2003458 (Refugee)
[2020] AATA 4029
•7 August 2020
2003458 (Refugee) [2020] AATA 4029 (7 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2003458
COUNTRY OF REFERENCE: Thailand
MEMBER:Jason Pennell
DATE:7 August 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 7 August 2020 at 10.41am
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – persons threatened for refusing to sell land as demanded – forced land sale – fear of killing – fear of physical assault – arson attack – corruption – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559 at 596
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 February 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2.The applicant who claims to be a citizen of Thailand, applied for the visa on 9 January 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s 5H(1) and was not a refugee. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(s)(a) of the Act.
The applicant appeared by telephone before the Tribunal on 18 June 2020 to give evidence and present arguments. As a result of the Covid-19 restrictions the hearing was conducted by telephone via Microsoft Teams.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
5.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
6.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
7.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
8.Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
9.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant’s Identity
The application claims that she was born on [date] in Chiangmai, Thailand.
The applicant has provided a copy of the biodata page of her Thai Passport to the department. There is no evidence to suggest this is a bogus document. In addition, there is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
Therefore, based on the documents provided by the applicant, the Tribunal accepts the applicant’s identity and finds that she is a citizen of Thailand. Accordingly, her protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.
The Applicant’s Migration History
The applicant entered Australia on a valid Thai passport [in] July 2018 on a [temporary] visa. The applicant applied for a permanent protection Visa (XA-866) on 9 January 2019 and was granted a bridging visa on 16 January 2019.
Claims for protection.
The applicant’s claims are detailed in her application for protection visa dated 9 January 2019[1] as follows:
[1] Applicant’s Application for protection visa generated 9 January @ p.13; Department File No [Number], Ref ID [Number]
Provide reasons why this applicant left that country or those countries:
‘Last year I have froze to sell my land to big company in Thailand, but I don’t want to sell it because I wish to keep it for my family. It is only thing that I have in my life. They trying to burn my house and do everything to scare me. Even trying to kill me.’
Did this applicant experience harm in that country or those countries?
‘Yes’
‘they not yet hurt me because I escape here first. Since last time they bunt my house but lucky other people noticed and stop the fire before it become too big’.’
Did this applicant seek help within the country or those countries after the harm?
‘No’
‘I can’t seek any help because they are too big company and they have a lot of money. Then company owner had a relation with the high level government. It no hope to do anything.’
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
‘No’
‘I can’t move to another place because I can’t trust anyone. I can’t ask police or government for help because there are in the same group.’
Explain what the applicant thinks will happen to them if they return to that country or those countries:
‘’It not safe for me to go back because no one can protect me and help me or no one can guarantee of my safe.’
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
‘Yes’
‘the big real estate company there are a lot of brunch over the country. They are 100% will kill me because they already bough other land around me and if they can’t take over my land, they can’t success their project.’
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
‘No’
‘absolutely no because the company owner had a relation with the high-level government.’
The applicant’s claims were summarised in the delegate’s decision[2] as follows:
[2] Protection Visa Decision record created 22 May 2020; [File Numbers]
(a)Last year she refused to sell her land to the big company in Thailand;
(b)The land is the only thing she has in her life and wants to keep it for her family;
(c)‘They’ tried to kill her; ‘They’ tried to burn her house;
(d)They did not harm her because she escaped to Australia;
(e)Since then ‘they burnt her house’ - but luckily neighbours manage to save it;
(f)She cannot seek help as ‘they are a big company and they have lots of money’;
(g)She cannot move to other places because she does not trust anyone;
(h)It is not safe for her to go back as no one can protect her and no one can guarantee her safety;
(i)‘There are lots of branches of the big real estate company all over the country; they are 100% going to kill her because they already bought other lands surrounding hers and if they cannot take her land their project cannot succeed’;
(j)No place in Thailand is safe for her as long as government cannot stop corruption.
The applicant did not provide any supporting material or documentation in support of her claims to the Tribunal
Delay
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[3] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[4]
[3] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[4] Subramanium v MIMA (1998) VG310 of 1997.
In this case, the applicant arrived in Australia [in] July 2018 on a [temporary] visa and applied for a permanent protection Visa (XA-866) on 9 January 2019. A delay of approximately six months. The applicant did not provide any explanation for the delay in making her application. The Tribunal finds that a delay of six months in making an application for a protection visa in circumstances where she claims to have been threatened by a company who wanted to take over her land prior to her arrival in Australia is excessive.
Therefore, given the excessive delay in making a valid protection visa application from the date of his arrival in Australia, the Tribunal has placed little weight on the applicant’s evidence in relation to her claim.
Applicant’s Evidence
The applicant’s evidence was that she was born on [date] in Chaing Mai Thailand.
The applicant’s evidence was that she attended school in Chaing Mai but left school in grade [number]. She claimed that when she was young there was not much opportunity to study. Her evidence was that her parents owned an orchard in Chaing Mai. Upon leaving school the applicant commenced helping her parents at home and in the orchard.
The applicant’s evidence was that she was married when she was [age] years old. Her husband passed away in 2019. The applicant has two children, a daughter who lives in Australia and a son who lives in Thailand and now works in the orchard.
The applicant’s evidence was that approximately [number] years ago, when her the parents died, she inherited the Orchard. Her evidence was that the orchard is approximately [size] Rai[5] (approximately [size] hectares) and produces [specified fruit]. She claimed that it had been granted to her family by the King as part of a plan to enable people to grow their own food. Her evidence was that it is located at [an address in] Chang Mai, Thailand. The applicant’s evidence was that the orchard is in her name and that she possesses the necessary title documentation to show that she is the registered owner of the land. In addition, she claimed to have a photo of the orchard that she was able to provide the Tribunal. The applicant said that she would be able to provide the Tribunal the title documentation and a photo of the orchard within one week of the hearing. To date the applicant has not provided any documentation to the Tribunal.
[5] A rai is a unit of area equal to 1,600 square metres (16 ares, 0.16 hectares, 0.3954 acres), and is used in measuring land area for a cadastre or cadastral map. The rai is defined as 1 square sen or (40 m × 40 m). (see Giblin, R. W. (2008) [1908]. "Chapter Royal Survey Work.". In Wright, Arnold; Breakspear, Oliver T (eds.). Twentieth century impressions of Siam (PDF). London: Lloyds Greater Britain Publishing Company)
The applicant’s evidence was that a company in Thailand had purchased the land around the orchard and wanted the Orchard for the purposes of redeveloping the land into a housing subdivision. She claimed that the company had branches throughout Thailand and that it was in league with both the government and the police. However, the applicant was not able to tell the Tribunal the name of the company. She said that she did not want to mention the name because she was afraid.
The applicant’s evidence was that the company had approached her about selling the orchard, but she had refused. She then claimed that on or about [a date in] January 2019 five men approached her on behalf of the company for the purpose of pressuring her to sell the orchard. She claims they then set fire to the property. However, she claimed that her neighbours noticed the fire and came to put it out before any damage was done.
The applicant was not able to provide the Tribunal with any specific dates as to when the company’s representatives had approached her prior to [that date in] January 2019. She claimed that five men approached her on three occasions but was not able to tell the Tribunal the dates and times they had approached her. In addition, she was not able to identify the company’s representatives who she claims approached her or provide any details of her conversations with those representatives.
They applicant claimed that after [the date in] January 2019 the company’s representatives approached her every month to try and force her to sell the orchard. The applicant claimed that she was afraid to stay in Thailand. As a result, her daughter asked her to come to Australia
The applicant’s evidence was that she was not physically harmed by the company’s representatives. In addition, her evidence was that her son, who continues to work on the orchard, was not threatened or harmed by the company’s representatives. Nevertheless, the applicant claimed that she feared that she would be harmed by representatives of the company if she returned to Thailand.
COUNTRY INFORMATION
The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the DFAT report on Thailand dated 10 July 2020 (‘the DFAT Report’).[6]
Overview of Thai Police:
[6] DFAT Country Information Report Thailand 10 July 2020
The Royal Thai Police and the Royal Thai Armed Forces are responsible for law enforcement in Thailand[7]. The police are made up of approximately 230,000 officers separated into regions and services, exercising different powers. The Crime Suppression Division (CSD) is one of the largest components and is responsible for investigations of criminal offenses as well as riots and public disorders, sabotage, counterfeiting, fraud, illegal gambling operations, drug trafficking, and the investigation of organized crime. Still, police effectiveness remains uneven across the country and is hampered by a range of factors and corruption and misconduct are widespread among police. The ability of police to conduct follow-up criminal investigations is hampered by a lack of funding, inadequate training, corruption, and frequent rotations that prevent them from operating effectively.[8] In August 2018, Thailand had the sixth highest prison population (360,000 inmates) globally and the fifth highest incarceration rates, suggesting that where crimes are committed they are convicted and punishments are widely imposed[9]. There is also evidence that the Government cracks down on crime as a display of capability and competence to the country’s people[10].
[7] Thailand 2018 Crime and Safety Report – Bangkok’, United States Department of State Bureau of Diplomatic Security, 10 June 2020
[8] ‘Thailand 2018 Crime and Safety Report – Bangkok’, United States Department of State Bureau of Diplomatic Security, 26 March 2019
[9] Highest to Lowest - Prison Population Total’, World Prison Brief, 17 September 2018, CXBB8A1DA35419; ‘Highest to Lowest - Prison Population Rate’, World Prison Brief, 17 September 2018,
[10] Thai Junta Launches Crackdown on Organized Crime’, Voice of America, 5 November 2015, accessed 24 June 2020
Reports suggest that Thai security forces commit human rights abuses including extra-judicial killings, torture and arbitrary detentions. Official impunity continues to be a problem, most notably in the southern provinces where martial law remains in effect.[11]
Corruption:
[11] 2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, 11 March 2020, Exec. Summ., p.1,
Corruption remains one of the government’s priorities and areas of reform. Thailand has been reviewing legislation since becoming a party to the UNCAC in 2011.[12] In 2014, Prime Minister Prayut Chan-o-cha declared war on corruption after setting up the National Council for Peace and Order (NCPO) to govern Thailand[13]. In fact, with seven government agencies formed to combat corruption Thailand has displayed commitment to cleaning up corruption. However, according to the Bangkok Post, Thailand remains at 36 points on the Transparency International’s 2018 Corruption Perceptions Index for 2018 on a scale of 100 (very clean) to 0 (very corrupt)[14] which suggests that the nation has a while to go.
[12] Human Rights Council Working Group on the Universal Periodic Review Twenty-fifth session 2–13 May 2016 (p. 127)
[13] “Corruption before and after the NCPO” The Asean Post, accessed 10 June 2020
[14] ‘Corruption rises in Thailand, global watchdog says’ Bangkok Post, accessed 10 June 2020
Corruption is not uncommon among police and reports often surface of prisoner and detainee abuse by police, usually with impunity[15]. Accordingly, it has been suggested that public confidence in the police is low in Thailand[16]. Furthermore, it is noted that police will treat complaints from those with influence with more care and it has been suggested that figures of authority or privilege can ‘engage in malpractice with impunity’[17].
[15] ‘Military authorities can still arbitrarily detain civilians’, Thai Lawyers for Human Rights, accessed 12 June 2020
[16] ‘A critique of the internal complaints system of the Thai police', Dhiyathad Prateeppornnarong and Richard Young, Policing and Society, accessed 12 June 2020
[17] Ibid.
However, authorities have also demonstrated that they take action against police misconduct. From October 2015 to August 2016, there were over 3,000 police officers subjected to disciplinary actions, which resulted in dismissal of 221 officers[18]. Mechanisms to lodge complaints against police conduct include the National Anticorruption Commission, the Supreme Court of Justice, the Office of the Prime Minister and the Office of the Ombudsman.
Separation of police and judiciary
[18] Thailand - Country Report on Human Rights Practices 2016’, US Department of State, 3 March 2017, Sect.1c, p.3,
Thai law provides for an independent judiciary; however, this is not always upheld. The 2017 constitution provides for an independent judiciary, and that the government generally respects judicial independence and impartiality.[19] In practice, courts are ‘politicized and corruption is common’.[20] Human rights groups express concern about the government’s influence on independent judicial processes.[21] Other relevant significant human rights issues include unlawful and arbitrary killings by the governments or its agents, forced disappearances on behalf of the government and arbitrary arrest by government authorities and political influence over the judiciary[22]. Although the report acknowledges that “authorities took some steps to investigate and punish officials who committed human rights abuses” and noted there were no official reports of disappearances by government authorities from January to September of 2019[23].
[19] ‘2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, 11 March 2020, Sect.1e, p.8, 20200312132543
[20] ‘Freedom on the Net 2019 – Thailand’, Freedom House, 5 November 2019, Sect.C1, 20191106111647
[21] 2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, 11 March 2020, Sect.1e, p.8, 20200312132543
[22] 2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, accessed 10 June 2020
[23] 2019 Country Reports on Human Rights Practices: Thailand', United States Department of State, accessed 10 June 2020
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[24]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[25]
[24] s.5AAA Migration Act 1958.
[25] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[26] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[26] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[27] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
Applicant’s Refugee Claim
Relevant Grounds
[27] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
The applicant did not specifically submit that she fell within the scope of s.5J(1)(a) of the Act. However, based on the applicant’s claims it may have been possible for her to claim that she fell within s.5J(1)(a) of the Act by reason of her membership of a particular social group. That is, as a person who is threatened as a result of refusing to sell, transfer or depart with land as demanded.
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 must distinguish the group from society.[28] While the Tribunal has reservations that being threatened as a result of failing or refusing to sell land as demanded represents a common element or characteristic that unites the applicant with a group, and sets her and the group apart from society at large, it is prepared for the purposes of this decision to accept that the applicant is a member of a particular social group pursuant to s.5J(1)(a) of the Act.
Applicant’s well-founded fear.
[28] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.
The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In this case, the applicant claims that she has been threatened with serious harm by reason of the fact that she has refused to sell land in Thailand to an unidentified company as demanded. Accordingly, she claims that there is a real chance she will suffer serious harm by representatives of that company if she returns to Thailand. For the reasons expressed below the Tribunal has serious concerns about the applicant’s evidence in relation to the harm she claims she will suffer upon her return to Thailand and, as such, does not accept that the applicant holds a subjective fear of returning to Thailand as claimed.
Accepted Facts
Based on the applicant’s evidence and the documentary evidence provided to the department and the Tribunal, the Tribunal finds that:
(a)The applicant attended school in Chaing Mai until grade [number].
(b)The applicant was married when she was [age] years old.
(c)The applicant’s husband passed away in 2019.
(d)The applicant has two children, a daughter who lives in Australia and a son who lives in Thailand and now works in the orchard.
Applicant’s Claim as a Refugee
The applicant claims that there is a real chance she will be seriously harmed if she is returned to Thailand by reason of the fact that she has refused to sell land located at [an address in] Chang Mai, Thailand. The applicant claims that she inherited the orchard from her parents about [number] years ago. However, the applicant was not able to provide the Tribunal with any documentary or any other independent evidence that she was the owner of the property as claimed. Despite claiming that she was able to provide a copy of the certificate of title, or some other document as to her ownership of the property, the applicant has failed to provide the Tribunal with any such document.
In addition, the applicant’s evidence in relation to the threats of harm she alleged to have received was, at best, vague and lacking any detail. She was not able to tell the Tribunal the name of the company (despite claiming it had branches nationwide) from whom she was receiving the threats and was not able to state with any clarity as to when she received the threats. In addition, there was no evidence of the land surrounding her property having been purchased by the company as claimed. In addition, there was no evidence of any development plans for her property and/or the surrounding land.
The applicant claims that on or about [a date in] January 2018 five representatives of the company tried to pressure her to sell the property and set fire to the Orchard. However, the applicant did not to provide any independent evidence of having been pressured by the company as claimed or of a fire having occurred on the property. Even though the applicant’s evidence was that her son worked on the Orchard and that he had attempted to assist her at the time she was threatened by the company’s representatives, he did not provide any evidence to the Tribunal in support of the applicant’s claim.
Finally, the applicant’s evidence was that she continued to receive threats every month from [the date in] January 2018 until the time of her departure for Australia on July 2018. However, the applicant was not able to provide any specific detail of the threats she had received. She did not provide any evidence of when they occurred, the nature of the threats and by whom they were delivered. In particular, the applicant did not provide any evidence that she had been threatened to be killed as claimed. In fact, it was her evidence that she had not been physically harmed in Thailand.
Therefore, while the Tribunal is prepared to accept that the applicant is the owner of land in Chang Mai, Thailand as claimed, it does not accept applicant’s evidence in relation to her being pressured and threatened by a company to sell the property. The applicant’s evidence was not supported by any independent evidence. In particular, her evidence in relation to the threats she claimed to have received, including threats that she will be killed, was vague and lacking any detail. The applicant was not able to tell the Tribunal the name of the company and did not provide any evidence of the proposed development of the land as claimed. In addition, despite claiming that the company had connections with the government and the police, there was no evidence in support of such a claim. As such the Tribunal does not accept the applicant’s evidence that she was pressured to sell the property by a company wanting to develop the land as claimed. In addition, the Tribunal does not accept that a fire was started on the property by the company in an attempt to pressure her to sell the property as claimed.
In addition, it was the applicant’s own evidence that she had not been physically harmed. Having not accepted the applicant’s evidence in relation to a company pressuring her to sell the land, the Tribunal does not accept she was threatened with harm or that she was threatened to be killed as claimed.
Accordingly, as a result of the vague and conflicting nature of the applicant’s evidence, in particular the fact that she was not able to provide the Tribunal with any independent evidence of the company and/or its interests in purchasing her property as claimed and the fact that she was not able to provide any credible evidence in relation to the alleged threats, the Tribunal does not accept that she was threatened as claimed.
As a result, the Tribunal finds that there is no real chance the applicant will be seriously harmed if she returns to Thailand. Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant in relation to any threat in relation to the sale of a property in Thailand.
Complimentary protection.
The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
The Tribunal has not accepted the applicant’s evidence that she owned property in Thailand. In addition, the Tribunal has not accepted that applicant’s evidence that she was threatened as claimed as part of forcing her to sell the property to an unidentified company. As such, the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s.36(2A)(c) and (d). Accordingly, the Tribunal finds that there is no real risk the applicant will be significantly harmed by if she returns to Thailand as a result of threats to force her to sell a property as claimed.
In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa), there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, that there is a real risk that she will suffer significant harm of any kind.
At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
Having considered her claim and accepted circumstances, both individually and cumulatively, 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 that there is a real risk she will suffer significant harm as required by s36(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 the Act for the reasons mentioned in s.5J(2). Therefore, the applicant does not satisfy the criterion set out in 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) based on 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.
Jason Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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5H Meaning of refugee
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.
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5J Meaning of well-founded fear of persecution
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.
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.
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.
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.
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.
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
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.
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.
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Protection visas – criteria provided for by this Act
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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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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