2007853 (Refugee)

[2021] AATA 5307

2007853 (Refugee) [2021] AATA 5307 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007853

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Lilly Mojsin

DATE:2 December 2021

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

Statement made on 2 December 2021 at 9.00 am

CATCHWORDS

REFUGEE – protection visa – Thailand – borrowed money from loan shark for business debts – threats from money lender – inability to relocate – lack of information – non-attendance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 425, 426A, 499

Migration Regulations 1994 (Cth), Schedule 2

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 4 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of Thailand, applied for the visa on 14 October 2019. The delegate refused to grant the visa on the basis that there was not a real chance or a real risk the applicant would suffer serious or significant harm on his return to Thailand within a reasonably foreseeable future.

3.    The applicant appealed that decision, to this Tribunal, annexing a copy of the Department decision to his application for review.

4.    The applicant was invited, pursuant to s 425 of the Act, to appear before the Tribunal on 4 November 2021 at 4.00pm. The invitation stated that the hearing would be held by Teams video conference. The hearing invitation also stated that if the applicant was not able to attend the hearing, the applicant should advise the Tribunal as soon as possible. The hearing invitation also advised the applicant that if the applicant does not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it, or may dismiss the application for review without any further consideration of the application or the information before the Tribunal.

5.    On 2 November 2021 the Tribunal wrote to the applicant postponing the hearing and advising him that a new hearing date would be scheduled. This was re-scheduled for 2 December 2021.

6.    The applicant sent a hearing response to the Tribunal on 2 November 2021. The applicant advised the Tribunal of his telephone number and advised the Tribunal that he will not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.

7.    The applicant did not attend the re-scheduled hearing on 4 November 2021 or 2 December 2021.

8. Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Alternatively, the Tribunal may dismiss the application without any further consideration of the application or information before the Tribunal.

9. As the applicant indicated he did not wish to attend the Tribunal hearing, and consent to a decision to be made on the papers and the applicant did not attend the scheduled hearings, pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before it.

CRITERIA FOR A PROTECTION VISA

1. See Annexure A

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The applicant claims that:

• He borrowed money to cover a business loss

• The interest rate on this loan is very high

• The lenders have threatened the applicant and his wife

• If the applicant returns to Thailand he will be physically and mentally abused, his family will suffer and his life will be in danger

• Lenders have a good network with bad people

• The applicant has not sought help because that might make things worse

• Due to corruption the applicant cannot seek help from the authorities

• If the applicant attempts to relocate within Thailand the lenders will find him because they have an extensive network with bad people and they will definitely seek revenge against him

1. The applicant did not provide any further information to the Tribunal.

COUNTRY INFORMATION

1. According to DFAT, Country Information Report Thailand July 2020

In-country sources report that short-term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt levels are very high. Many individuals in these areas have no other way of gaining access to money for agriculture or small businesses than to borrow money from an informal moneylender, or ‘loan shark’. Loan periods in agricultural areas. tend to be very short loans of a ‘tide-over’ nature – for example, an individual may borrow five hundred baht and be required to pay back six in a week’s time. Security for such a loan may be the individual’s bankbook or their ATM card and pin number, with the loaner withdrawing the requisite sum on the next payday. Security for longer-term loans may take the form of a motorcycle or land, with the borrower surrendering ownership immediately.

So-called ‘black helmets’ enforce debts for loan sharks in rural areas, sometimes by pressuring the borrower’s neighbours or local community to ensure the loan is repaid, rather than doing so directly. This can lead to debt moving around within communities. Black helmets or their local agents may inflict injuries upon recalcitrant borrowers as a means of ensuring the debt is repaid, although deaths are reportedly uncommon. There is reportedly a strong overlap between loan sharks and police in rural areas, and borrowers are unlikely to be able to receive police assistance in the event of receiving a threat or losing their security. DFAT is not aware of any official moves to address the issue in any substantial way.

DFAT assesses that those in debt to loan sharks are likely to face societal and family pressure to repay or service the debt. Depending on the size of the loan or the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence. Borrowers are unlikely to be able to access protection from state authorities.

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.

Borrowers utilising loan sharks typically use their land ownership deeds or assets, such as vehicles, as collateral for loans and forfeit them if they are unable to repay loans, typically set with high interest rates.[1]

National Council for Peace and Order (NCPO) is actively working to eliminate loan sharking operations across Thailand. Dealing with loan-sharks has emerged as a top priority for the NCPO.

Authorities have implemented several measures to respond to widespread loan-sharking; these include increasing channels for debtors to file complaints against illegal lenders, issuing licenses to legal lenders and providing access to legal loan[2]. Additionally, millions of Thais signed up for a government subsidy and welfare scheme aimed at helping them repay a combined 70 billion baht owed to underground lenders.129[3] The post-2019 election government has also indicated it will continue the NCPO’s focus on tackling loan-sharking, presiding over numerous ceremonies returning thousands of land-title deeds to local residents.[4] By June 2019, the post-coup government is reported to have handed back a total of 21,312 land title deeds covering 59,000 rai of land, and worth 30.6 billion baht to debtors nationwide, although critics have expressed scepticism at these[5].

[6]New anti-loan shark laws were introduced in January 2017. These impose stiffer penalties on loan sharks, targeting lenders charging over 15 percent interest. ‘Loan for consumption’ under the Civil & Commercial Code of Thailand (CCC) defines clearly what is a loan, including verbal loan, and key issues which the parties (lender and borrower) should be mindful of including interest, repayment of the loan and legal requirements for enforcement of a loan. Penalties of up to two years imprisonment and up to 200,000 baht apply, increasing for corporate loan sharks and doubled if the violator is a state official. Redress for victims of unscrupulous loan sharks appears to be uneven. While sources indicate that some debtors have successfully petitioned local officials to mediate fair outcomes with money-lenders, others indicate that many debtors have been unable to recoup lost collateral and assets. In some instances, victims have successfully used the courts to ensure they repay no more than the legal interest rate.

In recent years, police have actively disrupted powerful loan-shark syndicates[7]. In December 2016, Thai police broke up the country's biggest loan shark syndicate. The syndicate had 86 branches across the country and was reported to have been assisted by over 1,000 state officials. Lenders charged up to 300 per cent in annual interest. Authorities have seized or frozen millions of baht worth of assets from the syndicate's leader. In some instances, police have actively protected debtors from violent debt-collectors, in other instances violence continues to be perpetrated.

Community financial institutions have helped to tackle loan shark problems in some locations. Other reports indicate that debtor-collectors continue to perpetrate violence against non-paying debtors. There are ongoing arrests of illegal money lenders with the return of assets including cash as well as land deeds to debtors taking place across a number of provinces.[8]

[1]

[2]

[3] ‘Loan shark debt down B20 billion’, Bangkok Post, 22 June 2017, CIS7B83941827

[4] ‘FFP needs to check its facts’, Bangkok Post, 29 June 2019, 20190702141009.

[5] ‘ISOC, loans and claims’, Political Prisoners in Thailand, 28 June 2019, 20190705110112; FFP needs to check its facts’, Bangkok Post, 29 June 2019, 20190702141009; ‘“Deeds”  under microscope’, Bangkok Post, 5 July 2019, 20190705104242

[6] ‘Stiffer anti loan shark law now effective’, Thai PBS, 16 January 2017, CXC90406620744

[7] ‘Thai police bust massive loan shark racket’, Inquirer, 23 December 2016, CX6A26A6E15538

[8] 'B1bn in assets seized in fraud, loan shark busts', Bangkok Post, 23 February 2019, 20190409104057; ‘Thai police arrest 19 members of loan shark gang in Surin’, Pattaya Mail, 18 June 2020, 20200619111046

REASONS AND FINDINGS

1. The applicant's identity has been accepted by the Department in his visa application. On the basis of his Thai passport, I accept that the applicant is a national of the Thailand and is not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Thailand. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Thailand is the applicant's “receiving country” for the purposes of s.36(2)(aa).

2. 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.

3. The applicant was put on notice that the department did not accept his claims. The applicant did not attend the Tribunal hearing and I was unable to explore the applicant’s claims with him.

4. The applicant claims that he borrowed money to cover a business loss and the interest rate is very high. The applicant has not provided any information about how much he borrowed, who he borrowed the money from, how much the interest was or when this occurred.  As he did not attend the hearing without further information from the applicant, I am unable to accept that he borrowed money at a high interest rate and the lenders threatened the applicant and his wife.

5. As I do not accept that the applicant has borrowed any money, I do not accept if he returns to Thailand he will be physically and mentally abused, his family will suffer and his life will be in danger. I also do not accept that he sought help from anyone or that the lenders are attempting to find him in Thailand or that anyone seeks revenge against him.

6. Therefore, I do not accept that the applicant had an adverse profile when he departed Thailand for Australia. Without further information from the applicant, I do not accept that the applicant was harassed or harmed when he lived in Thailand.

7. I have considered the claims of the applicant individually and cumulatively.  For the above reasons, I find that the applicant faced no serious harm in the past for a refugee reason. As I do not accept that the applicant has borrowed any money, I do not accept if he returns to Thailand he will be physically and mentally abused, his family will suffer and his life will be in danger. Therefore, I am not satisfied the applicant faces a real chance of serious harm upon return to Thailand  for a refugee reason in the reasonably foreseeable future. I am also satisfied that the applicant does not have a profile that would cause him to be of any interest to the authorities.

8. As stated above, I reject the applicant’s claim he has suffered persecution or any harm in Thailand.  Therefore, I do not accept that the applicant will suffer significant harm on return to Thailand.

9. I am 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 that the applicant will suffer significant harm ie that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.

10. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.  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).

CONCLUSIONS

1. 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).

2. 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.

3. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Lilly Mojsin
Member

ANNEXURE A

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…

'Money Loans in Thailand and Key Issues for the Parties to Consider ', Dharmniti Law Office, 05 August 2020, 20201211163223,  ‘Isaan loan shark tries to seize blocks of land from victims’, The Nation, 17 May 2017, CXC90406620745