2000861 (Refugee)

2000861 (Refugee) [2023] AATA 2517 (14 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2000861

COUNTRY OF REFERENCE: Thailand
MEMBER:Wendy Banfield
DATE:14 June 2023
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 June 2023 at 5:50pm
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – women – victim of sexual harassment – protection against employer – physical assault – homelessness – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 13 January 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Thailand applied for the visa on 21 September 2018. The delegate refused to grant the visa on the basis that the applicant was not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
The applicant was invited to appear before the Tribunal 1 May 2023 to give evidence and present arguments. The applicant replied to the invitation and indicated she would not be participating in the hearing. She consented to the Tribunal making a decision on the papers without further steps to allow her to appear. On 21 April 2023 the Tribunal contacted the applicant by email to confirm her intention not to attend a hearing. On 26 April 2023 a Tribunal officer spoke to the applicant who confirmed she did not wish to attend a hearing. A further email was sent to the applicant on that day advising her the hearing scheduled for 1 May at 2pm had been cancelled.
The applicant did not provide any written submissions to the Tribunal in support of the application for review. A copy of the Department’s notification and decision record dated 13 January 2020 was submitted. The Tribunal has based its decision on the applicant’s claims at the time of application.
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.
Country information – Thailand
Women
Article 27 of the Criminal Code specifies penalties for conviction of rape or forcible sexual assault ranging from four years’ imprisonment to the death penalty, as well as fines. The article permits authorities to prosecute cases of spousal rape, and prosecutions have occurred. NGOs claim that victims have underreported rapes and domestic assaults, in part due to a lack of understanding by authorities that has impeded effective implementation of the law, and due to a perception by victims that police are incapable of bringing perpetrators to justice. In May 2019, the government amended the law to prescribe harsher punishments against perpetrators in rape and sexual assault cases, and to recognise new forms of the crime. Among the changes were the provision of the use of the death penalty in cases where the victim dies after being raped, the introduction of penalties for perpetrators who record their assault for exploitation, and recognition of crimes for sexual assault against men and against corpses. NGOs have reportedly welcomed the recent removal from the Penal Code of a provision that had allowed offenders younger than 18 years to avoid prosecution by marrying their victims.[1]
Domestic, family, and/or gender-based violence is a significant problem in Thailand. While it affects all sections of Thai society, it is reportedly particularly prevalent among ethnic minority groups. The number of reported cases of domestic violence have increased in recent years, although advocates attribute this as being due to an increasing willingness of survivors to report than was previously the case. The government operates shelters in each province for those who have experienced domestic violence, while all state-run hospitals include crisis centres that care for abused women and children. The Ministry of Public Health operates one-stop crisis centres nationwide that provide information and services, while the Ministry of Social Development and Human Security runs a community-based system that focuses on training community representatives on women’s rights and abuse prevention. According to government representatives, if a person who has experienced domestic violence asks to relocate, officials will try to facilitate their move to another province. Successfully doing so is more difficult for women with children.[2]
A number of laws criminalise sexual harassment in both the public and private sectors. Those convicted of sexual harassment face a maximum fine of THB20,000 (AUD965), while abuse characterised as an indecent act may result in a maximum 15 years’ imprisonment and a maximum fine of THB30,000 (AUD1,450). The Civil Service Act (2008) also specifically prohibits sexual harassment and stipulates five levels of punishment: probation, docked wages, salary reduction, suspension and termination. NGOs report, however, that enforcement of the law has been ineffective due to a vague legal definition of sexual harassment and difficulties in prosecuting harassment claims.[3]
[1] DFAT Country Information Report Thailand 10 July 2020 p.40.
[2] DFAT Country Information Report Thailand 10 July 2020 p.40.
[3] DFAT Country Information Report Thailand 10 July 2020 p.41.
Police
The Royal Thai Police (RTP) is the national police force of Thailand. The RTP has an estimated force strength of between 220,000-230,000, of whom more than 90 per cent are male. Headquartered in Bangkok, the RTP is subdivided into several regions and services. The Provincial Police Division (PPD) forms the largest of the RTP operational components in both personnel and geographic responsibility. The PPD is divided into nine regions that cover all of the 76 provinces with the exception of metropolitan Bangkok (the responsibility of the Metropolitan Police Bureau) and the border areas (the responsibility of the Border Patrol Police, a 40,000-strong paramilitary force that has special authority and responsibility to combat insurgent movements in border areas). Other RTP bodies include the Central Investigation Bureau (CIB), which assists the RTP’s provincial and metropolitan components in preventing and suppressing criminal activity and in minimising threats to national security; the Narcotics Suppression Bureau; the Police Education Bureau; the Tourist Police Bureau; and the Immigration Bureau.[4]
In-country sources report that the professionalism of the RTP varies considerably across its various branches, but that in general the RTP provides a higher standard of law enforcement than other regional police services. The CIB has reportedly improved considerably in relation to crime scene preservation, forensics and disaster victim identification, while other branches have performed well in relation to combating child exploitation and human trafficking.[5]
Applicant’s identity and country of reference
[4] DFAT Country Information Report Thailand 10 July 2020 p.53.
[5] DFAT Country Information Report Thailand 10 July 2020 p.53.
The applicant stated in her application for a protection visa that she was born on [date] in Thailand. The applicant provided a copy of her Thai passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant's identity.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Based on the document provided by the applicant and accepted by the Department, the Tribunal finds that she is a citizen of Thailand and as such her protection claim will be assessed against Thailand as the country of reference and 'receiving country' respectively.
Migration history
The applicant last arrived in Australia [in] February 2017 holding a [Student] visa and has not departed since.
Claims for protection and supporting documentation
The applicant submitted claims for protection in a statement at the time of application that was set out in the Department’s decision record dated 13 January 2020. The Tribunal is satisfied it is an accurate summary of the applicant’s primary claims:
·     The applicant claims that her former employer used to sexually harass her. She claims that when she confronted him regarding the sexual harassment he laughed at her, continued to be more aggressive, and started physically assaulting her.
·     The applicant claims that when she informed some other people in her workplace about her employer’s sexual harassment he found out. She claims that he then threatened to beat her up and rape her.
·     The applicant claims that on one occasion she overheard some of her employer’s friends making plans to invade her house. She was so scared by this that she fled to Australia in order to seek protection from her former employer.
·     The applicant claims that if she returns to Thailand she would be beaten by her previous employer. She claims that she has nothing and that she would most likely be homeless.
The applicant also claimed the authorities would not help her and her old boss would find her if she returned to Thailand.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant made claims in her written application for a protection visa that she was sexually harassed by a former employer and was threatened with rape and assault. She claimed the authorities will not assist her because of the position of the person involved. The applicant did not provide details of her claims such as time and place, the type of employment or the nature of the harassment. The applicant declined to attend a Tribunal hearing to give evidence and present arguments relating to the issues arising in her case. Therefore, the Tribunal was unable to seek further information or question the applicant about her claims for protection.
The Tribunal nevertheless considered whether the applicant fears persecution due to her membership of a particular social group, that being women who are subjected to sexual harassment, threats, or assault. The Tribunal found the applicant’s claims to be vague and without a level of detail that would be expected of a person seeking to rely on the circumstances in their home country in seeking protection on Australia. In addition, no supporting evidence was provided to the Department or the Tribunal.
Country information indicates that the police and the legal system in Thailand afford protection to women who are subjected to sexual assault. This includes laws that criminalise sexual harassment in both the public and private sectors. While there are noted variations in the professionalism of the Royal Thai Police across regions, they are nevertheless an effective police force and provide a higher standard of law enforcement than other regional police services. According to country information, there are services available to women such as crisis centres and community organisations. There is no evidence the applicant availed herself of any services or made any reports to police about her alleged treatment by a former employer. The applicant claimed she did not report the matter because the person concerned held a prominent position in society but with further detail, the Tribunal is unable to rely on this claim and gives it no weight.
The criterion in s 5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Having assessed the applicants claims for protection, the Tribunal is not satisfied the applicant holds a fear of being persecuted if she returns to Thailand, or that there is a real chance she would be persecuted.
In the applicant’s protection visa application, at question 71 she was asked for details of all past employment. The applicant did not indicate that she was ever employed, rather she stated she had been unemployed and relied on economic support from her family. The Tribunal agrees with the Department delegate that this brings into question the veracity of her claims. The Tribunal also agrees with the delegate that if there is veracity to the applicant’s claims, she would be able to access state protection in Thailand.
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). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal considered whether the applicant will face a real risk of suffering significant harm if she returns to Thailand. The Tribunal considered the Department of Foreign Affairs and Trade country information about Thailand, the declared personal circumstances of the applicant and her claims of harassment and threats from a former employer. The Tribunal is not satisfied the applicant has established on balance the truth of her claims. Further, the Tribunal is satisfied that there is protection available from authorities in Thailand such that there would not be a real risk that the applicant will suffer significant harm as outlined in s36(2B)(b). Therefore, there is taken not to be a real risk that the applicant will suffer significant harm and 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.
Wendy Banfield
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.
…

[2023] AATA 2517

14 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing