2004485 (Refugee)

[2022] AATA 1275

2004485 (Refugee) [2022] AATA 1275 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004485

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Mr S Norman

DATE:31 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 31 March 2022 at 11:30am

CATCHWORDS
REFUGEE – protection visa – Thailand – workplace sexual harassment – physical assault – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants who claim to be citizens of Thailand, applied for the visas on 26 September 2018. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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

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

5. By hearing invitation letter dated 18 February 2022 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 31 March 2022. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing.

6. As the hearing was arranged during a COVID-19 lockdown, the Tribunal scheduled the hearing to proceed by telephone. On the day of the hearing, the Tribunal made two attempts to contact the applicant by telephone immediately prior to the commencement of the10:00am hearing. The Tribunal also attempted to contact the applicant again at 10:30am (the last of three attempts). All attempts had been transferred to the applicant’s voicemail.

7. The applicant neither appeared at the time and date of the scheduled hearing, nor did she otherwise contact the Tribunal prior to this decision being made.

8. The Tribunal had also issued a s.424(2) letter to the applicant (again dispatched by email), and that had not been responded to (though the Tribunal notes the applicant had not engaged the services of an agent and she had changed her contact details on one occasion).

9. That being said and after considering the claims, pursuant to s.426A of the Act the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Membership of the same family unit:

10. The applicant is [the first-named applicant] (DOB: [date]) and the applicant husband [the second-named applicant] (DOB: [date]). Only the applicant raised claims to be a person in respect of whom protection was owed in Australia. For the purposes of this decision, the Tribunal will accept the applicant husband is a member of the same family unit as the applicant, as defined in s.5(1) of the Act.

    The applicant’s claims:

11. As recorded by the delegate, the applicant claimed:

    ·         The applicant claims that her previous boss sexually harassed her.

    ·The applicant rejected the sexual advances of her previous boss and that made him aggressive and he started to physically assault and bully her.

    ·The applicant fears being raped of killed by her previous boss if she returns to Thailand.

    ·The police will not provide her with assistance and protection because her boss is very influential in the community and the authorities fear his power.

    Assessing the applicant’s claims:

12. The Tribunal has seen a photocopy of the applicants’ passports on the Department file (both passports expire in 2024) and I accept they are citizens of Thailand, and that Thailand is their receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that she was sexually harassed or physically assaulted or bullied; or that if she was, she could not obtain State protection.

13. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

14. That said, based on the claims she has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm.

15. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

16. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

17. There is no suggestion that the applicant or the applicant husband, 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 applicants do not satisfy the criterion in s.36(2).  

    DECISION

18. The Tribunal affirms the decision not to grant the applicants protection visas.

    Mr S Norman
    Member