2001248 (Refugee)

[2022] AATA 979

2001248 (Refugee) [2022] AATA 979 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001248

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Phoebe Dunn

DATE:21 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 February 2022 at 11:28am

CATCHWORDS

REFUGEE – protection visa – Thailand –fear of forced marriage – inconsistent evidence – vague claims – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 423A, 426A, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Thailand, applied for the visa on 16 July 2018. The delegate refused to grant the visa on the basis that there were effective protection measures available to the applicant in Thailand against any threats she may face from her claimed persecutors in Thailand and therefore the applicant was not a refugee under

   
   

   s 36(2)(a) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.

3. The applicant was invited to a hearing of this matter scheduled for 12 November 2021. The applicant did not attend the hearing at the scheduled date and time and the matter was dismissed under s 426A(1A)(b) of the Act. The applicant applied for reinstatement within the 14-day period and the matter was reinstated.

4. By letter dated 6 January 2022, the applicant was invited to a further hearing of this matter scheduled for 28 January 2022 at 10.30am.

5. The applicant appeared before the Tribunal by video conference on 28 January 2022 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic and the Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

6. The applicant was not ready to commence the hearing at the scheduled date and time and the hearing start time was delayed until 11.10am. Following introductory remarks, the hearing was adjourned to 2.00pm the same day at the request of the applicant to enable the applicant to return home. The hearing recommenced at 2.00pm and was subsequently adjourned at 3.17pm due to a storm related power outage. The hearing resumed on 31 January 2022 at 10.30am and concluded on that same day. Notwithstanding the need to adjourn the hearing due to the power outage, the Tribunal is satisfied that during the hearing the audio and video was clear and that the applicant was given a fair opportunity to give evidence and present arguments.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

8. The applicant was invited to provide post hearing submissions by 14 February 2022. As at the date of this decision, the Tribunal has not received any post-hearing submissions from the applicant and has had no further correspondence from the applicant since the hearing.

   Identity

9. The applicant provided a certified copy of her Thai passport to the Department issued [in] 2017 and expiring [in] 2022.

10. Based on this information and without any information to the contrary the Tribunal accepts that the applicant is who she claims to be, that she is a national of Thailand, which is also the receiving country.

11. Based on the information before it, the Tribunal finds that the applicant does not have a right to enter and reside in any third country.

    Background

12. The applicant was granted a tourist visa on 1 December 2017 and arrived in Australia [in] December 2017.

13. The applicant applied for protection on 16 July 2018.

    Claims

14. The applicant made the following claims in her protection visa application:

    a.She was working in a [Workplace 1] and asked for a salary rise. Her boss sexually harassed her.

    b.She tried to resign from the [Workplace 1] which resulted in her employer placing pressure on the applicant and her family.

    c.The pressure increased and she was experiencing daily harassment. Threats were made against her life and her salary was withheld.

    d.She stopped attending work in the hope it would stop but her boss started harassing her at her home and spreading rumours to the local community.

    e.She was depressed and experienced physical, emotional and financial harm.

    f.The applicant’s family could not help her and they told her to leave the job. The community could not help her because her former boss is influential and wealthy.

    g.She did not seek protection from the authorities in Thailand. They would not help her as her former boss has connections with the authorities and they will do nothing about her situation.

    h.She cannot relocate to another area of Thailand as her former boss and his friends have connections across the country, she would be found and harmed.

    Evidence at hearing

15. At the hearing, the Tribunal asked the applicant to confirm that everything in her visa application was true and correct or whether there was any detail or error that she wished to correct or change before the Tribunal.  The applicant stated that it was all true and correct and that there was nothing she wished to change.

16. The Tribunal invited the applicant to provide details about her background and the context of her claims. The applicant stated that she grew up in [City 1], Thailand and that her parents still living in [City 1] but are separated. She has a younger half-brother who still lives with her mother in [City 1]. She is in a de facto relationship with a man she met in Australia and they have one child together who is now [age] year old. She is of Buddhist faith. Before coming to Australia, she travelled to [Country 1] for a holiday for a few days sometime in 2017 and returned to Thailand.

17. She completed high school in [City 1] and then attended vocational college for three years [from] 2014 to 2017.  She then commenced a second vocational certificate [but] only completed the first term before she came to Australia. She has never worked in Thailand. In Australia she had some casual work [before] she got pregnant.

18. During the course of the hearing, it became apparent to the Tribunal that details provided by the applicant in oral evidence regarding her education and employment history were not consistent with the details contained in her protection visa application. The Tribunal invited the applicant to provide further details in support of her written claims. In response, the applicant made the following new claims:

    a.    The applicant fears returning to Thailand because her father will force her into an arranged marriage.

    b.    Her father is an alcoholic and a gambling addict. In order to repay his gambling debts, he borrowed money from a man and in return promised that that the applicant would marry the man’s son.

    c.     Prior to coming to Australia her father would not allow her to leave the house.

    d.    She ran away to her mother’s house and asked her to help her to escape to Australia.

19. The Tribunal asked the applicant how much her father had borrowed from the creditor.  In response, the applicant stated that he had borrowed ‘hundreds of thousands’ of Thai baht, she was not sure exactly how much but maybe around 500,000 baht.

20. The Tribunal asked the applicant about the identity of the man she had been promised to and the identity of his father. She stated that she did not know their names. The Tribunal asked how she knew that she had been promised to her father’s creditor’s son in an arranged marriage and she said it was because her father told her.

21. The Tribunal asked the applicant how she could have completed over three years of vocational training if she had not been allowed to leave the house. She stated that this was after the applicant had finished her studies. Her father told her that she needed to get married but she did not want to.

22. The Tribunal noted that these were entirely new claims and had not been included in her protection visa application. The Tribunal raised with the applicant the operation of s 423A of the Act which requires the Tribunal to draw an adverse inference as to the credibility of the applicant’s claims or evidence where an applicant raises new claims or evidence before the Tribunal that was not before the original decision maker unless there was a reasonable explanation for not doing so. The Tribunal asked the applicant if she had a reasonable explanation for raising new claims on review.

23. In response, the applicant stated that her migration agent had made up the claims in the protection visa application and did not tell her what he had included in the protection visa application. The Tribunal noted that the applicant had confirmed to the Tribunal in oral evidence that the content of her protection visa application was all true and correct and asked her for an explanation as to why she was now saying that she did not know what was in the visa application. In response, the applicant stated that what she had told the Tribunal now was true, but she was not sure whether the claims in the visa application were true because she cannot speak or read English and doesn’t know what her migration agent put in the protection visa application. The Tribunal asked if the applicant had asked the migration agent to confirm the details and the claims in the application and she said that she had not. She said the agent stated that they had arranged everything for her.

24. The Tribunal noted that it is expected that she gives a consistent account of her claims and that the applicant’s evidence regarding her arrangements with her migration agent would suggest that she was willing to disregard whether the information in her visa application was true and correct to achieve a visa outcome. The Tribunal noted that this would suggest that her new claims were not genuine and may lead the Tribunal to believe that the applicant had made up the claims to secure a protection visa. The Tribunal explained that this would be the reason or part of the reason for affirming the decision under review and invited the applicant to comment on or respond to its concerns. The applicant sought a short adjournment to consider her response. On resumption the applicant stated that she did not have any comment or response.

25. The Tribunal then put to the applicant each of the applicant’s claims in her protection visa application set out in paragraph 14 above and asked the applicant if they were true. The applicant confirmed that none of the claims were true. Tribunal asked the applicant whether she wished to rely on any of the claims in her protection visa application and she stated that she did not. The Tribunal asked the applicant if she was retracting the claims and she confirmed that she was.

    Evidence at resumed hearing

26. At the resumed hearing, the Tribunal invited the applicant to provide further evidence in advance of her new claims.  The applicant stated that she fears returning to Thailand because she fears her father will force her to marry the son of his creditor.  She did not want to marry that person so she asked her mother to help her come to Australia. She hasn’t been back to Thailand since then and hasn’t been in contact with her father.

27. The Tribunal noted that the applicant had been in Australia for over four years and on the applicant’s evidence has been in a de facto relationship for over three years. The Tribunal noted that the applicant and her de facto partner have a [child] together. The Tribunal asked the applicant whether, in light of this, she still believed that her father would force her to marry his creditor’s son as she claims. In response, the applicant stated that her father told her that he would not accept it if she did not marry the person he wanted her to marry. The Tribunal asked how she knew whether that was still the case. She stated that her father is a man who sticks by his word and he promised his friend. The Tribunal invited the applicant to provide further details regarding the arrangement between her father’s creditor and his son. The applicant confirmed her earlier evidence that she did not know the man she was meant to marry or his father and that she did not know their names or any further details about the arrangement.

28. The Tribunal asked the applicant whether she had any current information to suggest that the promise she claims her father had made was still current, for example, did she know whether or not the son was still single and expecting to marry her or whether her father’s creditor would enforce the arrangement. The Tribunal asked if there was anyone who could validate her claims or the currency of her claims.  In response, the applicant stated that her mother is not in contact with her father and there was no one who could attest to her claims or the currency of the claims. The applicant stated that she did not know whether her claims were still current.

29. The Tribunal asked the applicant whether she had sought assistance from state authorities, such as the police, to protect her. In response, she said that she had not and stated that she did not know whether the state authorities would protect her. The Tribunal discussed with the applicant the operation of s 5J(2) of the Act which states that a person does not have a well-founded fear of persecution if effective protection measures (as defined) are available to her in Thailand. In response she stated that she did not know whether the state would protect her.

30. The Tribunal reiterated its earlier statement that the applicant needed to demonstrate that she had a well-founded fear of persecution if she were to return to Thailand for one or more reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal noted that in this instance, if true, the applicant’s claims appeared personal in nature.  The Tribunal discussed with the applicant independent country information and noted that it was not aware of any country information to suggest that she could not seek protection from the state if her father were to try to enforce her to marry his creditor’s son as claimed. The Tribunal noted that there were legislative protections against discrimination on the basis of gender and that the independent country information suggests that the applicant could seek state protection.[1]

    [1] DFAT Country Report – Thailand, 10 July 2020, [3.85]–[3.95]

31. The Tribunal asked the applicant where she would live in Thailand if she were to return. The applicant stated she did not know where she would go. The Tribunal asked whether she would live with her mother in [City 1] in Thailand if she were to return. The applicant stated that she would not because it was close to her father. The Tribunal also noted the operation of s 5J(1)(c) of the Act which requires an assessment of whether the applicant would face a real chance of persecution on all areas of Thailand or whether the applicant could legally and safely access and reside in another area in Thailand, such as Bangkok or Chiang Mai. The Tribunal noted independent country information which suggests that there would be no constraints on her capacity to move elsewhere in Thailand to avoid her father.[2] The applicant stated that she does not know where she would go as she has no money and is not working. The Tribunal discussed with the applicant independent country information about the economy and job market in Thailand, noting that while the economy was impacted as a consequence of the COVID-19 pandemic, there was no apparent impediment to the applicant gaining employment if she were to return to Thailand.[3]

    [2] Ibid, [5.24]

    [3] Ibid, [2.12]–[2.17]; [3.85]–[3.95]; ‘Inequality on the cards after Thailand’s economic recovery’, Soonruth Bunyamanee, Bangkok Post, 4 November 2020

32. The Tribunal asked the applicant if there was any other reason why she could not return to Thailand or whether she had any other claims. In response she stated that she did not want to return to Thailand because her baby has a [medical condition] and has to see a doctor. She could not afford this if she returned to Thailand because she would have to pay a lot of money. The Tribunal invited the applicant to provide supporting documentation regarding her son’s health condition for consideration in post hearing submissions.

33. The Tribunal discussed with the applicant independent country information regarding the health system in Thailand which suggests that the applicant could seek medical support for her son under the Universal Coverage Scheme, as set out below.[4]  The Tribunal invited the applicant to comment on this information and the applicant declined to do so.

    [2.22] Section 47 of the Constitution guarantees citizens the right to receive public health services provided by the State, and for ‘indigent’ persons (those without means) to receive such services free of charge. Section 55 commits the State to providing efficient universal public health services, to providing public education on health promotion and disease prevention (including through promoting traditional Thai medicine), and to continuously improving the standard and quality of public health services. The Ministry of Public Health is the national health authority responsible for formulating, implementing, monitoring and evaluating health policy. The Ministry and a number of autonomous health agencies form a complex interdependent governing structure where non-state actors and civic groups also play an increasing role.

    [2.23] All sub-districts, districts and provinces have health centres, district hospitals and provincial hospitals respectively. The public sector dominates health delivery systems, accounting for 75 per cent of total hospitals and 79 per cent of beds. Most private hospitals are small, with 69 per cent having fewer than 100 beds. Private non-profit charity-run hospitals account for a negligible share of beds. Large private hospitals include some hospital chains registered in the stock market, located in Bangkok, and offering services to mostly international patients. According to the Global Health Security Index, Thailand’s health sector is the world's sixth-best prepared for a pandemic. The private system is of international standard and superior to its regional neighbours’, although the public system is less well-resourced. Thailand is self-reliant in healthcare workforce production with high quality standards. The healthcare workforce density per 1000 population is slightly above the 2.28 indicative World Health Organization (WHO) benchmark of doctors, nurses, and midwives. Thailand has taken a number of measures to ensure adequate healthcare servicing to rural populations, including recruiting students from rural backgrounds, a curriculum that reflects rural health problems, mandatory rural service by all graduating doctors, nurses, dental health officers and dentists, and financial and non-financial incentives such as social recognition.

    [2.24] Thailand has been internationally recognised for its successful implementation of universal health coverage through its Universal Coverage Scheme (UCS), introduced in 2002. Also known as the ‘30 baht scheme’ (the initial cost of a consultation, now free), the UCS provides basic coverage to approximately three-quarters of the population, with the remainder covered by either the Civil Servant Medical Benefit Scheme (for civil servants and their dependants) or the Social Health Insurance Scheme (for private sector employees).The UCS accounts for 17 per cent of the country’s healthcare expenditure. Funded through taxes, it places the biggest cost burden on those who are able to afford it. Consequently, the biggest beneficiaries of the scheme have been those with the lowest incomes, in particular women of childbearing age. Thailand has performed better in terms of maternal and child health than other southeast Asian countries. In 2018, the neonatal mortality rate was estimated at five per 1000 live births (compared to a regional average of 20.2); the under-five mortality rate at 9.1 per 1000 live births (compared to a regional average of 33.6), and the maternal mortality rate at 37 per 100,000 live births (compared to a regional average of 152). The UNFPA estimated life expectancy at birth in Thailand in 2020 was 72 for males and 79 for females.

    [4] DFAT Country Report – Thailand, 10 July 2020, [2.22]–[2.24]

1. The Tribunal raised with the applicant its concerns about the vague nature of the applicant’s new claims, noting that they are lacking in detail and that there is no supporting evidence, which may lead the Tribunal to consider that the applicant has fabricated the claims to achieve a visa outcome. The applicant stated that she had not made it up. The Tribunal also noted the gap in time it took for the applicant to lodge a protection visa application of six months, which gives rise to a concern that the applicant had lodged the application to prolong her stay in Australia and to achieve a visa outcome rather than for any protection reason. The applicant did not comment.

2. The Tribunal noted that the applicant had gone on a holiday to [Country 1] in the months prior to coming to Australia and returned to Thailand without issue. The Tribunal noted that this suggests that she was able to come and go freely and was not prevented from leaving the house as claimed and did not have the fears of being forced into marriage by her father as claimed. The applicant stated that she had gone on holiday with her aunt. The applicant confirmed that she had not had any problems leaving or returning.

3. The Tribunal asked the applicant whether there was any other basis on which she feared returning to Thailand and she confirmed that these were her claims and that she had no other claims.

4. The Tribunal notes that at the commencement of the hearing, the applicant’s partner was sworn in to appear as a witness but was not present at the resumption of the hearing on Friday 21 January 2022 or on Monday 31 January 2022. The Tribunal asked the applicant whether she still wished for her partner to appear as a witness. In response, the applicant said he was not present. The Tribunal stated that the applicant’s partner could provide a written statement to the Tribunal with any post hearing submissions should he wish to do so, to be provided by 14 February 2022. The applicant did not provide any post hearing submissions or other documentation and the Tribunal did not receive a witness statement from the applicant’s partner.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Thailand and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, there is a real risk that they will suffer significant harm.

12. The Tribunal, in reaching its decision, has taken into account all of the evidence before it, including oral evidence of the applicant and witnesses at the hearing and pre and post hearing submissions, the contents of the Departmental file and independent country information about Thailand.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Discussion and findings

    Credibility

14. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and other stresses including those caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

15. 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’ or that it is for the reason claimed. Similarly, that an 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 of 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 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 responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[5] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[6]

    [5] S 5AAA Migration Act 1958

    [6]   MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–170

16. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.[7]

    [7]    Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194

17. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[8] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

    [8]    UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019) (Handbook) at 196

18. On the basis of the applicant’s oral evidence, the Tribunal makes the following findings in respect of the claims in her protection visa application:

    a.    The applicant had not worked in a [Workplace 1], she had not asked for a salary rise and her boss had not sexually harassed her. She had not worked  while in Thailand and had never had an employer in Thailand.

    b.    It follows that she had not tried to resign from the [Workplace 1] which resulted in her employer placing pressure on the applicant and her family.

    c.     It follows that she did not experience daily harassment at the hand of her employer. No threats were made against her life and her salary was not withheld.

    d.    It follows that she did not stop attending work in the hope it would stop or that her employer started harassing her at her home and spreading rumours to the local community.

    e.    It follows that she was not depressed and did not experience physical, emotional and financial harm as a result of any claimed harm from any claimed employment in a [Workplace 1].

    f.   It follows further that the applicant’s family did not tell her to leave her job and were not too scared to help her as claimed. She was not refused help by the community on the basis that her employer was influential and wealthy.

    g.    It follows further that she would not be found and harmed if she went elsewhere in Thailand and the authorities would not refuse to help her because her boss was too powerful and has connections everywhere.

19. As identified above, during the course of the hearing, the applicant raised new claims with the Tribunal that were not before the original decision maker. For the following reasons, the Tribunal developed concerns during the course of the hearing about whether the applicant’s new claims were genuine and about the applicant’s credibility.

20. The Tribunal notes that the applicant accepts that the claims in her protection visa application were not genuine and were made up by her migration agent.  On the basis of the applicant’s oral evidence, the Tribunal is concerned that the applicant demonstrated a disregard about whether the information provided to the Department was true or accurate and that her focus was on achieving a visa outcome. The Tribunal’s concerns extend to the applicant’s new claims.

21. The Tribunal considers the applicant’s new claims to be extremely vague and lacking in detail and substance. The applicant was not able to provide detail to the Tribunal to support her claims that she had been promised to the son of a creditor of her father in a marriage arrangement in return for money to cover her father’s gambling debts. The applicant was not able to provide even the most basic details about the identity of the creditor or his son. She provided very little detail about the circumstances that led to the arranged marriage agreement between her father and his creditor. The applicant provided very little detail about her father’s circumstances and what led him to loan money from the creditor other than to say he was an alcoholic and a gambling addict. The applicant provided very little detail about the terms of the claimed arrangement. The applicant provided very little detail about the quantum of money her father owed to the creditor, other than to say it was many hundreds of thousands of Thai baht, maybe 500,000 Thai baht. The applicant provided no explanation about the motivations of the creditor and why he would want to accept the arranged marriage in return for the money he lent to her father. The applicant provided very little detail about when this occurred and how long prior to her coming to Australia it occurred, other than to say it was after she finished her first vocational degree and had started her new course, sometime in 2017. The Tribunal considers that the evidence that the applicant did provide in support of her new claims was extremely vague and lacking in detail. The Tribunal notes that the applicant has not provided any corroborating evidence in support of her claims.

22. The Tribunal considers that if the applicant had been promised to someone in an arranged marriage in the claimed circumstances of this case, she would at least know the identity of the person she was intended to marry.  The Tribunal considers that if she had been living with her father during this period as claimed, she would have more information or detail to support her claims.  The applicant has provided little more than scant detail, despite being given repeated opportunities to do so. The applicant was not able to provide any detail about whether her claims were current, such as whether her father was actively trying to find out where she is to enforce the arranged marriage. The applicant stated that her mother has not spoken to her father and does not know whether her claims are still current. The applicant has not claimed and provided no evidence that her father tried to find her or to stop her from leaving Thailand. The Tribunal considers this to be inconsistent with the applicant’s claims. The Tribunal considers that if the applicant’s claims about the arranged marriage are true and the applicant had run away from her father’s place to her mother’s place to seek her help to come to Australia, her father would have taken steps to find her or at least make contact with the applicant’s mother. The applicant has provided no such evidence.

23. The Tribunal’s concerns were heightened when the applicant confirmed that she went on holiday to [Country 1] and returned to Thailand in 2017 without any issue, contrary to her claims that she was not allowed to leave the house and had to run away to her mother’s house to seek assistance to leave Thailand. The Tribunal considers this to be inconsistent with the applicant’s claims that she was not allowed to leave the house and had to run away to her mother’s house to seek her help to leave Thailand.  The Tribunal has considered whether an explanation for her ability to travel to [Country 1] and return to Thailand without constraint is because the claimed events arose after her trip to [Country 1] but has insufficient information about the timing of either her trip to [Country 1] or the claimed events to reach a positive conclusion. The Tribunal notes that when pressed on this issue the applicant stated that she went with her aunt to [Country 1] and then stated it was her uncle. The Tribunal notes that the applicant did not provide this detail in her earlier oral evidence. The Tribunal notes that the applicant did not provide any further detail about her aunt or uncle (or both) travelling with her to [Country 1]. The applicant did not make a connection between that evidence as an explanation for why she was able to travel on a holiday freely to [Country 1] contrary to her claims that she was not able to leave the house. Accordingly, the Tribunal has considered and rejected that as an explanation for why she was able to travel freely to [Country 1] and return contrary to her claims that she was not able to leave her father’s house.

24. The Tribunal also notes the delay in applying for protection of over six months, which raises concerns about whether the claims were genuine given they were not made when she first arrived. The Tribunal considers this adds weight to the Tribunal’s concerns that the applicant’s claims have been fabricated to prolong her stay in Australia and achieve a visa outcome.

25. As noted above, the Tribunal raised with the applicant the operation of s 423A of the Act which requires the Tribunal to draw an adverse inference as to the credibility of the applicant’s claims or evidence where an applicant raises new claims or evidence before the Tribunal that was not before the original decision maker unless there was a reasonable explanation for not doing so. The Tribunal asked the applicant if she had a reasonable explanation for raising new claims on review and in response the applicant stated that her migration agent had made up the claims and these were her actual claims. Having regard to the vague nature of the information provided by the applicant to the Tribunal and the applicant’s apparent disregard for whether the information contained in her visa application was true and correct, the Tribunal does not consider that the applicant has provided a reasonable explanation.

26. Accordingly, the Tribunal does not accept the applicant’s new claims. Specifically, the Tribunal does not accept that her father is an alcoholic and a gambling addict who borrowed money from a friend to cover his gambling debts. It follows that the Tribunal does not accept that the terms of the arrangement with her father’s creditor were that she would be forced to marry the son of her father’s creditor in an arranged marriage.  It follows that the Tribunal does not accept that she was not allowed to leave the house by her father. It follows further that the Tribunal does not accept that she ran away to her mother’s house and sought her assistance to leave Thailand to avoid the arranged marriage.

27. The Tribunal has considered whether the applicant’s son’s health condition would give rise to claims. The Tribunal notes that the Tribunal invited the applicant to provide supporting documentation regarding her son’s health condition for consideration by the Tribunal in post hearing submissions, but the applicant has not provided any such information. As such, the Tribunal does not have any specific information from the applicant on which to consider this issue. Having regard to the independent country information regarding the health care system in Thailand outlined above, and in the absence of any specific information regarding the applicant’s son’s health condition, the Tribunal has rejected that claim. There is nothing in the country information to suggest that the applicant would not be able to access suitable healthcare for her son should she return to Thailand and there is nothing before the Tribunal to suggest that the applicant’s son’s condition would not be covered by the universal healthcare system. There is nothing to suggest that the applicant or her son would be discriminated against in their efforts to access health care.

    Does the applicant meet the refugee criterion?

28. For the reasons identified above, the Tribunal does not accept that the applicant faces a real chance of serious harm if she were to return to Thailand arising from the circumstances claimed by the applicant or arising from independent country information or for any other reason.

29. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm if she were to return to Thailand arising from the circumstances claimed by the applicant or arising from independent country information or for any other reason.

30. Having regard to the Tribunal’s findings and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Thailand now or in the foreseeable future, the applicant would face a real chance of serious harm on the basis of her claims or for any other reason set out in s 5J(1)(a) of the Act.

1. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Does the applicant meet the complementary protection criterion?

2. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

3. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[9] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm because of her claims in relation to borrowing money from creditors and her refusal to assist them with their criminal child trafficking activities or for any other reason.

   [9] MIAC v SZQRB [2013] FCAFC 33

4. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   Conclusion

5. 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).

6. 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).

7. 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

8. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Phoebe Dunn
   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.

   …