2008268 (Refugee)

2008268 (Refugee) [2022] AATA 1541 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2008268

COUNTRY OF REFERENCE: Thailand
MEMBER:Meena Sripathy
DATE:7 April 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 April 2022 at 3:10pm
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – victim of loan shark – criminal gangs – fear of physical assault – economic conditions – state protection – return visit to Thailand – passport renewed – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa on 26 October 2019. The delegate refused to grant the visa on the basis that the delegate did not accept that effective protection measures were not available to the applicant against harm from moneylenders or gangs commissioned by them and on this basis was not satisfied that the applicant met the criteria for recognition as a refugee within the meaning of that term in s5H(1) and found that, under s36(2B)(b), there is taken not to be a real risk significant harm for the purposes of the complementary protection criteria in s36(2)(aa) on the basis that the applicant could obtain protection from the authorities such that there is not a real risk he would suffer significant harm.
The issues in this review are whether there is a real chance, if the applicant returned to Thailand, he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Thailand, there is a real risk that he will suffer significant harm.
The applicant appeared before the Tribunal on 28 February 2022 by video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The Tribunal exercised its discretion to hold the hearing remotely given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not conducted remotely. The applicant was invited to participate in a video hearing using the MS Teams platform. The interpreter was present by video and audio link and all parties confirmed that they could clearly hear each other. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 in the attachment to this decision.
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
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. In the present matter the Tribunal has considered the DFAT Country Information Report Thailand dated 10 July 2020.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Information in the application form indicates the applicant was born in [year] in Chachoengsao Thailand and is a Thai national. He declares his religion as Buddhist. He provided no details of past employment and indicated that his past activities in Thailand was ‘school’ and that he received financial support from family. His relationship status is indicated as never married and no details are provided of any dependents or other family members. He gave one residential address in Thailand since birth.
In his reasons for seeking protection, the applicant stated that he left his country because of distrust of the judiciary and low (sic) enforcement, poor system of government and bureaucracy from the lowest level to the top. Due to the destruction of the global economy’s impact on the nation’s economy poverty and unemployment was big. He was living in harsh conditions and had to borrow money from relatives and was unable to pay it back and was in debt. He lives in mental distress and fear. Many people in Thailand have problems like him who have borrowed money and been hit, injured and killed. He hopes the government of Australia can hear what he mentioned and approve his application.
He indicated “no” to whether he had experienced past harm in his country. In response to whether he had moved to another part of the country to seek safety he indicated “Yes” but provided no further details. He stated that if he returns to his country he will get caught by creditors and could be beaten, injured or killed and they will search for him. He then indicated that he has received verbal threats to hurt him and has lived in hardship due to poverty because of the bad economy.
He believes he will live in harsh conditions and suffer discrimination if he returns and cannot relocate to any other part of the of the country ‘as a matter of socio -economic’ and because he will experience the same problems.
The applicant submitted no other evidence or information to the Department. He was not invited to an interview. The delegate refused the application on 5 May 2020 having considered the applicant’s written claims and country information as set out in the decision record.
Evidence before the Tribunal
The applicant was first invited to attend a hearing by video conference on 16 November 2021 at 3pm. He did not appear before the Tribunal on that day at the scheduled time and place and on 17 November 2021 the Tribunal made a non appearance decision, and notified him of this. Subsequently, on 29 November 2021 the applicant contacted the Tribunal to request a Medicare letter and advised of his change of contact details. He confirmed his intention to seek reinstatement of the dismissal, explaining that he failed to attend the hearing because someone had created an email and password for him and he had no knowledge of the hearing.
On 15 December 2021, although noting he was sent SMS reminder messages to his mobile phone number prior to the hearing, on the basis of his re-engagement with the Tribunal, it reinstated the application for review under s426A(1C) of the Act.
On 10 January 2022 the Tribunal invited the applicant to another hearing on 28 February 2022 by video conference.
28 February 2022 Hearing
The applicant gave the following evidence at the Tribunal hearing. He is presently living in [Town 1], NSW and is [employed]. Before that he was in Queensland working for 6 months and prior to that he was in [Town 1]. He lives in share accommodation. The applicant confirmed that he completed his application without any assistance, using Google translate and asking friends to help him if he was unsure of some words. He had nothing to change or add to the information he provided in the application.
The Tribunal asked him why he failed to appear at the first hearing. He said he had some problems with his email and subsequently changed it.
The applicant told the Tribunal he came to Australia in October 2017 on a working holiday visa. He worked on farms [doing specified duties]. After the first visa expired he applied for another one which was valid to October 2019 and then he made this application. He travelled back to Thailand once in May/June 2019 for just over one month to ‘clear some problems’. The applicant confirmed that he has renewed his passport since being in Australia. He applied for the new passport in person at the Thai Consulate in [city] and it was sent to him by post. He had no issues getting his passport renewed. He also experienced no issues departing Thailand in 2017 or 2019.
The applicant has parents and two [siblings] in Thailand. His parents are farmers and work on the family land. His [siblings] both live with them and are both working and help to support his parents. His sister is [an occupation 1] and his brother is [another occupation].
Prior to coming to Australia the applicant worked full time in a [business 1] in Bangkok for 3-4 years. He has a [qualification] from university in Bangkok and has lived in Bangkok since 2008 when he went there for university. He left his employment and Thailand in 2017 because he had some private/personal problems there.
The Tribunal asked why he made this application. He said he was threatened by the people from whom he borrowed money. The Tribunal asked him about this issue. He said he borrowed a large sum of money and was charged a lot of interest which he could not afford to repay. He managed to repay only the interest and not the capital and now his debt has grown larger.
The applicant said initially in 2012 he borrowed a sum of [amount] baht as capital to use to sell [products]. He set up a small business selling [these products] at the market and it went well and he repaid this loan. Then in 2013 he borrowed [larger amount] baht because he wanted to open two shops but after that sales went down and everything went badly. He was only able to repay part of the interest payments. He closed the shops around the end of 2013 and started working part time. Initially the applicant said he worked in ‘factories’ then he changed it and said it was in a ‘[business 1]’. He looked for and eventually found a full time job in a [business 1] and this was the employment he had until he came to Australia. However, he was still unable to repay more than part of the monthly 10,000 baht interest payment as he was only earning 20,000 baht per month.
He came to Australia so that he could ‘close off his debts’ however, in the first two years he did not earn enough to do that and so he has been unable to date to repay his loan. The applicant said he owed [larger amount] baht by the time he came to Australia in 2017. He had repaid [amount] baht from 2013 to 2017 but the debt kept growing.
He borrowed the money from his mother’s relative who was in this business of lending money. Because it was his relative’s business it was easier for the applicant to borrow from than a bank. He tried to discuss his problems with repayments with his relatives in the beginning but they were under pressure also from the people they were borrowing from.
The Tribunal asked if he experienced any harm or danger as a result of this situation. He said some men took him in a car once and showed him a gun. This occurred in 2016 before he came to Australia. The Tribunal asked why they did this if he was paying back the interest at this time. He said they wanted him to repay the full amount and not leave it going on and on. The Tribunal put to him that this does not seem to make sense since they are making money from his interest payments. The Tribunal asked if he knew these men who threatened him. He said they were not his relatives, but his relative told him to go in the car with them. The applicant does not know who they were. At this time he pawned [jewellery] for 20,000 baht and gave it to them.
Apart from this incident he has received phone calls and they have waited for him at his work place.
He came to Australia to repay the debt and planned to do that in 2 years but was unable to.
The Tribunal asked why he returned to Thailand in 2019. He said they were threatening his family so he went back to talk to them and gave them [amount] baht more in repayment. When asked if anything happened to him during this visit, he said he gave them the money and then stayed with his friends. The Tribunal asked why he returned if he is in fear for his safety and why couldn’t he have made the payments from here. He said they wanted him to return and not stay here. When asked why given he was able to earn more money here, he said he had promised to repay the entire debt in 2 years but he had not done so.
The Tribunal put to him its concern that it may not accept he is telling the truth that he owes a debt as claimed or about the amount still owing. It put to him its concerns about the plausibility that he would take out a [larger amount] baht loan just one year after he repaid a [amount] baht debt. It also may have concerns that he was unable to repay this debt despite working from 2013 to 2017 and that he had not managed to repay it even after two years working in Australia. He said he thought he would earn more here but in fact it did not turn out like that. When asked how much he has repaid since being in Australia the applicant said he has repaid [larger amount] baht. He said in addition to this he has also sent back some funds to his family. The Tribunal put to him its concern again that in over 4 years in Australia he would have been unable to repay his debt of some [larger amount] baht. In response he repeated that he was unable to earn as much as he wanted to in the first two years he was here. The Tribunal indicated that it has no evidence before it about any of these matters and it would allow him a week after the hearing to provide any evidence it wants the Tribunal to consider regarding the about of the loan, its terms and repayments he has made since, including repayments made since being in Australia.
The Tribunal asked the applicant why he cannot seek protection of the police for any harm he fears from the people who he owes money to. His response was that the police cannot be with him 24 hours a day.
The Tribunal put to him that independent information before it indicates that household debts from unlicenced money lenders is an issue in Thailand, but the government has taken various steps to address this issue, including a law that limits the amount of interest that can be charged to 15% per annum, and making available various government schemes such as low interest financial lending and providing funds to state owned financial institutions to create products to assist debtors and asked whether he has sought out any of these or why not. He said in response he has never sought such help because he may face harm from his relatives because they do not want him to go elsewhere for money as it would undermine their business. He said he fears if his relatives came to know he went to the police or any other these organisations they would not be happy.
The Tribunal put to the applicant that his conduct in returning to Thailand in 2019 may indicate he has no fear of return. He said he went back with some money and that is why he was able to return. He is doing his best to repay his debt but he does not earn enough.
He said he is fearful of being kidnapped if he returns and also because of COVID he would be unable to get a job there.
Apart from his outstanding debt he has not other reason to fear return.
To date the applicant provided no further information or evidence relating to his application or claims.
Independent information
The Department of Foreign Affairs and Trade (DFAT)’s Country Information Report Thailand provides the following information about victims of loan sharks:
3.115 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.
3.116 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.
3.117 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.[1]
[1] DFAT Country Information Report Thailand , July 2020, p 44-45

Other sources also confirm this information. A survey conducted by the University of the Thai Chamber of Commerce (UTCC) in late 2019 involving 1200 respondents, found 41% of household debt is ‘underground’ owed to loan sharks, with the remaining 59% the result of loans to traditional financial institutions. The reason for these debts varied, with individuals “borrowing for general spending, car and housing loans, credit card charges and existing debt repayments”.[2] The same survey conducted in January 2021 found “2.6% is underground debt owed to loan sharks, and 20% is owed to a combination of formal lenders and loan sharks”.[3]
[2] Household debt up 7.4% in 2019 amid economic woes’, Bangkok Post, 29 November 2019,
[3] Household debt rises 42% to 12-year high’, Bangkok Post, January 2021
Section 654 of Thailand’s Civil and Commercial Code limits the amount of interest that lenders can charge at 15% per annum.[4] Loan sharks, however, frequently charge interest rates far in excess of this. The actual amount charged by loan sharks vary, and while interest rates of between 8% and 20% per month are common, local media have reported instances of borrowers paying up to 20% per day or 200% per month. [5]
[4] ‘Civil and Commercial Code: Book III Specific Contracts’, Government (Thailand), 1 January 1925
[5] ‘Are loan sharks preying on Thais?’, The ASEAN Post, 2 December 2019, ’14 wealthy loan sharks taken in by Thai police as money lending menace and debt remain a big problem’, Thai Examiner, 10 February 2019, ‘Loan sharks now preying on salaried workers, Justice seminar told’, The Nation Thailand, 18 December 2012,
While there are media reports of loan sharks keeping comprehensive written documentation such as the name of debtors, repayment schedules, signed loan contracts and receipts, [6]agreements made verbally in order to avoid leaving a paper trail are also reported to be common.[7]
[6] ‘DSI shares tale of extreme loan-sharking as they build case against suspect’, The Nation Thailand, 3 July 2019,
[7] ‘Swimming with sharks: Loan sharks are common and so are their victims’, The Phuket News, 19 January 2012,
The government of Thailand has publicly indicated that dealing with loan sharks is a policy priority, and in response has introduced various government schemes since 2001.[8] Its main policy commenced in 2015-2016 with the legalisation of new forms of licensed, low-interest financial lending in two forms: ‘nano-finance’ for business related expenses and ‘pico-finance’ for personal and household related expenses.[9] Thailand’s Finance Ministry stated that the purpose of micro-finance is two-fold. Not only are these forms of finance designed to meet the needs of individuals who would otherwise borrow from loan sharks, they also provide a framework which encourages unlicensed lenders to legalise their operations by entering Thailand’s formal lending system.
[8] CB Economic Intelligence Center (SCB EIC) and SCB Securities (SCBS), ‘Can Nano Finance unleash the grassroots from loan shark problems?’, 1 April 2015.
[9] ‘Loan shark debt down B20 billion’, Bangkok Post, 22 June 2017, ‘Nanofinance to fight loan sharks’, Bangkok Post, 13 October 2016,
In addition to the implementation of micro-finance, the Thai government has sought to deal with the issue of loan shark debt by providing funds to state owned financial institutions such as the Government Savings Bank (GSB) and the Bank for Agriculture and Agricultural Cooperatives (BAAC) with the specific goal of creating financial products to assist existing debtors, particularly those from low-income backgrounds.[10]
[10] ‘GSB, BAAC to provide emergency loans’, Bangkok Post, 22 February 2017,
Local media sources have also reported instances of the Thai government directly intervening on behalf of debtors to facilitate the return of money and property that has been repossessed by loan sharks, although most examples appear to focus almost exclusively upon assisting rural landowners[11] and the sheer number of loan shark victims seeking assistance appears to outstrip governmental resources available to assist.[12]
[11] ‘Prawit to present land title deeds back to 684 loan-shark victims in Northeast’, The Nation Thailand, 14 August 2018, ‘Govt returns assets to loan shark prey’, Bangkok Post, 21 September 2018,
[12] Are loan sharks preying on Thais?’, The ASEAN Post, 2 December 2019, ‘Farmers search for a way out of deep debt’, Bangkok Post, 30 August 2015,
While sources refer to debtors in Thailand being able to approach consumer protection organisations such as the Foundation for Consumers (FCC)[13], the exact nature and extent of assistance available to victims of loan sharks is unknown.
State protection against loan sharks and debtor access to state protection
[13] Fairer debt collection fees urged’, Bangkok Post, 10 October 2018, ‘Household debt up 7.4% in 2019 amid economic woes’, Bangkok Post, 29 November 2019, >
The main policing body in Thailand is the Royal Thai Police (RTP). The media report regularly on campaigns and raids by police against loan sharks and their arrest, especially those linked with criminal crime gangs, and report penalties in the form of fines of between 50,000 and 200 000 baht and jail sentences of two to three years. While the RTP does take action against loan sharks, local media report that these penalties for offenders are insufficient to deter the activity in a significant way.[14]
[14] ‘Police target predatory lenders’, Bangkok Post, 23 July 2012, ‘Loan sharks smell blood’, Thai Enquirer, 4 March 2020, ‘Illegal lending app run by Chinese staff charging up to 20% interest per week taken out by immigration police’ Thai Examiner, 5 February 2021,
While individuals can also directly lodge complaints with the RTP’s Consumer Protection Police Division (CPPD) regarding the activity of loan sharks, some media reports suggest that debtors may find it hard to achieve satisfactory outcomes due to the exploitation of legal loopholes or the existence of relationships between lenders and state officials.[15]
[15] ‘Consumer police probe complains about loan sharks’, The Nation Thailand, 26 September 2017,
Complaints against loan sharks can be investigated also by the Legal Aid Centre for Debtors and Victims of Injustice within Thailand’s Department of Special Investigations (DSI The DSI is an investigatory governmental agency directed by the Justice Minister in 2017 to focus upon financial crimes.[16] Media reports suggest that the DSI mainly seeks to punish loan sharks by issuing large fines under tax evasion provisions.[17]
[16] ‘DSI shares tale of extreme loan-sharking as they build case against suspect’, The Nation Thailand, 3 July 2019, ‘Northeast residents ‘driven to suicide’ by loan sharks’, The Nation Thailand, 9 May 2017, ‘Air Chief Marshal Prajin Juntong, Deputy Prime Minister and Minister of justice, visited the DSI’, Department of
Special Investigation, 29 December 2017
[17] ‘Two loan sharks face B430m bill for unpaid taxes’, Bangkok Post, 21 August 2018,
FINDINGS AND REASONS
Nationality
On the basis of his Thai passport, the Tribunal accepts the applicant is a national of Thailand and considers Thailand is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The Tribunal has considered the applicant’s claims and relevant independent country information and makes the following findings.
In his written application lodged in October 2019, the applicant stated had to borrow money from relatives and was unable to pay it back and was in debt. He said he left his country because of distrust of the judiciary and low (sic) enforcement, the poor system of government and bureaucracy from the lowest level to the top and referred to the destructive impact of the global economy on his nation and consequent poverty and unemployment. Before the Tribunal he referred to his ‘personal/private problem’ of an outstanding debt he owes to a relative on his mother’s side, and that, despite his efforts to repay the loan since 2013, he claims he still owes an amount of [larger amount] baht on his original loan of [larger amount] baht due to the compounding interest charges. He fears harm in the form of being kidnapped upon return and fears that he will be unable to secure employment in Thailand due to the circumstances of the COVID 19 pandemic.
The Tribunal has significant concerns about the applicant’s claims regarding the circumstances of obtaining the claimed debt and the amount he still owes at this time. He provided no detail in his written application about who he obtained the debt from, the amount and terms of the loan, the repayments made to date and moneys still owing. When asked to elaborate on these matters at hearing, his evidence was limited in detail and he indicated that he had no written documentation in his possession. His evidence was that between 2013 and 2017 he was only able to repay [amount] baht, although he had full time employment at a [business 1] throughout this period earning, on his evidence, 20,000 baht per month. He claims despite this he was only able to repay some 4000- 5000 baht per month rather than the 10,000 baht in interest he owed. He claimed that by the time he came to Australia his debt had risen to [larger amount] baht. Since then, he claims he made a further [amount] baht payment when he returned to Thailand in 2019, and has sent back around [larger amount] baht from here since 2017. He claimed that, as at the time of the hearing, he still owed money on this debt. To date he has provided no documentary evidence to substantiate any of the claims made.
While the Tribunal is prepared to accept that it is plausible agreements for such loans can be verbal only so as to avoid a paper trail, the Tribunal finds it difficult to accept the applicant’s claims that he was unable to make the minimum interest repayments since 2013 given that he was employed full time prior to coming to Australia for some 3-4 years and has been working in Australia since 2017. On the evidence before it, the Tribunal does not accept that he would not have repaid most if not all of this debt by now. It also finds his conduct in returning to Thailand in 2019 contradicts his claimed fear of harm from the lenders on the basis of an outstanding debt. The Tribunal considers that if genuinely fearful of harm for reasons of the outstanding debt, he would not have returned voluntarily in 2019. He has not claimed to have experienced any issue on this visit and had no difficulty entering or departing the country.
Therefore while acknowledging independent information sources before it, including the DFAT Report cited above, confirm the prevalence of household debt and issues about short term lending and inability to repay debts in Thailand, the Tribunal is not satisfied in this case that applicant has an outstanding debt owing and therefore it does not accept that he faces a real chance of harm on this basis from the lenders or anyone acting on their behalf, upon return.
The Tribunal has considered, but does not accept, the applicant’s claim that he was taken in a car in 2016 and shown a gun to intimidate him. Neither does it accept that he received threatening phone calls and had people waiting outside his workplace. He did not mention any of these incidents in his written application. It is not consistent with his conduct returning to Thailand voluntarily in 2019.
The Tribunal is prepared to accept as plausible, given country information about the prevalence of the practice of informal lending in Thailand, that the applicant may have borrowed money from an informal lender in the past and experienced some difficulties repaying the interest plus principle. It accepts that this may have been the reason he came to Australia in 2017 to earn money to repay his debt. However, the Tribunal does not accept that, after more than 4 years working in Australia, and in light of his voluntary return to Thailand in 2019, he still has an outstanding debt at this time which would place him at any risk of harm upon return. The Tribunal does not accept he faces a real chance of being kidnapped upon return to Thailand for this or any other reason. The Tribunal provided the applicant an opportunity to provide more detailed evidence to support his claims that he still has outstanding debts, including evidence of the loan, its terms, repayments made in the past or repayments he has made since being in Australia, but he has provided no such evidence.
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).
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). Having regard to the findings above rejecting the applicant’s claims that he still has any outstanding debt that would expose him to harm by lenders or anyone else, the Tribunal is not satisfied that there is a real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Thailand.
The Tribunal has also considered the applicant’s claims that he will be unable to secure employment in Thailand due to the circumstances of the COVID 19 pandemic. It accepts that given the period of his absence from Australia and economic difficulties his country has experienced as a result of the pandemic that has affected so many countries in the world, that he may experience some difficulty securing employment upon return. It notes that he has parents and siblings at home, who can provide him accommodation, and his siblings both work. In any event, financial hardship of itself does not constitute significant harm within the meaning of that term.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
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.
…

[2022] AATA 1541

7 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction