1935516 (Refugee)

1935516 (Refugee) [2024] AATA 2590 (24 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1935516
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Sean Baker
DATE:24 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 June 2024 at 2:57pm
CATCHWORDS
REFUGEE – Protection Visa – Thailand – had an affair with the wife of his superior officer – flee harm at the hands of his superior officer – not satisfied the applicant has a well-founded fear of serious harm – delay in applying for protection in Australia – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a citizen of Thailand, applied for the visa on 27 September 2018. The delegate refused to grant the visa on the basis that the delegate found there was no reason the Thai authorities would withhold state protection from the applicant.
CLAIMS
The applicant served as [Occupation 1] in the Royal Thai Army.
He met a woman, and they had an intimate relationship. Later he found out that she was the wife of one of his senior commanders. He tried to separate but she refused.
The senior commander found out instructed a group of military personnel to teach the applicant a lesson. The applicant was beaten severely and suffered heavy injuries.
The commander would not accept the applicant’s apologies and planned to have him killed. The applicant escaped just before he was about to be abducted and went into hiding.
The local police refused to help him as the commander has political influence and connections with the underworld.
The applicant fears he will be caught and killed if he returns to Thailand.
The applicant did not provide any further information to the Department. He was not interviewed.
The delegate refused the application.
The applicant applied to the Tribunal and included a copy of the delegate’s decision with that application. Prior to the hearing he provided a short statement which reiterated the above claims and included a statement that in 2020, whilst he had been in Australia his father had passed away but the applicant could not return to Thailand to arrange the funeral because of his fear.
The applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will be persecuted on return to Thailand or, if not, whether there is a real risk the applicant will suffer significant harm if he is removed from Australia to Thailand. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The applicant claims to fear harm because of an affair he had with the wife of his superior officer. Over the course of the hearing, I developed concerns with the credibility of the applicant’s claims, in particular his claims about the relationship, the reaction of his superior officer, and the actions of his family, as well as the significant delay between the applicant arriving in Australia and making a claim for protection. These concerns lead me to disbelieve the claims of the applicant for the reasons that follow.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Service in the Royal Thai Army
The applicant claimed that he became an [Occupation 1] for the Royal Thai Army, [doing specified work], stationed in [Thailand] in 2014 and served until he resigned shortly before travelling to Australia in July 2017.
I noted to the applicant that his most recent passport, granted in July 2023, included his rank of [rank]. I asked him why this was if he had resigned as he claimed. He said that the passport office put down the rank that you told them. I have some doubts that there would not have been some process of checking, but I am prepared to accept that the applicant was an [rank] in the Royal Thai Army, [from] 2014 until coming to Australia in July 2017.
The relationship
He claimed that after working at the base for approximately three years, in January 2017, he met a woman at a shop outside the base and they began an affair, he was unaware that she was the wife of his superior officer and she claimed she was single. He said she would pick him up and they would go to meals together. After 10 days of their relationship, they were discovered by her husband, the applicant’s superior, a Major in the Army. The Major threatened him and then made the applicant’s life very difficult, moving him to positions with which he had no familiarity so that he would be unable to do his job. He claimed that the Major had his driver cut in front of the applicant, and then had had him beaten up, and the Major had threatened the applicant and the applicant’s wife.
I discussed with the applicant several concerns I had with his claims about the relationship. Firstly, I was concerned that he claimed to have worked at the same base as the Major but not to have known that the woman he met was the Major’s wife. I noted that I might think someone who had worked there for three years would know who the families of their commanding officers were. The applicant said that because he was a lower ranked officer, he did not know the Major’s family, he was not working directly with the Major and they did not socialise. I have considered this, but I do not accept this explanation. I find that the applicant would have had some awareness of who the family of his commanding officers were given the length of time that he had worked at the base and, he said, this Major had been his commanding officer at that base. I also note that even if he was of a lower rank, [he] was an officer, I consider that there would have been some mixing of officers, despite the claims of the applicant.
Threats and harm
The applicant spent a considerable time telling me about the treatment he received from the Major after the Major discovered the affair. He claimed that he tried to apologise but the Major did not accept his apology, threatened to have him killed, and then had him assigned to a variety of jobs at the base in which the applicant was not familiar, such as [deleted] Department, the applicant said this was in order to have the applicant dismissed. He said that he was then driving one day when he was cut off by a truck and he believed this was the work of the Major, he said that it was the Major’s driver who cut him off. The applicant said that he was beaten up by a group of people, and that the Major said that this had been at his ordering. The applicant said that after this he was threatened at home every day. He said that the Major had threatened him and had also threatened the applicant’s wife beginning when the Major discovered the affair and the last time the Major had threatened his wife was six months ago, that if the applicant returned to Thailand, he would have the applicant killed. He said the Major had not harmed his family, just threatened.
I noted to the applicant that the Thai military has great power in Thai society,[1] and I asked the applicant why the Major could not have had the applicant punished with military penalties such as being militarily punished or discharged from the Army, or even charged with adultery which is an offence in Thailand.[2] The applicant said that the Major could have had him discharged but he was a smart guy and he would move the applicant around to work that the applicant was not familiar with, and then if the applicant could not do it he could be punished, whereas if the Major did anything like corruption he would be dismissed. He said that the Major did not have him charged with adultery because then it would have become public.
[1] DFAT Country Information Report – Thailand, 18 December 2023; The Economist, Why the Thai army is so powerful,
[2] Adultery in Thailand: A Risky and Prohibited Practice - Thailand Business News, 19 December 2023, Thailand Law Forum, Supreme Court: Adultery Can Lead to Imprisonment, 21 February 2023http://
Whilst I am prepared to accept that the Major may not have had the applicant charged with adultery because this would have made the affair public, I do not accept his explanations for why the Major did not have him punished by being discharged. The Thai Military are the most powerful institution in the country after the Monarchy and a person with the rank of Major would have considerable power to discipline and punish those under him. I do not accept the Major would have been concerned with allegations of corruption against him, corruption is widespread in the Thai military.[3] I find that if the applicant had indeed committed adultery with his commanding officer’s wife, and that officer had threatened the applicant with harm, the officer could, and would, have been able to punish the applicant very significantly rather than having him assigned to work positions he was not familiar with.
[3] DFAT Country Information Report – Thailand, 18 December 2023, 2.29; Cogan, M., ‘Can Thailand’s Military Evolve? Moving Beyond Domestic Interference, Institutional Corruption, and Personal Gain,’ Journal of Indo-Pacific Affairs -January-February 2024.
The applicant claims that his family, including his wife and children, moved from [Town 1] to [City 1] after he had left for Australia. [Town 1] to [City 1] by road is approximately 100km. I asked why they would move closer to the Army base if he, and his wife, had been threated by the Major as he claimed. He said that in fact [Town 1] to where the base was in [a] city was only 20km away, and they had moved to [City 1] to be closer to his father-in-law. He said that moving away would be hard because they would have to sell the house and the threat came to him directly.
I do not find this convincing. I do not accept that if the applicant had quit his job with the Army and fled to Australia after being threated by the Major, and after his wife had been threatened by the Major, that the applicant’s family would choose to move closer to the claimed persecutor. I find this action of his family is inconsistent with what the applicant claims has occurred here.
Delay
Lastly, I raised with the applicant a concern that he had travelled to Australia, he claimed to flee harm at the hands of his superior officer, yet he had remained in Australia considerable past the period of his three-month visa, and applied for protection over a year after arriving in Australia. I noted that this might lead me to doubt that he had fled Thailand or that his claims were true. The applicant said that he was very confused at that time and it was really hard to make a decision, his family told him people came to the house and made threats so he decided to stay in Australia. I do not accept these explanations. The applicant claimed that he and his wife had been threatened by his superior officer prior to him departing Thailand, that the superior officer had had the applicant beaten and had threatened to have him killed. I do
All of these concerns, taken together, lead me to disbelieve the applicant’s claims. I do not accept that the applicant had a relationship with the wife of his superior officer, was found out, threatened by the superior officer, was beaten by a group of military personnel, a group of men or anyone else, that the superior officer threated the applicant or the applicant’s wife, nor that the superior officer planned to have the applicant abducted. I find that the applicant has fabricated these claims. I asked the applicant several times if there was any other basis or reason he might be harmed on return to Thailand and he said there was not. I accept this.
Whilst I accept that the applicant worked for the Thai Army as claimed from 2014 until 2017, I accept that he resigned from this position and I do not accept that he would face any difficulties from having done so.
I find that if the applicant returned to Thailand now, he would return to [City 1], where his family live. I find that he could live there and find work either in the skilled work he was doing prior to departing for Australia, or in the agriculture sector in which he has worked in Australia. I find that there is no real chance that the applicant would be harmed by his former superior officer, anyone associated with his former superior officer or anyone else for any reason if he returns to Thailand now or in the reasonably foreseeable future.
On the same reasoning, I find that there is no real risk that the applicant will suffer significant harm from his former superior officer, anyone associated with his former superior officer or anyone else f he is removed from Australia to Thailand now or in the reasonably foreseeable future.
Conclusions
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.
Sean Baker
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.
…

[2024] AATA 2590

24 June 2024

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction