2007645 (Refugee)

[2022] AATA 681

2007645 (Refugee) [2022] AATA 681 (21 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007645

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Christine Cody

DATE:21 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 January 2022 at 11:24am

CATCHWORDS

REFUGEE – protection visa – Thailand – political opinion – United Front for Democracy Against Dictatorship – political demonstrations – physical violence – fear of arrest – return visits to Thailand – delay in applying for protection – escaping against the army’s orders – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP (2016) 243 FCR 220

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Migration history

1. The applicant claims to be a citizen of Thailand. He arrived in Australia [in] March 2011 with a student visa. He then travelled back to Thailand on 2 occasions: December 2013 for 2 weeks and in September 2017 for a period of 3 weeks[1]. He applied for a protection visa on 2 August 2018[2]. He used the services of a registered migration agent.

   [1] Sourced from the applicant’s written materials, his evidence at hearing, and the delegate’s decision record that he provided to the Tribunal.

   [2] Email correspondence from the agent indicates that the protection via application was initially lodged on 28 June 2018 and was then found invalid on 30 July 2018; the new application was then lodged.

2. He told the Tribunal that he had been granted one student visa for himself to study, which he used to study for a few months, but he could not recall the name of the course except that it was to do with basic English. He did not undertake any further study. He said thereafter he was a dependent on a partner’s student visa. Their relationship ended in early 2014, after they had been together for about 4 years. His partner’s name is [name]; he cannot recall her date of birth, and when asked her age he said she was “[age range]” years old. His dependent student visa ended in 2018.

3. The applicant lodged an application for a protection visa on 2 August 2018.

4. On 8 April 2020 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

5. This is an application for review of that decision. The relevant law is set out in Annexure A.

   The Departmental file

6. The applicant submitted a protection visa application form, a statement dated 1 August 2018, as well as a copy of his passport issued [in] 2011 (expiry [in] 2016) and his passport issued [in] 2016 (expiry [in] 2021), and his ID card issued December 2013.  

   Application form and statement

7. According to his application form and statement:

   ·     The applicant is aged [age] years. He was born in Thailand.  His religion is Buddhism. His language is Thai. He completed university in Thailand, and he had various jobs, and 2 addresses, in Thailand.

   ·     He has parents and a [sibling] in Thailand; he is in contact with his parents. His family members all reside in Buriram, which is a poor region.

   ·     He is separated from his wife (he told the Tribunal this occurred before he came to Australia); he has [children] aged [specified ages] (he told the Tribunal that they stay with their [specified relative]).

8. The reason he left for Australia was further study (according to his application form; in his statement he says he used the student visa to escape Thailand). He stated the following, about events in Thailand, in his statement:  

   ·     When he was at university, he became interested in politics and civil rights. His interest expanded when he started to participate in rallies against the government and elite to protest against “the harsh treatment suffered by farmers in his region”.

   ·     He supported/joined[3] the United Front for Democracy Against Dictatorship (UDD) in 2007 because he believed that people deserve a political and judicial system that protects human rights as social and economic policies should be formulated by an elected government, not dictators.

   ·     The applicant took part in many protests and rallies organised by the UDD movement from 2007 until he left Thailand; from 2009 they became more violent. In March 2010, they demanded an early election in one of the biggest and longest protests in Bangkok.

   ·     In about April 2010, the military tried to arrest them and there were clashes, during which the army fired on UDD supporters, and many of his friends who happened to be there were injured as a result of the firing. The applicant also sustained minor injuries from debris, and was beaten by soldiers with rods.

   ·     The protests ended in or about May 2010 and the army started arresting and mistreating UDD supporters. He was told by his friends and family to remain cautious. Following the 2010 protests they continued their movement and organised many rallies against the government.

   ·     After these events he hid in a cell at his relative’s house as they heard the army was arresting more UDD supporters. A group of men visited the family home and told his family to inform the applicant not to take part in organised activities; however, this did not stop him from taking part, and he and others continued their protests because they wanted democracy to be restored.

   ·     In early 2011 the army continued their arrests; more UDD supporters were arrested, and his family told him to take more care. When he was away the army raided his family’s home to arrest him, and when they did not find him the army intimidated the applicant’s family when asking them about his whereabouts. They were afraid and told the army that he had gone into hiding near Cambodia.

   ·     Soon after his family told him about the army raid, he lodged an application for a student visa. The visa was granted in March 2011 and he arrived in Australia [in] March 2011.

   [3] The Tribunal notes that in his written material he used the word “supported” and “joined” interchangeably. He told the Tribunal that he had never joined a political party; he said he supported the red shirts. The Tribunal accepts that it is his claim that he was a red shirts supporter and that he attended some rallies/demonstrations.

9. The applicant stated his fears of returning to Thailand were as follows:

   15.      lf I return to Thailand I believe that I will be persecuted by the army because of my political opinion. I cannot seek help from the authorities as the authorities are currently looking for UDD protesters. The authorities have a list of names of people who are suspected to have taken part in the UDD rallies. My life is at risk in Thailand. I believe that there is a motivation by the authorities to make an example of persons like me who participated in the protests. I will most likely be exposed to harsh punishment, disproportionate period of prison that only affect people who have went against the authorities' demands. The authorities have good motivation to apply this to set an example for me. There is no recognition of basic human rights in Thai jails. The torture that I will suffer if I go to a jail in Thailand will be unbearable. I may also be regarded by the authorities as a special person who should have learnt a lesson. Looking at that in its entirety, I will belong to a special group of people who would have to suffer disproportionate harm in jail for a lengthy period of time. There are no mitigating circumstances in Thailand.

   16        I am afraid that I would not be protected by anyone, including the authorities, because the incompetent and corrupt law enforcement. Once I am jailed, I will face torture, beatings, serious and significant physical harm, humiliation and degradation and maybe death as a result of such torture and beatings at the hands of the authorities.  The jail conditions and treatment of jail prisoners in Thailand is commonly known as notorious.

   17.      1 cannot safely relocate to other parts of Thailand. No matter where I go I will be arrested and mistreated by the army. I am also wanted by Yellow Shirts supporters and the army. I will be of interest to them, given I escaped from the army against their direct orders when they raided my family's house.

   Opportunities given to the applicant to address the delegate’s concerns

10. The Department raised concerns with the applicant’s delay in lodging a protection visa application in writing on 24 June 2019, described in the delegate’s decision record as follows:

    In his statement of claims, the applicant stated that he left Thailand and fear returning to Thailand because he was wanted by Government agencies in connection with his political opinions and political activism. However, I note that the applicant did not apply for a Protection visa until almost seven and a half years after arriving in Australia, and two months since he last held a visa in Australia. It was put to the applicant in the letter dated 24 June 2019 that a delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness of protection claims.  

11. The applicant’s response of 19 July 2019 was as follows:

    Delay in lodging a Protection visa application

    1.     There are a number of reasons that prevented me from applying for a Protection visa earlier.

    2.     I arrived in Australia in or about March 2011 on a Student visa. At the time, I did not have any intention of applying for a Protection visa as l thought that I am now in a safe country and had genuine belief that things will get better in Thailand. I really thought what happened in Thailand was only for a short period and did not really think that rallies and protests would continue.

    3    However, I was surprised when I used to hear that rallies and protests continued to take place ln Thailand and that increased my fear of returning to Thailand.

    4.     This is why l delayed lodging my Protection visa application.

12. A further concern was raised by the delegate because the applicant returned to Thailand since his arrival in Australia. The Tribunal notes that the delegate suggested that the applicant had returned 3 times since his arrival, but the applicant said that he had only returned twice. Departmental ICSE/movement records indicate that he only returned twice (2013/2014 and 2017), which the Tribunal accepts.

13. In response to the delegate’s concern, the applicant responded as follows:

    I returned to Thailand on two occasions since my arrival in Australia in December 2013 for a period of 2 weeks and in September 2017 for a period of 3 weeks.

    Before I decided to return, I had to analyse the country's situation and at that time when I travelled, I had firm belief that the situation was calm and on that basis I decided to return to visit my sick mother. I did not go to any major cities. I kept a low profile and went to my family's house which is located in a village on the border with Cambodia.

    I believe that returning to Thailand does not mean that l did not have or hold an adverse profile.

14. The delegate did not accept the applicant’s claims, stating:

    Based on the information currently before me and taking into account the credibility concerns I have with the applicant’s delay in lodgement and the applicant’s return to Thailand on three separate occasions, I am not persuaded that the applicant’s claims to fear harm in Thailand because of his political opinion to be credible. As per my assessment above, I have considered the applicant’s claims individually and cumulatively and I am not satisfied that the applicant’s claims are genuine, credible or reflective of his true circumstances.

15. There are no non-disclosure certificates on file.

    The Tribunal

16. The applicant applied to the Tribunal for review, providing a copy of the delegate’s decision record. He was requested to provide any relevant documents or information to the Tribunal as soon as possible. No documents were provided. Some political background is set out in the DFAT Report (Annexure B).

17. The Tribunal considered it was reasonable to conduct the hearing by telephone during the period of the COVID-19 pandemic restrictions in NSW in October 2021. It wrote to the applicant noting that it was proposing to schedule a hearing remotely and that he should notify the Tribunal if he had any objections to this. He did not respond. He was then sent an invitation to attend a hearing on 16 November 2021 at 2:30 pm. He sent a hearing response, saying that he would attend. He did not attend, however, and the Tribunal decided to dismiss the application. Subsequently, the Tribunal discovered that an administrative error meant that the link in the hearing invitation was not working and would not have allowed the applicant to attend the hearing by video. On 3 December 2021 the Tribunal decided to revoke its decision to dismiss and reopen the matter. The applicant was invited to a further hearing on 20 December 2021, and he attended by video to present evidence and arguments. The applicant gave his evidence with the assistance of an interpreter in the Thai language. The Tribunal was satisfied that the applicant understood the proceedings and was able to give evidence and present arguments.

18. Some of the applicant’s evidence was:

    ·     The applicant said that he has worked as [an occupation 1] ever since he arrived; he has not done anything else in Australia.

    ·     He said that his statement and protection visa application are true and correct; there are no mistakes and nothing is missing. 

    ·     He was married in Thailand but the marriage was not registered. He and his wife separated a long time ago. She lives in Thailand. She never came to Australia. They have children who live with their [specified relatives].

    ·     He graduated from university in Bangkok with a bachelor’s [degree]. He worked for a company in Bangkok but left 3 years before he came to Australia. He moved and lived for those 3 years with his family on the family farm.

    ·     The applicant said that his parents still live on the family farm. Then he said that they are no longer in the farming business. They had to give it up one year after the applicant came to Australia because of the business situation and because of their age; they gave up the farm because there was no one to help run it. They now live with his [relative].

    ·     The applicant talks to his parents; they have told him to stay here because there is “some problem” back at home because of politics. When asked if there was any specific reason why they said he should stay here, he said there are threats “by his place, people still following and sneaking”. His friend told him that. When the Tribunal asked him to explain why his parents think he shouldn’t come back, he said “about politic matter”. The Tribunal asked him to speak in a complete sentence and he said because when he was in Bangkok, he was part of demonstrations, in 2008-2009.

    ·     When asked if he undertook any other political activity in Thailand, he said he is still following the news, and his friends update him on it.

    ·     When asked what he fears would happen to him if he went back to Thailand, he said that he thinks he will be harassed by the government. This is because there is no freedom in Bangkok (and because of his political activity).

19. The Tribunal put to the applicant at the end of the hearing that, although it has not made up its mind, it has concerns with the credibility of his claims. Further relevant evidence is referred to below.

    CONSIDERATION OF CLAIMS

    Country of reference

20. The applicant produced a passport to the Department which shows that he is a Thai citizen. The Tribunal accepts that the applicant is a national of Thailand, and that the appropriate country of reference for the assessment of his refugee claims and the receiving country for the purposes of his complementary protection claims, is Thailand.

21. The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Concerns as to the credibility of the applicant’s claims

    Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims

22. The mere fact that a person claims fear of persecution 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 claimed. Similarly, that the 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.

23. Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

24. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).

25. As Kirby J observed in Dranichnikov v MIMA:[4]

    The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[5]

    [4] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at [1100].

    [5] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].

26. The Tribunal has a number of concerns with the case that this applicant has advanced on the basis of inconsistent, changing and vague evidence. The Tribunal’s concerns are set out below.

27. Firstly, the Tribunal was concerned that despite the significant fears referred to in paragraphs 15-17 of the applicant’s first statement as set out above (including concerns of persecution by the army, that his name is on a list, he is of interest as he escaped against the army’s direct orders, the army is motivated to make an example of him, he faces torture and horrific treatment in prison, and that he is unable to relocate in Thailand because he will be found, and not only is he wanted by the authorities, he is also wanted by the yellow shirts), the applicant returned twice to Thailand. The Tribunal put to him that it did not make sense that, if these were genuine fears, he would do so. In response he said that he went to visit his parents, he had to, they were not well.

1. This response raised a further concern, because the applicant provided inconsistent evidence as to his reasons for returning to Thailand since his departure in fear:

   ·     In his application form he claimed that he returned to Thailand in 2013 to visit his sick mother[6]; but at hearing he said that no one was unwell in 2013, he just went back to Thailand because he missed home.

   ·     In his application form he claimed that he returned to Thailand in 2017 to visit his sick father[7]; but at hearing he said that he returned at that time to visit his sick mother. 

   [6] P17, application form.

   [7] P16, application form.

2. When this was put to him, he said perhaps he forgot. The Tribunal understands that some time has passed since then. However, given that it was his claim that he faced significant danger if he returned to Thailand, the Tribunal considers that he would have recalled why he decided to return to a place of danger, and that his evidence would be fairly consistent in this regard. The Tribunal has also considered the applicant’s earlier explanation, that he thought it was safe at the time, but this is different to his main reason at hearing that he had no choice but to return because of the illness of various family members.

3. The Tribunal considers that his evidence undermines his claims that he had faced harm in Thailand.  

4. Secondly, there were differences in the details of the applicant’s claims.

5. The Tribunal noted that in the applicant’s statement he claimed that he participated in many protests from 2007 until when he left Thailand in 2011; however, in his evidence at hearing he said that he only attended 4-5 protests in a 2 year period, 2008-2009, and then he stopped and did not attend for the next 2 years. The Tribunal asked the applicant if he wanted to say anything about this inconsistency and he said that he still “followed it” but not as seriously as he used to. This response undermines his statement which specifically states that:

   ·     From 2009 the protests became more violent, and I began to feel uncomfortable with it as I felt obliged to participate with other supporters. The demonstrations continued through 2009 and 2010. In March 2010 we demanded an early election. This was one of the biggest and longest protests ever held in Bangkok city. A state of emergency was declared in Bangkok.

   ·     In or about April 2010 the military tried to arrest us and there have been clashes between us and the military. During the clashes the army fired on UDD supporters and many of my friends who happened to be there were injured as a result of the firing. I also sustained minor injuries from debris and was beaten by soldiers with rods.

   ·     The protests ended in or about May 2010 and the army started arresting and mistreating UDD supporters. I was told by my family and friends to remain cautious. Following the 201O protests we continued our movement and organised many rallies against the government.

   ·     [My family] were told to inform me not to take part of organised activities by the UDO. However, that did not stop me from taking part and we continued our protests because we wanted democracy to be restored and the army's mistreatment.

   ·     In early 2011 the army continued their arrests. More UDD supporters were arrested, and I was advised by my family to take more care

6. The Tribunal considers that the applicant’s inconsistent evidence, and his explanation, undermine his claims.

7. Thirdly, the Tribunal noted that in his statement he said many of his friends were injured and he sustained some minor injuries from debris (and he was beaten by soldiers with rods) but he gave a different account at the hearing. He didn’t mention any injuries that he had suffered, instead he claimed at hearing that 5 friends had died. The Tribunal asked if he wanted to comment on this inconsistency and he responded that the details might be “slightly different”. The Tribunal does not find this explanation persuasive, as it considers that the differences in these versions are significant, and that this undermines these claims. 

8. Fourthly, the Tribunal was concerned that the applicant changed his evidence about whether or not he was in hiding when the Tribunal put to him that his claim that he was of interest for the 2 year period before he came to Australia was difficult to accept.

9. In this regard, the Tribunal also put to the applicant that it does not understand why, if he did not demonstrate/participate in political activity in 2010 or 2011, he had to leave Thailand. In response the applicant said that he didn’t feel safe (and that this was the reason he had “backed off” from attending political demonstrations).

10. The Tribunal put to him that for 2 years he was not politically active, and nothing happened to him, so it did not understand why he felt like he had to leave. The applicant said he didn’t feel safe because of the names on the blacklist. When asked whose names were on the blacklist, he said leaders of the friendship group, a group that was more serious than the group he was involved with. The Tribunal put to him that if he was not part of that group, and only the leaders of that group had their names on the list, there was no reason for his name to be on the list. He responded that there were people still sneaking around, and he said he is not sure if his name is on the list. 

11. The Tribunal put to him that it still did not know why he thinks his name is on a list. He said because during that time there were confrontations and activities and he was worried in case they had pictures. The Tribunal put to him that the authorities had had plenty of time to come and get him in 2010 and 2011 before he came to Australia. In response the applicant said that he was still hiding. The Tribunal put to him that he was not in hiding during those years; according to his earlier evidence to the Tribunal, he lived at the family home on the farm for 3 years before he came to Australia. In response he said that he didn’t live there on a regular basis. The Tribunal put to him that this was not what he said earlier; he had told the Tribunal that the only time he was not living on the family farm during those years was because he went off to do some work occasionally for friends, and he had not told the Tribunal during this evidence that he had spent any time in hiding during that time. In response the applicant said he started to live “quietly”. The Tribunal asked how long he was in hiding for and he said since 2008 or 2009. The Tribunal put to him that this was completely different to his earlier evidence; he said he is not sure. The Tribunal notes that in his written materials he mentioned being in hiding for an unspecified period of time. This does not overcome the Tribunal’s concerns with his changing evidence at hearing. The Tribunal considers that if he was living in hiding for 3 years as he now claims, he would have mentioned this when he told the Tribunal where he had been living for the last 3 years (at the family home). The Tribunal considers that the applicant’s changing evidence which occurred in response to the Tribunal’s concerns with his claims, undermines his credibility and his claims.

12. The Tribunal’s concerns about the applicant’s evidence in this regard were heightened because the applicant also claimed, when the Tribunal put to him that the authorities had had plenty of time to arrest him in 2010 and 2011, that this did not occur was because he was just part of the group and there was nothing outstanding about him. This, however, was inconsistent with his written claims that they would target him and want to make an example of him specifically.

13. Fifthly, the Tribunal noted that in his statement, he claimed that in 2011 the army raided his house to arrest him, whereas at hearing he gave different information as to the issue of his arrest. He claimed that it was in 2009 that he thought he would be arrested, but he couldn’t give the Tribunal the reason why he thought he would be arrested other than to say it was because people were sneaking around outside his house and he claimed that in about October 2009 a letter was sent to his family, saying that he was part of the red shirts group, which participated in demonstrations.

14. The Tribunal noted the differences in the events which led him to believe that he would be arrested. When the Tribunal asked if the applicant wanted to comment on the inconsistencies in these claims, he said that he felt he wanted to be safe and that he felt he had to hide. The Tribunal does not consider that this explains the differences in the events. The Tribunal considers that a belief he would be arrested because the army raided his house to arrest him in 2011, is very different to him having a suspicion that they wanted to arrest him in 2009 because people were sneaking around and his family had received a letter saying he participated in red shirts demonstrations. The Tribunal considers that this undermines these claims. 

15. Finally, the Tribunal put to the applicant that there was a significant delay between his arrival in Australia in 2011 and the date he lodged his protection visa application. The Tribunal put to him that if he really felt the fear that he claimed, it would expect that he would have lodged the application soon after arriving. In response he said that he felt safe here and he still had that visa, and he had a girlfriend and he wanted to start living life and so he just continued. He thought that if they could live together here, they could have gone home together. The Tribunal asked when he had proposed to go home and he said at that time with the government…. now it has changed and it is different to the military and so there is still some reason not go back, because I may be harassed. The Tribunal put to him that it is his evidence that he and his girlfriend spilt up in early 2014. He could have lodged a protection visa at that time but instead he remained here, dependent on her visa for years even though they were no longer in a relationship.

16. In response, the applicant said that they weren’t serious about breaking up and he thought they could have gotten back together. This was a further concern that the applicant was changing his evidence to respond to the Tribunal’s concerns. It had earlier specifically asked him whether the relationship really was over, or whether they had gotten back together, and he said no. The Tribunal put this to the applicant and he said that he didn’t get a chance to explain earlier to the Tribunal that he thought that if they could reconnect they may get back together.

17. The Tribunal does not find his explanation to be persuasive. He claims that the relationship that he relied upon for a dependent visa finished in early 2014, but he did not claim protection until 2018. The Tribunal does not accept that, for 4 years while living in Australia on a dependent visa while no longer in a relationship with the person through whom he was entitled to that dependent visa, he thought they would get back together and for this reason did not claim protection. The Tribunal also notes that this is different to his written claim to the delegate that he didn’t claim protection for 7 years because he thought things would get better in Thailand and was surprised that they did not improve. The Tribunal considers that his delay in claiming protection undermines his claims that he needed protection.  

18. Further, the Tribunal had concerns about the applicant’s claims that the country situation back in Thailand affected his ability to return to Thailand. The Tribunal asked the applicant whether, after he arrived in March 2011, he ever thought he could go back to Thailand to live, and he said yes, if the government changed. When he was asked if he had ever thought since 2011 that he could go back there to live, he said no, at no time did he think it was safe, because they would still be looking for him. The Tribunal put to him that this heightened its concerns as to why he went back to visit, given his claim that these people have not stopped looking for him. He said that he was “kind of hiding” when he went back in 2017, but not in 2013. The Tribunal asked why he was not in hiding in 2013 when he returned and he said that this was because in 2013 Yinluck was in power and her political views were fine because she didn’t have anything against the red shirts. The Tribunal put to him that according to his evidence, Yinluck was in power when he was in Australia in 2011 (and for the next 4 years); he only studied for a few months in Australia and once he was no longer a student he could have gone back home, because he had the same views as Yinluck. The Tribunal put to the applicant that this could indicate that he was not here as a student, nor out of fear for political reasons, and that perhaps he had come here for a different reason such as to work and earn money. The Tribunal asked him if he wanted to comment, and he said no. The Tribunal considers that his evidence is contradictory and it undermines his credibility. 

19. On the basis of the above concerns, the Tribunal does not accept that the applicant is a witness of truth in relation to his claims of past harm and future fears.

    Other matters

20. The Tribunal accepts that the applicant had some knowledge of politics and events in Thailand, however this does not mean that his claims are true. Further, the Tribunal has considered whether the applicant could have been nervous at hearing, however, even allowing for this, the Tribunal does not accept that this can explain the difficulties in his evidence. 

21. The Tribunal put to the applicant its concern that he did not mention in his written claims the significant claim made at hearing that his family had received a letter stating that he was participating in red shirts demonstrations, and this was a basis for him thinking he will be arrested. The Tribunal discussed s 423A of the Act, which provides that the Tribunal is to draw an inference unfavourable to the credibility of a claim not previously presented to the delegate if it is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. The applicant said that he did not include every single detail in his statement. The Tribunal acknowledges that his statement is prefaced by the paragraph: “The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened in the past or the reasons why I can’t return to my country of origin. I will provide further information in relation to my claims during any interview with the Department of Home Affairs”. The Tribunal notes that he was not invited for an interview. In the circumstances, the Tribunal considers that in the terms of s 423A of the Act, the applicant has provided a reasonable excuse as to why he did not include this claim in his initial claims. The Tribunal thus does not draw an adverse inference against this omission in his written claims. However, this does not mean that the Tribunal accepts this claim. 

    Findings as to the applicant’s claims

22. The Tribunal is prepared to accept that the applicant has a general interest in the political situation in Thailand. However, on the basis of the adverse credibility finding, the Tribunal does not accept that the applicant developed an interest in politics and civil rights to the extent claimed, nor that: he attended rallies or supported/joined any particular movement; his life was at risk in Thailand; he was known to the Government agencies and authorities and feared for his life; there were arrest attempts; there has ever been a reason for his name to be on a list of persons of interest to the authorities; he or his friends were harmed; his family was questioned or warned or intimidated or their house was raided; he went into hiding. The Tribunal does not accept that the applicant attracted adverse attention of the authorities or any political groups or persons when he was in Thailand. The Tribunal does not accept claims that flow from these claims. The Tribunal is not satisfied that the reason why he lodged a student visa application was because he needed to escape Thailand. It does not accept that the applicant came to Australia to escape any harm or adverse interest in Thailand or because he was wanted by Government agencies in connection with his political opinions and political activism. The Tribunal does not accept that there has been any adverse interest in the applicant since he came to Australia. The Tribunal finds that he returned to Thailand on 2 occasions (2013 and 2017) and that he faced no harm or adverse attention on those occasions. It does not accept that he was in hiding when he returned to Thailand.

23. The Tribunal does not accept the applicant’s claims of past political involvement and it does not accept that there is a real chance or real risk of the applicant having an interest in or becoming involved in any way in political matters in Thailand nor of being imputed with such involvement leading to adverse interest and/or a real chance of serious harm or a real risk of significant harm in Thailand (from either the authorities or any person or association or group such as the yellow shirts). The Tribunal considers that the applicant has made up his claims.

24. On the evidence before it, the Tribunal does not accept that the applicant faces harm for any the reason including the political situation, human rights, political freedom, democracy, liberty or the economy. The Tribunal is not satisfied that the applicant has a genuine subjective fear of harm for any of these reasons, nor does the Tribunal accept that any of these factors in Thailand support an objective basis for this applicant to fear persecution.

25. While the applicant claimed his family came from a poor region, this did not stop the applicant from becoming university educated and obtaining work in Bangkok. The Tribunal considers that the applicant is resourceful, and it considers that he will return to Thailand, spend time with his family, and obtain a job.

26. The Tribunal noted that it is required to have regard to the Department of Foreign Affairs (DFAT) Report which provides information as to the country conditions in Thailand. The Tribunal put to the applicant that if it did not accept his claims, then having regard to the country conditions it did not appear that he faces a real chance of serious harm or a real risk of significant harm. The applicant asked “is that so?”, but when offered the opportunity to say more, he didn’t want to say anything else.

27. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above. The Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.

    Complementary protection

28. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

29. The Tribunal has not accepted the applicant’s claims as to past interest and involvement in political matters or attendances at demonstrations.  The Tribunal does not accept that the applicant has experienced any adverse interest or harm as claimed nor that his family were targeted because of him. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for any reason including the political situation, human rights, political freedom, democracy, liberty or the economy.

30. The Tribunal does not accept that the applicant has the political profile or involvement as claimed. It thus does not accept that he has or will come to adverse attention for such reasons, nor is it satisfied that the applicant seeks to or would like to engage in the expression of political views. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.

1. The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.

2. On the evidence presently before it, 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 a receiving country, in this case Thailand, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   Conclusion

3. 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).

4. 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).

5. 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 criteria in s 36(2).

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Christine Cody
   Member

   
   

   ANNEXURE A - CRITERIA FOR A 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 below.

   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 below.

   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.

   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.

   …

   ANNEXURE B – EXTRACT FROM DFAT REPORT

   Contemporary Thai politics has been characterised by divisions between supporters (‘red-shirts’) and opponents (‘yellow-shirts’) of Thaksin Shinawatra, who became Prime Minister in 2001. Although popular with Thailand’s urban and rural poor for his social programs, opponents criticised his perceived authoritarian style, the increase in human rights abuses and corruption that occurred during his time in power and – according to some detractors – his disrespect for the monarchy. The military removed Thaksin from power in a bloodless coup in September 2006, but his party won the next general election in December 2007 (Thaksin himself went into exile after the 2006 coup and remains abroad). Political polarisation between Thaksin supporters and opponents led to protracted protests, occasional deadly clashes, and political paralysis in the years following (see Protesters and Demonstrators). Elections in July 2011 returned the pro-Thaksin forces to power under the leadership of his sister Yingluck, but mass protests and street battles broke out again in 2013. The military staged a bloodless coup in May 2014, bringing to power a military junta known as the National Council for Peace and Order (NCPO) headed by General Prayut Chan-ocha.

   The NCPO remained in power for five years before being formally dissolved on 17 July 2019 following the 2019 General Election. While the widespread demonstrations, political instability and associated political violence that had characterised the preceding years largely ceased under NCPO rule, the NCPO period also saw reductions in political and social freedoms. Despite the nominal return to civilian rule following the 2019 elections, Prime Minister Prayut and other ex-NCPO figures remain in power and Thai politics and society remain deeply polarised. Further political and social uncertainty has resulted from the ascension of a new monarch, King Vajiralongkorn (Rama X), whose governing style differs from that of his long-serving father (see Critics of the Monarchy).