1931197 (Refugee)

1931197 (Refugee) [2021] AATA 5074 (10 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1931197

COUNTRY OF REFERENCE: Thailand
MEMBER:Sheridan Lee
DATE:10 December 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 December 2021 at 11:22 am
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – fear of money lenders – gang members – physical assault – fear of killing – state protection – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old man from Thailand. He applied for the visa on 26 June 2018 on the basis that he would be beaten and killed by gangsters whom he borrowed money from. The delegate refused to grant the visa on the basis that effective state protection would be available.
The Tribunal viewed a copy of the applicant’s Thai passport. I accept that the applicant is a citizen of Thailand and will assess the applicant’s claims against Thailand as his country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
CONSIDERATION OF CLAIMS AND EVIDENCE
The application for protection form outlines that the applicant borrowed money from relatives and found that he could not repay the debt. The form outlines that the applicant has a distrust of Thai institutions and notes that poverty and unemployment are big problems. The applicant further claimed that if he returned to Thailand he would be caught by gangsters and could be beaten, injured or killed.
The delegate refused to grant the visa on the basis that effective protection from money lenders and gangs would be available from Thai authorities. The applicant applied to the Tribunal for merits review of that decision. A copy of the delegate’s decision was provided to the Tribunal on review.
The applicant appeared before the Tribunal via video to present arguments and give evidence on 8 December 2021. The Tribunal was assisted by an interpreter in the Thai and English languages.
The applicant gave evidence that he was born in the Chiang Rai province of Northern Thailand. He continued to live with his parents in Chiang Rai until he moved to Australia in 2015. The applicant belongs to the [Group 1] people, an ethnic group that primarily live in the hills of Northern Thailand. He speaks Thai, [Dialect 1] and a little English. He adheres to the Christian faith.
The applicant was married in 2015 and the couple now have [an age] child. The applicant arrived in Australia [in] December 2015 on a [student] visa. His wife, [named], was the primary visa holder. In Chang Rai the applicant worked as [an Occupation 1] in a [business]. In Australia he has work in a factory as [an Occupation 2]. The applicant completed a bachelor’s degree in [subject]. However, he noted that he did not want to work in that field.
The applicant applied for protection on 26 June 2018. The applicant’s wife was not included in his application for protection. He explained that his wife submitted a separate application, but she made the same claims for protection. They were advised that it was best to make separate applications by a friend.
The applicant explained that he is concerned about returning to Thailand because he owes money to relatives and he must pay the school fees for his wife here in Australia. The applicant noted that while they were on student visas they were only permitted to work 20 hours. This did not allow the applicant to earn enough money, so he decided to apply for a protection visa. [His wife] completed a course in general English and [another qualification].
The applicant gave evidence that he borrowed a total of [amount] THB from four separate people (approximately $[amount] AUD). The individuals were named [Mr A], [Mr B], [Mr C] and [Mr D].
[Mr A] and [Mr D] are relatives of the applicant, while the others are friends of his Dad. The applicant gave evidence that he’s made some repayments since arriving in Australia. The payments are managed by transferring money to his sister and she pays the money in cash.
On the day of the hearing, the applicant said that he owed about [amount] THB (approximately $[amount] AUD) to his relatives. He explained that he returned the money to his father’s friends first because they threatened him. His family have extended the time to repay.
The applicant noted that the economy in Thailand is bad, particularly because of the COVID-19 pandemic, and he felt that he may not find a job to pay the money back. Now he has the additional expense of having a child. The applicant stated that Australia is a country that provides opportunity.
Although the applicant only owes money to relatives, he said he was unsure what would happen if he did not repay the loans. The applicant said he was unsure if they would harm him. I questioned whether they had ever threatened to harm him and the applicant confirmed that they had not.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
FINDINGS
I accept that the applicant is a Thai man of [Group 1] ethnicity and Christian faith. For the reasons below, I do not accept that the applicant would be harmed as a result of borrowing money. I do not accept that there is a real chance or real risk that the applicant would face serious or significant harm for economic or any other reason if he were to return to Thailand now or into the reasonably foreseeable future.
Chance of harm as a result of borrowing money
I accept that the applicant borrowed money from four individuals who were family or friends. I further accept that he has since repaid two loans and owes approximately [amount] THB to two members of his family.
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all allegations made by an applicant.[1]
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
Household debt it a major issue in Thailand, with many people turning to loan sharks to finance their debt. However, at the time of the Tribunal hearing, the applicant gave evidence that he owed money only to members of his family. While he gave evidence that he had been threatened by his father’s friends before he repaid the money he borrowed from them, he had never been threatened by the family members to whom he owed money. In fact, the family members had been accommodating by providing him additional time to repay his debt. The applicant raised no concern in respect of gangsters in his family or being engaged by his family. Although the applicant expressed a general concern about what might happen in the future, no evidence was put forward to suggest that his family members had threatened to harm him or would seek to harm him now or in the reasonably foreseeable future. I do not accept that there is a real chance that the applicant would suffer serious or significant harm from gangsters or anyone he borrowed money from.
Chance of economic harm
As discussed with the applicant at the hearing, the Department of Foreign Affairs and Trade reports that Thailand has a relatively strong economy and a very low unemployment rate. Thailand has the second largest economy in Southeast Asia, behind only Indonesia.[2] Thailand’s major economic sectors are services, manufacturing and agriculture. I acknowledge that restrictions on travel as a result of the COVID-19 pandemic have had a major impact on the services sector. In response, the Thai Government has introduced a stimulus package, reduced the benchmark interest rate and offered a range of short-term financial support mechanisms to support people impacted by the pandemic. Nevertheless, I accept that the recovery of the Thai economy will take some time and the pandemic will have a long-term impact. This is a situation faced by countries all over the world.
[2] Department of Foreign Affairs and Trade Country Information Report Thailand, 10 July 2020.
I accept that the applicant may suffer some economic hardship and stress should he return to Thailand. I further accept that it is likely that he can earn significantly more working in Australia than he can in Thailand. However, the applicant has work experience in both Thailand and Australia and holds a bachelor’s degree. Although he expressed a desire not to work in the [Industry 1] sector, there is nothing restricting him from utilising his qualification. Considering the applicant’s personal circumstances as a young, experienced and well-educated man, I do not accept that the applicant would experience significant economic hardship such that it would threaten his capacity to subsist if he returned to Thailand in the foreseeable future.
No claims were made by the applicant in respect of his ethnicity or religious beliefs, and there is no information before the Tribunal to suggest that these attributes would give rise to a claim for protection.
Considering the available evidence, I am not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood for any reason, including for reason of his ethnicity or religion, such that his capacity to subsist would be threatened. I accept that the applicant is concerned about being able to support himself and his family, but find that he would be able to do so by finding employment in Thailand (albeit at a lesser rate than he has been able to do in Australia).
Refugee Assessment
For the reasons given above, I find that the applicant does not have a well-founded fear of persecution as required by s.5J for any of the grounds advanced and therefore find that he is not a refugee within the meaning of s.5H. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection Assessment
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[3] I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that he will suffer significant harm: s.36(2)(aa).
[3] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
To the extent that that the definitions of ‘serious harm’ and ‘significant harm’ differ, I am satisfied that economic hardship falling short of denial of the ability to subsist and/or employment discrimination in some workplaces or [Industry 1] sectors where Bumiputera may be the subject of affirmative action policies, where the applicant is an Indian-Tamil, do not constitute ‘significant harm’ of the kind contemplated by ss 36(2A) and 5(1).
Although the applicant’s wife has made a separate claim for protection, at the date of this decision her claims had not accepted. As such, I find that the applicant does not satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Lee
Member

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

[2021] AATA 5074

10 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction