2008267 (Refugee)

[2022] AATA 683

2008267 (Refugee) [2022] AATA 683 (25 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008267

COUNTRY OF REFERENCE:                   Thailand

MEMBER:L. Symons

DATE:25 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2022 at 5:53pm

CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from loan shark – threats and beating – delay in applying for protection visa – applied after second student visa expired and period as unlawful non-citizen – undetailed and unsubstantiated claims – no attendance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

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, arrived in Australia [in] December 2015 as the holder of a subclass 570 Student visa. On 17 June 2016, she was granted a subclass 572 Student visa. This visa expired on 10 October 2017 and she thereafter remained in Australia as an unlawful non-citizen. On 24 September 2019, she was granted a Bridging C visa in association with her application for a Protection visa.

3. The applicant applied to the Department of Immigration (the Department) for a Protection visa on 14 September 2019. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 14 May 2020, she applied to the Tribunal for a review of that decision.

4. On 29 October 2021, the Tribunal wrote to the applicant and informed her that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited her to appear before the Tribunal, via video, on 16 November 2021 to give evidence and present arguments relating to the issues arising in her case. She did not attend the hearing on 16 November 2021 and the Tribunal dismissed her application on 17 November 2021. On 17 November 2021, the Tribunal wrote to her, informed her of the decision to dismiss her application and gave her the opportunity to apply for reinstatement of her application on or before 1 December 2021. She did not seek reinstatement of her application for review.

5. After the Tribunal made its decision, the Tribunal determined that, due to an administrative error, the link in the hearing invitation was not working and did not allow the applicant to attend the hearing by video on 16 November 2021. The Tribunal determined on 2 December 2021 that it should revoke the decision in which the Tribunal dismissed the application under s.426A(1A)(b) of the Act and reopen the matter.

6. On 10 December 2021, the Tribunal wrote to the applicant and invited her to appear before the Tribunal, via video, on 10 January 2022 to give evidence and present arguments relating to the issues arising in her case. On 10 January 2022, the Tribunal wrote to the applicant and informed her that her hearing scheduled on 10 January 2022 had been postponed.

7. On 13 January 2022, the Tribunal wrote to the applicant and invited her to appear before the Tribunal, via video, on 25 February 2022 to give evidence and present arguments relating to the issues arising in her case. The letter indicated that if she did not appear at the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it or may dismiss his application for review without any further consideration of the application or the information before it. This letter was sent to her by email on 13 January 2022 to the email address she provided the Tribunal. This email was not returned to the Tribunal undelivered.

8. On 15 February 2022, the Tribunal wrote to the applicant and invited her to attend a short test session on 18 February 2022 to ensure that there was a functioning connection and to minimise any issues that may arise on the day of the hearing. This letter was sent on 15 February 2022 to the email address she provided the Tribunal. It was not returned undelivered. She did not attend the test session. A Tribunal officer twice attempted to contact her by telephone but she did not respond.

9. On 18 February 2022 and 24 February 2022, the Tribunal sent her SMS messages to the mobile telephone number she provided the Tribunal to remind her of the hearing date. The Tribunal also provided her with a telephone number on which she could contact the Tribunal if she had any questions. She did not contact the Tribunal to indicate that she had any difficulty participating in a video hearing.

10. The applicant did not attend the hearing scheduled on 25 February 2022 at 9.00am. A Tribunal officer attempted to contact her by telephone but was unable to do so. She did not contact the Tribunal to explain her non-attendance or to seek a postponement of the hearing. In these circumstances, the Tribunal will proceed to make a decision on the review. 

11. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

    CRITERIA FOR A PROTECTION VISA

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

18. The applicant’s claims in her application for Protection visa are summarised as follows:

    ·She was born on [date] at Chiang Mai in Thailand. She is a citizen of Thailand.

    ·She left Thailand because she borrowed a little money from people. When she tried to repay the loan, they asked for interest that was so high that she could not repay the loan. She tried to negotiate payment by instalments but they kept increasing the interest rate so she could never repay the loan.

    ·If she was late with repayments, they threatened her. A debt collector beat her because she could not pay the money by the due date.

    ·She tried to ask the authorities for help but they would not keep her safe. There were times when she went out and the debt collectors beat her for not making payments on time. It was too late by the time the authorities got there.

    ·She tried to move to another place but was chased by the debt collector.

    ·If she returns to Thailand, she will be forced to repay the loan and may be tortured. The debt collector will keep harming her because she cannot repay the loan.

    ·The authorities will not be able to protect her because the debt collector will not release her and will force her to work to repay the debt.

19. The applicant provided the Department with copies of the biodata page of her Thai passport issued [in] 2015 and her Thailand National ID card issued [in] August 2015.

20. The applicant has filed with the Tribunal copies of the biodata page of her Thai passport and the Department’s Decision Record dated 4 May 2020.

    Receiving Country

21. The applicant claims to be a citizen of Thailand and has provided a copy of the biodata page of her Thai passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Thailand. The Tribunal finds that Thailand is her receiving country for the purpose of assessing her claims for protection under the refugee criteria and under the complementary protection criteria.

    Third Country Protection

22. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

23. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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/herself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all of 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.)

24. In this case, the applicant's claims are made in the most general terms and they are unsubstantiated. She has not filed any written evidence with the Department or the Tribunal to support her claims. As she did not attend the hearing scheduled on 25 February 2022, the Tribunal was unable to obtain further details of her claims and to test their veracity. If she had attended the hearing, the Tribunal would have sought additional information about the loan including who she borrowed the money from, why she borrowed the money, when she borrowed the money, how much she borrowed, the interest rate, the security she used for the loan, the method of repayment, how much of the loan she repaid when she was in Thailand, whether she has repaid the loan since coming to Australia and, if not, how much is still outstanding.

25. If the applicant had attended the hearing, the Tribunal would have discussed with her when, why and by how much the interest rate on the loan was increased. The Tribunal would have ascertained when she stopped paying the loan and exactly what happened as a result. The Tribunal would have found out when she sought the protection of the Thai authorities, how the authorities responded and why she believes that the authorities will not be able to protect her. The Tribunal would have sought details of when she tried to relocate within Thailand and how the debt collector “chased” her. The Tribunal would have discussed with her why she claims she may be tortured on her return to Thailand.

26. If the applicant had attended the hearing, the Tribunal would have ascertained how she was able to afford the costs associated with applying for a Student visa, travelling to Australia, tuition fees in Australia and living expenses in Australia if she did not have the money to repay her loan. The Tribunal wound have found out why she delayed in applying for a Protection visa considering that she arrived in Australia [in] December 2015 and did not apply for a Protection visa until 14 September 2019. The Tribunal would have discussed with her relevant country information.

27. On the limited evidence before it, the Tribunal is not satisfied that the applicant applied for a loan in Thailand. It follows that the Tribunal does not accept any of her claims that flow from that. The Tribunal is not satisfied that she is of adverse interest to money lenders, loan sharks or debt collectors. The Tribunal is not satisfied that she left Thailand for the reasons claimed or that she fears returning to Thailand for the reasons claimed.

28. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant, for the reasons claimed, if she returns to Thailand now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

29. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any reason set out in s.5J(1)(a) of the Act, that there is a real chance that she would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Thailand. Therefore, she does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

30. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

31. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Thailand now or in the reasonably foreseeable future. 

32. Accordingly, 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 that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    CONCLUSION

33. 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) or s.36(2)(aa) of the Act.

34. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons

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.

…