1932783 (Refugee)
[2025] ARTA 831
•7 March 2025
1932783 (Refugee) [2025] ARTA 831 (7 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1932783
Tribunal:General Member R.Germov
Date:7 March 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 07 March 2025 at 4:44pm
CATCHWORDS
REFUGEE – protection visa – Thailand – former employer’s sexual harassment and threats to rape – form completed by friend without applicant’s knowledge of contents and claims disavowed at hearing – new claims that sister used applicant’s identity card to borrow from loan sharks for gambling and to buy car – applicant and parents threatened – country information – vague and inconsistent claims and no supporting evidence or documentation provided – passage of time – persons threatened by loan sharks not a particular social group – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (5), 5L, 36(2)(a), (aa), (2A), 65(1)(a)(ii)
Migration Regulations 1994 (Cth), Schedule 2CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Applicant A v MIEA (1996) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 279
DAO16 v MIBP [2018] FCAFC 2; (2018) 258 FCR 175
Kathiresan v MIMA [1998] FCA 159
Luu v Renevier (1989) 91 ALR 39
MIAC v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211
MIAC v SZIAI [2009] HCA 39; (2009) 259 ALR 429
MIAC v SZQRB [2013] FCAFC 33; (2013) FCR 505
MIMIA v VSAF [2005] FCAFC 73
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (2004) 52 FCR 437
Re MIMA; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
SJSB v MIMIA [2004] FCAFC 225Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 12 November 2019 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a female [Age]-year-old Thai national who first arrived in Australia [in] October 2016 as the holder of a subclass 500 Student Visa which authorised her to remain until 7 June 2017. She was granted another subclass 500 Student Visa on 12 July 2017 that authorised her to remain until 10 August 2018. The applicant left Australia on [Day 1] March 2018 and returned on [Day 2] March 2018. The applicant applied for the protection visa on 20 August 2018.
The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations as her claims did not meet the refugee criterion in sections 36(2)(a) and 5J(1)(a) of the Act as they did not relate to her race, religion, nationality, membership of a particular social group or political opinion. The delegate also decided that the applicant did not satisfy the complementary protection criteria in section 36(2)(aa) of the Act as she could obtain effective protection from the Thai authorities.
The applicant sought review of the delegate’s decision on 18 November 2019 The review application was lodged within the prescribed time limits at the Administrative Appeals Tribunal (“the AAT”).[1]
[1] Section 412(1)(b) of the Act and Regulation 4.31 of the Migration Regulations 1994 as these provisions existed before 14 October 2024
On 14 October 2024, the Administrative Appeals Tribunal (the “AAT”) was abolished and became the Administrative Review Tribunal (“the Tribunal”). Under the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”), review applications before the AAT that were not finalised before 14 October 2024 are deemed to be applications for review to the Tribunal. The Transitional Act gives the Tribunal authority to continue and finalise any aspect of the review not already completed by the AAT. The Tribunal is satisfied that the review application was validly made and that it has jurisdiction to determine the review.[2]
[2] Sections 412(1)-(3) of the Act as they existed before 14 October 2024
The applicant appeared before the Tribunal on 20 February 2025 to give evidence and present arguments. An interpreter in the Thai and English languages was present at the hearing to assist if required but the applicant gave her evidence in English. The applicant was unrepresented before the delegate and the Tribunal.
BACKGROUND
Evidence before the Department
In her protection visa application form, the applicant stated that she had completed secondary education in Thailand but had never been employed although the stated reason she left Thailand was to escape from her former employer’s sexual harassment and threats to rape her after he found out that she had told others about his conduct. The applicant stated that her former boss was powerful in her local community and she could not report him to the authorities. The provided a certified true copy of her Thai passport with her application but no other supporting documents.
The delegate accepted that the applicant was a Thai national on the basis of her Thai passport and there was no reason to doubt the authenticity of that document. The applicant was not interviewed by the delegate.
EVIDENCE BEFORE THE TRIBUNAL
The applicant did not make any comment on the delegate’s findings when she lodged her review application. The Tribunal wrote to the applicant by email on 6 May 2024 asking her to complete a pre-hearing information form. The form enabled her to confirm or update her contact details and provide more information about her claims.
The applicant returned the completed form to the Tribunal by email on 8 May 2024. She provided additional claims concerning her fears about returning to Thailand. The applicant stated that her sister had a gambling addiction and had borrowed large sums of money including from loan sharks which she did not repay. The applicant’s sister used the applicant’s identity card to borrow from loan sharks and when she failed to repay the loan, the loan sharks started to look for the applicant and demand that she repay the loan. The applicant claimed that the loan sharks were very influential and the police did not dare to intervene. She further claimed that they would kill her. The applicant’s mother paid off some her sister’s debts, even selling some land to do so. Her mother was no longer assisting the sister with her debts. The applicant was fearful that she would have a miserable and stressful life if she returned to Thailand as she would be pursued by loan sharks.
The following is a summary of the applicant’s evidence at the hearing. The applicant stated that she disavowed the claims made in her protection visa application. The form was completed by a friend of a friend and she did not have sufficient English at the time to understand the contents of the form. This person did not charge her for this assistance.
The Tribunal applicant stated that she had a mother, stepfather and [sister] in Thailand. She had no relatives in Australia. The applicant completed a Bachelor of [Subject] at [University] and she worked as [an occupation] before coming to Australia. She came to Australia to study English and completed a Certificate 3 in English at [Institution] in Melbourne. This course took 6 months. She started a Certificate 4 in General English but did not complete it.
The applicant confirmed that she was not in a relationship and that she was currently employed by [Employer] at a [workplace]. She had been in this job for around three years. The applicant said that she returned to Thailand seven years ago to visit her family and it was then that she found out about her sister’s gambling problems and debts.[3] Her sister gambled on-line but the applicant could not say what sort of online gambling was being engaged in.
[3] The Department’s movement records show that the applicant left Australia [in] March 2018 and returned [in] March 2018. The applicant has not departed Australia since her last return.
The applicant heard from friends that her sister had borrowed money from them and from her mother as well. The applicant said that she did not know what level the debt was at now but that her sister had borrowed around two million baht from various sources including loan sharks.[4] The applicant’s sister borrowed money from a loan shark to buy a car but could not repay it and the loan shark possessed the vehicle. The applicant’s mother had sold some of her land to pay the loan and retrieve possession of the car. The applicant said her mother was no longer assisting her sister.
[4] Approximately AUD93,465 – accessed on 20 February 2025
The applicant said that her sister was now aged [Age] and living somewhere in Bangkok. The applicant had not spoken to her sister for several years as her sister had used the applicant’s identity card to obtain a loan from a loan shark. The applicant said her sister borrowed AUD800 at 120% interest and the loan shark had tried to contact the applicant for repayment. The applicant said that the loan shark came to her parents’ home to demand payment but was told by her mother that they had no more money to pay the loans.
The applicant told the Tribunal that the loan shark had downloaded her sister’s contacts from her mobile phone SIM card and could harass her stepfather for repayment. The applicant said she agreed to act as a guarantor for one of her sister’s loans some years ago. She signed a document but could not provide a copy as it was a long time ago. The loan shark demanded more interest and the applicant did not pay it. The loan shark did not have contact details for the applicant in Australia. The Tribunal asked the applicant whether the loan shark was still demanding payment from her parents. She said that the loan shark visited her parents’ home in March and August 2024 and once in 2023 but she did not know the month. The loan shark was male and would come to the family home at around 5pm.
The Tribunal asked the applicant whether the loan shark had harmed her parents or done any damage to their property. She stated that he had not. The Tribunal put to the applicant that loan sharking was a major problem in Thailand and that the Thai government had set up a special department to assist people who ran into trouble with loan sharks. The Central Information Bureau also investigated complaints against loan sharks and did prosecute them with the main penalty being fines for unpaid taxes on the income they earned from loan sharking. The applicant did not comment but the Tribunal informed her that it would email her some information about the measures being taken by the Thai government and that she would be able to comment on them if she wished.
The Tribunal put to the applicant that it was having difficulty accepting that the applicant faced a real risk of significant harm if she returned to Thailand because her parents had not been harmed and they had not managed to locate her sister. The applicant said that she believed her sister was in hiding in Bangkok. The applicant was asked why she could not relocate to Bangkok. She said that she would return to her hometown because she had no-one in Bangkok. It was put to her that she had a university degree and was able to communicate effectively in English which should be advantageous to her in terms of finding employment after she had some time to settle back into life in Thailand. The applicant claimed she was still afraid of returning there and living under the stress of being found by the loan sharks from whom her sister had taken loans.
The Tribunal wrote to the applicant on 21 February 2025 via email to invite her to comment on initiatives taken by the Thai Government to take action against loan sharks which included:
·Introduction of new forms of licensed, low interest financial lending in the form of nano finance for business related expenses and pico finance for personal and household expenses. These loans do not usually require borrowers to pledge property or other security for the loan. The interest on these loans is around 15% per month or 36% per annum; [5]
·Provision of funds to the Government Savings Bank and the Bank for Agriculture and Agricultural Cooperatives to assist existing debtors, particularly from low-income backgrounds. These institutions offer refinancing options for people with loan shark debts and it is also possible to seek emergency funds through the Village and Urban Community Fund;[6]
·The Royal Thai Police arrest and prosecute loan sharks with penalties of fines and jail sentences of two to three years. The Royal Thai Police have a Consumer Protection Police Division to investigate loan sharks;[7]
·The Legal Aid Centre for Debtors and Victims of Injustice within the Department of Special Investigations (“the DSI”) The DSI is an investigatory agency directed by the Justice Minister to focus on financial crimes.[8] The DSI mainly seeks to punish loan sharks by issuing large fines under tax evasion provisions;[9] and
·Office of the Consumer Protection Board; Indy Consumers and Consumer Songkhla [10];
·The Economic Crime Suppression Division arrested two loan shark gangs in four provinces on 29 March 2023.[11]
[5] SCB Economic Intelligence Centre and SCB Securities – “Can Nano Finance unleash the grassroots from loan shark problems?” - 1 April 2015.
[6] “Microfinance Regulation and Supervision Recommendations Report” – Asian Development Bank October 2013 at pp. 32-34
[7] “Consumer police probe complaints about loan sharks” – The National Thailand, 26 September 2017.
[8] “DSI shares tale of extreme loan-sharking as they build case against suspect” The National Thailand, 9 May 2017
[9] “Two loan sharks face B430m bill for unpaid taxes” – Bangkok Post, 21 August 2018
[10] These are government institutions that have been established to assist people who were indebted to loan sharks and who register with the Ministry of the Interior for assistance: Note by EIC Nano Finance, Siam Commercial Bank, 1 April 2015 pp 5-6
[11] “Police swoop on 2 loan shark gangs in 4 provinces in Thailand” - Petch Petailin, Thaiger, 28 March 2023; “Loan sharks arrested for 304% annual interest” – Bangkok Post,. 22 April 2023; “Loan sharks now targeted by Srettha”, Bangkok Post 9 December 2023 – combating illegal lending was announced as a national priority by the Thai Prime Minister.
The applicant was also put on notice that it was her responsibility to make out her case and that she had not provided supporting evidence or documentation concerning:
· The level of debt she claimed was owed by her sister to a loan shark;
· Threats that she claimed had been made to her and her parents by loan sharks;
· The payment of her sister’s debt she claimed was made by her mother by the sale of her land to raise the money to do so;
· Documentation showing the sale of her mother’s land and the payment made to the loan shark.
The applicant was given until 28 February 2025 to respond and was advised that she could request an extension of time to respond if necessary. The Tribunal has not received a response from the applicant or a request for an extension of time to respond at the time of making its decision.
PROTECTION VISA CRITERIA
The criteria for a protection visa are set out in section 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 sections 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: section 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: section 5H(1)(b).
Under section 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. A real chance is one that is not remote, insubstantial or far-fetched: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279 at p.389 per Mason CJ; at p. 398 per Dawson J; at p.407 per Toohey j and at p. 429 per McHugh J. A fear can be well founded even if the possibility of persecution or serious harm occurring is less than 50%: at p. 398 per Dawson J.
The concept of well-founded fear has subjective and objective elements. “Fear” refers to the applicant’s feelings and “well-founded” connotes that the fear has a rational basis that is supported by independently verifiable facts concerning the situation in the applicant’s home country.[12]
[12] Refugee Law Guidelines at paragraph 3.4.2
Persecution must involve serious harm to the person and systematic and discriminatory conduct. Serious harm includes threats to a person’s life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where that denial threatens the person’s capacity to subsist and denial of the capacity to earn any kind of livelihood where that denial threatens the person’s capacity to subsist: section 5J(5). Any of the aforementioned reasons must be an essential and significant reason for the serious harm being inflicted: section 5J(4).
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 sections 5J(2)-(6) and sections 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in section 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: section 36(2)(aa) (‘the complementary protection criterion”). The Full Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) FCR 505 at [246] held that the real risk test was the same as the real chance test.
The meaning of significant harm is exhaustively defined in section 36(2A) of the Act, meaning that the person will be arbitrarily deprived of their life, be subjected to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The terms cruel and inhuman treatment and punishment or degrading treatment or punishment are further defined in section 5(1) of the Act and the definitions are included in the legislative extracts appended to this decision as attachment A.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that they could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [36]-[40].
The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11 at [60]–[61].
Mandatory considerations
In accordance with Ministerial Direction No.84, made under section 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 (“the DFAT Report”), to the extent that they are relevant to the decision under consideration.
The most recent report from DFAT is the Country Information Report for Thailand dated 18 December 2023 (“the DFAT Report”) together with the country information referred to in this decision.
The Refugee and Complementary Guidelines prepared by the Department contain legal analysis and provide examples of how the relevant law has been applied in different jurisdictions. They also provide guidance as to how the law is to be applied.
CONSIDERATION OF CLAIMS AND EVIDENCE.
The Tribunal is required to make findings of fact on relevant matters in determining whether an applicant is owed protection obligations. This will often involve an assessment of an applicant’s credibility. The Australian courts have made a number of observations concerning credibility assessment in the protection visa application context and the Tribunal is mindful of the difficulties faced by applicants in a foreign legal system and culture. Such difficulties can be compounded by an applicant’s experiences of trauma, their level of education and state of physical and mental health.[13] However, this does not mean that the Tribunal is obliged to accept what an applicant says uncritically.[14]
[13] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30]; Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45 at [30] and [34] per curiam; Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 per Gray J
[14] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1004) 52 FCR 437 at 451 per Beaumont J
The Tribunal finds that Thailand is the receiving country for the purposes of assessing Australia’s protection obligations in relation to the applicant based on her Thai passport and the absence of any evidence to the contrary. For the reasons that follow, the Tribunal has concluded that Australia’s protection obligations are not enlivened.
The Tribunal accepts that loan sharking is a major problem in Thailand and that corruption within the police force is also endemic which undermines its capacity to offer consistent, effective protection from the harms caused by the unlawful conduct of unlicensed moneylenders.[15] However, the Tribunal has concluded that the applicant’s claims do not enliven Australia’s protection obligations and the reasons for this conclusion are set out below.
[15] DFAT Report at paragraphs 3.112-3118
The Tribunal accepts as true the applicant’s evidence concerning her biographical details, education, employment and protection visa application history. The Tribunal is also prepared to accept that the applicant’s [sister] has a gambling addiction and that she borrowed from friends, family and loan sharks to fund it. The applicant was vague concerning the dates these loans were incurred and her last contact with a loan shark was seven years ago. The Tribunal does not accept that loan sharks would have come to her parents’ home twice last year and once in 2023 after several years in which they had not been pursuing the debt with the applicant’s family. The applicant could not explain why they would do so in those circumstances but stated that she was still afraid.
Section 5AAA of the Act makes it the applicant’s responsibility to specify all the particulars of a claim and provide sufficient evidence to substantiate any claim that enlivens Australia’s protection obligations. The Tribunal does not have any responsibility or obligation to specify or assist an applicant in specifying or establishing any particulars of their claims. This reflects the long-established legal principle in Australia for that it is up to the applicant to make out their own case[16] and that the Tribunal is not in the position of contradictor or cross-examiner. It is not required to have evidence rebutting an applicant’s assertion in order to find that an applicant’s assertion is not made out.[17]
[16] Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 per Gleeson CJ, Gummow, Callinan and Heydon JJ at [57]; Luu v Renevier (1989) 91 ALR 39 at p. 45 per coram; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p. 170 per Wilcox J
[17] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437at [57] per Gummow and Heydon JJ; Gleeson CJ agreeing and [85] per Kirby J; Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576[187] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [18] per curiam.
The applicant was given the opportunity to provide further evidence and has not done so.
Does the applicant satisfy the refugee criterion for protection?
The applicant’s claims do not raise a well-founded fear of serious harm for reasons of her race, religion, nationality, membership of a particular social group or her political opinion. The applicant’s evidence was vague in relation to the details of her sister’s loans and about the threats she claims were made to her. The Tribunal is prepared to give the applicant the benefit of the doubt that the loan shark may have demanded she pay her sister’s debt and that repayment demand was accompanied by threats of harm. However, the applicant has not had any contact from the loan shark since she was last in Thailand seven years ago and the threats were not for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or her political opinion.
The Tribunal considered whether persons threatened by loan sharks constitute a particular social group as defined in section 5L of the Act and has concluded that they do not. Although people who borrow from loan sharks number millions of people,[18] estimated to be as much as 30% of the Thai population,[19] and those who are unable to repay the loan are also numerous and present an acknowledged problem in Thailand, they are do not constitute a particular social group for the purposes of enlivening Australia’s protection obligations pursuant to sections 5J(1)(a) and 36(2)(a) of the Act.
[18] SCB Economic Intelligence Center and SCB Securities - “Can Nano Finance unleash the grass roots from loan shark problems?” – 1 April 2015
[19] “Why Thai Have High Household Debt and Why It’s Risky” - Suttinee Yuvejwattana, Bloomberg, 30 June 2023
Persons threatened by loan sharks do not share an innate or immutable characteristic[20] that is so fundamental to their identity that they should not be forced to renounce it.[21] Borrowing money from a loan shark or being unable to repay a debt to a loan shark is not a characteristic that distinguishes members of the group from society as existing separately from the harm they fear.[22] It is arguable that being a borrower from a loan shark may be an immutable characteristic in that it is a fact that cannot be changed even if the loan is paid off but the Tribunal does not consider such a characteristic as fundamental to the person’s identity.
[20] Section 5L(c)(i)
[21] Section 5L(c)(ii)
[22] Section 5L(c)(iii)
Victims of loan sharks are as disparate a collection of people as the parents who did not accept China’s one child policy: Applicant A v Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225 at p. 247 per Dawson J, at p. 265 per McHugh; at pp 270 and 285 per Gummow J. The Tribunal notes that the definition in section 5L of the Act is broader than the concept considered by the High Court in Applicant A supra when the Court construed Article 1A(2) of the United Nations Convention relating to the Status of Refugees Convention 1951 (the Refugees Convention”) Section 5L(c) provides three alternatives to the common characteristic that is shared or perceived to be shared by members of the group, only one of which needs to be satisfied.
The fear the applicant claims to have is that she may be harmed by a loan shark in relation to her sister’s debt. Section 5L(d) of the Act specifies that the characteristic must not be a fear of persecution or serious harm.
Consequently, the Tribunal finds that the applicant is not a refugee within the meaning of sections 5H(1)(a), 5J(1) and 5J(5) of the Act and finds that she does not face a real chance of serious harm if she were to return to Thailand in the reasonably foreseeable future.
Does the applicant satisfy the complementary protection criterion for protection?
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 applicant fears harm from a non-State agent who she claims has threatened to physically harm her if she does not repay her sister’s debt.
The applicant was vague on the details in relation to when the threats from the loan sharks occurred and how often. Threats of physical harm could arguably fall within section 36(2A)(d) of the Act in that the loan shark intentionally made the threat to cause her severe mental pain by making her fear that she would be subjected to severe physical pain. However, the threats were never carried out against the applicant, her parents or her sister who was the person who actually owed the debt.
There is no evidence before the Tribunal that Thai loan sharks would pursue persons such as the applicant or her family after so many years in relation to a debt or debts incurred by her sister. Loan sharks are involved in a commercial enterprise and such enterprises involve the risk of losses. Rational businesspeople would be more likely to write off old debts and focus their attention on pursuing debtors where there is a reasonable prospect of recovering the loan and interest.
The Tribunal has been unable to locate any country information on how long loan sharks chase old debts in Thailand. In the absence of any evidence before the Tribunal that loan sharks do not conduct themselves as rational businesspeople or that Thai loan sharks pursue debts indefinitely, the Tribunal concludes that the chance of the applicant being significantly harmed is remote and that her fears are exaggerated.
The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm that 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 definitions of torture, cruel or inhuman punishment or degrading treatment or punishment.
Accordingly, the Tribunal is not satisfied 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 as defined for the purposes of complementary protection.
CONCLUSION
Section 65(1)(a)(ii) of the Act requires the Tribunal to be affirmatively satisfied that the criteria for the visa are met. This does not require the Tribunal to reach a decision only if a particular matter is established.[23] The criteria are set out in sections 36(2A) and 36(2)(aa) of the Act. 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 section 36(2)(a) or section 36(2)(aa) of the Act.
[23] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [17].
There is no suggestion that the applicant satisfies section 36(2) on the basis of the being a member of the same family unit as a person who satisfies section 36(2)9a) or (aa) or who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2).
DECISION
69. The Tribunal affirms the decision not to grant the applicant a protection visa.
DECISION
71. The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
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36 Protection visas – criteria provided for by this Act
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(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.
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