1933088 (Refugee)

1933088 (Refugee) [2022] AATA 4148 (2 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1933088

COUNTRY OF REFERENCE: Thailand
MEMBER:Sheridan Lee
DATE:2 September 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 September 2022 at 11:50am
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – women – forced marriage – applicant’s child born outside of marriage – forced separation from her child – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old Thai woman. She first arrived in Australia [in] March 2018 on a [Student] visa. The applicant completed a six-month English language course and her visa ceased on 17 September 2018. She applied for a protection visa on 5 September 2018 on the basis that she would be forced to marry her cousin if she returned to Thailand. The delegate found that effective protection would be available to the applicant from Thai authorities and refused to grant the visa.
The applicant provided the Department of Home Affairs with a copy of her Thai passport. I accept that the applicant is a citizen of Thailand and will assess the applicant’s claims against Thailand as her country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
Claims and evidence
Application for protection
The application for protection form submitted to the Department outlined that the applicant is Thai and a follower of Buddhism. She completed a degree in [subject] at [a named] University in [specified year]. In addition, the applicant claimed that:
·once she completed her degree, her father entered a bet for her to marry a cousin for business purposes. She had a lover and did not wish to marry her cousin.
·her cousin had a history of drinking, gambling and liking women. She felt he was likely to hurt women.
·her cousin is family to an influential politician. He is intimately acquainted with the police and government officials. He could use his staff to locate the applicant.
·she arranged to study in Australia so she could escape Thailand.
·she never sought assistance within Thailand because her cousin had a lot of power. Further, she could not move to another area because she had no one that could support or protect her.
·if she returned to Thailand, her family would make her marry.
The applicant was not invited to participate in an interview with the delegate. On 13 November 2019, the delegate refused to grant the applicant a protection visa.
Application for merits review
On 20 November 2019, the applicant applied to the Tribunal for merits review of the decision to refuse her a protection visa. A copy of the delegate’s decision was provided to the Tribunal with the application for review. No further documentary evidence was provided.
The applicant appeared before the Tribunal via video on 21 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant’s oral evidence provided to me at the hearing will be discussed below where relevant.
In addition to the claims and evidence outlined above, at the Tribunal hearing the applicant gave evidence that she is now a mother. At the date of the Tribunal hearing, the applicant had [an age] son who is not included in this application for review. Departmental records show that the Department was notified of the birth. The applicant’s partner and father to her child is from [Country 1]. They live together in Australia but are not married.
The applicant also gave evidence that her parents had separated. Her father tried to force her into marriage and this caused issues within her parents’ relationship. The applicant’s mother would like her to return to Thailand. She would not force the applicant into marriage, however she is ashamed that the applicant had a child outside of marriage.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
ANALYSIS AND FINDINGS
I did not find the applicant to be a credible or reliable witness and for the following reasons I have concluded that the decision under review should be affirmed. In reaching this view, I had regard to the lack of detail and unpersuasive nature of the evidence provided in respect of the claims.
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1] I am of the view that the concerns identified below fundamentally undermine the reliability of the applicant’s account, the credibility of her claims and the truth of her evidence. I find the applicant not to be a reliable, credible or truthful witness.
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
Firstly, the applicant’s evidence about her proposed partner and his political affiliations was vague and unconvincing. In her application for protection form, he was identified as her cousin, with no name provided. The form noted that he had a relative who was a politician and that he was acquainted with the police and other authorities (it is unclear if the statement refers to the applicant’s cousin or the politician holding the relationship with the authorities).
At the Tribunal hearing, the applicant could only identify her proposed partner as a cousin on her father’s side, who went by the nickname ‘[Mr A]’. Despite being unable to provide [Mr A’s] full name, the applicant provided other details that suggested she saw him often. For example, she gave evidence that he always had money, but she never saw him work. The applicant hypothesised that [Mr A’s] parents gave him money. When I questioned the applicant about [Mr A’s] ties with the police or government, she claimed that [Mr A’s] father had money and knew the village head in the village of [Village 1] (the correct spelling is unknown). This relationship meant that he was well-respected in the village. She also thought someone in [Mr A’s] family was a policeman or someone was in politics, however she was unable to identify the person, the position they held or how they were related.
Secondly, the applicant was unable to clearly articulate what harm she would face if she continued to refuse to marry her father’s pick of partner. She gave evidence that [Mr A] is violent with women. When asked what would happen if she refused him, the applicant said he would probably get angry. The applicant claimed that about one year before she came to Australia, [Mr A] went to see her in Bangkok. He told the applicant that she had to marry him and that she had no choice. Despite remaining in Thailand for approximately one year after the alleged threat, the applicant provided no evidence to suggest that she was physically harmed by [Mr A] before or after his visit. Although the applicant made general statements about [Mr A] being violent, no specific examples were provided. Similarly, the applicant claimed that her father agreed to the marriage after she completed her degree in [specified year]. However, she gave no evidence of any action that was taken by her father in an attempt to have the marriage go ahead between [that year] and when she departed Thailand in 2018.
I do not accept that the applicant’s father entered into a bet or agreement for her to marry an individual nicknamed [Mr A] or any other relative or person. As such, I do not accept that the applicant would be forced to marry that individual if she returned to Thailand.
In addition to the applicant’s claims in relation to forced marriage, at the Tribunal hearing she gave evidence that her parents would not accept her child and expressed a general concern about the economy in Thailand. The applicant explained that she would rather her child be raised in Australia and expressed a concern that her family may forcibly separate her from the child. As discussed with the applicant at the hearing, mere disapproval from her parents would not amount to serious or significant harm. She gave no evidence to suggest that her parents had threatened to take her child or any examples of past behaviour to indicate they would forcibly remove the child from its mother. I consider the applicant’s claim to fear that her child would be forcibly removed to be a single grand statement, fabricated in an attempt to secure a migration outcome. I find that the applicant would not need assistance from the police in Thailand in order to protect her from an arranged marriage or the forcible removal of her son. I do not accept that there is a real chance or risk that the applicant would suffer serious or significant harm from her direct or extended family.
I note that the applicant’s son is not a secondary applicant in the current matter, and I have therefore not made an assessment as to his citizenship or any potential harm that he would suffer if he travelled to Thailand with his mother.
In relation to the general economic situation in Thailand, I note that the applicant gave evidence that she spent the majority of time living in Bangkok while she was in Thailand. She was employed in Bangkok as [an occupation 1]. At the date of the Tribunal hearing, the applicant was working on a farm in [Australia]. As discussed with the applicant, no evidence was put forward to indicate that she would be unable to secure employment in Thailand if she returned.
I accept that the applicant may suffer some economic hardship and stress should she return to Thailand. I further accept that it is likely that she can earn significantly more working in Australia than she can in Thailand. However, the applicant has work experience in both Thailand and Australia and holds a bachelor’s degree. Considering the applicant’s personal circumstances as a young, experienced and well-educated woman, I do not accept that the applicant would experience significant economic hardship such that it would threaten her capacity to subsist if she returned to Thailand in the foreseeable future.
Considering the available evidence, I am not satisfied that there is a real chance or risk that the applicant would be denied the capacity to earn a livelihood for reason of her race, religion, nationality, membership of a particular social group or political opinion. I do not accept that her capacity to subsist would be threatened. I accept that the applicant is concerned about being able to support herself and her child, but find that she would be able to do so by finding employment in Thailand.
Refugee Assessment
For the reasons given above, I find that the applicant does not have a well-founded fear of persecution as required by s.5J for any of the grounds advanced and therefore find that she is not a refugee within the meaning of s.5H. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection Assessment
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[2] I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand there is a real risk that she will suffer significant harm: s.36(2)(aa).
[2] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
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.
Sheridan Lee
Member

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

[2022] AATA 4148

2 September 2022

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness