2000791 (Refugee)

2000791 (Refugee) [2020] AATA 4187 (27 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2000791

COUNTRY OF REFERENCE: Thailand
MEMBER:Peter Vlahos
DATE:27 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 August 2020 at 12.47AM
CATCHWORDS
REFUGEE – protection visa – Thailand – imputed political opinion – support for Yellow Shirts – threats from an associate to clear a debt – fear of killing – fear of physical assault – legal proceedings – potential bankruptcy – police corruption – state protection – internal relocation – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997)191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 January 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa on 19 January 2019. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the delegate’s decision on 16 January 2020.
A hearing of the applicant’s application for review [via telephone] was scheduled and held on 20 July 2020.
The applicant was assisted [via telephone] at the hearing by an interpreter in the Thai and English languages. However, the applicant was not represented by a registered migration agent or Legal counsel.
The applicant provided no witnesses for examination at the hearing.
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 (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 Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s identity and country of origins considered
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Kingdom of Thailand and has had her claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act.[1]
[1] Department of Home Affairs file
Based on the above-mentioned evidence before the Tribunal, the Tribunal further accepts the applicant’s identity as claimed.
The Department’s file
The Tribunal has before it the Department’s file relating to the applicant’s protection claim. The Tribunal has had regard to the material referred to in the delegate’s decision. The applicant provided a copy of the department’s decision to the Tribunal with the review application.
Background – the applicant’s migration history
The applicant left Thailand on a Tourist (Temporary stay) visa [in] December 2018 and arrived in Australia. He has not left Australia since that date. On 16 January 2020 the applicant applied for a Protection visa [which the Department later rejected] and was granted the associated Bridging visa.
EVIDENCE AT THE HEARING
The applicant originates from [a] town in the province of Nakhon Si Thammarat, Thailand. He is [age] years of age (DOB [stated]). The applicant has family still living in Thailand which consists of his elderly mother and [specified family members]. The applicant also indicates in his Application form for a Protection visa that he is married and has [children] of varying ages and a wife or ‘de facto spouse.’ His application form indicates that his wife/spouse is currently with the applicant in Australia but the Tribunal noted that the applicant‘s wife is not part of the application under consideration by the Tribunal.
The applicant’s claim [s] for Protection
The Tribunal noted the applicant made the following claims in his application for protection which were submitted to the Department:[2]
§The applicant claims he loaned money to a friend as his friend was having financial troubles. The applicant claims he loaned money from his savings and had drawn up a debt agreement however following the funds being paid his friend disappeared.
§The applicant claims he decided to sue his friend through the courts.
§The applicant claims his friend began threatening the applicant and his family to clear the debt. The applicant claims his friend threatened to hire a hitman to kill him.
§The applicant claims he tried reporting the matter to the police but was advised there was insufficient evidence.
§The applicant claims he requires protection in Australia whilst he pursues a protection order and the payment of the debt through the courts in Thailand.
[2] see Department of Home Affairs file and copy of delegate’s record of decision submitted by the applicant to the Tribunal with the Application for review.
The applicant was asked by the Tribunal whether the claims made by him to the Department required any further amendment, changes or variation. In response [and through the interpreter] the applicant indicated to the Tribunal that he did not have any changes to make to his original claims for protection.
EVIDENCE AT THE HEARING
The Tribunal was told that the applicant ‘loaned’ ‘…a friend…’ money which was borrowed from ‘…influential people…’
The money was ‘…raised…’ as a loan by the applicant placing his entire ‘…wealth…’ [property and other belongings, he claimed] as ‘guarantee for his friend’s loan’.
The applicant stated that he had commenced proceedings with the Courts in Thailand to enforce the loan guarantee and to procure money from his friend and had ‘…reported…’ the threats made against him by his ‘…friend….’ to the local Thai police. However, the police did not assist with the matter or the threats because [according to the applicant] ‘…no criminal offence…’ had occurred.
The Tribunal was then told that the applicant’s friend had provided the ‘…moneys borrowed…’ and guaranteed by the applicant to a group of local ‘influential people…’ and had told the applicant that if he continued to demand the return of the money, they will ‘…kill him…’
The applicant stated to the Tribunal that he was in the process of commencing proceedings against his friend. The applicant’s intentions were relayed by his lawyer to his friend, but he had shown very little interest.
The applicant stated that his friend continued with his threats even after the applicant’s lawyer had made known his intentions to sue him for recovery of the borrowed money.
When did the debt arise? The applicant stated that the loan was first negotiated in 2015. The applicant then told the Tribunal that the process of the transfer of funds involved a ‘…government body…’ which received the borrowed funds. The applicant went on to describe the circumstances as follows – his friend received the money [the applicant had borrowed and guaranteed] and then that sum of money was transferred to a ‘government body…’ which was not specifically identified to the Tribunal in evidence.
What was the purpose of the money being borrowed and then provided to the ‘government body’? According to the applicant the ‘purpose’ was that which the ‘government body’ desired. It was what this influential group wanted to do with the borrowed funds.
The applicant stated that when he made a request for the money to be repaid by his friend, it was refused, and he understood that he had a major problem.
How much money had been borrowed? The applicant claimed that approximately [amount] Thai Bhat (AUD$[amount]) was borrowed. The raising of these funds was made possible (according to the applicant) by the amount borrowed being secured against the real estate the applicant owned (his home).
Did the applicant have copies of all mortgage documents? The applicant told the Tribunal that he had all the mortgage documents evidencing the loan he had with guarantee with the [named] Bank. However, these documents were not provided to the Department or Tribunal but can be provided. The Tribunal requested the applicant to provide copies to the Tribunal in a translated form - no later than seven days from the hearing date.
Did the applicant have a copy of the loan agreement between his friend and himself, he could provide to the Tribunal in a proper translated form? Again, the applicant requested time to provide the requested document and its English-language translation. The Tribunal provided the applicant with seven days to provide the document.
In what year was the loan agreement with your friend agreed to? The applicant stated that the loan agreement was ‘…signed in later part of 2017 or early 2018…’
What was the loan agreement’s secured amount? The applicant stated that the agreement was ‘some cash…’ and was for amount of Thai Bhat [amount]. The applicant went on to say that an amount of Thai Bhat [amount] was for the applicant’s business and ‘…car loan…’
What was the ‘purpose’ of the loan with the applicant’s friend? The applicant stated that [amount] Thai Bhat was provided to his friend on condition that the friend pays interest.
How much interest was paid to the applicant? The applicant stated that his friend provided him only one payment of interest being an amount approximately Thai Bhat [amount] and no further payments followed.
When did the applicant commence proceedings against his friend? The applicant stated that court proceedings commenced in 2018 and that all documents were with his ‘…lawyer in Thailand…’ The applicant went on to say that the case was ‘…won...’ but had ‘…no paper work…’
What has the applicant done to protect his rights after the court proceedings? The applicant stated that he ‘…tried to get home and land back …’ but he was not successful.
The applicant thereafter chose to do nothing because ‘…there was a threat made…’ against him.
Following the threat, he received did he inform and seek the help of the police? The applicant stated that the police had told him that because he had no title deed to the land or property, they could not assist him.
What specific threats did you receive from your friend or his associates? The applicant stated that ‘…he… [his friend]’ did ‘…not make threats…’ but said ‘…just come over…’
The applicant went on to say that his lawyer is trying to find other assets of his friend so they can be seized in satisfaction of the debt that he is owed but could find nothing ‘so far…’ because ‘…assets are in the name of [his] wife…’
Why does the applicant fear return to Thailand? The applicant stated that he fears his friends ‘…influential people…’ who would kill him if he continues to demand the money his friend borrowed from him.
Who are these influential people? The applicant described these persons as ‘…people who have a business like him [the applicant]. The applicant described his “business” as an “[business type]”. Currently, the Tribunal was told that the applicant’s relatives are taking care of the business, but he is ‘…not receiving any money from them…’
The applicant stated that with such debts against his name, he might have to consider ‘…bankruptcy…’ in the near future.
Why is the applicant afraid of returning to Thailand? The applicant stated that if he was to return to Thailand in the future it would cause him great personal hardship because he had ‘…no assets…’
Does the applicant still have ownership of his home? The applicant admitted that he has ownership of his home because it is solely in his wife’s name.
Had the applicant’s lawyer in Thailand filed a bankruptcy notice in the courts on his behalf? The applicant did not answer the question.
Can the police provide the applicant with assistance and protection if the applicant returns to Thailand? The applicant admitted that ‘…by law they can…’ provide him with some help and assistance. The applicant also admitted that if he has court orders, he could receive the assistance of the police but was hesitant in doing this because he feared this ‘influential people’ will ‘kill him…’
Who are these ‘influential people’? The applicant stated that these people were ‘…a group of people…’ but ‘one person was demanding the money…’ and ‘…gets other people to do things for him…’
Is the applicant currently working? The applicant stated that he was working in a factory but because of the COVID-19 pandemic crisis he was not working.
Has the applicant made any payments towards the debt he claims he has while working in Australia? The applicant admitted that he had made no payments. He went on to tell the Tribunal that his priority was to provide money to his wife and children.

COUNTRY INFORMATION – THAILAND – THAI STATE – THE POLICE AND JUDICIAL SYSTEM – THE CITIZEN AND RULE OF LAW

The 2017 Constitution gives the military forces authority over civilian institutions, including police, regarding the maintenance of public order. National Council for Peace and Order (NCPO) Order No. 13/2016, issued in 2016, grants military officers with the rank of lieutenant and higher power to summon, arrest, and detain suspects; conduct searches, seize assets, suspend financial transactions, and ban suspects from travelling abroad in cases related to 27 criminal offences, including extortion, human trafficking, robbery, forgery, fraud, defamation, gambling, prostitution, and firearms violations. The order also grants criminal, administrative, civil, and disciplinary immunity to military officials carrying out police authority in “good faith.”[3] Thailand held General elections in March 2019, with the Election Commission announcing results in early May.[4]
[3] ‘Country Reports on Human Rights Practices for 2018 – Thailand’, US Department of State, 13 March 2019, section 1d, 20190314092700
[4] ‘Thailand faces renewed instability after skewed election’, The Age, 10 May 2019, 201905162711; ‘Thailand Election Results Signal Military’s Continued Grip on Power’, The New York Times, 9 May 2019, 20190510151133.
On 5 June 2019, Prayut Chan –o-cha was elected Prime Minister of Thailand in a joint session of the Parliament.[5] On 9 July 2019, Prayut issued an order to repeal 70 of 557 NCPO announcements/orders that the NCPO issued after assuming power in May 2014.[6] Most NCPO orders and announcements therefore remain in effect under the new government.[7] This includes the military’s authority to detain civilian critics without judicial oversight for up to seven days on national security grounds, or for so-called ‘attitude adjustment’ sessions, typically held in military barracks.[8] While it is not clear if it is the same law, new Internal Security Operations Commands (ISOC) legislation grants the ISOC the power to summon and detain people for questioning without a warrant for several days if there are grounds for suspicion. [9] On 10 July 2019, a new cabinet was finally appointed and the endorsed by the Palace, some 108 days after the election.[10] Most appointees related to the former junta.[11]
[5] ‘Thailand’s election has redrawn the political landscape’, The Brookings Institute, 4 April 2019, 20190408094844
[6] ‘Thailand’s cabinet line-up by this month – PM Prayuth’ Bernama (Malaysian News Agency), 18 June 2019, 20190613105759
[7] ‘Military authorities can still arbitrarily detain civilians’, Thai Lawyers for Human Rights, 13 July 2019, 20190715103854.
[8] ‘Military authorities can still arbitrarily detain civilians’, Thai Lawyers for Human Rights, 13 July 2019, 20190715103854
[9] ‘Media bans lifted, military court cases transferred’, Bangkok Post. 9 July 2019, 20190715115636
[10] ‘New Thai cabinet eases uncertainty, but doubts persist over economy’ South China Morning Post, 10 July 2019, 20190715120656.
[11] Ibid
According to the United States Department of State, police effectiveness remains uneven across the country, being generally better in larger cities than in smaller towns or provinces.[12] The Royal Thai Police (RTP) generally carries out a range of standard policing duties including crime investigation and investigating crime syndicates.[13]
[12] ‘Thailand 2018 Crime and Safety Report – Bangkok’, US Department of State, 13 March 2019.
[13] Ibid
However, the ability of the police to conduct follow-up criminal investigations is hampered by a lack of funding, inadequate training, corruption, and frequent rotations that prevent them from operating effectively. [14] C o r r u p t i o n is widespread among the police[15] and reports continue to surface of police abusing prisoners and detainees, usually with impunity.[16] NGOs report that police sometimes torture and beat suspects to obtain confessions, while newspapers report numerous cases of citizens accusing the police and other security officers of brutality.[17] There is evidence that public confidence in the police is low in Thailand due to the aforementioned issues. [18] In July 2019, the National Police Chief is reported as saying that the police could not guarantee the safety of political campaigners due to stretched police resources. [19]
[14] Ibid
[15] Ibid
[16] Ibid
[17] ‘Country Reports on Human Rights Practices for 2018 – Thailand’, US Department of State, 13 March 2018, see page 3 OGD95BE927697.
[18] Ibid
[19] Deputy PM Prawit ‘worried’ politics behind Thai activist’s attack’, Coconuts Bangkok, 1 July 2019, 20190702135344.

An academic source from 2017 suggests that influential individuals can sway the police. However, this does not mean that they can always engage in malpractices without facing consequences:
“From the Thai perspective ‘influential figures’ refer to those who are in authority and/or enjoy wealth and privilege either at local or national levels (for example, politicians or senior police officers). Another aspect to this phenomenon is that those complainants who themselves are perceived to be within the favour of the influential may have their complaints taken more seriously….The seasoned social researcher interviewed for this research argued that ‘…if any complainants have connections with the police, they will be treated with care.’ It is not invariably the case, however, that those with influence can engage in mal practice with impunity.”[20]
[20] ‘A critique of the internal complaints system of the Thai police’, Policing and Society, 25 July 2017, 20190410165911.
There is also evidence that the authorities have taken action against police misconduct. From October 2015 to August 2016, the RTP disciplinary division reported authorities subjected over 3,000 police officers to disciplinary actions, an increase from 2015.[21] Offences included misbehaviour, dereliction of duty, harming people or suspects, drug use, embezzlement, gambling and illegal weapon possession.[22] The dismissal of 221 officers followed.[23] The US State Department Report of 2017 reported that corruption remained widespread among police. However, authorities arrested police officers and convicted them of corruption, drug trafficking and smuggling.[24] Multiple mechanisms exist for people to issue complaints against police abuse, including the office of the National Anticorruption Commission, the Supreme Court of Justice, the Office of the Prime Minister and the Office of the Ombudsman, though these rarely result in punishment. [25]
[21] Thailand – Country Report on Human Rights Practices 2016, US Department of State, 3 March 2017, see section 1c at p.3 ODG95BE92856.
[22] Ibid
[23] Ibid
[24] Ibid
[25] Thailand – Country Report on Human Rights Practices 2018, US Department of State, 13 March 2019, section 1d at p.6 20190314092700
The law provides for an independent judiciary and the right to a fair trial, although in practice, it is not always upheld. Both the interim constitution and the 2017 constitution provide for an independent judiciary and, throughout 2018, the government generally respected judicial independence and impartiality. [26] In ordinary criminal courts, defendants enjoy a wide range of legal rights, including access to a lawyer of their choosing, and prompt and detailed information of the charges. However, defendants are not always afforded all of these rights, particularly in small or remote provinces.[27] Following a visit in April 2018, the Office of the United Nations High Commissioner for Human Rights (OHCHR) appeared to endorse the standards of Thai courts, stating that individuals could seek remedy from them and noting the expeditious nature in which the Courts of First Instance and Courts of Appeal determine cases.[28]
[26] Ibid
[27] Ibid
[28] ‘Statement at the end of visit to Thailand by the United Nations Working Group on Business and Human Rights, OHCHR, 4 April 2018, at page 9, CIS7B83941735
As of August 2018, Thailand had the world’s sixth largest prison population (360, 000 inmates) and the world’s fifth highest incarceration rates which suggests that crimes are committed and convicted regularly.[29] There is evidence that the Government has in the past implemented crackdowns on crime as a display of capability to the country’s population.[30] For example, the authorities have taken action against loan sharks and this type of crime in recent years.[31] In December 2016, Thai police broke up the country’s biggest loan shark syndicate. The syndicate had 86 branches across the country and was reported to have been assisted by over 100 state officials.[32]
POST- HEARING SUBMISSIONS
[29] ‘Highest to Lowest –Prison Population Total’, World Prison Brief, 17 September 2018, CXBB8A1DA35419.
[30] ‘The Junta launches Crackdown on Organised Crime’ , Voice of America, 5 November 2015, 2019041151018.
[31] ‘Thai police bust massive loan shark racket’, Inquirer, 23 December 2016, CX6A26A6E5538
[32] ‘Thai police bust massive loan shark racket’, the Inquirer, 23 December 2016, CX6A26A6E15538
The applicant provided the Tribunal with copies of the following ‘translated’ documents:
a. Loan Agreement in the applicant’s name stating the amount borrowed over a period of years totalling [amount] Thai Bhat and interest Thai Bhat [amount]. (no copy of original document was provided and no details of translator of the said document).
b. Copies translated of court proceedings documents against [three named persons] (no copy of original document was provided and no details of translator of the said document).
FINDINGS AND REASONS
Preliminary comments
The Tribunal accepts that the applicant was faced with personal problems while in Thailand as far as it concerned his financial matters with friends and other persons. The Tribunal also accepts that these relationships with friends and others had become difficult and acrimonious. However, the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility.
That being the case, the mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any of the responsibility or obligation to specify or assist in specifying any particulars of claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant: see, MIEA v Guo (1997)191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal accepts that the applicant may have some financial problems as it concerns his finances, livelihood and subsistence and that an amount of money is owed. However, the applicant’s version of events as provided to the Tribunal in evidence at the hearing raises certain issues of credibility.
First, the applicant in his evidence told the Tribunal that he had ‘borrowed money’ for a friend from ‘influential people’. He then made a request from his friend to repay the amount borrowed but his friend refused to make any repayments. As a result of this, the applicant sued his friend in the Thai courts and [according to his evidence] he obtained a judgement against his ‘friend’ requesting that the amount borrowed and owed should be repaid. His friend’s response was [according to the applicant] to threaten him if he persisted with his demands to seek the loan’s repayment. The Tribunal was also told, that having received ‘threats’ the applicant sought the Thai police’s intervention and assistance but was not assisted – the police displaying a complete disinterest in his problem. In the Tribunal’s opinion, the applicant’s evidence lacks substantial detail and credibility. Initially, the Tribunal was told that the applicant borrowed the money from ‘influential people’ but provided no ‘details’ of who these influential people were. No description was forthcoming from the applicant when asked by the Tribunal to provide this detail. However, the written evidence later submitted to the Tribunal was a ‘loan agreement’ in the applicant’s name with a legitimate Thai financial institution. This evidence reveals to the Tribunal that the issue at hand involved not any third person or persons as was claimed initially, but the applicant’s own financial affairs as far as it concerns his own business interests.
The Tribunal’s scepticism as far as it concerns the applicant’s evidence (concerning third parties) is further enhanced by the admission of the applicant that the ‘loan was negotiated in 2015’ and that the ‘funds negotiated’ were ‘transferred to a government body’ by the applicant’s friend. This government body is never revealed to the Tribunal despite asking the applicant to name the government body allegedly involved. Further, the applicant was asked – as to the reasons the ‘borrowed moneys were transferred to a government body? Again, his response was very limited in detail – telling the Tribunal ‘the purpose was the purpose the government body desired…it was what this influential group wanted to do with the [borrowed] money…’ Then, the applicant told the Tribunal that the ‘loan agreement’ with the ‘friend’ was in 2017 or ‘…early 2018…’ The fluctuation of dates as encountered by the Tribunal from the applicant’s evidence steers the Tribunal to conclude that these claims of loans with a friend, then influential persons and government body are mere embellishments created by the applicant to enhance his claims for protection before the Tribunal and the Tribunal finds them not credible. These issues with third parties was not reality. Therefore, the Tribunal finds that, if the applicant was to return to Thailand, he would not have a well-founded fear of persecution from influential persons or from any government body because of any money the applicant’s friend had borrowed from the applicant and transferred to these individuals or group as provided by s.5J(a),(b) or (c) of the Act.
Second, the applicant claimed that because he had made demands to his friend for the repayment of moneys he had borrowed on his behalf, his friend had made threats against him and when reported to the police, the Thai police ignored his concerns and refused to intervene to protect him. It was inferred by the applicant’s responses to the Tribunal’s questions that the Thai police had no interest in such matters and would not intervene if influential persons were involved or if it involved a government body. The Tribunal does not consider this claim credible based on the country information the Tribunal has accessed and incorporated within this decision in paragraphs [53] to [59]. The Tribunal acknowledges this information which reports that the authorities in Thailand have taken concerted action against persons dealing with money and associated criminal and corrupt activities and have been proactive. The Tribunal does not accept that, as the applicant claimed, the police in Thailand were not willing or would not provide some assistance or were incapable of protecting the applicant and his family from any criminal activities (if, he actually encountered such threats). There is nothing in the applicant’s evidence that would suggest such assistance (‘protection’) would not be forthcoming. There is even reported action having been taken not only against Thai individuals involved in criminal actions but also against corrupt government officials and even police officials. The Tribunal therefore considers that (despite some official corruption in the Thai police) effective protection measures as defined in s. 5LA of the Act are available in Thailand for the applicant to access (and his wife and other family members, if required) and those protective services service all Thai citizens despite, race, nationality, religion membership of a particular social group or political opinion and therefore the Tribunal finds that the applicant does not have a well-founded fear of persecution in accordance to s.5J(2) of the Act.
Third, the applicant claims and has provided evidence to the Tribunal that legal proceedings had been initiated in the Thai courts with regards to the money owed to him by his ‘friend’. As previously noted by the Tribunal, the applicant has a loan document (with a recognised financial institution) in evidence and court proceeding documents. It suggests to the Tribunal from reading these documents that the applicant has fully utilised his options for redress within the Thai legal system and has obtained judgement against several ‘named’ individuals. The documents tendered do not indicate the ‘relationship’ these persons have or have had (in the past) with applicant nor did the applicant provide an explanation of the document in question (or a copy of the original) but there is a judgement of a court meaning that there is nothing which prevented or prevents the applicant in future to seek any amount of protection and redress from the Thai courts of law as they currently function. The system of justice does operate in Thailand and does provide ‘protection’ to those who seek this protection. The Tribunal therefore finds and considers that effective protection measures are available (as defined in s.5LA of the Act) in Thailand for the applicant to access now and in the future to protect his rights under any loan agreement in his name and to seek redress from any individual or group that may have misappropriated moneys he was legally entitled to received or owing to him and Tribunal further determines that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.
For the reasons the Tribunal has given in paragraphs [64] to [67] above, the Tribunal does not accept that the applicant was under an obligation to make any repayment for money borrowed by the applicant for his ‘friend’ or for ‘influential persons’ or any ‘government authority’ as he claimed. The applicant may have a debt in Thailand but it was for his own person and did not involve as he claimed ‘influential persons’ or ‘government authorities’ receiving the borrowed funds through the applicant’s ‘friend’ as he claimed, nor that there is a real chance the applicant will face persecution involving serious harm if he returned to Thailand and having to face the debt which is unpaid (as he claims). He has taken measures in the courts to protect his rights and may continuously so do, if he so wishes against the financial institution involved – protecting his interests. There is nothing preventing him from protecting himself with the rule of law even in a military-governed Thailand. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Act.
For these reasons, given, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(a) of the Act.
The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion complementary protection in s.36(2)(aa). For the reasons the Tribunal has provided in paragraphs [64] to [67] above, the Tribunal does not accept that the applicant was under an obligation to make any repayments to a financial institution for moneys borrowed and provided to his ‘friend’ who transferred them to unnamed ‘influential person’ and to a ‘government authority’, nor that the applicant had been threatened for seeking the loan’s repayment from his friend or that he was unable to seek the protection of the Thai police or the judicial system, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Thailand, there is a real risk that he will suffer significant harm because the applicant is unable to repay a significant debt owed to a financial institution and that he would not have the protection (against threats – legal and non-legal) from Thai police or the Thai state and how it administers the rule of law.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
Peter Vlahos
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.
…

[2020] AATA 4187

27 August 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction