2111186 (Refugee)
[2024] AATA 3667
•7 August 2024
2111186 (Refugee) [2024] AATA 3667 (7 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2111186
COUNTRY OF REFERENCE: Thailand
MEMBER:Rosa Gagliardi
DATE:7 August 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 August 2024 at 1:17pm
CATCHWORDS
REFUGEE – protection visa – Thailand – non-appearance before the Tribunal – pressured to work in prostitution – insufficient information before the Tribunal – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (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 347Any 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 23 August 2021 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 (a matter the Tribunal accepts) applied for the visa on 18 February 2019.
The delegate refused to grant the visa on the basis that the applicant had provided limited information to support her claims that Australia owed her protection obligations as outlined in s.36(2) of the Act.
The applicant’s engagement with the Tribunal
On 15 July 2024 the Tribunal wrote to the applicant to advise that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. It therefore invited the applicant to a hearing to enable her to meaningfully put forward her claims in a detailed way. The hearing was scheduled for
7 August 2024 at 9:30 am [EST] in Canberra.
The hearing invitation advised the applicant that if she did not appear at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it or may dismiss her application for review without any further consideration of the application or the information before it. The invitation highlighted that if the applicant was not available on this day or she believed she would experience difficulty in participating in the hearing as arranged, she should advise the Tribunal as soon as possible.
The applicant was also asked in the invitation of 15 July 2024 to provide any documents she may wish to rely on to support her case by 31 July 2024.
The invitation was sent to an address as provided by her for the purposes of the review and there is no indication that it was returned to sender.
On the date and time of the hearing the applicant did not appear. Nor did she make any contact with the Tribunal to seek a postponement or to explain her non-appearance. No further information was submitted to support her claims.
The Tribunal understands that proceeding to decision on the material before it entails a discretion only and that careful thought needs to be given to ensuring fairness to the applicant. On the other hand, it is for the applicant to ensure they remain engaged with the review process. The Tribunal is satisfied in this case that it has done everything it reasonably can to invite the applicant to present her case in person. As such and given that the applicant has provided a copy of the Departmental decision for the purposes of the review, the Tribunal proceeds to decision on the material before it.
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 applicant has 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 the applicant returned to Thailand now or in the reasonably foreseeable future, she would be persecuted for one of those reasons and whether she would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets 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 applicant was working in a massage parlour.
·The applicant’s boss started using the massage parlour as a prostitution business.
·The applicant’s boss placed pressure on her and others to work as prostitutes.
·The applicant did not wish to work as a prostitute and refused.
·After the refusal her boss and his friends started putting mental pressure on her and her family.
·They started harassing her every day and each moment. Her workplace had become the worst place.
·Moreover, her boss started troubling her in the area she lived in and because of this people in her area started to say bad things about her.
·The applicant was getting threats from her boss, both physical and mental in her area. He also threatened her life.
·Her boss and his friends attempted to molest the applicant.
·Her family was also being affected by all these things.
·Her boss is a rich person and has good contacts with some organizations and authorities and she was not encouraged and did not feel safe to report any issues. She also could not relocate within Thailand because her boss had a strong network with bad people due to his business.
·The applicant’s support did not pay her salary for a few months and was abused financially.
·Her relatives did not want to support her.
·She started feeling depressed and thought of leaving her country to live her life happily.
In addition to being provided with the opportunity to provide further information by the Tribunal via the hearing invitation, the Tribunal notes that the Department made several efforts to advise the applicant she could provide additional information relating to her claims.
In addition, on 14 May 2021 the applicant was sent an invitation by the Department under s.56 of the Act to provide more information in writing in relation to her claims. The applicant was invited to provide further information regarding her claims of being harassed, threatened, and abused by her former boss and friends. Some credibility issues were also raised, and the applicant was asked about the possibility of relocating to other centres such as Bangkok or Chiang Mai. As at the date of writing its decision on 23 August 2021 the applicant had not responded to these specific requests for information and has never done so.
FINDINGS AND REASONS
In assessing the 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 the applicant himself, 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. 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 also finds that the applicant has not established her claims to be in danger from an unidentified boss who was forcing her to work into prostitution and that she experienced domestic and other violence at the hands of her boss. Her claims are vague, unsupported and do not persuade the Tribunal that these were realistic events that the applicant had lived. Had the applicant attended a hearing it would have liked to give the applicant the opportunity to address the many questions the Tribunal has about her claims.
One of the questions the Tribunal would have liked to ask the applicant is why she thought her boss considered her so invaluable to the running of his prostitution business. Why did her boss simply not terminate the applicant’s employment with the business and all those who would not comply with his orders they become prostitutes instead of using resources to threaten the applicant. The Tribunal has many unanswered questions about the motivation of the applicant’s former boss’s motivation for taking such retaliatory and extreme action when it was open to him to simply hire others who would have accepted working in the industry.
Apart from the issue of her claimed former boss’s motivation which detracts from the applicant’s credibility, the applicant’s claims are also lacking in key details about the central protagonists, such as the identity of her former boss and his basic characteristics, and the names and details of her former boss’s friends. The Tribunal would have thought that in presenting her claims, if they were genuine, the applicant would have taken care to provide credible detail that would have persuaded the Tribunal that these people who she claims set out to hurt her, and would hurt on return to Thailand, are actual personages who have existed.
The Tribunal’s concerns about the lack of detail about the applicant’s boss’s identity and whether he exists at all is because the applicant has broadly stated that he had wide connections and networks including with the authorities. At a hearing the Tribunal would have asked the applicant to provide examples of how such a person was connected to the authorities and other “bad people”.
Further, little detail has been provided about the business itself, for example, the name of the business, the number of employees working there and the actual location of the premises. The gaps on these key matters leave the Tribunal to also question whether the applicant had ever worked at a massage parlour of any kind in any location in Thailand.
The details about the specific threats received by the applicant and how she received these are also opaque and general. At a hearing the Tribunal would have liked to go through each of the incidents of harm claimed by the applicant, including the threats to harm, to enable the applicant to specify when such events had occurred, particularly as when her boss and his friends tried to molest her. The Tribunal would have asked the applicant at hearing in what context, for example, this attempt had occurred whether anyone had come to her aid.
The Tribunal has serious concerns about the applicant’s claims. On the very limited evidence she has provided and taking account of her decision to decline to attend a hearing to provide more information, the Tribunal does not accept that the applicant:
·ever worked in a massage parlour.
·ever worked for an unidentified boss who wanted the massage parlour to be more profitable and turned it into a business of prostitution.
·and others were pressured by her boss to work in the prostitution business as prostitutes.
·refused to work in the prostitution business causing her boss to and a few of his friends to harass her and her family.
·was subject of an attempt to molest her.
·was troubled by her former boss in her residential area and people started saying bad things about her.
·was threatened mentally, physically and financially as she was not paid her salary for several months.
·had her life threatened by her boss and/or friends.
Therefore, the Tribunal does not accept that the applicant is of interest to any former boss on the basis of her gender and particular social group – women who refuse to work in prostitution. The information before the Tribunal is so sparse as to lead it to reject her claims individually and cumulatively. The Tribunal does not accept that her former boss, the Thai authorities, criminal elements, or anyone else connected to her former boss want to pursue the applicant because she refused to work in prostitution. The Tribunal finds consequently that there is no real chance that the applicant will face persecution for reasons of her gender or her refusal to undertake prostitution work, or for any other s.5J reason if she returns to Thailand now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criteria
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).
The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that the applicant 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.
Because of the many questions held by the Tribunal given the general and unsupported claims, the Tribunal has rejected the applicant’s claims, individually and in their totality, and the Tribunal also finds that it is not satisfied that there are substantial grounds for believing that there is a real risk she will suffer significant harm due to any adverse profile with any non-state actors such as her former boss, the Thai authorities, or criminal elements, or any other state or non-state actors in Thailand. The Tribunal rejects, on the basis of the limited evidence, that the applicant will be arbitrarily deprived of her life; or that the death penalty will be carried out on her; or that she will be subjected to cruel or inhuman treatment or punishment; or that she 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).
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.
Rosa Gagliardi
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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