Mr A], wants to purchase the land. She claims that he has purchased the surrounding blocks of land and wants her land so that it can be consolidated with the rest of the surrounding land for resale and development. Despite claiming that she had been threatened by the local politician, the applicant was not able to provide any detailed information about him save to say that he was a powerful person. The applicant evidence in relation to the local political was at best vague and lacking in any detail. She was not able to inform the Tribunal of his full name or provide any information as to his background or political affiliations.

3. The applicant initially claimed that she was the owner of the land. However, in response to the Tribunals questions about the title of the property she admitted that she had only a right to possess the land. Based on the applicant’s evidence it appeared to the Tribunal that the applicant, having only a right to possess the property right could not transfer the property to the local politician as claimed. From the applicant’s evidence it appears that any search of the property would show that her parents are the legal owners of the land with the applicant, at best, having only a possessory right to occupy the property. The applicant was not able to provide a satisfactory response to the Tribunal asking her why her parents had not been threatened as the legal owners of the property. The applicant merely stated that she was present and had a right to be in possession of the property and therefore the local politician and his representatives had threatened her.

4. Finally, the Tribunal pointed out to the applicant that assuming she was able to sell the property as claimed, if she did sell it, even at the low price offered by the local politician, presumably she would no longer be threatened with harm as claimed. The applicant stated that she did not want to sell the property as she wanted to hold it for her family. As a result, she claimed that she continued to be threatened with harm.

5. In addition, the applicant’s evidence in relation to the threats of harm she alleged to have received was, at best, vague and lacking any detail. She was not able to tell the Tribunal with any detail as to when she was threatened. Save in the broadest terms the applicant was not able to provide any detail of the threats she received or by whom they were performed. For example, the applicant was not able to advise the Tribunal of when she alleges the fire occurred at the property. She did not provide any details of the fire including how she became aware of the fire, who extinguished the fire and what damage it caused. In addition, the applicant did not provide any independent evidence of the fire having occurred.

6. The applicant gave evidence in relation to the threats she alleged she received from representatives of the local politician when attending her property. She claimed that they would arrive on motorcycles, shoot in the air and set firecrackers off. However, she was not able to provide any specific dates or time as to when they arrived. In addition, she was not able to give any details of any conversations she may have had or how she became aware that they were representatives of the local politician himself. Finally, the applicant did not provide any independent evidence of any person having attended her property as claimed.

7. Finally, the Tribunal notes that despite the applicant’s claims that she was constantly harassed by the local political politician’s representatives attending her property from February 2019 to the time she departed for Australia, the Tribunal notes that she was not harmed during this period.

8. Accordingly, as a result of the vague and conflicting nature of the applicant’s evidence, the Tribunal does not accept the applicant’s evidence that she owns property in Ubon Ratchathani, Thailand as claimed. In fact, her evidence was that she had only a right to possess the property. As such, she does not have the right to sell or to transfer the property as claimed. Accordingly, based on the applicant’s own evidence, the Tribunal finds that the applicant had no right to sell or transfer the property and, as such, finds that there is no real chance the applicant will be seriously harmed by reason of her refusal to sell or transfer the property as claimed by the applicant.

9. In addition, by reason of the fact that the applicant was not able to provide any independent evidence of the property, including any title details or address of the property, the Tribunal does not accept her evidence that she either owned or has a right to possess the property as claimed. Accordingly, the Tribunal finds that the applicant does not own or hold any possessory right to a property in  Ubon Ratchathani, Thailand as claimed. As such, the Tribunal finds that there is no real chance that she will be seriously harmed by refusing to sell the property as claimed.

10. Finally, the applicant’s evidence in relation to the threats she alleged she received was at best vague, confused and lacking in any detail. The applicant was not able to identify with any clarity the local politician who she claims had threatened her or any of his representatives. She was not able to provide specific dates or time  of the alleged incidents in January and February 2019 including the fire that she claimed  was started by the local politician’s representatives at the property. In addition, the applicant was not able to identify with any clarity the other local politician (known to the applicant as [Mr B]) who she claims continued to attend property asking when she was going to sign over the property. The applicant did not provide any specific details of his visits to the property or of conversations he had with the applicant. As such, given the vague nature of her evidence and the lack of any specific detail, the Tribunal does not accept the applicant’s evidence in relation to the alleged threats received. In addition, having found that the applicant was not the owner of the property and did not have any right to possess the property as claimed, the Tribunal does not accept that she was threatened as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of the threats alleged to have been received if she returns to Thailand.

11. As a result, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she returns to Thailand. Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant in relation to any threat in relation to the sale of a property in Thailand.

Complimentary protection.

1. The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.

2. The Tribunal has not accepted the applicant’s evidence that she owned property in Ubon Ratchathani, Thailand as claimed. In addition, the Tribunal has not accepted  the applicant’s evidence that she was threatened as claimed as part of forcing her to sell the property to a local politician. As such, the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s.36(2A)(c) and (d). Accordingly, the Tribunal finds that there is no real risk the applicant will be significantly harmed if she returns to Thailand as a result of threats to force her to sell a property as claimed.  

3. In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa), there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, that there is a real risk that  she will suffer significant harm of any kind.

4. At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.

5. Having considered her claim and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand that there is a real risk she will suffer significant harm as required by s36(2)(aa).

CONCLUSION

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 the Act for the reasons mentioned in s.5J(2). Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

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 criterion in s.36(2).

DECISION

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

Jason Pennell

Senior Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

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.

…

Lowest - Prison Population Rate’, World Prison Brief, 17 September 2018,