2005202 (Refugee)

[2020] AATA 5613

2005202 (Refugee) [2020] AATA 5613 (21 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2005202

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Christopher Smolicz

DATE:21 December 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 21 December 2020 at 4:38pm

CATCHWORDS
REFUGEE – protection visa – Thailand – non-Convention claim – victim of an extortion attempt – accused of rape – fear of the father of former flatmate – mere speculation – found not guilty of rape charges – voluntarily returned to Thailand – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 24 February 2020 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Thailand, applied for the visas on 4 July 2018.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT Country Information Report Thailand July 2020) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issue

9. The issue in this case is whether the first named applicant (the applicant) is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because he was a victim of an extortion attempt and refused to pay money.

   Background

10. The applicant is a single [age] year old. He was born in [District 1], Nan Province, Thailand. He arrived in Australia [in] September 2014 with his wife (the second named applicant). The applicants travelled to Australia as holders of student visas. In September 2016 the applicants were granted a second student visa which was valid until 15 July 2018.

11. The applicants travelled to Thailand [in] October 2017 and returned to Australia [in] November 2017.

    Summary of substantive claims

12. The applicant provided the following evidence in his visa application in support of his claims for protection:

    ·     The applicant began a relationship with a Thai woman while going to school in Sydney. The woman belongs to the Thai Hmong ethnic minority like the applicant.

    ·     Her father demanded the applicant pay him AU$30,000. This was unusual because it is not a tradition among the Hmong people.

    ·     He threatened the applicant that if the amount was not paid, he would take the applicant to court. As the applicant didn’t pay, he pressured his daughter into filing rape charges against the applicant in Sydney.

    ·     The applicant went through the trial and was found not guilty.

    ·     Her father was very angry and collaborated with more than five other Hmong to claim that the applicant owed them money. He has told the applicant that if he ever returns to Thailand, he will have the applicant killed.

    ·     He is very powerful and influential in the Hmong community nationwide. The government and especially police forces in Thailand do not have much authority in the Hmong’s regions.

    ·     The Hmong, although concentrated in the mountainous areas of Northern Thailand, have family members throughout Thailand.

13. The second named applicant did not raise claims for protection.

    Tribunal hearing

14. The applicants took part in a video conference hearing before the Tribunal on 9 December 2020. The hearing was conducted with the assistance of an interpreter in the Thai and English languages. The second named applicant did not give evidence at the hearing and did not make any claims for protection.

15. The Tribunal questioned the applicant about why he travelled to Australia and why he fears returning to Thailand. The applicant said he travelled to Australia with his wife to study. He was able to finance his study in Australia with the assistance of his parents and past savings. Since arriving he has completed a [Qualification 1] and some General English in NSW.

16. The applicant said that in 2016 he and his wife were living in a apartment with another female from Thailand ([Ms A]). He was not in a relationship with [Ms A].

17. The applicant said that in August 2016 [Ms A] accused him of rape. He was taken to a park by [Ms A]’s sister and brother-in-law who arranged for him to speak by mobile telephone to [Ms A]’s father in Thailand. He had never spoken to [Ms A]’s father before this date. [Ms A]’s father demanded that he pay him AU$30,000 or his daughter would allege he raped her and file charges against him. The applicant said refused to pay the money and was charged with rape but was found not guilty in March 2018.

18. The applicant said he was the victim of an organised crime and [Ms A]’s father attempted to blackmail him. He now fears that [Ms A]’s father will cause him harm if he returns to Thailand because he refused to pay the money.

19. The Tribunal questioned the applicant about his relationship with [Ms A]’s father. The applicant said he has never met the man in person and did not know [Ms A] before he met her in Australia. He has only spoken to [Ms A]’s father once when he demanded the money over the telephone in August 2016. The telephone call was arranged by [Ms A]’s sister and brother-in-law who were in Australia at the time. He is not sure if [Ms A] has returned to Thailand or is studying in Australia. [Ms A] and the father have not made any contact with him since this time.

20. The Tribunal observed that in October 2017 he voluntarily returned to Thailand which would seem inconsistent with his evidence that he now fears to return to Thailand because [Ms A]’s father will cause him harm. The applicant said he had to return to Thailand because his mother was unwell.

21. The Tribunal observed that since he had been found not guilty, he could report [Ms A]’s father to the police in Thailand and try to get him charged with extortion. The applicant said that it was a possibility, but it would be difficult to prove.

22. The Tribunal noted that incident occurred over four years ago, and the extortion attempt failed, and he was found not guilty of raping [Ms A]. The Tribunal asked the applicant why he fears that her father would want to cause him harm after his attempt to extort the money failed. The applicant said he fears that [Ms A]’s father will want to cause him harm became he did not get his money.

23. The applicant said that he comes from the same Hmong ethnic minority group as [Ms A]’s father in Thailand. He claims the group is small and he could run into the father at traditional ceremonies and festivals.

24. The Tribunal has had regard to country information referred to in the delegate’s decision and notes that Thailand has an independent judiciary and the Royal Thai Police that carry out a range of standard policing duties including investigation of crimes and criminal syndicates.

25. The Tribunal observed that the applicant would be able to report [Ms A]’s father to the police if he attempted to threaten him and demand money in Thailand. The Tribunal noted that he was in an advantageous situation where he had evidence from his court case in Australia to help bring charges against [Ms A]’s father in Thailand. The applicant agreed that this was a possibility, but it would be difficult to prove.

26. In post hearing submissions the applicant provided the Tribunal with a copy of the brief of evidence prepared by the NSW police charging him with two counts of sexual intercourse without consent.

    Findings

27. The Tribunal has had regard to the applicant’s evidence accepts that the applicant and [Ms A] come from the Hmong ethnic group in Thailand. The Tribunal finds [Ms A] and the applicant had not previously met in Thailand.  The Tribunal accepts that [Ms A] shared an apartment in Sydney with the applicant and his wife. The applicant claims that [Ms A] falsely accused him of rape, he denied the charges and claims he was a victim of an extortion attempt. The Tribunal has had regard to the brief of evidence prepared by the NSW police and finds that the applicant was interviewed by the NSW police and said in his defence that [Ms A] falsely accused him of rape so that her father could blackmail him and demanded the payment of about $30,000. The Tribunal was able to verify with the NSW Courts Registry that in August 2016 the applicant was charged with two counts of sexual intercourse without consent and the matter was heard in [the] District Court with [Judge B] delivering the verdict [in] March 2018 as not guilty.

28. The Tribunal has had regard to the applicant’s evidence and for the following reasons is not satisfied that there is a real chance the applicant will suffer serious harm if he returns to Thailand because he did not pay [Ms A]’s father the money.

29. In assessing whether there is a real chance [Ms A]’s father will seek to cause the applicant harm if he returns to Thailand the Tribunal finds it significant that the applicant does not owe any money to [Ms A] or her father, the extortion attempt failed and the applicant was found not guilty of the rape charges in 2018.

30. Further, according to the applicant’s evidence he only met [Ms A] in Australia and does not know her family in Thailand. The applicant has never met [Ms A]’s father. He only spoke to him over the telephone in August 2016 when he demanded payment of the money. The Tribunal further finds the applicant has had no further contact with [Ms A] since the criminal trial. The applicant has had no contact with [Ms A]’s father since the telephone call in August 2016.

31. No threats have been made to harm the applicant or his family in Thailand. In the circumstances it seems mere speculation that [Ms A]’s father would continue to demand and cause him serious harm if the applicant to pay the money if he was to return to Thailand.

32. The Tribunal also finds it significant that the applicant voluntarily returned to Thailand in October 2017 before the matter went to trial and he was found not guilty of the charges. The Tribunal finds that the applicant’s decision to return to Thailand during this particular time is relevant in assessing his fear of harm from [Ms A]’s father in Thailand. The Tribunal also finds is significant that the applicant was not approached by [Ms A]’s father and he did not experience any threats of harm when he returned to Thailand in 2017.

33. Having considered all of the evidence, and taking into consideration the fact that the applicant and [Ms A] and he father are from the same ethnic group, the Tribunal finds that it is mere speculation that [Ms A]’s father will seek cause the applicant serious harm if he returns to Thailand in the reasonably foreseeable future.

34. The Tribunal further finds that the applicant’s fear of serious harm in Thailand is not for reason of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal has had regard to the applicant’s evidence and finds he fears harm in Thailand because he refused to pay [Ms A]’s father $30,000. The Tribunal finds there is not a real chance he would be persecuted for one or more of the reasons in s.5J(1)(a) if he returned to Thailand in the reasonably foreseeable future.

35. In conclusion, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if he returns to Thailand in the reasonably foreseeable future. The Tribunal finds the applicant does not have a well-founded fear of persecution. As detailed above the second named applicant did not make any claims for protection.

36. Accordingly, the Tribunal is not satisfied that the applicants are person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

37. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

38. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention: MIAC v SZQRB [2013] FCAFC 33.

39. As detailed above the Tribunal finds that it has been four years since [Ms A]’s father demanded he pay the money. He has had no further contact with [Ms A] or her father since this time. There have been no threats or demands for the payment of money since this time. The Tribunal finds the criminal attempt to extort money failed and it is mere speculation that [Ms A]’s father will continue to demand payment of the money and will seek to cause the applicant significant harm if he returns to Thailand in the reasonably foreseeable future.

40. For the reasons detailed above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand there is a real risk he will suffer significant harm because he was accused of rape and was the victim of a failed extortion attempt in 2016.

41. For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations.

42. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.

    DECISION

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

    Christopher Smolicz
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …