2008460 (Refugee)

2008460 (Refugee) [2022] AATA 1086 (17 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008460
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Meena Sripathy
DATE:17 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 February 2022 at 3:42pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – participation in political protests and activity on social media after small business failed – fear of harm by government – threats to family and to applicant during return – credibility – inconsistent claims and evidence – departure before military coup and voluntary return – attendance at embassy to obtain new passport – social media activity private and limited – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA (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 dependant.
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 8 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 1 December 2017. The delegate refused to grant the visa on the basis that the delegate did not accept the applicant’s claims 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) or that he faced a real risk of significant harm for the purposes of the complementary protection criteria in s36(2)(aa).
The issues in this review are whether there is a real chance, if the applicant returned to the 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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Information in the application form indicates the applicant was born in [year] in Lampang, Thailand and is a Thai national. He declares his religion as Buddhist and his occupation as [an Occupation 1]. His relationship status is indicated as separated and no details are provided of any dependents. He gave one residential address in Thailand since birth and an employment history from 2008 to 2013 as [an Occupation 2] in [a] business. He has a post secondary Diploma qualification.
In his reasons for seeking protection, the applicant stated: he has been threatened by the coup government. He had a small [Product 1] shop in Thailand but during the time of the coup government business went really bad. When he lost his business he started to criticise the government on social media and joined the ‘red’ democracy group. They exercised their rights by voicing protests abut the election. After the protests some of the leaders were arrested so he fled to Australia. He wishes to remain in Australia while the military is in control. He fears persecution and fears for his safety if he returns to his home country. He believes he will be hunted and locked up if he returns. The government sent military officers to threaten his family and if he is found he will be brought in for questioning. He claimed he had moved around but still feared the junta government would have power to find him. He fears being interrogated, tortured and being charged with ‘article 112’ and locked up.
On 6 April 2020 the Department wrote to the applicant and invited comment on adverse information about his movement records which indicate he first arrived in Australia [in] March 2013 and departed on [Date 1] December 2016 before returning to Australia on [Date 2] December 2016, and his departure card which indicated that he boarded the flight from Thailand. It was put to him that this indicates he has returned to Thailand and may suggest that he does not have a genuine fear of harm in Thailand and raises concerns about the genuineness of his protection claims. He was also requested to provide more information regarding his claims including more substantiating details about being threatened by the Coup government, criticising the government on social media, joining the red democracy group and exercising his right to voice and protest for election; to explain the 12 month delay in making his application for protection since last arrival in Australia; and invited to comment on the fact that his renewal of his passport [in] 2017 suggests he has continued to engage with the Thai authorities during the period of the military rule and the illogicality of his claims given that country information indicates the military coup occurred in May 2014 and he was in Australia by that time.
No response was provided by the applicant to the Department’s letter. On 8 May 20120 the delegate refused the application on the basis of rejecting his claims.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 1 December 2021 by telephone 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. He elected to participate by telephone. On the day of the hearing the Tribunal asked him if he would like to connect via video link using MS Teams, but he confirmed his preference to participate by audio only. 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.
A summary of the evidence given by the applicant at the hearing follows. The applicant resides in [Suburb 1], NSW with his partner and child. He met his current partner three years ago. She also came to Australia to study. He does not know her present visa status. Their child was born in [year]. The applicant works as [an Occupation 3] for [Employer 1].
He confirmed that he lodged the application in December 2017 and was assisted to complete the application by a friend who was more familiar with English. The Tribunal asked if he was aware of correspondence sent to him by the Department on 6 April 2020 asking for comment and further information, noting that he provided no response. He confirmed that he was not aware of this letter until recently when the new representative he engaged mentioned it to him. When asked if he was aware of the content of the Department’s correspondence, he indicated he did not know. He then stated that he has a representative now but the representative was not present with him at the hearing.
The applicant confirmed he came to Australia in March 2013 to study language. He did a 6 month course in English and then another course for a year or so. After that he changed his visa to a dependent on his then partner’s student visa because the tuition fees were too high and he needed to work. He last studied in 2015. The applicant confirmed he came to Australia with a previous partner, with whom he was in a relationship in Thailand. They separated after he came here and he subsequently entered a relationship with his current partner.
He has returned to Thailand once since then in December 2016 for about 17 days. He went to visit his parents who were unwell. While he was there he experienced an issue which he will discuss in more detail later.
The Tribunal noted he provided a current passport to the Department which was issued in [2017] and asked him how and why he applied for this. He said he applied in person at the Thai Embassy and experienced no issues obtaining it. He renewed his passport because it was a requirement for a job.
The Tribunal asked the applicant about his family in Thailand. He has parents and two brothers, one of whom is married and has two children and the other is still single. They all live together in Lampong Province on the family property. Prior to coming to Australia the applicant confirmed he lived and worked in Chonburi Province as [an Occupation 2] for a [company]. This was some 700 km from his home province. He worked there for 5-6 years prior to coming to Australia. He left this job on the recommendation of a friend to come to Australia to improve his opportunities.
The Tribunal asked the applicant to explain the reasons he lodged this application seeking protection in December 2017. He said during his visit back to Thailand in December 2016 he experienced a problem. He was accosted by three men and physically harmed. He said it started because he had posted something on social media on 13 December 2016, criticising the coup government and offence was taken about this by these men. He does not know who they were and whether they were from the police or government. They threatened him and physically harmed him and threatened to kill him unless he paid them a sum of 1 million baht. He did not have that kind of money so he gave them what he had which was 300,000 baht. They threatened to have him charged under s112 which could have lead to imprisonment for 3-5 years. This incident occurred in the period he was in Thailand [in] December 2016. It was because he had criticised the government badly. It was also a consequence of an action he had taken in 2010 when he attended a rally against the then Prime Minister, Abhisit Vejjajiva. He attended a mass rally in 2010 in Bangkok where there was a lot of violence. During this event an image of the King was burned and while he was not involved in the burning he was captured in an image close by and these men had a copy of this image and referred to it when they approached him and threatened him in December 2016. The applicant said he was afraid and asked his parents to seek a loan for the remaining 700,000 baht which they did, and they told him not to return to Thailand. He returned to Australia and is now working to pay off the loan his parents had to take by mortgaging their home. When asked who these ‘men’ were the applicant referred to them being from the ‘dark’ group. He does not know exactly who they are because they do not reveal it. He could not report the incident to the authorities for fear that they are involved.
The Tribunal noted that this application was not made until 1 December 2017 which is one year after he returned and asked why, if his claim that he had left in fear because of this, he waited one year to seek protection. The applicant responded that he did not know about the option of seeking protection in Australia until much later.
The Tribunal put to the applicant that the above claim and evidence of his background is not consistent with the information about the reasons for seeking protection in his application, where he referred to having a small [Product 1] shop and business went bad during the time of the coup and when he lost his busines he started to criticise the government on social media and joined the red shirts democracy group. It pointed out he never mentioned the December 2016 incident of being accosted and physically harmed by 3 men and demands made for payment of 1 million baht. It is also inconsistent with his evidence that he worked as [an Occupation 2] for a [company] for 6 years and he never mentioned owning a small business to the Tribunal. It put to him that the inconsistencies in his written and oral evidence may cause the Tribunal to have concerns about the reliability and credibility of his evidence. In response he denied it was inconsistent. He said that he also had a small [Product 2] shop that he worked when he was not working on the farm. The Tribunal noted he never said he worked on a farm but said he worked and lived 700 km from the family farm, The applicant then said that there may have been some miscommunication between himself and his friend and he apologises if there are some mistakes. He said he has never been in a situation like this and he is a bit nervous and a lot of time has passed. He is now telling the Tribunal what happened to him and it is the truth.
The Tribunal asked since his return to Australia in December 2016 has anyone in his family experienced any other incidents. He said they have not. Since they gave the men their money nothing further has happened. His parents and brothers continue to live on the land and work on the farm. They were only targeting the applicant because of his involvement in the rally in 2010 so only he was at risk.
The Tribunal asked, as it is now 2021, what does he fear will happen to him if he returns to Thailand now. He said he fears these men still because the same political group is still in power and he continues to be afraid of them. The current Prime Minister was appointed by the leaders of the coup and they robbed power from the people. This is not what democracy is supposed to be. They get rid of people who do not agree with them. The current leader was part of the coup that toppled Yingluck who was then the Prime Minister and since then people have no rights to express themselves. He cannot be sure of his safety if he returns. When he tried to show his support for democracy in the past he experienced such a violent response. The Tribunal asked if he is referring to his involvement in the 2010 rally. He confirmed that this is what he is referring to. He did not attend any other events after that because his family told him not to because it was too dangerous.
The Tribunal asked again if, apart from the rally in 2010 he has participated in any other political activities or events in Thailand or Australia. He said he has not, other than sharing some news stories on his [social media] in the past. The Tribunal asked what kind of material did he share. He said he forwarded some news articles with his friends. When asked what they were about, he said they were against s112 and trying to eliminate this provision. The Tribunal asked if he has evidence of these posts. He said he can try and find some of these. Then he said his [social media] was blocked about 22 days ago so he will try but he does not know if he can get this evidence. The Tribunal said it will allow him one week and he can provide any material he wishes to.
The Tribunal asked if there is any other reason he is fearful of returning to Thailand. He said he is just worried about s112 being used against him. The Tribunal put to him that independent information before the Tribunal indicates that in February 2018 a directive was issued by the Attorney General instructing a review of all prosecutions under s112 and since then there have been no new charges brought and asked if he had any comment on that. He said he is not aware of this and believes the law still exists and people are still protesting against it. The Tribunal noted that the law does still exist but, since the directive, it is not relied on as much as previously, although there are other laws that are used against opponents of the monarchy.
The Tribunal summarised to the applicant its concerns arising from his evidence are that his oral evidence is very different and not consistent with his written claims, raising concerns about its credibility, and this together with the delay in lodging the application and his return visit to Thailand in 2016 and renewal of his passport may suggest to the Tribunal he has no adverse political profile and will not face a risk of harm if returned in the future. The Tribunal will consider his explanations and independent information about the current situation in the country in assessing his claims. It will allow a period of one week for him to provide any further evidence on which he relies.

On 7 December 2021 the applicant provided an email with attachments of 6 posts purportedly from his private [social media] account indicating posts made in September and October 2020 and more recently, 2 and 6 days since the screen shot was taken.
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 December 2017, the applicant indicated that he feared return to Thailand because, during the time of the coup, his small [business failed and he started to criticise the government on social media and joined the ‘red’ democracy group and fled to Australia after some of the leaders of this group were arrested. The Tribunal observes that independent information indicates the coup took place in May 2014, by which time the applicant was already in Australia. While there were mass protests and street battles occurring during 2013[1] the Tribunal observes the applicant arrived in Australia in March of that year.
[1] DFAT Country Report on Thailand, July 2020, p8
In any event, before the Tribunal, the applicant provided a very different explanation for his fear of return, telling the Tribunal for the first time about a claimed incident during his visit back to Thailand in December 2016 when he was accosted by three men who physically attacked him and demanded 1 million baht from him and threatened to kill him on the basis of his past activity participating in an anti government rally in 2010 in Bangkok. He made no mention of owning a [Product 1] shop and participating in political actions prior to fleeing to Australia in 2013. Rather, and contrary to this, he told the Tribunal he lived some 700 kilometres from his hometown and worked as [an Occupation 2] for a [company] for the period 5-6 years prior to coming to Australia. When these inconsistencies were put to him he denied there was any inconsistency, stating he also ran a [Product 2] shop when not working ‘on the farm’, which was again inconsistent with his earlier evidence regarding his employment history. He made no further comment on the failure in his written claims to mention the 2016 incident he recounted to the Tribunal. Regarding the claim made to the Tribunal of his participation in a political rally in 2010, the Tribunal accepts that there were mass scale protests in Bangkok in 2010 against the then Prime Minister Abhisit Vejjajiva, during which violent clashes between anti-government protesters and government troops occurred leading to some deadly confrontations,[2] however the applicant made no mention of this in his written application.
[2] See eg. Timeline: Thailand's political crisis >
The Tribunal finds the inconsistencies in the applicant’s written and oral evidence relating to the reasons for his fear of return, his past experiences in Thailand and circumstances of where he lived and the work he did are so significant and relate to such substantive matters that they detract from his credibility and the reliability of his evidence. His written claims and oral evidence bore little resemblance to each other. He failed to mention in his oral evidence anything about participation in pro-democracy activities prior to coming to Australia in 2013 and his conduct returning to Thailand in 2016 contradicts this claim. He failed to mention in his written claims anything about being accosted by men in 2016 and demanded to pay money on account of his participation in a 2010 rally as claimed to the Tribunal. When the inconsistencies, omissions and contradictions were put to him for comment his response was unsatisfactory and unconvincing. The Tribunal finds the applicant is an unreliable witness and is not satisfied he has provided a truthful account of his circumstances in Thailand. The Tribunal finds the applicant’s voluntary return to Thailand in 2016 suggests he had no fear of return in 2016. It rejects his claims of participation in political protests prior to his first arrival in 2013 as this is inconsistent with his oral evidence about where he lived and worked and the timing of events prior to the coup which in fact took place in May 2014, over a year after the applicant’s arrival in Australia. It has considered his claim that his fear of return arose from the events which occurred during this trip back, however, the significant delay of over one year in seeking protection and failure to mention this incident in the original written statement provided with the application detract from the credibility of this claim.
Therefore, on the basis of this adverse credibility assessment, the Tribunal rejects the applicant’s claims. It does not accept the applicant had a failed business which led him to participate in pro- democracy activities prior to his arrival in Australia in 2013, or that he was accosted by anyone on his return visit in December 2016 because of his involvement in a 2010 political protest event or that any sum of money was demanded from him. The Tribunal is not satisfied on the evidence before it that the applicant has actively participated in any political activities in the past in Thailand that would bring him to the attention of any authorities in Thailand upon his return in the reasonably foreseeable future. His conduct in returning to Thailand in December 2016 and applying for and obtaining a new passport from Thai authorities in Australia in [2017] is also consistent with this conclusion.
The applicant claimed, at the conclusion of the hearing, that since being in Australia, he has made social media posts that are critical of the current regime. In support of this claim he submitted evidence of 6 posts from his [social media] account following the hearing. The Tribunal has considered this claim and the evidence submitted and makes the following findings regarding them. It accepts that the evidence shows he made some comments supporting views and activities which could be seen to be critical of the current government and/or supportive of pro democracy activities or activists, however on the basis of the limited number of posts, and the absence of any other history or record of political activity and the fact that his [social media] account indicates it is a private or restricted account that is not open to public view, the Tribunal is not satisfied that these posts alone give rise to any risk of harm in the reasonably foreseeable future.
In reaching this conclusion the Tribunal has considered independent information about political expression and the current government in Thailand. It accepts DFAT’s assessment, in its most recent Country Information Report is that notwithstanding the existence of constitutional protections guaranteeing the freedoms of expression, opinion and assembly, the ability of Thai citizens to criticise the government and express dissent publicly (either individually or collectively) is circumscribed in practice. Authorities have demonstrated a willingness to use broad interpretations of national security legislation, or the threat of prosecution under such legislation, to prevent political demonstrations from occurring or to discourage the expression of matters of public interest online.[3] It accepts that since the coup, the National Council for Peace and Order (NCPO) criminalised expressions of political dissent using a number of legal instruments , including the Computer (-related) Crimes Act which has been used to press charges against persons who criticise or present information criticizing the military or NCPO, although the information before the Tribunal indicates that this is used to target high profile government critics[4] and to silence journalists.[5]
[3] DFAT Country Information Report Thailand – JULY 2020 p 26-27
[4] Human Rights Watch, World Report 2020, Events of 2019 – Thailand, World Report 2020: Thailand | Human Rights Watch (hrw.org)
[5] For example Reporters Without Borders, Red alert for green journalism – 10 environmental reporters killed in five years | RSF 21 August 2020
The Tribunal has also considered the applicant’s claim that he fears s112 will be used against him. It accepts that Thailand has lese majeste laws which criminalize criticism of the royal family. Article 112 (the lese majeste or royal insult prohibition) makes it a crime – punishable by a maximum of 15 years’ imprisonment for each offense – to criticize, insult, or threaten the king, queen, royal heir apparent, or regent.[6] Although the law continues to be sparingly used, since 2018 authorities have shifted to a range of other methods – both judicial and extra-judicial – to pursue critics.[7] The Tribunal acknowledges country information indicates lese majeste laws also allow citizens to file complaints against each other and that since intensification of protests led by Thai youth movement in mid-July 2020, many activists received a summons to hear lèse majesté charges (under Section 112) in late November and early December 2020.[8] Notwithstanding this information, the Tribunal is not satisfied that anything in the applicant’s evidence suggests he is at risk of serious harm arising from enforcement of lese majeste laws. As indicated above, the Tribunal has rejected his claims of past political activism and, despite his recent [social media] posts, which the Tribunal found are private and occasional, it is not satisfied he has a profile that would give rise to any harm from such actions in future.
[6] 2020 Country Reports on Human Rights Practices: Thailand', US Department of State, 30 March 2021, sect.2a, p.14, 20210331144504
[7] Country Reports on Human Rights Practices for 2018 - Thailand’, US Department of State, 13 March 2019, Sect.2a, p.13, 20190314092700; ‘Thai king implicated in disappearance of exiled dissident’, Green Left, 18 June 2020, 20200701144534
[8] See for example, 17 activists summoned on Section 112 charges in one week', Prachatai, 07 December 2020, 20201208103510; 'Controversial lese-majeste law returns amid protests in Thailand', Hong Xiyue , DW Akademie, 08 December 2020, 20201209121641; 'Thailand latest: German ambassador tweets on human rights', Nikkei Asian Review, 10 December 2020, 20201211095019; 'Thailand revives law banning criticism of king in bid to curb protests', BBC News, 25 November 2020, 20201125103844; 'Seven Thai protest leaders face charges for insulting the monarchy', APP - SBS, SBS World News Australia, 25 November 2020, 20201125104317
For these reasons and the findings above, the Tribunal is not satisfied there is a real chance that he will suffer serious harm upon return to Thailand in the reasonably foreseeable future for reasons of political opinion, or any other of the specified reasons mentioned in s5J(1).
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 made above rejecting the applicant’s claims of past pro-democracy political activity or that he was accosted and extorted for money upon his return trip to Thailand in 2016, and finding that his [social media] posts were limited in content and private, 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 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.
…

Abhisit Vejjajiva, Thai ex-PM, defends crackdown order Thailand's former prime minister charged with murder,

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Immigration
Administrative Law

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Judicial Review
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Citations

2008460 (Refugee) [2022] AATA 1086

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

[2022] AATA 1086

17 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction