1931654 (Refugee)

1931654 (Refugee) [2022] AATA 1000 (23 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1931654
COUNTRY OF REFERENCE:                   Thailand
MEMBER:James Silva
DATE:23 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 March 2022 at 9:13am
CATCHWORDS
REFUGEE – protection visa – Thailand – imputed political opinion – brother resisted workplace corruption, shot and forced to leave position – whistleblower – family members participated in anti-government protests and injured – current whereabouts of all three unknown – fear of harm from authorities – credibility – vague claims and inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a [Age 1] year old woman from Thailand who claims to be a Thai citizen.
She first arrived in Australia [in] February 2013, as the holder of a student visa. She most recently returned [in] June 2015. On 26 October 2018, she applied for a protection (class XA) visa. On 15 October 2019, the delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). This is an application for review of that decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. A summary of the relevant laws is in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Claims
The applicant claims that her brother worked at [Workplace 1], where he resisted pressure to engage in corrupt conduct (she also referred to him as a ‘whistle blower’). Someone shot him and, after his recuperation, he was forced to leave his position. He is now unable to work anywhere in Thailand. The brother, together with the applicant’s mother and sister, later participated in anti-government protests, during which they suffered injuries. As of April 2021, they have disappeared without trace.
The applicant claims to fear persecution or significant harm from the Thai authorities, particularly under Section 112 of the Criminal Code (the ‘lèse-majesté’ law) through her association with her brother and other family members, in part because they will have added her name to petitions against the government. She fears being unable to make a living, falsely charged and imprisoned, tortured and/or being killed.
Background
The applicant is a [Age 1] year old woman, who was born in Bangkok but moved to Nonthaburi (to the north-west of Bangkok) when she was young. She speaks Thai and English.
The online protection visa application form has no information about the applicant’s education or past employment in Thailand, and appears to have some incorrect information on it. At hearing, the applicant said that she completed a Bachelor of [Subject 1] degree in Thailand, and also worked in [Workplace 2] from the age of about 15.
The applicant married in Australia in January 2015, to [Mr A]. She claimed that the couple separated in 2017. She submitted a divorce order dated [July] 2019.
The applicant identified her mother, older brother ([Age 2] years old) and older sister ([Age 3] years old) as her only relatives in Thailand. She told the Tribunal that her parents divorced when she was young. Her mother was an only child, and her parents died when she was young. As a result, the applicant claims to have no extended family in Thailand.
The applicant’s brother, [Mr B], is a central figure in her claims. She stated in her protection visa application that he works at [Workplace 1]; is [an Occupation 1] at [Workplace 3], and is married. However, at hearing, she said that he worked in [Workplace 1] administration; he is not [an Occupation 1]; and he is unmarried. She claims that he was dismissed in 2019. The applicant could not shed further light on her brother’s work at [Workplace 1], claiming that all her family members have now disappeared.
The applicant currently holds a Thai passport issued in [2017], a full copy of which is on the Department file. She told the Tribunal that she held a previous passport, which she had lost. The applicant first arrived in Australia in February 2013, as the holder of a student visa. She most recently returned to Australia last [in] June 2015, also on a student visa.[1] The applicant held student visas from February 2013 to March 2018. She wrote that she completed a Master of [Subject 2] in July 2017, and a Master of [Subject 1] in December 2017. The applicant was unlawful from April 2018 until November 2018, when she lodged the protection visa application.
[1] The applicant provided these details on her protection visa application.
The applicant told the Tribunal that she lives in Sydney, working as [an Occupation 2] in the city. She and [Mr A] currently share a two-bedroom apartment in Sydney; they continue to live together for financial reasons. The applicant presented a copy of a tenancy agreement with the names of four individuals on it but intimated at hearing that she, [Mr A] and (perhaps) his girlfriend stay there. The Tribunal found the applicant’s circumstances in Australia somewhat opaque. (This was of interest to the Tribunal in determining what weight to place on [Mr A]’s oral evidence corroborating one of the applicant’s key claims.)
Evidence
The material before the Tribunal includes the following:
§The applicant’s protection visa application form and attachments, lodged online on 26 October 2018. These include a summary of her protection claims.
§Photocopy of the applicant’s Thai passport, issued [in] 2017, valid to [2022].
§The Department did not invite the applicant to an interview in this matter.
§Protection visa assessment (‘delegate’s decision record) of 15 October 2019.
§The applicant’s review application form received on 7 November 2019, attached to which was a copy of the delegate’s decision record.
§Supporting documents (some of these were attached to the pre-hearing submission, with further detail in the post-hearing submission).
-A statement submitted on 26 October 2021, which included photographs.
-A statutory declaration of 7 December 2021, with attachments and further details about the photographs and documents.
-Copies of the applicant’s, her brother’s and her mother’s identity documents.
-Email from the applicant’s sister (‘[Ms C]’, [email address]) dated 26 June 2018, with attachments showing two photographs of the back of a male, with bandages on his upper and lower back, purportedly showing the applicant’s brother’s wounds after he was shot.
-Email from the applicant’s sister, dated 30 November 2020, with five images showing a person (or persons) with wounds (facial, lower arm and leg), purportedly of her sister and/or mother in hospital following protest activity.
-Photograph of a package of Restavit.
-Statutory declaration by [Mr A], the applicant’s ex-husband and current flatmate, dated 7 December 2021.
-Documents showing the applicant’s marriage to [Mr A] in January 2015, their divorce in July 2019 and a tenancy agreement signed by four tenants, namely the applicant, [Mr A] and two other individuals.
The applicant attended a Tribunal hearing on 9 November 2021 and 16 November 2021 to give evidence and present arguments, with the assistance of an interpreter in the Thai and English languages. The initial hearing session was conducted via teleconference. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
At the first hearing session, some issues arose with the sound quality and the interaction between the applicant and the interpreter. The Tribunal decided to adjourn the hearing, and resume in person, at the earliest possible date.
The applicant nominated her ex-husband [Mr A] as a witness and support person, on the basis that he witnessed her reaction after receiving a telephone call from her sister in April 2021, even though he cannot speak Thai. [Mr A] gave his evidence through an interpreter in the Indonesian and English languages.
Following receipt of additional submissions from the applicant, the Tribunal wrote to her on 8 February 2022, inviting her to provide comments/responses to potentially adverse information concerning her relatives’ online presence, and her ex-husband’s oral evidence at hearing. The applicant provided comments at interview on 16 February 2022 and in a written submission dated 22 February 2022, with attachments. A second hearing took place on 16 February 2022, by telephone.
The applicant was represented in this matter by registered migration agent [Mr D]. He attended the first hearing. [Mr D]’s colleague, [Ms E], was present at the second hearing.
The Department file includes documents associated with the applicant’s application for a Bridging C visa. The Tribunal has found nothing in these materials of direct relevance to her protection claims, although they provide some further insights into her personal circumstances.
Receiving country
The applicant claims to be a national of Thailand. She holds a Thai passport, and her other documentary and oral evidence to support this claim. On the available evidence, and in the absence of any contrary information, the Tribunal finds that she is a national of Thailand, and assesses her claims against Thailand as the receiving country.
Assessment of claims and evidence
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility (Credibility Guidelines) both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
The Tribunal accepts that, as the applicant has been in Australia since 2013, she relies on information provided by people in Thailand (such as her sister), as well as her own sources in Australia. Even allowing for this, it has significant concerns about the credibility of her claims and evidence. They were often vague and lacking context. The Tribunal was struck by the applicant’s inability to provide meaningful detail beyond her basic protection claims, eg. her brother’s actual role at [Workplace 1]; or any recent efforts she may have made to locate her family members.
During the review, the applicant emphasised her inability to obtain further details or corroboration, as her sister had been her only source of information in Thailand; her family members have been missing since April 2021; and she lacks other avenues of support or enquiry. In addition to her lack of any family or social network in Thailand, she and her representative alluded to country information about Thailand to suggest that it was unsafe for her to initiate enquiries as to her family’s whereabouts (and also for her to return to Thailand). The Tribunal examines these factors in detail below. Overall, it formed the view that the applicant was focused on persuading the Tribunal to accept her claims at face value, and was not engaged with the substance of her protection claims (such as her family’s profile and current welfare), or how she might be able to substantiate them.
There were striking differences between the applicant’s online application form, and her claims and evidence as presented during this review. Among the inconsistencies are:
a)the written claim that she left Thailand because of the authorities’ threats towards her and other family members, and was harassed on her return visits to Thailand, compared with her recent claims that her brother’s problems arose only after her most recent arrival in Australia;
b)inconsistent evidence about her brother’s work and marital status; and
c)the written claims that she (and her family) have sought government protection in Thailand, and tried relocating in Thailand for safety, when she later denied that any of this applied to her directly.
These inconsistencies go to the heart of the applicant’s protection claims, including when she first feared persecution or significant harm; whether this occurred while she was in Thailand, or later; and what led her brother to discover or resist corruption. The applicant told the Tribunal that a non-Thai person helped her complete the application, and it is possible that they did not understand her circumstances correctly, or mixed it up with her divorce application. The Tribunal accepts that the person who assisted the applicant with the protection visa application form appears to have a non-Thai name. However, this does not adequately explain the discrepancies between the original application and the applicant’s claims on review. It suggests either that the applicant did not take the original application seriously; and/or that she has substantially revised her claims on review.
The applicant most recently arrived in Australia in June 2015, but did not seek protection until October 2018, more than three years later. This potentially raises questions about her need for protection and, potentially, the veracity of her claims. At hearing, the applicant commented briefly that she was not aware of the availability of protection in Australia until a friend alerted her to it. The delay in seeking protection and the applicant’s comments could suggest that her focus was on prolonging her stay in Australia, rather than any fear of harm in Thailand. Nonetheless, the material before the Tribunal records the key (claimed) events as having occurred from mid-2018 (in particular. the shooting of her brother) and, in these circumstances, the Tribunal considers it would be unsafe to draw adverse inferences from the delay.
The applicant told the Tribunal that she suffers insomnia, and she provided a photograph of a package for Restavit, a non-prescription medication for the temporary relief of insomnia. Insomnia is a common sleep disorder affecting about 1 in 10 people at any given time, with multiple causes and forms[2]. The applicant’s use of non-prescription medication suggests that her insomnia is very mild and/or temporary. The Tribunal is not satisfied that this has any bearing on the applicant’s presentation of her case. It places no weight on it as evidence to support her claims (such as stress associated with the disappearance of her family).
[2] Health Direct: Insomnia
The submission of 22 February 2022 addressed the applicant’s recall of a claimed telephone call from her sister in April 2021, noting that ‘events of high stress and emotional intensity’ can have an adverse effect on a person’s episodic memory. The Tribunal accepts that the telephone call, if it took place as claimed, would have been a traumatic event for the applicant. The assessment of facts below takes that into account, in the context of the overall material before the Tribunal.
Brother’s opposition to corruption
The application form (lodged in October 2018) states that the applicant’s brother had been [an Occupation 1] at [Workplace 3] and also at [Workplace 1]. At hearing, she said that he had worked at [Workplace 1], from about 2016. She was not sure of his role, as she was not close to him. However, her sister had told her he worked in administration.
The applicant claimed in her online application that her brother’s supervisors at [Workplace 1] had pressed him to sign documents intended to secure more government funding. Her brother, however, was ‘stubborn and ethical’, and refused to sign false documents.
The submission of November 2021 contains more details. Her brother had refused to sign documents that would have netted his corrupt colleagues ‘billion[s] of baht’. (The Tribunal notes that, at current exchange rates, THB1 billion is over $A41 million.) At hearing, the applicant stated that she did know much about her brother’s work or his role in resisting his corrupt colleagues. The Tribunal was unable to elicit more details. The pre-hearing submission included a link to a report on corruption in Thailand[3], indicating that there are ‘high risks of corruption in most sectors’, including public procurement.
[3] GAN Risk and Compliance Portal, Thailand Corruption Report,
The Tribunal found numerous online references to the applicant’s brother, indicating that he is [an Occupation 1 and does other work-related activities][4], and that he has (or had) various social media accounts.[5] As set out in the s.424A letter and discussed at the second hearing, this publicly available information casts doubt on the applicant’s claims that she is unable to get more information about her brother because they were not close, and more specifically, that she thinks he was in some kind of administrative role at [Workplace 1] that enabled him to authorise (or block) large purchases. The submission of 22 February 2022 notes that the online references refer to the period up to 2015, and pre-date his claimed employment at [Workplace 1] (2016-2019). It also points out that some of the social media profiles do not include her brother’s photograph and, in any event, it is not possible to verify whether he is the real account holder, as there are many fake accounts. The Tribunal accepts that these online references do not give an authoritative view of the brother’s recent role.
[4] [Details deleted]
[5] These include [Social Media 1], [Social Media 2] and [a professional network]
The Tribunal is unimpressed that, although the applicant’s claims rest in large part on her brother’s role in refusing to participate in corruption and/or being a whistle blower, she had minimal information even about his actual field of work. It does not accept at face value that the applicant’s brother was involved in resisting or exposing corruption, at [Workplace 1] or elsewhere.
Authorities targeting her brother: 2018-2019
Pressure on the brother: The primary application (October 2018) states that, because of his refusal to go along with his corrupt colleagues, the [Workplace 1] authorities targeted and bullied the applicant’s brother, ‘torturing’ him at his workplace. It states that they were intent on forcing him to remain in his position, to facilitate their corrupt conduct (Tribunal emphasis). They threatened to jail him, and they were spying on him. These references appear to be the [Workplace 1] authorities, and also the Thai (national) authorities. The application form suggests that, at that time, he continued to hold the position at work.

In her written and oral evidence to the Tribunal, the applicant stated vaguely that the government sent people to spy on her brother, as they suspected that he was anti-government (‘assumed to be from a group of people who lost interest in the government’). This eventually led to the shooting in June 2018.
Pressure on the applicant and family members: In the primary application, the applicant wrote that she and other family members came under intense pressure during this period, including threats to imprison or kill them if her brother did not comply (with the demands to facilitate the corruption). It suggests that the authorities’ interest in them were to hold the whole family hostage. The applicant gives this as the reason for her departing Thailand, and states that, even on her return visits, she experiences harassment and threats. As noted above, the applicant last arrived in Australia in 2015, and her brother started his work at [Workplace 1] in 2015 or 2016. These claims, at least as they relate to her, therefore lack credibility.
In her written and oral evidence to the Tribunal, the applicant confirmed that she had not come under any direct threats in Thailand (including her most recent visit there, which pre-dates the key incidents). She said her family under pressure following her brother’s shooting, in particular financial pressure; and that motivated them to protest against the government.
Response to threats/harassment: In the primary application, the applicant wrote that her brother (and family members) sought help from the authorities, but faced opposition from the [Workplace 1] authorities and were unable to obtain protection. On review, the applicant referred to her brother having reported the corruption to the police. This was based on hearsay (what her sister told her), and the applicant therefore did not have details or evidence to hand.
Shooting: The applicant made no reference in her primary application to any shooting of her brother (despite the shooting allegedly having taken place in June 2018, four months before the lodgement of the protection visa application).
On review, the applicant claimed that, one day in 2018, ‘government people’ came to shoot him, and he suffered gunshot wounds. The applicant claims that her brother went to the provinces to recover. Again, this was based on her sister’s brief telephone calls, and she had no further details.
The applicant provided two photographs of a male, from behind, in what appears to be a hospital setting. There are two bandages on the man’s back, one on the upper back and another on the lower back. The applicant submitted to the Tribunal a copy of an email dated 26 June 2018, from her sister ([Email address]), which included these photographs. The translated covering message reads: ‘[nickname], as I told you on the phone, brother is safe now from the gunshot wounds, but he has asked not to call him. He’s laying low in the countryside for a while’. The Tribunal is unable to determine the identity of the person in the photographs, or the cause or nature of the wounds. There are no related documents (such as hospital admission or discharge documents) to indicate the brother’s treatment. Furthermore, it is difficult to believe that the sister sent the brief email and photographs to the applicant as part of a real exchange about the brother’s experiences, and asked her not to call him, when she told the Tribunal that they are not close anyway. The Tribunal is concerned that this email was sent to support the applicant’s forthcoming protection visa application, or has been fabricated (the applicant wrote about the extent of online fraud in her s.424A response). The Tribunal places minimal weight on these documents as evidence that the applicant’s brother was shot, as part of a campaign linked with corruption.
Aftermath of shooting: The applicant wrote that her brother went to the country to recuperate, and after this, returned to work. However, the threats to him and the family continued. In early 2019, his employer found a reason to dismiss him.[6] Due to the government’s ‘connections and power’, he was unable to find work anywhere.
[6] Statutory declaration of 7 December 2021.
The applicant also variously claimed that her brother sought police protection, and that her family sought government assistance, but were ‘unable to reach the right members of the government to report this.’ The submission of 7 December 2021 also stated that the family is fearful that, if they contact the wrong persons, they will be in even greater danger. The applicant appears to have based this on her sister’s advice, and provided no details or supporting evidence.
As noted above, the applicant wrote in her primary application that these incidents prompted her to depart Thailand, although she sometimes ‘secretively returns’ there to visit her sick mother, but always only for a few weeks. Clearly, the alleged incidents involving her brother occurred after her last departure from Thailand, and are therefore unrelated to either the reason for her departing Thailand or the conditions when she returned. Curiously, the submission of 7 December 2021 repeats this: “Previously every time she has secretly returned to Thailand, she has been subject to harassment and threats’.
The Tribunal does not accept that the applicant departed Thailand for any reason associated with her protection claims, or that her return visit in 2015 was secretive. It is possible that the references to the applicant’s departure from Thailand and her ‘secretive returns’ are in part due to a misunderstanding or, in the December 2021 submission, a clumsy ‘cut and paste’ from the primary application. However, this reinforces the Tribunal’s impression of a casual approach to the contents, and veracity, of the claims and evidence produced in this matter.
Overall, the Tribunal finds the applicant’s claims and evidence about her brother’s experiences, and the consequences for him and the entire family (including, potentially, the applicant) to be vague, changeable and lacking reliable substantiation. It accepts that the brother works as [an Occupation 1], and that this may involve [other specified activities]. It also accepts, given the prevalence of corruption in Thailand, that he may have encountered it in some form. However, it does not accept on the available evidence that he resisted corruption or was a whistle blower; or that he was threatened and pressured; or that government agents or others shot him in June 2018; or that, following his recuperation and return to work, he was forced out of work. The Tribunal also does not accept that any family members were subject to threats or pressure; or that the brother or other family members needed, but were unable to obtain State protection from ongoing threats. It does not accept any of the associated claims.
Developments after 2018
The applicant presented new claims and evidence during the review, relating to her family’s participation in anti-government protests, and their disappearance since April 2021. She fears the same fate (including the possibility of being killed) if she returns to Thailand.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made. In the present case, the applicant’s new claims and evidence relate to developments that (at least in part) occurred after the lodgement of the protection visa application in October 2018, and that there was no Department interview. The Tribunal is satisfied that this is a reasonable explanation for the omission.
The applicant claims that, after her brother lost his job, her family was desperate as he had been the main breadwinner. They were angry, and started to join in anti-government protests, demanding an end to corruption and, symbolically at least, opposing the monarchy.
At hearing, the Tribunal asked about the brother’s and family’s circumstances between early 2019, when the brother allegedly lost his job, and the family lost their sole source of income, and April 2021, when they allegedly disappeared. It noted, for instance, that they appeared to have continued living at the one address during this period. In reply, the applicant said that her brother used to stay with her mother and sister, but after the shooting he went to the country to recover. She did not address his activities or source of income from early 2019. Given the above findings and its adverse view of the applicant’s credibility, the Tribunal does not accept that her family were in dire straits, and motivated to participate in anti-government protests.
The applicant claims that her family members participated in a number of protests, most recently [in] November 2020[7]. At that rally, the authorities used tear gas to disperse the crowd. In her statutory declaration of 7 December 2021, the applicant wrote that her mother and sister fled to a small hospital outside the city for treatment. Her sister telephoned her about the incident, and on 30 November 2020, sent the photographs and a brief message.
[7] According to the submission of 7 December 2021, and evidence at hearing.
The applicant submitted no photographs or other evidence pertaining to the claimed protest activities, but five photographs purportedly showing the injuries her mother and sister suffered in November 2020. These show: (a) a woman with what appears to be blisters on one eyelid; (b) a person with bandaging around most of their head; (c) a woman with bandaging on her forehead and left side of her face; (d) a bandaged lower arm; and (e) a patient on a hospital bed, taken from the viewpoint of that person, showing only their bare feet protruding from under the sheet and one bandaged toe. Attached to the submission of 7 December 2021 was a copy of a purported email from the applicant’s sister to her, dated 30 November 2020, with the following text (as translated):
Like I told you, mum and I copped tear gas from the bastard government the day we went to the mob. Don’t know what liquid they used because [skin] was burning and irritated and red all over, but brother was ok and he brought water for mum so we made it through. Do not come back, sis under any circumstances, repeat, I beg you. Police summon and arrest warrant will certainly arrive. I will contact you.
Country information indicates that there were largescale protests in Thailand at this time. However, the Tribunal is unable to determine whether the photographs show the applicant’s mother and sister, as the patients’ faces are not visible (or only part of them are) and, in any event, the Tribunal has no photographs for comparison. It is also not clear why the sister would send a brief email expressly warning the applicant not to return to Thailand; why it goes on to speculate about police action (a forthcoming arrest warrant) arising from a mass protest; or why she would send photographs showing physical injuries, but no other portraits or similar images. The Tribunal is not satisfied that the email and photographs form part of a genuine exchange between the applicant and her sister. In the context of the applicant’s protection visa application, and given its broader concerns about the applicant’s credibility, the Tribunal places minimal weight on this exchange as corroboration for the applicant’s claim that her brother, mother and sister were involved in a protest in November 2020, and that the latter two were injured and hospitalised
The applicant wrote in her statutory declaration of 7 December 2021 that she recalls her sister contacted her twice more - around New Year 2020/2021 and again in late February - and on a final occasion in early April 2021. The applicant stated that the conversations were brief and rushed, as her sister was calling from a public telephone. On the final call, her sister said that arrest warrants had been issued, and that they had to flee.
The applicant claimed to have been shocked after receiving the call from her sister in April 2021, and distraught at not having heard from her relatives since then. At hearing, she confirmed these claims, reiterating that she does not know the whereabouts of her sister, mother or brother, and has no means to find out.
§ In relation to her sister, the Tribunal asked about the email address that her sister had sent the emails with the photographs to her from. The applicant replied that her sister had told her not to use that email address anymore.
§ In relation to her brother, the Tribunal wondered whether the applicant had tried to locate his name on social media or other sources.
§ The Tribunal explored with the applicant various avenues of enquiry that she might have considered if, as claimed, her entire family had disappeared or gone into hiding. For instance, it asked about the landlord (of their rented home), neighbours, friends, the religious community, the brother’s former colleagues, humanitarian organisations or others. The applicant replied that she is introvert, the family is small, and they lack a social network, as they had to move often. She said that her family members are not online; they are kind of ‘old-fashioned’. She emphasised her discomfort at making enquiries, given the dangerous political situation in Thailand. Also, she stressed that her sister had told her not to contact them; the sister would take the initiative.
The applicant gave the impression that she was not genuinely engaged in this issue, and had not turned her mind to what enquiries she could make in relation to her family (for instance, through third parties). Her effort appeared to be on convincing the Tribunal that she cannot pursue this issue, and that it should accept her claims as stated.
Following the first hearing, the Tribunal located numerous public online references to the applicant’s brother, such as his professional profile and his work as a dermatologist. It also found a [Social media 2] account linked to the email used by the applicant’s sister, which was opened in October 2021, apparently a [subject] blog. In her oral and written comments, the applicant noted there was no mention of her brother online in recent years. In relation to her siblings’ online presence (including the [Social media 2] account linked to her sister’s email address), the applicant referred to the prevalence of fake social media accounts. For instance, she wrote that her sister’s [Social media 2] profile includes no personal identifiers and, in any event, it is merely used to retweet others’ comments on [subject]. She went on to suggest that it could even be used by a person with a similar name. Finally, the applicant reiterated her sister’s instruction that she (the applicant) should not try to initiate any contact with her, but rather wait to hear from her.
The applicant’s responses have reinforced the Tribunal’s concerns about the truth of her claims. To be clear, it is not suggesting that any particular internet or social media search would have yielded conclusive evidence about family members; or, indeed, that the applicant should have pursued any particular line of enquiry (including through third parties). Rather, the applicant appeared to resist the idea that she could be looking for information at all. The Tribunal finds unpersuasive her assertions that the general political environment in Thailand, her sister’s request that she not initiate contact, the family’s social isolation or other factors make it not feasible for her to look further.
The applicant described her shock when her sister telephoned briefly in April 2021 to tell her they were subject to an arrest warrant, and were about to flee. The applicant’s ex-husband, [Mr A], also described the incident in a brief statutory declaration dated 7 December 2021 and at hearing. He stated that one evening in April 2021, the applicant received a call from her sister while she was in the living room. She was crying and stressed after the call. He went into the living room to check on her; and she reluctantly told him that her family was on the move, having to hide from the government.
At hearing, the applicant and [Mr A] gave vague accounts of where they were when the call came in – [Mr A] thought that he had been at the dining table, with the applicant on the sofa; whereas the applicant recalled eating a meal, and could not recall where [Mr A] had been (suggesting that he may have entered the room later). The Tribunal has some concerns about the vagueness of these accounts, and the discrepancies, but agrees with the post-hearing submission that it would be unreasonable to draw adverse conclusions from these alone. It also takes into account that [Mr A] does not speak Thai, and therefore would not have followed the conversation (if he had overheard the applicant’s statements). That said, the Tribunal found the applicant’s evidence about her and [Mr A]’s living arrangements somewhat guarded and unforthcoming (for instance, when it asked about the girlfriend he claims lives with them). It signalled its surprise that, on the one hand, the applicant gave [Mr A] the gist of the news from Thailand after receiving the call and he was evidently prepared to give sworn evidence at hearing; and yet on the other, he had not sought any further details and or offered the applicant other assistance. In these circumstances, the Tribunal places minimal weight on [Mr A]’s evidence as independent corroboration of the applicant’s claim regarding the telephone call in April 2021.
In light of these concerns, particularly the applicant’s lack of enquiry about her family, the low value corroborative evidence and the Tribunal’s broader credibility issues, the Tribunal does not accept any of the applicant’s claims about her family’s disappearance in April 2021.
Political profile
The applicant’s claims are based on her association with her family members, and implicitly an imputed anti-government political opinion.
Asked at hearing whether she had engaged in any political activities or gained any profile, she said that protestors (‘we’) normally record their names on a list when they protest, and her sister would have added her name to the list, even though she was not present in Thailand at the time. She had no further evidence or details, as her contacts with her sister had been brief. Again, the Tribunal is concerned that the applicant has a basic claim (that her family members would have added her name to a list of people opposed to the government), but no meaningful context, details or supporting evidence.
Given its findings above that her family members were not injured during ant-government protests and have not disappeared, and its adverse view of her credibility, the Tribunal does not accept that her family members have added her name to any political lists, or that she has any adverse political profile through her association with them.
The applicant has not claimed, and there is nothing to suggest, that she has engaged in any political discourse in Australia or online. Even taking into account the extent of political unrest in Thailand, the Tribunal is not satisfied that she has any political opinion that motivates her to follow Thai politics or engage in any related activities; or that the Thai authorities perceive her as being anti-government.
Fears of returning to Thailand
The applicant wrote in her protection visa application expressed fears relating to the authorities’ pursuit of her brother, and the family as a whole. During this review, she variously claimed to fear being imprisoned, tortured and/or killed, all based on information that her sister provided to her. (The Tribunal notes these in more detail below.)

The Tribunal accepts that the applicant is highly motivated to remain in Australia, but considers that she has been less than frank about her circumstances here. In any event, it does not accept that she genuinely fears persecution or significant harm, for reasons of any political opinion, actual or imputed, or any other reason, if she returns to Thailand.
ASSESSMENT: REFUGEE CRITERION
The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1). The Tribunal takes into account the findings above, its assessment of her future conduct in Thailand and relevant country information.
The applicant wrote in her protection visa application that she fears that, if she returns to Thailand, the [Workplace 1] authorities will discover her presence, prevent her from departing again, and possibly imprison or torture her, due to her brother’s failure to participate in their corruption (she also mentioned his role as a ‘whistle blower’). She claims that the police and other authorities are corrupt and inaccessible; protection is only available to the wealthy and well-connected. The ‘authorities’ (implicitly, the [Workplace 1] authorities) have contacts in other provinces, and act with impunity. This also means that relocation is not an option.
In the submission of 7 December 2021, the applicant claimed that she is at risk of being imprisoned for false crimes and/or being tortured in Thailand, for the same reasons as her family members’ (alleged) persecution; and that she will be unable to earn a living. In an earlier submission of 26 October 2021, the applicant referred to possible punishment Section 112 of the Criminal Code. She wrote: ‘This law is so severe that the entire family would be killed, that’s [what] my sister told me for the last time’. The most recent DFAT report[8] includes the following comments on Section 112:
3.30 Section 112 of the Criminal Code (widely known as the ‘lèse-majesté law’) provides for a penalty of up to 15 years’ imprisonment for anyone who ‘defames, insults, or threatens the King, the Queen, the Heir apparent, or the Regent’. The law does not provide a definition as to what constitutes an insult to the monarchy, which has given authorities leeway to interpret it in a very broad way. […]
3.35 Human rights observers have expressed concern that the monarchy’s increasing presence in public life will result in further formal and informal restrictions on freedom of expression in relation to matters of legitimate public interest, including restricting discussion on Thailand’s politics, economy and military. Noting the very low evidentiary threshold on Section 112 and other serious charges relating to criticism of the monarchy, and the established willingness of authorities to use them against political opponents, DFAT assesses it as likely that authorities will continue to use criminal charges other than section 112 to suppress critics. Those facing such charges have a limited ability to defend themselves.
[8] Department of Foreign Affairs and Trade: Country information report – Thailand, July 2020, paragraph 3.30.
While the applicant highlighted section 112 (defamation of the monarchy), DFAT also referred to a broader range of laws being used to suppress political opinion: ‘In the years following the 2014 coup, a range of laws and decrees has collectively served to limit significantly the freedoms of expression and assembly. Human rights observers have criticised these laws for being overly broad and vaguely worded, and have expressed concern about the broad scope of their application.’[9]
[9] Department of Foreign Affairs and Trade: Country information report – Thailand, July 2020, paragraph 3.21.
The Tribunal has rejected the applicant’s claims about her brother’s prior profile (as a person who refused to engage in corruption and/or was a whistle blower) and experiences (being shot at and forced out of his job); and about her family’s political activism, injuries, disappearance and any ongoing arrest warrants or other official action. It does not accept that she genuinely fears persecution for a relevant reason, as required by s.5J(1)(a).
The Tribunal also does not accept that the Thai authorities have any adverse interest in the applicant, including for any imputed political opinion (through her family association, or her now-rejected claim that her family put her name on a list of political protestors). It finds that there is no real chance of the Thai authorities targeting her for prosecution under s.112, or any other legislative provisions, or otherwise inflicting serious harm on her. Having found that the applicant has no real interest in politics, it does not accept that she would be motivated to join in any political protests if she returns to Thailand, or that she would have to refrain from such activities in order to avoid the risk of persecutory harm.
The applicant also referred in December 2021 to the prospect of her not being able to earn a livelihood in Thailand, if she returns. At hearing, she referred to work as [an Occupation 2] in both Thailand and Australia. Given the Tribunal’s findings that she faces no real chance of being imprisoned, tortured or killed because of her or her family’s political profile, it follows that she faces no real chance of being unable to earn a living as a result of such treatment. The Tribunal accepts that the applicant will need to find a job on her return to Thailand; that there may be a competitive labour market; and that the remuneration may be less than in Australia. It does not accept that this involves serious harm to the person, as required by s.5J(4)(b), or that she faces a real chance of any harm for a relevant reason: s.5J(4)(a).
Having considered the applicant’s claims and evidence as a whole, the Tribunal finds she does not face a real chance of serious harm amounting to persecution arising from any political opinion, actual or imputed; or any other reason set out in s.5J(1)(a). It concludes there is no real chance of the applicant being persecuted for any relevant reason: s.5J(1)(b).
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, that there are substantial grounds for believing there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Thailand.
The Tribunal’s findings of fact above lead it to conclude that no one has an adverse interest in the applicant, or any intention of inflicting significant harm on her, including but not limited to killing her under Section 112. The applicant suggested in her written and oral evidence that she will suffer some detriment due to Thailand’s political instability and governance (such as corruption), or in her capacity to earn a living. The Tribunal accepts that she may have a lower living standard than in Australia. However, these are general conditions that affect all Thai residents, and do not involve significant harm as defined in s.36(2A) and s.5(1).
In sum, the applicant’s circumstances if she returns to Thailand do not give rise to grounds for believing that there a real risk that she will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. The Tribunal is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty.
Accordingly, 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, there is a real risk that she will suffer significant harm: s.36(2)(aa).
Conclusion
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).
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member

ATTACHMENT – RELEVANT LAW
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.
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 immediately below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
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.
…

[2022] AATA 1000

23 March 2022

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction