2109748 (Refugee)

2109748 (Refugee) [2024] AATA 4096 (20 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Suraj Handa (MARN: 0637649)
CASE NUMBER:  2109748
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Rosa Gagliardi
DATE:20 August 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 August 2024 at 4:00pm
CATCHWORDS
REFUGEE – protection visa – Thailand – particular social group – victims of loan sharks – credibility concerns – lack of corroborative documents – delay in departing from country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
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
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 22 July 2021 to refuse to grant the visa applicants protection visas under s.65 of the Migration Act 1958 (Cth) (the Act).
The first-named visa applicants who claim to be citizens of Thailand (which the Tribunal accepts), applied for the visas on 8 May 2020.
The delegate refused to grant the visas on the basis that the visa applicants could access effective state protection in their home country and therefore were not owed protection obligations as outlined in s.36(2) of the Act.
Only the first-named visa applicant appeared before the Tribunal on 31 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The visa applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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
The issue in this case is whether the visa applicants have a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if they returned to Thailand now or in the reasonably foreseeable future, they would be persecuted for one of those reasons, and whether they would suffer serious harm. Alternatively, the Tribunal must assess whether the visa applicant meet the complementary protection criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
The visa applicants claim they borrowed money from loan sharks to trade. Initially the creditor specified the loan interest as being set at rates according to the law. As time went on, however, the creditors increased the interest and entered a “fake loan” contract to charge the applicants. The creditors forced the applicants to pay interest each month, refusing to allow them to pay the principal. When they did not have the money to pay the creditors, they would get people to threaten to kill them both. The first-named visa applicant never used up the money he borrowed because they had been cheated.
The visa applicants also claimed they had not experienced harm in their country. They had however attempted to move to another part of the country to seek safety. Asked to provide details of such a move, the first named visa applicant wrote that he used to relocate to a relative’s house in another province. The creditors followed him anyway as they were influential and had many networks.
The first-named visa applicant expressed the view he might get killed if he returned to Thailand because the creditor threatened that if he did not pay for more than two months he would be killed. He wrote that if he went back to Thailand he would be hurt by the creditors, and no one would be able to help him because this person is a person with power and could prevent the authorities from helping him. The first-named visa applicant did not think he could relocate within his country due to the power of the creditors and no matter where he went, the creditors would find him.
The second-named visa applicant wrote in the application that her reasons for leaving Thailand were the same as her husband’s and that all the answers in the application were the same as those of her husband, the first-named visa applicant.
Evidence at Tribunal hearing
The Tribunal noted that the first-named visa applicant’s spouse was not present, and he confirmed their claims were identical.
The parties came to Australia on a Tourist visa [in] March 2020 and used to reside in Bangkok. The first-named applicant stated that they had two children in Thailand. His daughter was renting an apartment because she was attending university, but his son was in the countryside living with a distant relative. His daughter was [age] and his son was [age] years of age. The first-named visa applicant stated that his father had passed away a year ago and his mother was living but was very old. The first-named visa applicant stated that he had not attended his father’s funeral for many different reasons, and he was still afraid to go back to Thailand.
In Thailand the first-named visa applicant was an [Occupation 1] in [Employer 1], Bangkok. His wife [worked] at another [workplace]. He confirmed they both earned a good income.
In 2018 the first-named visa applicant had an interest in starting up a [business] in Thailand - before COVID-19. Because he earned a good salary and he had bought a house, he took out a loan from someone outside the regulated financial system because he did not have enough funds to start up the [business]. The [specified] machines were quite costly. Asked if the first-named visa applicant had purchased the business, he stated it was an empty factory and he had to purchase the equipment to install, but the set up was not as yet complete. The Tribunal asked whether the first-named visa applicant had receipts for those purchases. He stated not yet, there were some, but he did not retain them because they were purchased in cash. The Tribunal asked why he had not gone to a bank to borrow money. He answered he did go to arrange a bank loan, but it was not approved in its entirety. If he raised a bank loan it would not be enough and he would have to procure funds from elsewhere, which would mean he would need loans from different sources.
The first-named visa applicant stated he had made payments towards his home, but it was under the name of his spouse, and it was still under mortgage. The first-named visa applicant had a bad credit rating due to credit cards, so it was difficult for him to get a loan from a bank.
The Tribunal noted that if he was already in difficulty with the bank and he and his wife owed money on their house, why would they place themselves in the situation where they accessed funds outside regulated financial institutions. This was particularly so as both the first-named visa applicant and his wife had jobs and earnt a good income. The first-named visa applicant responded that he admits he was thinking big, and he thought that if he were an employee he would remain so for life. He wanted a small business. That is why he looked for an opportunity. It was his mistake.
When asked, the first-named visa applicant stated that he had entered a lease for the property in an alley. The Tribunal asked whether he had the documents for the lease of the property. He responded yes there were documents, but now they were no longer there, and it was a long time ago and he did not bring the documents with him, and he did not keep them, and he would need to search for them again. The Tribunal asked where the lease contract might be precisely. He stated it should be in his house in Bangkok. His house was not lived in now, it was empty. Apart from his home mortgage, he was not paying anything for the [business]. The first-named visa applicant stated that he owed an amount over 3,000,000 in Thai Baht (approx. AUD130,248) for his residence in Bangkok.
The Tribunal asked when the first-named visa applicant signed the lease for the [business] premises, and he responded it might have been in early 2018, but he could not recall precisely. The Tribunal asked who the landlord of the premises was. The first-named visa applicant stated that he did not know the real name of the landlord of the business, but he called him [Name 1] - an acronym for a member of the provincial council. The Tribunal asked when he signed the document whether he did not see the name of the landlord on the document. The first-named visa applicant stated that the premises was not like a house - it was a deserted factory and the landlord asked him to set up the equipment first, before drawing up the lease documents. [Name 1] asked him to sign the lease document, but he could not remember his real name but if he had a look at the document, he would be able to remember.
The first-named visa applicant stated that for ease he lived with a friend opposite the business premises. The Tribunal asked why he was living with friends near the factory. He answered he did not live in the apartment all the time. His friends lived there on a regular basis. He was going back and forwards. His friends had rented that apartment for a long time, and he used to live there previously. The Tribunal asked what was happening with his job at [Employer 1] at the time. The first-named visa applicant stated it was still good and he was still working there. The Tribunal asked if he was living elsewhere, how was it that he could attend [Employer 1] as well as a [business]. The first-named visa applicant replied the plan was that if the business was going well, he would eventually quit [Employer 1]. He had not told his employers that he had started a business because it was just at the start. He would have told them when the business was up and running. The first-named visa applicant stated that he did not have enough money to hire employees, so he had to borrow from the unregulated system. Asked how much, the applicant stated it was in excess of 400,000 Thai Baht (the equivalent of AUD17,366.00 roughly) and he had repaid some of the debt.
The Tribunal asked the first-named visa applicant whether he was working in Australia, and he stated no. The Tribunal asked how he was able to pay the mortgage for his house in Thailand. The first-named visa applicant hesitated and stated that now he was living here he had some savings from Thailand. The Tribunal asked the applicant to specify what savings he had. He responded the amount of money received upon quitting his job and that they had accumulated over 20 years. The Tribunal noted that in that case the applicants did have access to funds of their own. The first-named visa applicant responded that the money came from their Provident Fund but now he did not have that. The Tribunal asked whether he and his wife had ever worked in Australia, and he responded that they had undertaken work on a farm and as temporary contractors together.
The Tribunal asked when the first-named visa applicant was living in the apartment opposite the abandoned factory whether he had paid rent. He stated he only lived in that apartment now and then. The Tribunal asked whether he paid rent because of his business there. The first-named visa applicant responded that at that time he no longer paid rent because he stayed there irregularly.
The Tribunal asked the first-named visa applicant what the name of his business was. The first-named visa applicant responded his business was only starting and there was no name yet, he was just installing the equipment. The Tribunal asked him whether he ever registered the business and he responded he had not done this yet.
The Tribunal asked the first-named visa applicant exactly how many machines he had purchased and what they were. The first-named visa applicant responded there was a [machine] with [specifications] and one [other] machine. There were also two [other] machines and two other [specified machines] – 5 of them. The Tribunal asked whether he had employed anyone at that stage and the first-named visa applicant responded not yet, because at that time he had not officially launched the business. He only told his friends that if he opened the business and if he took in job orders could they help as he would pay them a daily wage.
The Tribunal stated that if the first-named visa applicant had purchased all this equipment, he would have had to keep his receipts for taxation purchases. The first-named visa applicant replied he was considering that, and he retained them, but he did not know where they were now. For the [machines] and the [other] machines, he did not have receipts – only for the [specified] machines but he did not know where these receipts were now.
The Tribunal asked whether the first-named visa applicant had consulted an accountant to see whether the business was viable at all. He responded no he did not do that because in he had done some costs and expenses accounting in [Employer 1], so he did not consult an accountant for his business.
The Tribunal asked the first-named visa applicant to advise the day he decided he would go to money lenders to borrow money for his business. He stated it was around early 2018. He got recommendations from his friend that this kind of business yielded good income and that is why the first-named visa applicant consulted a senior friend who had opened such a business, who told him he needed a capital of about 500,000 in Baht. This person was the first-named visa applicant’s ex supervisor at [Employer 1].
Asked who this person who gave such advise was the first-named visa applicant provided a name. This person was now only selling [machines]. The Tribunal asked whether this person would be prepared to give evidence that he had provided such advice to the first-named visa applicant. He responded that if he called him, it would be possible, but he would have to contact him through a different channel because since he came to Australia, he had not contacted him. The first-named visa applicant stated he did not have his number because he changed everything in terms of his phone.
The first-named visa applicant stated he thought it was not possible to get the 500,000 Baht and he was told to access the external monetary system, to get the money in one lot. The first-named visa applicant stated that the person he borrowed money from he knew, and his name was [Mr A]. This person told him he would be able to give the first-named visa applicant 400,000 or 420,000 Baht and that he would have to pay 2 per cent interest but in reality, it was not like that.
The Tribunal asked where precisely he went to find [Mr A]. The first-named visa applicant stated he went to the area near the university. The Tribunal asked how the first-named visa applicant had found that person. The first-named visa applicant stated he was recommended by [Mr B] (sp?). The Tribunal asked whether [Mr A] had a business card to give him. The first-named visa applicant stated no, upon arrival they had already had their phone conversations and he had already prepared the money and [Mr B] was asked to be a witness. The Tribunal asked whether he had signed any documents about the 2 per cent interest rates. He stated [Mr B] at that time was selling the machines and he borrowed money from the money lenders and was a customer to both of the parties.
The first-named visa applicant stated that he talked to [Mr A] about borrowing 400,000 Thai Baht. He could not recall the exact total as it was a verbal promise. That money was used to pay [Mr B] first, and then the remainder in his hand was around 120,000 Thai Baht.
The Tribunal stated that it was finding it difficult to accept that a money lender who in effect was a businessman, would not have entered into a written agreement with him setting out the terms of the agreement to ensure the applicant repaid the money. The Tribunal asked how the money lenders could keep track of all the verbal agreements they had entered into with their debtors. The Tribunal noted these were ruthless people. They would not rely on a verbal agreement. The first-named visa applicant then stated he had done that later - there was a contract and an agreement made, but in the contract, it did not indicate he was borrowing 400,000 Thai Baht. Instead, it indicated he owed over 520,000. The Tribunal asked whether the first-named visa applicant had a copy of that written agreement and he said he did. “They” forced him to sign that document. The Tribunal suggested he provide it to the Tribunal to support his case. The first-named visa applicant then stated that it was a long time ago and he would have to search for it, and it was probably at home.

The Tribunal asked the first-named visa applicant when he had to start making repayments on the loan. He responded one month after he borrowed the money. They did not care whether he could run the business or not.
The Tribunal asked why the first-named visa applicant went to the money lenders when the business was not even running and hence, could not generate income to repay the money. He replied that this was his mistake because he did not have the capital. It was a wrong step that he took.
The Tribunal noted that the first-named visa applicant came to Australia [in] March 2020 and asked why he and his wife had stayed in Thailand for 2 years after these troubles with the money lenders had begun. He answered that he did not think he would encounter such problems. He tried to look for employees, customers, and equipment during that period of time. He was just crawling at that stage and there was no progress and he started becoming aware he did not have enough money. The Tribunal asked whether it took him two years to realise the business was not a going concern. The first-named visa applicant stated it was approximately at the end of 2018 that he realised that. After that he tried to make repayments and to negotiate with them and he wanted to stop the business and he requested to make the repayments gradually. The Tribunal asked the first-named visa applicant whether at that stage the business was up and running and he answered yes, the business was running, and he tried to drop flyers off at houses. He also tried to [undertake work for business clients]. The Tribunal asked whether he had copies of such flyers to submit to the Tribunal and the first-named visa applicant stated he did not bring them with him.
The Tribunal noted that to operate as a business he would have needed insurance. He stated that in Thailand small businesses don’t have insurance, but the Tribunal observed that if he had employees and they were injured during the course of their employment, the first-named visa applicant would be liable. He stated that at the time honestly speaking he did not think of this aspect - he just thought of how to keep the business running and he only hired two of his neighbours.
The Tribunal asked whether the first-named visa applicant had ever registered his business. He replied not yet as he could only register the business if it generated income, but it was not at that point. He was planning to register the business commercially when it generated income. Returning to the issue of the contract involving the 2 per cent interest rate, the first-named applicant stated that the documents were at home somewhere. The Tribunal asked whether he could recall on what date he signed the loan contract. He stated he could not recall-it was so long ago, but sometime in early 2018.
The Tribunal asked the first-named visa applicant to advise what had happened to him prior to coming to Australia. He stated that after the business was not able to operate as he had imagined, he had slightly over 100,000 Baht so he made a further investment in selling [specified goods] at market fairs. Then he talked to the money lender to make gradual repayments as they did not have the money because they just sold items at the markets and their income was low. The Tribunal asked the applicant about work at [Employer 1]. He stated that he separated his income from [Employer 1] for use to make home loan repayments and to pay for his children, and for his parents to spend and daily living expenses. In terms of the loan, it was the first-named visa applicant’s intention that it would be spent for the business. That was why they were not able to make repayments and renegotiated to lower repayments to 8,000 Thai Baht, but they did not agree to that. That is why there were some months when they missed repayments because “they” did not agree to lowering the rate of repayments. Afterwards he missed repayment for one month and then in the later month he made a repayment of over 10,000 or 15,000 Thai Baht but he could not recall exactly. Then they sent 5 or 6 men in black who waiting in front of the [workplace]. The Tribunal asked whether the [workplace] security called the police. The applicant stated that did not happen in Thailand. In any event did not create a disturbance in the [workplace], they were just waiting in front of the [workplace].
The Tribunal asked what these men in black did and the first-named visa applicant responded that when he exited the [workplace], they met him and told him they would have to pay by that day and was told do not imagine escaping or doing anything like that because they would track him down as they had people all over the country. They said they could make him leave his workplace as well. They continued saying that if he escaped his house, they would know and they would seize everything he owned and would evaluate everything for the expenses. When he made a call to them the amount about the money of 500,000 Baht owing they owed increased it to 700,000 Thai Baht. The Tribunal asked when this happened. He stated it was in 2019, but he could not recall exactly but it was the time he organised to leave Thailand. By the time he was leaving he was scared because even though he would escape the country they would wait and watch for them at the airport and would take them to be fed to crocodiles. The Tribunal noted that they never stopped the applicants at the airport and the applicant replied that they did know he was preparing to come overseas. He was thinking that and was feeling scared.
The first-named visa applicant stated that after the visa was granted, he was still scared and that is why he did not come here straight away and waited two or three months before making his trip here.
The first-named visa applicant when asked where he had moved to, gave the name of a province, and stated that then they moved to live in another area. It was just his wife and himself who relocated as his daughter stayed at an apartment at university. Their son followed them but later they sent him to live with a distant relative in another province.
The Tribunal asked whether the first-named visa applicant had put in a resignation to [Employer 1]. He replied he did and told them he had found a new job but did not tell them about the loan sharks. The first-named visa applicant stated that the creditors knew he was leaving and that he quit his job, and they would be able to check up on him.
The Tribunal asked the first-named visa applicant whether he was harmed by anyone in Thailand at all. He stated there were only threats but not to the point of causing injury or damage. They circled him and pointed their finger to his chest in a harsh manner. They did not harm his body but threatened him. Asked how many times the applicant was threatened, he replied that he could not recall but within a period of one year, it was around 10 times. The Tribunal asked how the threats occurred. The first-named visa applicant replied that they called him to threaten to kill him if they did not get their money back. They said they would be able to chase him down. He did not think he could live happily if he did not pay. They were informing him of the balance and stated he had to pay, and the balance kept increasing. They also went to the first-named visa applicant’s house 4 or 5 times and another time threatened his parents despite it being far away. Asked when they had gone to his parents’ house, he stated in 2020, a little before he came to Australia. They even knew his father had passed away.
Asked what he thought would happen to him on return to Thailand the first-named visa applicant stated given he escaped four years ago; they would definitely kill him according to their threats. In Bangkok they could go to his residence at any time but in terms of his parents’ home it was a little further away.
The Tribunal asked whether in receiving all these threats the first-named visa applicant had ever thought of going to the police. He stated he had thought about it but in Thailand the police would not be able to protect him. Given the fact that person is rich and influential he could stop all the police from protecting him.
The Tribunal then put to the applicant country information from the Department of Foreign Affairs and Trade repot on Thailand reflecting that Thailand had criminalised loan sharking under the Civil Code which limits the maximum interest chargeable on loans to 15 per cent.[1] Further, loan sharking victims could access support through agencies including the police, the Ministry of Interior and the Prime Minister’s Office. Victims can also contact the Center for Countering Abuse by Loan Sharks on a 24/7 hotline. Police investigate loan sharking claims and loan sharks are regularly arrested and imprisoned: for instance, more than 100 people were arrested on suspicion of loansharking in the first half of 2022.[2]
[1] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report Thailand, 18 December 2023, country-information-report-thailand.pdf (dfat.gov.au).
[2] Ibid.
The first-named visa applicant stated he thought foreigners might understand the situation according to what had been reported, but he was a Thai citizen and was aware of what could happen.
The Tribunal then put to the first-named visa applicant other corroborating country information which demonstrated that loan sharking was being taken seriously at the highest levels in government and the previous Prime Minister was in power, but there is nothing to indicate that the current Prime Minister has reversed this approach:
The government has declared a crackdown on illegal loans and loan sharks as a national priority.
Describing these illicit lending practices as “modern-day slavery” Prime Minister Srettha Thavisin emphasised the urgent need to eliminate such activities to restore normalcy and social order.
“Addressing illegal loans has become a national priority. This policy isn’t about the government’s or my image. It’s about alleviating people’s hardships and returning their smiles and sense of security. People must be able to live without fear”, said Mr Srettha.
The prime minister announced the policy on Friday. The government has opened avenues for affected debtors to file petitions through the Damrongtham Centre hotline at 1567 or by visiting their local district offices until Feb 29. As of yesterday, 75,199 people had signed up for the scheme, with at least 3.82 billion bhat of debt needing to be settled.
Additionally, the Royal Thai Police (RTP) has set up a suppression centre for the issue on its 1599 hotline to receive complaints about loan sharks, as well as the Office of the Prime Minister’s 1111 hotline.
The complaints will be collected before they are transferred to related agencies. Police and prosecutors can arrest those in question immediately after the complaint is received, according to Mr Sttretha.
The state will also provide mediation between debtors and loaners with a provision for reconciliation. A settlement written between both parties is expected after the negotiations conclude.
The agreement must follow a system set by the Interior Ministry and include the most suitable debt clearing for each debtor, including interest rate, instalments, and instalment period, said Mr Srettha.
After this, the Office of the Prime Minister will keep track of the results…
Interior Minister Anutin Charnvirakul warned lenders not to obstruct their debtors from registering…[3]
[3] ‘Loan sharks now targeted by Srettha’, by Apinya Wipatayotin, Bangkok Post, 9 December 2023, Bangkok Post - Loan sharks now targeted by Srettha.
The first-named applicant stated that he would say based on the truth, if he filed a report with the police or with the complaints centre they (the loan sharks) would still have documents they only charged him 2 per cent interest, but in reality it was not the case. He stated there was corruption and the head of police was also dismissed from office, so he did not want to trust anyone. The applicant stated that if he did not live in another country, he would live in an insecure and unhappy manner due to his mistakes. The applicant recounted how difficult things had been for him in Australia on resigning from [Employer 1].
The migration agent stated that his client was living a comfortable life in Thailand and had a good job there, but his circumstances changed, and he was forced to leave. He was compelled to save his life and was still struggling because he had no permanent job in Australia because of his limited qualifications and skills. The representative stated if he returned to Thailand, it would be the end of his life, and if he remained in Australia he would be separated from his family.
The Tribunal noted that it had indicated the types of information that would assist support the applicants’ case and it was prepared to grant additional time to provide these.
After several extensions, on 14 August 2024, the visa applicants’ representative wrote to the Tribunal stating that the visa applicants believed that the refusal of the application for protection may have serious and prolonged effects on their well-being as a young couple and that if the application is not set aside the applicants will be forced to return to Thailand against their wishes and will face a real risk of suffering significant harm. The representative also submitted the “brief facts” of the case, being:
·The applicants will face harm from money lenders if returned to Thailand as they have borrowed money and cannot repay them.
·The money lenders have threatened to kill the applicants.
·The applicants claim that the money lenders are influential people with many networks of people.
·The applicants cannot relocate because the money lenders have followed the visa applicants when they tried to relocate to another province with their relatives.
Other submissions made were that the Foreign Affairs and Trade (DFAT) report states that “‘short term money lending and inability to pay debt is a major issue in Thailand, particularly in rural agricultural areas where household debt is 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 money lender”. The Business & Human Rights Resource Centre Thailand states that many fell prey to loan sharks during the pandemic due to a lack of access to legitimate loans, especially as the pandemic spread across Thailand. Several suicides have been blamed on threats from loan sharks in the past two years. SBS Thai has warned people of loan sharks threatening debtors as the issue came to light after several persons from the Sydney Thai community reported to police that they were being threatened and harassed when they had difficulty in making repayments.
Reference is made by the representative, among other things, to the rise of digital platforms finding new ways to target unsuspecting victims and that even though laws were introduced to counter the demands from loan sharks, the difficulty is that loan sharks might be people who are often in uniform. Further, “Some loan sharks won’t do physical harm. They shout, scream and threaten to bully. They will splash red paint over the defaulter house or gate. They will just keep harassing the wife until she pays. They harass the women and their associates by phone, posting photos of their families on Facebook, and add them to Telegram groups where other women’s nude photos are shared…. The decision of the delegate is based on mere presumptions. They really (sic) on the surface is completely different…The decision of the delegate is without any justified reason and solid approach….”.
No further evidentiary material has been provided.
FINDINGS AND REASONS
In assessing an applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by an applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must at first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal has serious questions with the credibility of the first-named visa applicant but accepts that an applicant does not have to corroborate their claims to be believed. Nonetheless, in circumstances where the first-named visa applicant has been given the opportunity to provide some evidence and none is forthcoming and no realistic explanation for such is not provided it is reasonable for the Tribunal to make some adverse findings on such an absence. The Tribunal has had regard to the representative’s submission but notes that the information is general and does not relate specifically to the visa applicants, leading the Tribunal to have serious concerns about their claims overall.
Had the first-named visa applicant set up a small business which started to falter, the Tribunal would have expected him to be able to point to a range of documentation showing that he was in the process of commencing such a venture. The first-named visa applicant stated he had not got to the stage of registering his business, yet later did state that he was trying to get [work] from businesses to produce an income from the [business]. If this were the case, the Tribunal does not accept that such a business would not have been registered with the authorities and that having installed machines into the disused factory, the first-named visa applicant would not have entered a lease arrangement with the owner of the property to be able to provide to the Tribunal as evidence. The first-named visa applicant claimed that he did not know where his documents were but given his adult children were still in Thailand it is not realistic that they would not be able to return to the family residence to search for such key documents to provide these to the Tribunal to at least demonstrate that visa applicants were credible in stating they had started a business for which they had to borrow money to set up.

When the Tribunal asked the first-named visa applicant whether he could produce receipts for machinery he had already purchased, he stated he paid in cash for some machines for the business and was not sure whether he still had receipts for other equipment. Again, it is not clear to the Tribunal why the visa applicants had not asked their children to go their home and put together evidence that at least would demonstrate that applicants had been in the process of setting up a [business] and provide the required legal documentation required relating to setting up a business, whether large or small. The Tribunal does not have evidence, for example, that the first-named applicant had any communication with the taxation office to advise he had started this business for taxation purposes. Even if it is true that the business world is very unregulated in Thailand, the Tribunal does not accept there is no evidence the applicants could provide to support their case. The significant lack of evidence leads the Tribunal to doubt that the first-named visa applicant ever started a [business] to supplement his income or to eventually make it his prime source of income, and the Tribunal rejects this to be the case.
It is not for the Tribunal to make visa applicants’ claims for them. The Tribunal was as clear as possible at hearing about the sort of documentation that would support their claims by way of the paperwork that would naturally arise out of the establishment of an enterprise such as a [business]. The Tribunal has not seen, for example, a licence to trade even though the first-named visa applicant claims he was touting for business.
Furthermore, if the first-named visa applicant was leasing premises from a person referred to as [Name 1] (a member of the local council) it is unclear why the visa applicants could not obtain evidence from this person to say he had entered lease arrangements with the first-named visa applicant or applicants to use his factory premises for the first-named visa applicant to start up a [business].
The first-named visa applicant stated that he purchased machines from a person who was an intermediary between someone who sold machines for [specified businesses] and money lenders – [Mr B]. It would not be unreasonable, therefore, to expect that the visa applicants would have approached this person to ask him to provide a statement supporting the visa applicants’ claims that he had sold machines to the first-named visa applicant for the operation of a [business] and that he had encouraged the first-named visa applicant to seek funds from illegal or legal money lenders. No such third-party evidence has been submitted.
The Tribunal is also troubled with the first-named visa applicant’s implausible claim that that he and his spouse had secure jobs, but the first-named visa applicant thought he would risk everything to pursue another business. The Tribunal was not convinced by the first-named visa applicant’s claims that he planned to leave a settled job at [Employer 1] in Bangkok, a prestige [company], to start a fledgling business when he had had difficulties financially with credit cards and could not borrow money and had yet to repay his mortgage on his residential property.
That the first-named visa applicant had not approached an accountant or some similar professional to seek advice about the viability of entering into such an arrangement when he had already had financial difficulties is implausible, and the Tribunal rejects that the first-named visa applicant ever had an intention to leave his employment at [Employer 1] or anywhere else to start up a [business] without researching whether it was a viable option for him and his wife to enter into further debt to start a business for which they had little evidence would be successful. This of itself is not determinative of the review, but together with the limited evidence submitted to support their case, it contributes to the Tribunal’s overall findings that the visa applicants never opened a [business] or that they had ever asked money lenders for money to set it up.
The other matter that strains credulity is that the first-named visa applicant would be absent from his full-time employ at [Employer 1] on an intermittent basis to stay at an apartment near the disused factory, to set up and run the [business], while still holding a job at the [employer]. The Tribunal would have expected that his employer would have asked questions of the first-named visa applicant, wanting to know, for example, why he was not always present at his workplace. The first-named visa applicant’s account on this matter is not realistic and the Tribunal does not accept that it occurred because the Tribunal does not accept that the first-named visa applicant was set to leave [Employer 1] or any other endeavour to establish a [business].
The first-named visa applicant’s claims about having borrowed money (initially 400,000 and then about 520,000 Baht) from the money lenders also suffer the same deficiencies as his claims about having established a [business] alongside his role at [Employer 1] in Bangkok. The first-named visa applicant claimed initially at hearing that he entered into a verbal agreement with the money lenders regarding the 2 per cent interest rate. As expressed at hearing, the Tribunal finds it implausible that money lenders who are seasoned and shrewd businesspeople, even if callous ones, would enter multiple verbal arrangements with their debtors without entering into some written form of contract setting out the interest rate as well as the period within which the first-named visa applicant was required to repay the borrowed funds.
Later, the first-named visa applicant seemed to revise his account to indicate that there was a written agreement, but that he did not know where it was as it was all so long ago. The Tribunal finds that had the first-named visa applicant genuinely entered an arrangement where he had borrowed about 400,000 Baht or any amount, the visa applicants would be highly motivated to have someone find for them in their residence in their home country the relevant documentation demonstrating that the first-named visa applicant had indeed loaned from a loan shark. Given the country information about the illegal operations of money lenders in Thailand, the Tribunal would then have at least been in a position to accept that the first-named visa applicant had entered into one of these arrangements to which he claims he became a victim of escalating demands for money.
The Tribunal notes that the visa applicants were also provided with several opportunities at the primary stage of the application to provide additional information about their claims and how they could do so but that they did not provide additional details about their claims.
Overall, the first-named visa applicant’s evidence at hearing lacked specificity and was vague in presentation. While the Tribunal would not expect an applicant to have total recall of events in the past, it would expect that an applicant could narrate these events in a context providing specific locations and how events unfolded. The first-named visa applicant’s vague narrative about when he borrowed money from money lenders, only stating it was in early 2018, leaves the Tribunal to have serious questions about whether any events claimed by visa applicants ever occurred.
For example, the first-named visa applicant has also stated that after signing the verbal agreement with the money lender, he was forced to sign a contract which did not reflect their verbal agreement that he would borrow approximately 400,000 Baht but that he was forced to sign a contract which indicated he would borrow about 520,000 Thai Baht and (later he was told he owed around 700,000 Baht). This critical event was not specified, however, in terms of who precisely forced him to sign the agreement against his will and how and when this was done.
The first-named visa applicant’s claims about having attempted to negotiate with the money lenders to repay the owed funds in a more gradual way were also general and unspecific, and the first-named visa applicant did not provide realistic detail about when he might have undertaken such negotiations, with who, and in what location, leading the Tribunal to reject that the visa applicants ever borrowed money from money lenders to start up a [business] and that he was threatened and targeted by unspecified and unidentified persons or that the money owed kept increasing to 700,000 Baht.
The personality of [Mr A] (the money lender) is also indistinct with the first-named visa applicant at hearing stating only that he was known to him but he was not able to provide identifying features about this critical person, that would lead the Tribunal to accept that [Mr A] or any other money lender is a real person in the applicant’s past lived experience, and that he instigated the loan with the visa applicants and the Tribunal rejects that [Mr A] exists or ever existed. This is particularly so as the first-named visa applicant has not provided any documentation that the first-named visa applicant entered a contract with [Mr A], or any other personality to borrow any amounts of money.
The Tribunal also finds it implausible that the first-named visa applicants attempted to relocate within their country but were followed by unspecified money lenders yet were able to leave their country without the money lenders having in some way attempted to prevent them from doing so to ensure that visa applicants remained in Thailand to repay their loan. The Tribunal finds that had the money lenders been intent on watching out for when the applicants return at the airport to feed them to crocodiles, the Tribunal would have thought they would have had the resources to prevent the applicants leaving their country.
The fact the visa applicants waited for two years after borrowing the money to realise they were in danger and to leave Thailand also strains credulity. The visa applicants claim to have borrowed the money in early 2018 but did not come to Australia [until] March 2020, because the first-named applicant was waiting to see how the business progressed and was busy setting it up, is not plausible. The first-named visa applicant claimed that they did not think they would encounter such problems, looking for employees, customers, and equipment for two years. Yet at that stage, the Tribunal finds, the loan sharks would have been circling because the visa applicants were behind in their repayments and would not have waited two years to make their displeasure known to the applicants. The clock on the repayments would have started immediately and it would have been evident to the visa applicants that he could not cover his overheads, as well as the debts to the money lenders and make a wage for himself after several months. The Tribunal finds instead that the reason the applicants did not flee Thailand any earlier was because they never borrowed money from loan sharks to set up a [business] at any time. Had they had an abiding fear for their lives they would have taken the first opportunity to leave their country without waiting for an extended period before doing so.
The Tribunal has also considered whether the second-named visa applicant may have claims independent of the first-named visa applicant but on the material before it, and given that she chose not to attend a hearing, and given the Tribunal has rejected all the first-named visa applicant’s claims, finds that no additional claims arise on the basis of the information before it relating to the second-named visa applicant. The Tribunal has taken into account the country information regarding women being threatened and abused by money lenders, but the Tribunal has rejected that the applicants have ever dealt with money lenders for any reason.
Having considered visa applicants’ claims individually and cumulatively, the Tribunal does not accept that:
·the visa applicants in early 2018, or at any time, borrowed any amount of money from money lenders in Thailand to enable the first-named visa applicant to open a [business] whilst still working for [Employer 1] in Bangkok.
·the money lenders started charging increased interest rates after lending the money and produced a “fake loan contract”.
·the visa applicants were only paying interest to the money lenders, and they refused to accept any principal amount.
·the unidentified money lenders were threatening to kill and hurt the visa applicants every time they did not make any or sufficient repayments, and circled the first-named visa applicant and pointed their fingers at his chest threatening him.
·that the first-named visa applicant was threatened up to ten times per year or at any time.
·the person the first-named visa applicant borrowed directly from was a person called “[Mr A]”, a rich and influential person, because the Tribunal does not accept that such a person exists.
·the borrowed money was partly used to purchase equipment for setting up a [business] and the Tribunal does not accept that such a business ever existed.
·The first-named visa applicant took the advice from any person called [Mr B] about seeing money lenders and from who he purchased [business] equipment.
·The first-named visa applicant and his family were ever required to relocate within Thailand to avoid money lenders because the Tribunal does not accept that the visa applicants ever borrowed any amounts from loan sharks for any reason.
·that the loan sharks are well connected to influential people as the Tribunal does not accept that the visa applicant ever interacted with such loan sharks, well-connected or not.
·that the loan sharks followed the visa applicants wherever they lived and threatened them not to leave the country.
·the first-named applicant was running between jobs, that is, the [business] and his job at [Employer 1], when he started up his [business].
·the visa applicants ever entered a lease with anyone from the local council or any other person to rent premises to run the [business].
·five or six men waited for the applicant outside the [workplace] to threaten him to make repayments.
·loan sharks called the applicants threatening to kill them if they did not get their money back.
·the loan sharks went to the applicants’ residence 4 or 5 times to threaten them.
·the loan sharks went to the first-named visa applicant’s parents’ home to threaten them.
·the visa applicants will be murdered or killed or fed to crocodiles were they to return to Thailand now or in the reasonably foreseeable future.
Having rejected that the visa applicants ever borrowed any sum of money from any illegal money lenders to open a business or for any other purpose, the Tribunal rejects that the visa applicants will be persecuted, threatened, or murdered by any such money lenders in any way. The visa applicants have not established their claims and finds that there is not a real chance that they will face persecution for reasons of their race, religion, membership of a particular social group (victims of loan sharks), nationality or political or imputed political opinion (s.5J) if they return to Thailand now or in the reasonably foreseeable future.
For the reasons given above the Tribunal is not satisfied that each of visa applicants is a person in respect of whom Australia has protection obligations. Therefore, the visa applicants do not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, there is a real risk that they will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution. The Tribunal having rejected the applicants’ claims, individually and in their totality because of the unsupported allegations and because of the questionability of the applicants’ credibility, finds that it is not satisfied that there are substantial grounds for believing that there is a real risk the visa applicants will suffer significant harm due to any adverse profile with any state or non-state actors in Thailand and the Tribunal rejects, on the basis of the limited evidence, that the applicants will be arbitrarily deprived of their life; or that the death penalty will be carried out on them; or that they will be subjected to cruel or inhuman treatment or punishment; or that they will be subjected to degrading treatment or punishment by non-state or state actors.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the visa applicants is a person in respect of whom Australia has protection obligations. Therefore, the visa applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
There is no suggestion that either of the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the visa applicants protection visas.
Rosa Gagliardi
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 first-named visa 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 first-named visa 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 first-named visa 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.
…

[2024] AATA 4096

20 August 2024

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