2002545 (Refugee)

2002545 (Refugee) [2022] AATA 1350 (23 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2002545
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Rachel Da Costa
DATE:23 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 March 2022 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Thailand – conversion from Buddhism to Christianity – inconsistent protection claims – support for the monarchy –gender – particular social group – transgender woman in Thailand – applicant not politically active in Thailand – credibility issues – decision under review affirmed

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 February 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 2 November 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form the applicant provided the following information. He was born in Bangkok, Thailand on [date]. He has never been married. He does not have any other family members. In Thailand he always lived at the same address [in] Bangkok. He speaks, reads and writes Mandarin, English and Thai. He completed High School [in] 2004. His religion is Buddhism. In Thailand, he worked as a [Occupation 1] in [Workplace 1] in Bangkok. He arrived in Australia on [date] March 2018 as the holder of a visitor visa. He travelled on his passport issued by Thailand [in] 2016.
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant makes the following claims:
·     Buddhism is the predominant religion of Thailand and there is freedom of religion in Thailand. But Thai Buddhists who become Christians or some other religion often face opposition from their families and friends and experience social pressure to return to Buddhism. The applicant is in this category.
·     In Thailand, not to participate in the Buddhist or spirit-worship aspects of these activities can be misunderstood as disloyalty to family or nation.
·     The surrounding people will give pressure and boycott the applicant and intimidate him to stop organising and joining any Christian-related activities.
·     Their purpose is to marginalise and isolate Christian leaders so there is nobody to defend the Christian position.
·     The applicant did not try to seek help because there is no legal channel to defend the Christians’ position. He did not try to move to another part of the country because Buddhism is the dominant religion and the surrounding people will pressure and boycott him as a Christian.
·     If he returns to Thailand he will continue to experience social and peer pressure and they will stop him from joining Christian activities. They might boycott him.
·     This is part of Thailand’s policies which is a systematic, ongoing process to marginalise the other religion.
Request for more information
On 10 January 2020, a delegate of the Minister wrote to the applicant requesting more information about his protection visa application claims. The delegate indicated that the applicant’s statement lacked substantiating detail and included a series of questions in the letter about the applicant’s claims. The applicant did not respond to the delegate’s letter.
The delegate’s decision
On 10 February 2020, the delegate made her decision. In her written reasons, she explained that she had considered the applicant’s written claims and was not satisfied that his claims were credible. On this basis, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 10 February 2020, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision record with his application for review.
The hearings
On 23 November 2021, the Tribunal held a directions hearing by telephone with the applicant to clarify some details in relation to his application and to discuss his access to technology.
The Tribunal notes that on the applicant’s passport it states his gender is male. However, the applicant gave evidence that he lives as a female and identifies as a transgender woman[1]. The Tribunal accepts this. The Tribunal asked the applicant how he wished to be addressed and he indicated ‘Mr’. On this basis, the Tribunal refers to the applicant in these reasons for decision as ‘he’.
[1] A transgender woman is a person whose gender identity is female but who was assigned the male sex at birth. See, eg, (accessed 9 March 2022); (accessed 9 March 2022)
The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform with the agreement of the applicant. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature and age of this matter. 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.
The hearings were held on 13 January 2022 and 2 February 2022. The applicant appeared before the Tribunal via Microsoft Teams video to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Thai and English languages. The applicant was not represented in relation to the review. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments and that he was able to participate fully in the hearing in a meaningful way.
Nationality
The applicant claims to be a citizen of Thailand and provided to the Department a copy of his Thailand passport issued [in] 2016. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Thailand. The Tribunal finds Thailand is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant initially gave evidence that the information in his protection visa application form was true and correct but later admitted that the form had been filled out by a Chinese agent in Australia and he did not know what was in the form. Following questioning by the Tribunal about the contents, the applicant agreed that much of the information in the form was not true. This is discussed further below.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in Thailand, his migration and travel history, the problems he claims to have experienced in Thailand and why he fears returning to Thailand. The Tribunal found there were various discrepancies in the applicant’s evidence, as well as some of his evidence being vague and lacking in detail, and as a result the Tribunal has concerns about the truthfulness of aspects of the applicant’s evidence and overall did not find him to be a credible witness.
The Tribunal’s concerns about the applicant’s claims and evidence are set out below.
First, as mentioned above, in the Tribunal hearing the applicant admitted that most of the information contained in his protection visa application form was not true.
For example, in his protection visa application form it says that in Thailand the applicant worked as a [Occupation 1] in [Workplace 1] in Bangkok. The Tribunal asked the applicant whether this was true and he said it was not. The applicant gave evidence that after he finished school he studied beauty therapy and opened a shop. He had this shop for seven years. He then started work in a cabaret show in [Country 1] and did that for four years. After [Country 1] he returned to Bangkok and opened a [shop] which he had for three years. For the final two years before coming to Australia he ran his [shop] and also worked in the [Show] in the evenings.
In his protection visa application form it says the applicant has never travelled. The applicant’s passport indicates that he has travelled to [Country 1], [Country 2] and [Country 3]. The Tribunal asked the applicant whether he had travelled overseas when he lived in Thailand and he said he had travelled to [Country 1], [Country 2] and [Country 3]. The reason for his travel was to perform in cabaret shows.
In his protection visa application form it says the applicant has no family. In the Tribunal hearing the applicant said this was not true. He said he has a mother and an older brother and sister. He explained that the person he calls his mother is actually his aunt who adopted him at birth and raised him. He lived with his family in Bangkok until he came to Australia, apart from the time he spent working in [Country 1].
Most significantly, in his protection visa application form it says the applicant fears returning to Thailand because of his conversion from Buddhism to Christianity, as set out in paragraph 4 above. The Tribunal asked the applicant whether he knew what reasons were contained in his protection visa application form and he said he did not. The Tribunal asked the applicant whether the reason he fears returning to Thailand is because of being pressured due to his conversion to Christianity. He said it was not, and confirmed that he had not converted to Christianity and that the claims in his protection visa application form did not apply to him.
The Tribunal put to the applicant its concern that the fact he provided untrue information in his protection visa application form raised a concern about whether the Tribunal could rely on his evidence and whether his application for protection was genuine. The applicant responded that he was not good at English, he let the agent organise his application and what the agent put in his application was a lie. He realises now he has to tell the truth and that is what he has done. The Tribunal also put to the applicant that applying for protection is a serious matter and the fact that the applicant did not take personal responsibility for the information contained in his application raised concerns about whether his application for protection was genuine and suggested that perhaps what he really wanted was a migration outcome that let him stay in Australia. The applicant responded that he had nothing else to say.
The Tribunal accepts the applicant’s evidence that he let someone else organise his application for protection and that the information he provided in his protection visa application form, including his claims of harm and his reasons for fearing returning to Thailand, is untrue. The Tribunal does not accept that having poor English is an excuse for providing information that is not true. The fact that the applicant has admitted that much of the information contained in his protection visa application is not true raises concerns for the Tribunal about the applicant’s credibility and whether his application for protection is genuine.
Secondly, in the Tribunal hearing the applicant gave evidence that he did not leave Thailand because he feared harm.
The Tribunal asked the applicant why he travelled to Australia. He said that he heard about the Miss Mardi Gras Australia LGBTQ contest and he came to Australia because he wanted to participate in it. The Tribunal asked him whether there were any other reasons and he said no, but he had always wanted to visit Australia.
The Tribunal put to the applicant that it might find the applicant did not leave Thailand because he feared harm for any reason and that he does not genuinely fear harm if he returns there. The applicant responded that at the time he left Thailand the new King wasn’t enthroned yet and his fear arose later that his and his family’s support for the King might be a problem.
The Tribunal accepts the applicant’s evidence about why he came to Australia and finds that the applicant did not leave Thailand because he feared harm for any reason, including the reasons contained in his protection visa application form. This raises concerns for the Tribunal about his credibility and the genuineness of his protection visa application.
The applicant’s new claims to fear harm if he returns to Thailand
In the Tribunal hearing, the applicant said that the reasons he cannot return to Thailand are because of his support for the monarchy and because of his gender. These claims are considered further below.
Support for the King
In the Tribunal hearing, the applicant was asked why he fears returning to Thailand. He responded that once he was in Australia, he noticed that Thai people are quarrelling about the King and Thai society is divided into those who support the King and those who do not. The Tribunal asked the applicant what he fears may happen to him if he returns to Thailand. He responded that because he and his family favour the King he is worried that there might be disagreement between the groups and that the division in Thai society is becoming worse. Later in the hearing he explained that he is concerned that because his family supports the King, if he returns he might be in danger too as a member of the family. The Tribunal asked the applicant to explain why and he said that people are teasing the new King and the applicant does not like that because he supports the King.
The Tribunal asked the applicant whether he had suffered any harm or harassment in Thailand because of his support for the King and he said he had not. The Tribunal asked the applicant when he started feeling concerned about returning to Thailand and he said it was since the new King was enthroned. This happened in 2019.[2] The Tribunal asked the applicant whether his family in Thailand had suffered any harm. He said his family support the King and once, about three years ago, his brother attended a rally and was threatened by a group of opponents but he ran away. That was the only incident and they have not had any other problems. The applicant confirmed that he had never been involved in rallies or other public events in support of the King.
[2] DFAT Country Information Report Thailand, 10 July 2020, 2.35
The Tribunal is prepared to accept that the applicant and his family are supporters of the King in Thailand. The Tribunal finds that the applicant’s support for the King in Thailand was passive, he was not politically active in Thailand and he did not suffer any harm due to his support for the King.
Gender
In the Tribunal hearing, the applicant gave evidence that he has been living as a female since he was around[age] years old. The Tribunal accepts this. The applicant also gave evidence that he lived with his family in Bangkok the entire time he was in Thailand and remains in contact with them. His evidence indicates that he is accepted by his family and the Tribunal accepts this.
The Tribunal notes that in the first hearing when asked about why he feared returning to Thailand, the applicant did not mention his gender as a reason and focussed on his support for the King. After further discussion he said Thai society would harm him because his gender was not accepted. When the Tribunal initially asked the applicant whether he had suffered any harm or persecution in Thailand that he wanted to tell the Tribunal about he said he had not and that it never happened to him. The Tribunal asked the applicant specifically whether he had suffered any harm or discrimination in Thailand due to his gender. The applicant responded that he had been harassed and threatened many times. He also said it can be hard for transgender people to get work outside the beauty and cabaret industries. The Tribunal asked the applicant whether he could tell it about any particular incidents. The applicant said that when he was working or in public people would look at him with contempt and sometimes people would use abusive language. The Tribunal asked again whether there were any specific incidents. The applicant said when he was about [age] years old he was physically harmed by a man who disliked the applicant’s gender. The Tribunal asked the applicant whether he could say anything more about this incident and he said he had nothing to add. The Tribunal asked the applicant whether he had anything else to say about harm he claimed to have suffered in Thailand and he said he did not, but he didn’t like the way people looked at him because it made him uncomfortable. In the second hearing, the Tribunal asked the applicant again whether there were any incidents of harm related to his gender that he wanted to talk about. The applicant said that when he was about [age] someone threw a shoe at him because they did not like him being a boy dressed as a girl. The Tribunal asked him whether there was anything else. He said that incident hurt his feelings and he does not feel safe being transgender. The Tribunal asked him whether there had been any other incidents apart from the shoe throwing and he said no. He gave evidence that nothing had happened to him since that incident but he knows he has to protect himself being transgender in Thailand.

The Tribunal found the applicant’s evidence about the harm he claims to have suffered in Thailand due to his gender to be vague and lacking in detail, which raises concerns about the credibility of his claims. For example, the applicant said he had been harassed and threatened many times but he was only able to give two specific examples of this. Otherwise, he spoke in general terms saying when he was working or in public people would look at him with contempt or use abusive language but did not provide more detail or context such as where, when and how often this happened or what people did or said to him. The Tribunal has concerns about the credibility of the applicant’s claim that he was physically harmed when he was [age] given he declined to elaborate on this incident. Further, when the Tribunal asked the applicant again in the second hearing about incidents of harm he did not mention this incident again and said the only thing that happened was the shoe-throwing incident. The Tribunal is prepared to accept that someone threw a shoe at the applicant when he was [age] and that this hurt his feelings. The applicant gave evidence in the second hearing that nothing had happened to him since that incident but he had to know how to protect himself. The Tribunal notes that the shoe-throwing incident happened around 2003 and the applicant came to Australia in 2018, which means that based on his evidence he did not experience any incidents of harm in the 15 years before leaving Thailand. This is consistent with his evidence referred to in paragraphs 30 to 33 above that he did not leave Thailand because he feared harm.
The Tribunal put to the applicant that it might have difficulty accepting his evidence about the harm he claims to have suffered in Thailand based on his gender as credible because his evidence was vague and lacking in detail. The applicant responded that it was fine, he respected the law and had nothing to add. This response from the applicant does not allay the Tribunal’s concerns about the applicant’s credibility and the genuineness of his claims.
For the reasons set out above, including the applicant’s admissions during the hearing and the Tribunal’s concerns about the truthfulness of his evidence, having considered all of the applicant’s claims and evidence, the Tribunal finds as follows.
The Tribunal accepts that the applicant was born in Bangkok, Thailand in [year]. The Tribunal accepts that he lived there with his family until he came to Australia, apart from the period of time he spent working in [Country 1]. The Tribunal accepts that after the applicant finished school he studied beauty therapy and opened his own shop. The Tribunal accepts that the applicant subsequently worked in a cabaret show in [Country 1] for around four years. The Tribunal accepts that after he returned to Bangkok, he opened a [shop] which he had for three years and that for the final two years before coming to Australia he also worked in the [Show] in the evenings. The Tribunal finds that the applicant was not a [Occupation 1] at [Workplace 1] in Bangkok.
The Tribunal accepts that the applicant is a Buddhist. The Tribunal does not accept that the applicant has converted to Christianity or his claims in his protection visa application form that flow from this. The Tribunal finds that the applicant was not pressured or boycotted in Thailand to stop him from joining Christian-related activities. The Tribunal accepts that the applicant did not try to seek help as a Christian and that he did not try to move to another part of Thailand because he would be pressured there as well or for any other reason. The Tribunal does not accept the applicant left Thailand due to his Christianity or that he fears returning to Thailand for the reasons claimed in his protection visa application form.
The Tribunal accepts that the applicant and his family are supporters of the King in Thailand. The Tribunal finds that the applicant was not politically active in Thailand and that his support for the King was passive. The Tribunal is prepared to accept that the applicant’s brother attended a rally in Bangkok around three years ago and was chased by some opposition supporters and ran away from them. The Tribunal finds that the applicant’s family has not suffered any harm as a result of their support for the King.
The Tribunal accepts that the applicant is a transgender woman and has lived as such since he was about [age] years old. The Tribunal finds that he is accepted by his family. The Tribunal is prepared to accept that while he lived in Bangkok, the applicant experienced verbal harassment due to his status as a transgender woman and that this made him feel uncomfortable and that he felt unsafe at times. The Tribunal finds that this did not occur frequently. The Tribunal does not accept that he was physically harmed by a man when he was around [age] years old. The Tribunal is prepared to accept that someone threw a shoe at the applicant when he was around [age] years old and that this was done because he was a transgender woman. The Tribunal finds that the applicant did not experience any incidents of harm in Thailand for the 15 years before he came to Australia. The Tribunal finds that the applicant did not leave Thailand because he feared harm as a transgender woman.
Does the applicant meet the refugee criterion?
In his protection visa application form, the applicant states that he fears returning to Thailand because as a Christian convert he will be boycotted and pressured to return to Buddhism. As discussed above, in the Tribunal hearing the applicant confirmed that he is not a Christian convert and his claims about this are not true. The Tribunal accepts this. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Thailand in the reasonably foreseeable future.
In the Tribunal hearing, the applicant claimed that he fears returning to Thailand because of his support for the King. He is worried that Thai society is divided and he might get caught up in that division and be threatened. As discussed above, the Tribunal has found that the applicant did not suffer any harm in Thailand in the past due to his support for the King, which was passive. The Tribunal asked the applicant if he continues to support the King and how he would continue to do that if he returned to Thailand. The applicant said he does and he would continue to support the King in the future. He said he would not attend political rallies or public events because he is not interested in doing that but he would respect the King as the leader of Thailand. The Tribunal accepts this. In the hearing, the Tribunal discussed country information with the applicant which indicates that Thai society is divided politically but it does not indicate that people who are not politically active are at risk of harm or violence for their political beliefs.[3] It also indicates that the monarchy in Thailand is strong and it is active opponents of the monarchy rather than supporters of the King who may face problems, depending on their activities.[4] The applicant said he accepted this. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm arising from his support for the King if he returned to Thailand in the reasonably foreseeable future.
[3] DFAT Country Information Report Thailand, 10 July 2020, 2.3, 2.4, 3.27
[4] DFAT Country Information Report Thailand, 10 July 2020, 3.29 – 3.35
In the Tribunal hearing, the applicant also claimed that he fears returning to Thailand because of his status as a transgender woman. As discussed above, the Tribunal accepts that the applicant is a transgender woman and has lived as such since he was around [age] years old. The Tribunal has considered whether being a transgender woman in Thailand makes the applicant a member of a particular social group.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal finds that transgender women in Thailand are a particular social group as defined by s 5L as the characteristic of being a person whose gender identity is female but whose assigned sex at birth was male, is shared by each member of the group and the applicant shares this characteristic. Further, the characteristic is an innate or immutable characteristic and is so fundamental to the member’s identity or conscience the member should not be forced to renounce it, and the characteristic distinguishes the group from society. The Tribunal is satisfied that the characteristic is not a fear of persecution.
The Tribunal has considered whether the applicant would face a real chance of serious harm if he returned to Thailand in the reasonably foreseeable future due to being a transgender woman. In the Tribunal hearing, the applicant gave evidence that he thinks society might harm him because people like him are looked down on and sometimes people might throw things at them and try to harm them and it can be hard to find jobs outside the beauty and cabaret industries. The Tribunal considers the applicant’s claimed fears of harm amount to a fear of being discriminated against and a fear of violence. The Tribunal asked the applicant where he would live if he returned to Thailand. He said he would return to Bangkok where he lived before with his family. The Tribunal accepts this and finds that if the applicant returned to Thailand he would live in Bangkok with his family as he did in the past. As discussed above, the Tribunal finds that the applicant is accepted by his family.
In the Tribunal hearing, the Tribunal discussed country information with the applicant about the situation for LGBTI individuals in Thailand, including for transgender women. Country information indicates that Thailand is known for its tolerance of LGBTI individuals and the law prohibits discrimination on the basis of sexual orientation and appearance.[5] However, there are some particular areas where the laws discriminate against transgender people, for example, not being able to change the sex marker on official documents such as a passport and uniform policies in schools and universities which require students to wear sex-specific uniforms and prohibit crossdressing.[6] Country information also indicates that there are some areas where society may discriminate against LGBTI people. Some families, particularly in rural areas, have difficulty accepting LGBTI people in their family.[7] There are reports of LGBTI students facing discrimination at school, relating to their sexuality and appearance.[8] There are reports of workplaces rejecting applications from identifiably transgender candidates when deciding who to interview and negative treatment from bosses and co-workers, although the Department of Foreign Affairs and Trade Country Information Report on Thailand from 2020 (‘DFAT Report’) notes that the extent of workplace discrimination is difficult to assess.[9] A UNDP Report from 2019 indicates that some LGBTI people can have difficulty accessing certain types of health care services appropriate to their needs, such as for hormone therapy and mental health services and can face discrimination and insensitive treatment from practitioners.[10] The applicant agreed and commented that it is hard to find work other than in the beauty and cabaret areas.
[5] DFAT Country Information Report Thailand, 10 July 2020, 3.96, 3.98, 3.103, 3.104
[6] DFAT Country Information Report Thailand, 10 July 2020, 3.100, 3.101
[7] DFAT Country Information Report Thailand, 10 July 2020, 3.104; UNDP (2019), Tolerance but not Inclusion: A national survey on experiences of discrimination and social attitudes towards LGBT people in Thailand. Bangkok: UNDP.
[8] UNDP (2019), Tolerance but not Inclusion: A national survey on experiences of discrimination and social attitudes towards LGBT people in Thailand. Bangkok: UNDP.
[9] DFAT Country Information Report Thailand, 10 July 2020, 3.104; UNDP 42
[10] UNDP (2019), Tolerance but not Inclusion: A national survey on experiences of discrimination and social attitudes towards LGBT people in Thailand. Bangkok: UNDP.
The Tribunal also discussed with the applicant country information that indicates physical violence against LGBTI people in Thailand, including transgender people, is uncommon.[11] The applicant responded that in the early days there was not equality but things have improved nowadays.
[11] DFAT Country Information Report Thailand, 10 July 2020, 3.103; UNDP (2019), Tolerance but not Inclusion: A national survey on experiences of discrimination and social attitudes towards LGBT people in Thailand. Bangkok: UNDP; (accessed 4 February 2022)
The Tribunal put to the applicant that the DFAT Report assesses that LGBTI people in Thailand face a low risk of official and societal discrimination.[12] There is growing support among non-LGBTI Thais for laws and policies that are inclusive of LGBTI people,[13] the interests of LGBTI people are increasingly represented in the media and politics,[14] and there is growing support for same-sex marriage.[15] The applicant responded that transgender people can be involved in many areas now but there is still discrimination and he does not think there will ever be full equality.
[12] DFAT Country Information Report Thailand, 10 July 2020, 3.105
[13] UNDP (2019) Tolerance but not Inclusion: A national survey on experiences of discrimination and social attitudes towards LGBT people in Thailand. Bangkok: UNDP.
[14] US Department of State 2020 Country Report on Human Rights Practices: Thailand, Section 3 (accessed 4 February 2022)
The Tribunal has considered the applicant’s claimed fear of discrimination and violence if he returns to Thailand in the reasonably foreseeable future in the context of the country information described above.
The applicant’s evidence to the Tribunal about his claims relating to his gender is discussed in paragraphs 38 to 40 above. The Tribunal has found that the applicant is accepted by his family, that he was sometimes verbally harassed in Bangkok, that he experienced an incident where someone threw a shoe at him when he was about [age] years old and that after leaving school he worked in the beauty and cabaret industries and had his own shop. The Tribunal has found that he did not leave Thailand because he feared harm as a transgender woman.
In relation to the applicant’s claimed fear of violence, the country information indicates physical violence against LGBTI people in Thailand, including transgender people, is uncommon. This is consistent with the Tribunal’s finding that someone threw a shoe at the applicant when he was about [age] years old but that he had not experienced any further incidents of harm or violence before he came to Australia around 15 years later. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Thailand in the reasonably foreseeable future.
In relation to the applicant’s claimed fear of discrimination, the Tribunal does not consider that the country information relating to being rejected by family or being discriminated against at school or university are relevant to the applicant’s circumstances.
While the applicant has said that getting work outside the beauty and cabaret industries can be difficult for transgender women, he did not indicate that he had sought work outside those industries in the past or that he would seek work outside those industries in the future if he returns to Thailand. The Tribunal finds that if the applicant returned to Thailand in the reasonably foreseeable future he would seek work in the beauty, cabaret or retail sectors as he has done in the past and that he would not face discrimination in applying for such jobs. Further, the applicant’s evidence is that he has the capacity to work and to earn a living and that he has the support of his family and a place to live in Bangkok. On this basis, even if the applicant applies for jobs in the future outside those industries and is unsuccessful due to discrimination based on his transgender status, the Tribunal does not consider that this amounts to serious harm. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Thailand in the reasonably foreseeable future.
While the country information indicates that LGBTI people can face discrimination in relation to their access to health services, the country information also indicates that the risk of official and societal discrimination against LGBTI people is low, particularly outside rural areas, and that the situation for LGBTI people in Thailand is improving. The applicant agreed with this assessment and did not claim that he had any issues accessing the health care he required while he was in Thailand. The Tribunal finds that if the applicant returned to Thailand and lived in Bangkok, he would be able to access the health care he requires. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances if he returned to Thailand in the reasonably foreseeable future.
The Tribunal accepts that the applicant’s inability to change the sex marker on official documents such as his passport (which he did not claim he wished to do) is a form of discrimination. The applicant did not claim that this has caused him problems in the past or that it would do so in the future. The Tribunal finds that this circumstance does not amount to serious harm in the case of the applicant.
Taking into account the findings set out above and the country information referred to in this decision, 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 that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in 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 he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
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).
As set out above, the complementary protection criterion is met if 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. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

As discussed in paragraph 61 above, the Tribunal has found that that the applicant’s inability to change his sex marker on his passport is a form of discrimination that applies to the applicant. However, the Tribunal finds that this discrimination does not amount to ‘significant harm’ as defined in s 36(2A). 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 he will suffer significant harm as a result of not being able to change the sex marker on his passport.
In relation to the applicant’s other claims, as the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[16] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. 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 he will suffer significant harm.
[16] MIAC v SZQRB [2013] FCAFC 33
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
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
Member

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

[2022] AATA 1350

23 March 2022

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