2103931 (Refugee)

Case [2021] AATA 3247

2103931 (Refugee) [2021] AATA 3247 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2103931

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Jane Marquard

DATE:23 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 23 June 2021 at 12:22pm

CATCHWORDS

REFUGEE – protection visa – Thailand – political opinion – anti-monarchy comments – particular social group – people with drug addictions – request to courier drugs – physical assault – fear of arrest – support for drug addicts – return visits to Thailand – child remaining in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423A, 423C, 501C
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
EJC18 v MICMSMA [2020] FCCA 3171
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MZAAJ v MIBP [2015] FCCA
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559 at 596
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZSPT v MIBP [2014] FCA 1254

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

OVERVIEW

  1. The applicant is [an age]-year-old man from Bangkok, Thailand.

  2. He first arrived in Australia [in] November 1998 at the age of [age] on a [Tourist visa]. After this visa expired, he was granted a number of [Student visas]. On 22 August 2001 he was granted a [Student visa] and on 21 January 2002 a [further Student] visa. On 24 February 2003 he was granted a [Skilled visa] (. He departed and returned to Australia on numerous occasions. The last time he left Australia was in June 2017, returning in July 2017.

  3. The last visa the applicant held…

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Details
AGLC
2103931 (Refugee) [2021] AATA 3247
Case
[2021] AATA 3247
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual who claimed to fear harm upon return to Thailand. The applicant, who had a history of drug addiction and related criminal convictions in Australia, alleged that he faced risks from drug dealers and potentially from the Thai authorities due to past associations and a family member's public comments. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution for a Convention reason or faced a real risk of significant harm if returned to Thailand.

The Tribunal was tasked with assessing the applicant's claims in light of the statutory requirements for protection visas, including the refugee criterion under s 36(2)(a) and the complementary protection criterion under s 36(2)(aa) of the *Migration Act 1958* (Cth). This involved evaluating the evidence presented by the applicant regarding his fear of drug dealers, the potential for re-prosecution in Thailand, and the impact of his uncle's public statements. The Tribunal also considered the applicant's personal circumstances, including his history of drug addiction and his family ties in Australia.

In its reasoning, the Tribunal affirmed the principle that the onus rests on the applicant to satisfy the statutory elements of their claim, even in an inquisitorial jurisdiction. The Tribunal noted that while it could seek further evidence, it was not obligated to construct the applicant's case for him. The delegate had previously found that the applicant did not establish a personal political profile in Thailand or a real chance of serious harm based on his uncle's social media comments, and that state protection would be available against fears related to drug dealers. The Tribunal also found that the applicant would not be re-prosecuted for drug offences committed in Australia. Ultimately, the Tribunal was not satisfied that the applicant met either the refugee or complementary protection criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant states he may be shot on sight should he return. He is also worried about relapsing. The applicant claims the Thai government is very strict so would ‘shoot first and ask questions later’.Summary of evidence before the TribunalApplicant’s evidence at the first Tribunal hearing The applicant appeared before the Tribunal on 19 May 2021 to give evidence. The applicant was unrepresented. The applicant confirmed that he was born in Bangkok. His parents, who are separated, are still residing in Thailand. His mother does not work, and his father works in retail. His grandparents have passed away and he has no contact with other extended family in Thailand. He has [specified siblings] living in Australia. [One relative] has permanent residence and his brother is on a bridging visa. Both work in [the same industry], and his brother is [an occupation]. His uncle is also living in Australia. He owns [Business 1]. He has a daughter in Australia, aged [age]. He was in a relationship with her mother from 2009 until about 2015 and they are now ‘good friends’. He telephones his daughter ‘all the time’. In [his detention centre] there are limited permitted visits because of the COVID-19 pandemic. He attended primary school in Bangkok. He went to high school in [Country 1], finished year 12 in Thailand then studied at [College 1] in Australia. He first used drugs when he was in year 12 in Thailand. A friend gave him amphetamines. He used a few days a week and then it ‘became regular’. He asked his father to send him to Australia to get away from the drugs. He arrived in Australia to study at the age of [age] in 1998. He lived with his uncle. He completed a [Course 1] at [College 1] from January 2000 to December 2002. From January 2003 to December 2005 he was enrolled in [Course 2] at [University 1] but he withdrew from this course. He dropped out in his final year because he ‘made bad choices’. He met a Thai friend and they started using drugs. He was living with his girlfriend at the time, but they broke up over his drug use. He had not used drugs while he was at [college] or university prior to this. He started using ice in Australia. He slowly became addicted. The applicant said that after he moved out, he ‘felt lost’, and stayed with his friend who was dealing. This led him to gaol for [term] on a conviction of drug supply. After he went to gaol, he met ‘a lot of people who were drug dealers’ and then he ‘dealt with them’. After being released from gaol, he stayed with his uncle at first but then ‘got back with my drug dealing friends’. He was convicted again for drug offences and spent [longer term] in gaol. Then he was released and lived in the community for three months and then got convicted again for [term] for drug supply. He was out of gaol for one year, and then was convicted again for drug supply (ice) for [longer term]. His sentence finished in August 2020 and he has been in immigration detention since.

Decision

Reasons for decision

[Name] said that he is the applicant’s brother and he supported his application for protection to stay in Australia. He said that he has lived in Australia since 2006. He said that they are planning to bring their mother to Australia to live as a family and he misses his brother. He said that they have supported him from time to time. He said that he feels bad that the applicant’s daughter cannot spend time with her father. He said that there was nothing for the applicant in Thailand and all his close family is in Australia. He said that he was willing to assist him in getting rehabilitation so that he could be a good citizen and stay close to his family and daughter.DECISION OF THE DEPARTMENT The delegate was not satisfied that the applicant had a personal political profile in Thailand or that there was a real chance of serious harm or a real risk of significant harm on the basis of the comment by his uncle on social media. In respect of his fears of the drug dealers, the delegate found that the applicant could access state protection. The delegate was satisfied that the applicant would not be re-prosecuted for drug offences committed in Australia. The delegate was not satisfied that the applicant met the refugee criteria or complementary protection criteria.FINDINGS AND REASONSThe applicant must satisfy the statutory elements The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. Although it is well-established that the role of the Tribunal is inquisitorial, it is for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal’s inquisitorial role does not extend to requiring the Tribunal to seek out evidence to support an applicant’s claim, even though the Tribunal is entitled to do so (ABT16 v Minister for Home Affairs [2019] FCA 836). The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70). The applicant in this case was unrepresented. As requested, the Tribunal provided the applicant with a second hearing so that he had an opportunity to obtain legal representation. The applicant told the Tribunal that he could not obtain representation. The Tribunal provided the applicant with a second hearing nonetheless so that he could provide further evidence and arguments, and also summarised for him the relevant criteria of the visa.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act. 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) of the Act, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCESummary of evidence before the Department The applicant made claims in his application forms and supporting documents but was not interviewed by the Department. A summary of his evidence follows. The applicant was born in Bangkok and is a Buddhist. His parents are still residing in Thailand. He has [specified relatives] living in Australia. He also has a daughter in Australia, aged [age]. He was in a relationship with her mother from 2009 until 2016, when they separated. The applicant arrived in Australia at the age of [age]. He completed [Course 1] at [College 1] from January 2000 to December 2002. From January 2003 to December 2005 he was enrolled in [Course 2] at [University 1], but he withdrew from this course. From June 2001 to October 2006 the applicant was [an Occupation 1] at [Business 1] in [location]. From August 2016 to December 2016 he worked as a labourer in [Industry 1] in [another location]. He is currently unemployed. The applicant claimed that he left Thailand to get away from drugs as he had been ‘caught up in the whole lot.’ He said that he was addicted to drugs and his family stepped in to help him. The only way they could help was by sending him to Australia. The applicant claims he was ‘stuck in the lifestyle. I had drug dealers who were my opposition trying to find me and my family to take me out’. The applicant claims the Thai community is very strict. He said that his uncle made a remark on media ‘which was not pleasant has marked my family name to be dealt with and thrown to gaol if ever stood a foot back on Thailand soil’. The applicant fears relapsing on drugs or being thrown into gaol. The applicant states he may be shot on sight should he return. He is also worried about relapsing. The applicant claims the Thai government is very strict so would ‘shoot first and ask questions later’.Summary of evidence before the TribunalApplicant’s evidence at the first Tribunal hearing