2002825 (Refugee)
[2024] ARTA 811
•3 December 2024
2002825 (REFUGEE) [2024] ARTA 811 (3 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2002825
Tribunal:Clyde Cosentino
Date:3 December 2024
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 03 December 2024 at 1:11pm
CATCHWORDS
REFUGEE – protection visa – Thailand – applicant and colleagues harassed and beaten by gang after employer failed to repay loan and fled, with one colleague hospitalised – delay in applying for protection – applied to gain work rights – working to support family – economic and employment conditions – inconsistent claims and evidence and late claim of being guarantor for loan – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASE
Abebe v Commonwealth (1999) 197 CLR 510Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 November 2019 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 12 February 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 2 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
BACKGROUND
Protection visa application
The applicant made the following claims in his protection visa application.
He was born in Bangkok, Thailand. He claims to be a citizen of Thailand.
He claims to speak, read and write Thai as well as speaking English.
He remains in contact with his family back in Thailand.
He arrived in Australia from Thailand on a student visa [in] February 2019.
Before arriving in Australia, he resided in Bangkok, Thailand from [Year] to 2009.
He does not provide any employment details of his work in Thailand.
He claims to have completed a Vocational course at [College] (no place or period provided).
When asked why he left Thailand, he claims:
I have left Thailand as our old boss that we used to work for owed a lot of money to some very large gang and suddenly he ran away with the money leaving us, his employees, to pay back his debt. We do not earn enough to pay back the debt and they have been constantly harassing us and beating us up for not paying the money back. They have sent one of our friends who also works in the business to the hospital with stab wounds. Fearing for our lives, we fled the country to seek protection.
When asked what he thinks will happen to him if he returns to Thailand, he claims:
If we were to return [to] our home country, the gang would immediately find us as there would be a bounty on our heads where we would be kidnapped and killed.
When asked whether he experienced harm in Thailand he claims that he has. He claims:
Yes, we have experienced beatings and have seen our friend sent to hospital.
When asked whether he sought help within Thailand he claims that he did not. He claims:
We did not seek help as the gang is very powerful in the community and they want nothing to do with them.
When asked whether he moved to another part of Thailand to seek safety he claims he did not. He claims:
We did not move as running within the country would be pointless as the gang would have given a bounty over us.
When asked whether he thinks he will be harmed or mistreated in Thailand if he returns, he claims that he will. He claims:
As we said, we would be kidnapped and killed for fleeing the country.
When asked whether he thought the authorities of Thailand can and will protect him if he goes back he claims that they will not. He claims:
The authorities are not going to stop them as they fear the gang due to their power and influence over the community.
When asked whether he would be able to relocate within Thailand to an area where he would not be harmed, he claims that he cannot. He claims:
Relocating is not going to work as I am not able to outrun my boss’ network of connections in the country.
Tribunal file
The applicant provided the following documents to the Tribunal in an email dated 19 August 2024:
a.Delegate’s decision to refuse to grant a protection visa dated 19 November 2019
b.Completed hearing invitation
c.Further statement of claims from the applicant. The statement reads as follows:
I am writing to report a severe threat to my safety formally and to explain the circumstances that led to my urgent relocation to Australia. I am a former employee of [Business] in Thailand.
My boss [Mr A] borrowed a significant amount of money from a powerful criminal gang known for its violent and illegal activities.
After acquiring the funds, my boss fled with the money, leaving the debt unresolved, The gang, which has a high level of influence and power, began to aggressively pursue repayment of the debt from me and my colleagues.
Due to the debt, the gang issued threats and engaged in violent acts against us. This included multiple threats to our lives and direct assaults.
Tragically, one of my colleagues was stabbed in a violent attack orchestrated by the gang. These acts of violence have instilled a profound fear for my life and the lives of others who are still in Thailand.
Given the gang’s considerable influence and the fact that the local authorities are apprehensive and lack the resources to protect us, relocating within Thailand was not a viable option.The gang would have placed a bounty on my head, making it extremely dangerous for me to remain in or move within the country.
In light of these circumstances, I fled to Australia seeking safety and protection. I am requesting urgent assistance and support to ensure my continued safety and to address the legal aspects of my situation.
Tribunal hearing - 2 October 2024
At the start of the hearing, the Tribunal explained to the applicant the meaning of refugee and complimentary protection as it is understood under Australian law.
The applicant stated that he completed his protection visa application on his own. He stated that he signed his application and lodged it himself. He stated that he was satisfied that everything in that application was true and correct. He stated that the claims in his protection visa application were the claims that he wished to discuss at the hearing.
The applicant stated that he lived at [Subdistrict], Lam Luka District, Bataumtane Province for 15 years before coming to Australia. It is a Province next to Bangkok but is not Bangkok itself.
When asked why he wrote in his protection visa application that he lived in Bangkok from [Year] to 2009, he stated that he bought a house and then moved to Bataumtane Province. He stated that he was born in Bangkok. He moved out of his mother’s home after buying a house in Bataumtane Province in 2005. He subsequently went to live in Bataumtane Province. When asked why he did not write Bataumtane Province in his protection visa application when asked to identify all residential addresses he stated that he misunderstood the English text. He thought it was asking him where he was born.
When asked where his parents now live, he stated that his father has died and his mother lives in Donmuhan (opposite Donmuhan airport, Bangkok).
When asked if she lives on her own, he stated that she is very ill and has diabetes and lives with the applicant’s younger sister.
When asked if he has other brothers and sisters, he stated that he has an eldest sister and a younger brother, both living in Bangkok. They live separately. His eldest sister has her own family. His younger brother is a [worker]. He lives on his own in Bangkok.
When asked whether they lived there for a long time, he confirmed that they did. They lived there for more than 10 years.
When asked whether he has any other family living in Bangkok, he stated that he separated with his partner and he has a son and daughter living in Bangkok. His daughter and son live in Patumtane Province. They both live with their mother. When asked whether he contacts his son and daughter, he stated that both his daughter and son work. His son works in Phuket and his son works in Bangkok. He contacts both of them occasionally.
When asked whether he completed Grade 12 in Thailand, he stated that he completed Grade 9. He undertook no other studies in Thailand. When asked whether he completed any education in Australia, he stated that he came to Australia as a language student.
When asked where he last worked in Thailand, he stated he worked selling [products 1]. He worked in selling [products 1] in Bangkok. When asked the name of the company that he worked for, he stated that it was a family business that belonged to his boss and was called [Business]. When asked the name of his boss that he was working for, he stated his name was [Mr A]. He stated that the company had about six people working as employees. He stated that he worked there for 10 years before coming to Australia. His role there was as a [workplace] employee. He worked on orders and followed up on orders for his boss. He earned approximately 15,000 Baht each month at this company. He was a full-time employee, and he worked every day except for Sundays. During the ten years that he worked at the company he did nothing else but work for this company.
When queried by the Tribunal that he said nothing at all about this work in Thailand in his protection visa application he stated that he submitted documentation that said that he worked for [Business name]. The Tribunal clarified that he was referring to a late statement sent to the Tribunal before the Tribunal hearing, which he confirmed.
The Tribunal addressed possible concerns that he had raised his claims around his past employment but that he made no mention of any past employment in Thailand at all in his protection visa application. He stated that when the document came to him, “they” asked him to submit his claims as to why he came to Australia. At that time, he did not know that he had to include how many years he had worked.
When asked who “they” were that he was referring to, he stated that he received an email from the Tribunal, and it stated that his visa application would have to go to the Tribunal and that he would have to write the reasons for his coming to Australia. The Tribunal again raised concerns about his employment omission in his protection visa application which he lodged at the department. The applicant responded that he submitted his visa application so that he could obtain work in Australia.
When asked if he had lodged his protection visa application at the time because he was trying to obtain work rights, he confirmed that this was correct. He stated that he came to Australia on a student visa. He stated that he obtained a student visa in Sydney, Australia. The visa was for four years. He stated that he then applied for an extension on the student visa. The reason why he applied for a “bridging visa” was because he could not afford to pay for his tuition fees. He moved to work on a farm and did not extend his student visa.
When asked why he then lodged his protection visa on 10 February 2019 after all this time in Australia, he stated because of his family problems. He was in a rush to support his mother who was seriously ill. His family had issues. He needed to work in Australia. He did not have work rights. When asked if he lodged his protection visa to get work rights, he stated that this was correct. When asked if there was any other reason for lodging his protection visa, he stated that now he works for a company which operates in [product 2]. He pays tax and he works at the company five days per week.
The Tribunal asked him again whether he lodged his protection visa to obtain work rights and to support his family. The applicant confirmed this to be correct. He also stated that his mother is seriously ill in hospital and needs a lot of money. He also cannot return to Thailand because creditors have been chasing him.
The Tribunal ask him why he did not want to return to Thailand. He stated that, at first, he was going to return to Thailand. His mother then fell sick, and his father passed away and he could not return as he had to work to support his mother and younger sister. His current visa does not allow him to return. He has to work and send money to his younger sister and mother. When asked whether his strongest motivation for not returning to Thailand was because he wanted to support his mother and younger sister, he confirmed that this was his strongest motivation.
When asked whether he had any other motivation for not going back to Thailand, he stated that he did not know how long his mother will live and he has to work hard to support her financially so that she has a comfortable life. He stated that she might also have flooding at her house.
The Tribunal put to him from his evidence that he lodged his protection visa on 10 February 2019 to work lawfully in Australia, to earn an income and send money back to his family, and that he is wanting to now stay in Australia because he wants to support his mother and younger sister financially for as long as possible. The applicant stated that this was correct. He stated that he did not know whether his matter would be successful or not at the Tribunal. He asked the Tribunal to help him stay in Australia as long as possible so that he could support his mother.
When asked whether he could safely live in Bataumtane Province where he had his home, he stated he could not. He stated that his mother said to him that the creditors were looking for him. He signed a document as a guarantor for his boss. If he returned to Thailand, he does not know what they will do to him. His education is low. He has sent money to his mother and sister for their everyday expenses.
When asked who he fears might harm him if he returns, he stated that in Thailand there are loans given outside of the normal system. Lenders will hire gang members to follow up on debt. If he does not pay the debt, they will hurt him. His boss has already fled somewhere. His business is shut down. If he can stay in Australia a little longer and earn as much money as he can, he can talk to the lenders, as well as send money to support his mother.
When asked what his reason was for leaving Thailand, he stated that he explained this already through a document. He stated that his boss opened a [product 1] shop. There were floods. His boss took on a loan to buy more stock. The lender asked the applicant to sign a document as guarantor. The applicant stated that if he knew that he would be responsible for the loan he would not have signed the document. His boss subsequently fled somewhere. The applicant stated that he had to find a safe country to earn money and support his family.
The Tribunal queried whether he was an employee of the company. The applicant stated that this was correct. When asked whether he was an equal employee like every other employee, the applicant stated that this was correct. When asked whether 15,000 Baht per month was a lot of money, the applicant stated that it was not. He spent it to help his former partner to pay mortgage repayments for the house as well as food and transport to go to work. After paying the expenses in a month, he would have only 3000 to 4000 Baht left.
When asked why he signed as a guarantor for his boss, he stated because, at the time, there was no work at the shop due to the flood, and the shop had to order new stock. The applicant’s boss asked him to help him out and told him that if he did not help him, the boss would have no money. The applicant had helped his boss before. The applicant thought that business was improving but his boss then ran away. When asked who the guarantee was for, he stated for a lender outside of the system.
The Tribunal indicated that it might have concerns with this evidence given that the applicant was a low-level employee, with little money who had little means to pay the loan back. These facts might appear at odds with the applicant being asked to be guarantor on a critical issue of borrowing money for his boss’s own business and that a lender, no matter who they were, would accept the applicant as guarantor knowing that he may have the means to pay it back. The applicant stated that, at his workplace, there were five people employed in it. It was not a large company. In Thailand, one obtains loans outside the system and lenders do not care to sign documents. They just want someone to acknowledge the loan and to sign the documents. There is no law to govern this.
The Tribunal queried the applicant indicating that the applicant knew that he would have known of the consequences of signing a loan document for a loan shark. Even knowing this, he still signed this document. The Tribunal indicated that it might have concerns about this evidence. The applicant stated that if he did not help his boss to sign the documents, he would not have a job. When his mother was sick, the applicant had asked his boss to help him, and he did. Therefore, he was paying a debt of gratitude back to his boss. It was trust in his culture.
When asked how long before coming to Australia he signed the document, he stated about two years. During those two years, his boss paid part of the debt back but missed payments as well. Later, the lender came every day asking for the money. Therefore, the applicant applied to come to Australia. He was successful in coming to Australia. Three months before coming to Australia his boss disappeared. He had to find an agency to help him to apply for a visa to come to Australia. The Tribunal confirmed with him again that, three months before he came to Australia, his boss disappeared. The applicant confirmed that this was correct.
When asked if he worked until the last day before coming to Australia, he stated no. He took leave to take care of his mother. When asked who ran the business while his boss was gone, he stated his boss’ wife, but now the business has been shut down.
The Tribunal asked if he had any problems with the lenders during those last three months before coming to Australia. He stated that, before he came to Australia, the lender came for money but did not do anything to him but stabbed his friend. Everyone was scared and they eventually left. His friend who was stabbed did not receive any compensation.
When asked whether he kept a copy of the document that he signed, the applicant stated that they did not give him anything. They said it was an important document and his boss kept it. The Tribunal indicated that it might have concerns with this evidence in that the applicant did not ask for a copy of the document or know what was in the document which had serious consequences if the loan was not paid. The applicant stated that at the time he was not good at documents and was an employee and his boss was kind to him. He thought his boss would help him. It was the applicant's fault that he did not get a copy of the document. This incident occurred because of trust.
When asked why the lenders did not come after him as guarantor and instead came after another employee during those three months, the applicant stated that they came to look for everybody. He stated that his friend said some bad things and they hurt him. His friend had said that he was not the one who took the loan. The applicant could not say much as he signed the document.
When asked whether the applicant could name the loan shark the applicant stated [Mr B]. The Tribunal indicated that it might have concerns that throughout his protection visa application process and at the review stages he has not provided any specifics about the loan sharks or his/their name/s. The applicant stated that previously, his language skills was not great, and he did not think that he would have to name the money lender. Also, he did not understand the questions in English in the application.
The Tribunal then raised the claims made in his recent statement to the Tribunal. He stated that the applicant had claimed that, due to the debt, the gang issued threats and engaged in violent acts against them. This included multiple threats to their lives and direct assaults. The Tribunal indicated that, even with these claims being made, the applicant stayed at his business place right up to when he came to Australia. The applicant stated that the lenders had gang members to chase money for them for loans outside the system. The lenders have a “mafia” to call upon to get the money for them.
When asked how much the debt was for, the applicant stated for 1,000,000 Baht. The Tribunal indicated that it might have concerns that throughout the protection visa application process and the Tribunal review process, he had given no specifics about the amount of the debt. The applicant stated that at the time he did not think about this. When he read the documents, he wrote the answers and did not know that he would have to put in specific amounts.
The Tribunal indicated that it might have concerns that there appeared to be an inconsistency between his latest statement and his evidence at the hearing. In his statement he stated that, after acquiring the funds, his boss fled with the money. At the hearing, he stated that his boss fled just three months before the applicant departed for Australia, approximately one year and nine months after receiving the loan. The applicant stated that when he wrote that down, his boss had fled. He meant to say that his boss made payments for one year and nine months but that sometimes he missed those payments and could not pay the interest. The applicant stated that he narrowed this down in his statement but not entirely and apologised for that.
The Tribunal indicated that his application, and his later statement to the Tribunal, lacked specific details such as dates, names, times and other details about his claims. The Tribunal indicated that it might have expected that someone who was in fear of his life would have more details to provide about the circumstances for which he was claiming protection. The Tribunal indicated that he had lodged his protection visa application five years previously and had the opportunity to provide more details and information during that time about his claims when the department and the Tribunal had sought further information about his claims. The applicant stated that his English was not good, and he is still now using the google translation tool. He does not understand the documents and does not know about the process in the system.
The Tribunal indicated that it might have concerns that on many different occasions it asked the applicant what his motivation was for staying in Australia and not going back to Thailand. On each of these occasions the applicant stated that his motivation for staying in Australia and not going back was so that he could work and support his mother and sister and not because he feared the loan sharks. The applicant stated that he did not understand the question at first and that he had a lot of things to think about. He had to think about his mother and her livelihood. If he returns to Thailand and something happens, he will have to accept reality because he signed the document. While he works in Australia, he will work as much as he can. If he cannot stay, he will find money to support his mother.
The Tribunal indicated that it might have concerns that the protection visa application does not say anything about his previous employment, as if his previous employment never existed. The Tribunal indicated that the basis of his claims centred around his previous work in Thailand and yet, he said nothing about his work history in Thailand when asked what work he did. He stated that, when he first came to Australia, he was a student. He had to work to survive. He worked every day but did not have any money. Later, his mother’s health deteriorated. He does not think into the future about getting money.
The Tribunal indicated that it might appear that information has been added by the applicant to the questions as they were raised by the Tribunal and the Tribunal might have thought that someone who was fearful of his circumstances would have provided more details to the Tribunal. It indicated that this lack of detail throughout the process might be of concern to the Tribunal and might go to the credibility of the claims. The applicant stated that he needs to fulfill his role as a son for his mother. Even if he does not get to stay in Australia, he thanks the agencies for their support. The information might appear lacking in detail, but it is true. If he goes back, he still wants to thank the Tribunal for listening to his story. The Tribunal reminded the applicant that it had not made up its mind at all on his claims and would go away and consider everything that was before it.
The applicant stated that his address is close to his mother’s address. He stated that it would take about 45 minutes each day to get to his workplace from his home.
When asked why he could not relocate or go to another safe area in Thailand, he stated that the lender sends somebody to look for him at his mother’s house. He calls his mother every day. She has told him that there is someone who is looking for him. He cannot live at his house anymore because he broke up with his ex-wife who lives there now.
When asked why he could not live with his son, he stated that at this time the house where he used to pay the mortgage on, is the children’s mother’s house. He has not sent her money to repay the mortgage. She has therefore removed his name from the house register. His son is living there.
The Tribunal indicated that he raised the issue of not being able to support his mother and sister, and that he might find it hard to find work and money if he returns. The Tribunal indicated that cost of living pressures, economic insecurity, insufficient income to support his family if returned to Thailand and supporting his family while working in Australia, all might not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. The applicant stated that the issue is about the lender wanting their money back. He is old and he wants to help his mother. He stated that if he stays in Australia, he will work hard and send money to his mother. His mother can then pass some of the money to the lender.
The Tribunal indicated that “significant harm” as it is defined by law in Australia means being subjected to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman or degrading treatment or punishment. Cost of living pressures, economic insecurity, insufficient income to support his family if returned to Thailand and supporting his family while working in Australia, all might not amount to significant harm. Significant harm also requires an act or omission on the part of the perpetrator to inflict harm on the applicant which might not occur for the harm described here. The applicant stated that he does not know if he returns to Thailand whether the lender will harm him or not. He states that the interest rate has gone up while he is here in Australia and the loan was taken out outside the system. He does not know what will happen to him if he returns. He does not know if the lender will physically hurt him or whether he might be killed. He will do his best in Australia.
The Tribunal asked if there was anything else he wanted to say in support of his claims. He stated that he wanted to thank the Tribunal for giving him the opportunity to explain what has happened back in Thailand. He stated that it was up to the Tribunal to consider his case. He stated that he would like to thank the Tribunal for listening to his case.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (department), 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.
REASONS AND FINDINGS
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. 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 sufficient 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.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
In the department decision provided by the applicant to the Tribunal, the delegate found that the applicant provided sufficient evidence of his identity which was consistent with his narrative and biometrics. The delegate accepted that the applicant was a citizen of Thailand and there is no information before the Tribunal to the contrary. The Tribunal finds, therefore, that the applicant is a citizen of Thailand, and that Thailand is his receiving country for the purposes of assessing his claims for protection.
The Tribunal has considered all the evidence before it, including the applicant’s claims and information provided in his protection visa application (lodged with the department on 12 February 2019), his written statement (emailed to the Tribunal on 19 August 2024) and his oral evidence provided at the hearing.
In summary, the applicant has provided two (2) reasons as to why he fears returning to Thailand:
a.He fears that an illegal loan shark or loan sharks and their gangs will harm him for his former boss defaulting on repayments to a loan agreement which the applicant was guarantor for.
b.He fears harm as a result of cost-of-living pressures, economic insecurity, insufficient income to support his family if returned to Thailand and supporting his family while working in Australia.
Illegal Loan sharks
Having considered all the evidence before it, the Tribunal has a number of significant concerns about the credibility of his claim that he was a guarantor for a loan taken out with illegal loan sharks and that he took it out, at the request of his boss, to help his boss at his last place of employment, and that his boss subsequently disappeared leaving the applicant as a target to illegal money lenders and “gangsters” and “mafia”.
Firstly, the applicant made no mention at all about his employment history in his protection visa application notwithstanding that the very basis of his claim was that he signed a loan agreement as guarantor with illegal loan sharks at his workplace of ten years, and that he signed this agreement instead of his boss. The Tribunal considers it reasonable that the applicant would have included in his protection visa application details about his past employment, the very subject of his main claim. When this significant omission was put to the applicant at the hearing, he responded that he came to Australia as a student, that he had to work to survive, that he worked every day and that he does not think into the future about getting money. He later gave evidence that he understood little English when he arrived and that he did not understand the questions in English in the application nor was he aware of the immigration process.
The Tribunal does not accept this response given that the protection visa application was completed some ten years after arriving in Australia. The Tribunal finds it reasonable a time that the applicant would have acquired sufficient English during that ten-year time to understand the questions asked of him in his protection visa application. The Tribunal also sees it as reasonable a time for the applicant to find out about the Australian immigration process during that ten-year period while in Australia. The applicant gave evidence at the hearing that he completed the application on his own, that he was satisfied that everything in the application was true and correct, that he signed the application and lodged it himself. In that application, he answered questions about his claims, his education, his family composition, his arrival date, his travel history, his previous addresses, and so on. His answers to each of the questions asked of him in his application indicates to the Tribunal that the applicant understood the questions and provided responses to each of the questions. For the Tribunal, the omission of his work history for the last ten years before coming to Australia is significant because his main claim is based on his being held accountable by illegal money lenders as guarantor to a substantial loan of 1,000,000 Baht taken out on the very business he omitted to include in his application.
The Tribunal has considered that he provided a name of his employer for only the first time in his statement dated 19 August 2024. However, this information was provided by the applicant five years and six months after he first lodged his protection visa application. He did not provide any further information at the application for review, nor did he provide any further information or material when the Tribunal sent him an acknowledgement letter on 14 February 2020.
Secondly, the applicant was asked on many occasions what his motivation was for applying for a protection visa in Australia. On each of these occasions he stated that it was because he wanted to support his mother and sister financially while working in Australia. He was worried about his mother not having long to live and that he wanted to do as much for her financially in order to ensure that she had a comfortable life. When asked whether this was his strongest motivation for applying for a protection visa, the applicant stated that it was. It was only later in the hearing, after answering on several different occasions that his main motivation for applying for a protection visa was to financially support his mother and sister while he was in Australia, that the applicant also added that he was fearful in returning because of illegal loan sharks. When this was put to him, he stated that he did not understand the question at first.
The Tribunal has considered his response that he did not understand the question at first when it was asked to him. However, it does not accept this response given the Tribunal asked the applicant in various ways and on a number of occasions what his motivation was for applying for a protection visa (where he responded that he wished to financially support his mother and sister) and whether his supporting his mother and sister was the main motivation for applying (which he confirmed was the case).
The Tribunal has also considered the applicant’s responses that he applied for a protection visa to try and obtain work rights in Australia, that he was on a student visa when he arrived in Australia, that he applied for another student visa while in Australia, that he could not afford his tuition fees anymore, that he subsequently applied for a visa so that he could be granted a bridging visa and subsequently started working on a farm so that he could work in Australia. It has considered his response here that this has occurred over a ten-year period since he first arrived in Australia. The Tribunal has considered his response here and can accept his sequence of events of trying to stay in Australia for as long as possible (and over a ten-year period) so that he could work and financially assist his mother and sister back in Thailand. This is consistent with his evidence that his motivation for applying for a protection visa in the first place was to give him more time to work in Australia to support his sister and mother. The Tribunal finds on the applicant’s responses that this sequence of events in delaying in applying for a protection visa occurred over a ten-year period and then subsequently lodging a protection visa on 10 February 2019 was solely because he wanted to continue to financially support his mother and sister (through a valid protection visa application), after he was unable to afford his tuition fees anymore. It finds on this evidence that the applicant’s claims of fear of suffering harm from illegal money lenders is not credible.
The Tribunal finds this delay of ten years in applying for a protection as going to the credibility of the applicant’s claims relating to illegal money lenders. As noted in the former Administrative Appeals Tribunal, Migration and Refugee Division - Guidelines on the Assessment of Credibility
[36] The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear* of persecution or significant harm.
* Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349.
[37] A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible.** The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.
** Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998, at 6.
The Tribunal finds, given the applicant’s response here, that ten years is a significant amount of time for the applicant to wait before applying for his protection visa. It notes in his oral evidence that he has made it clear that his mother does not have long to live, and he has to work hard to support her financially so that she can have a comfortable life. It notes in his oral evidence that he has made it clear that he has lodged his protection visa so that he can be granted work rights to help his mother and sister. It finds this delay as going to the credibility of his claims that he fears illegal money lenders back in Thailand in that the lengthy period of time indicates a lack of subjective fear on the part of the applicant, given that he has made it very clear that his motivation for applying for protection was so that he could keep on financially supporting his sister and mother for as long as he can. The Tribunal does not base its decision of not accepting his illegal money lender/s claim solely on the applicant’s delay in applying for a protection visa. This delay is one of several concerns identified by the Tribunal in its reasoning.
Thirdly, the Tribunal finds significant the inconsistency between the applicant’s claims in his late statement submitted to the Tribunal on 19 August 2024 and his oral evidence at the hearing itself of when his boss disappeared, leaving the applicant as a target for the money lenders. In his statement, the applicant provided written evidence that “[a]fter acquiring the funds, [his] boss fled with the money, leaving the debt unresolved”. The applicant stated in his protection visa application that his boss “suddenly …ran away with the money…”. However, at the hearing, the applicant stated that he acquired the funds after signing the guarantee document two years before to coming to Australia and that his boss disappeared just three months before the applicant departed for Australia, which was one year and nine months after acquiring the funds. The Tribunal finds that there is inconsistent evidence of when his boss disappeared, namely a time period of about one year and nine months. The Tribunal finds that there is a significant inconsistency between his boss suddenly disappearing after acquiring the funds on the one hand (as written in his protection visa application and confirmed in his statement) and disappearing some 21 months after acquiring the funds on the other hand (as given in oral evidence at the hearing). When this inconsistency was put to the applicant, he responded that he meant to say that his boss made payments for one year and nine months but that sometimes he missed those payments and could not pay interest.
The Tribunal has considered this response but does not find it credible. The applicant provided an answer to suit the question only. It is clear to the Tribunal that there is a clear inconsistency between the applicant’s evidence when it comes to his boss’ disappearance, and that the applicant is attempting to contrive a response to suit his claims. The Tribunal finds this inconsistency significant and going to the credibility of his claims given that the applicant’s claims are based on his boss’ disappearance.
Fourthly, the Tribunal does not find credible the applicant’s oral evidence that he was asked to sign as guarantor for 1,000,000 Baht – a substantial amount of money for his boss when he was only on a wage where he earned not more than $15,000 Baht per month. The applicant stated he was one of five employees all earning the same wage. He stated he did not guarantee any personal assets of his. He was simply asked because he owed a favour to his boss because his boss had helped him out when his mother was ill. The Tribunal finds this claim not credible given several factors together such that he was on a very low wage and had no means to pay back such a considerable loan and that this would have been known to any loan shark there at the time, that he did not keep a copy of the loan agreement and was not able to present a copy of the loan agreement, that he never mentioned the amount of the loan (a significant sum) in either his protection visa application or his further statement prior to the hearing (a sum which he only provided at the hearing when the Tribunal asked him to provide a figure on the loan), and that the gang members were claimed to have continued in their violent ways to threaten and assault people at his workplace, but, on the applicant’s oral evidence, never assaulted the applicant himself who was guarantor on the loan agreement. The Tribunal therefore finds on this evidence that the applicant’s claims of signing as guarantor to a loan agreement as not credible at all.
Fifthly, the applicant provided new evidence at the hearing that the debtors were sending someone to his house regularly and asking for the applicant and that his mother was telling him this when he communicated with her on a regular basis. The Tribunal does not accept this new evidence as credible given that it was never mentioned in his protection visa application, nor was it mentioned when he lodged his application for review at the Tribunal nor when he provided his further statement to the Tribunal just prior to the hearing. The Tribunal finds that this evidence has been contrived by the applicant to enhance his claims.
The Tribunal has considered all the evidence as a whole and has made an assessment of the claims both individually and cumulatively. Given its findings above, the Tribunal finds that the applicant has not been credible at all about his claims about illegal money lenders.
Therefore, given its findings as a whole, and looking at the evidence before it, the Tribunal does not find credible the claim that he signed as guarantor for his boss for 1,000,000 BAHT to illegal money lenders to keep his boss’ [Business] business operating. It does not find credible the claim that illegal money lenders have harassed, threatened and assaulted employees at [Business name]. It does not find credible the claim that the illegal money lenders are searching for the applicant and that they wish to harm him. It does not find credible the claim that his boss disappeared with the funds loaned to him and that the applicant is now the target from the money lenders. Given that the Tribunal does not accept any of these claims, it follows that it does not accept the claim that an employee was stabbed at his former workplace by a gang member associated with the money lenders.
Given its findings above, the Tribunal finds that there is no real chance the applicant will suffer serious harm for any of the refugee reasons described in s 5J(1)(a) of the Act, were he to be returned to Thailand in the reasonably foreseeable future.
The Tribunal finds that the applicant has family support at home in Thailand (his mother) and can return home with the support of his family. The Tribunal does not have any evidence before it that suggests in any way that the applicant cannot return to be with his mother back in Thailand.
The issue here is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
·The applicant is a citizen of Thailand and a non-citizen in Australia.
·The applicant has no credible claims for protection under the refugee criterion or on complementary protection grounds set out in the applicable law.
The Tribunal finds on the evidence that, were he to be returned to Thailand, there is no real chance that he would suffer serious harm from any illegal money lenders, money lenders, gangsters or “mafia”, and accordingly the applicant does not have a ‘well-founded fear of persecution’ under s 5J of the Act.
Given that the Tribunal has found the applicant’s claims relating to illegal money lenders, money lenders, gangsters or “mafia” not to credible at all, it finds that there do not exist 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.
Cost-of-living pressures, economic insecurity, insufficient income to support his family if returned to Thailand and supporting his family while working in Australia.
The applicant has made claims that he fears harm due to cost-of-living pressures, economic insecurity, insufficient income to support his family if returned to Thailand and supporting his family while working in Australia.
100. The Tribunal finds his fear of harm that might arise from cost-of-living pressures, economic insecurity, insufficient income to support his family if returned to Thailand and supporting his family while working in Australia, are not for reasons of his race, religion, nationality, membership of a particular social group or political opinion as set out under s 5J(1)(a) of the Act. Accordingly, he does not have a well-founded fear of persecution as defined under s 5J of the Act.
101. “Significant harm” means being subjected to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman or degrading treatment or punishment (see 36(2A) of the Act). The Tribunal finds on this definition that cost-of-living pressures, economic insecurity, insufficient income to support his family if returned to Thailand and supporting his family while working in Australia, all do not amount to the significant harm definition as defined above. Accordingly, the Tribunal finds there do not exist 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.
CONCLUSION
102. 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
105. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 2 October 2024
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.
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