2117486 (Refugee)

[2024] AATA 3855

2117486 (Refugee) [2024] AATA 3855 (16 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Jaskiran Kaur Rekhraj

CASE NUMBER:  2117486

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Rosa Gagliardi

DATE:16 August 2024

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 16 August 2024 at 9:11am

CATCHWORDS
REFUGEE – protection visa – Thailand – victim of family violence in the past – separation from Australian citizen mother and child – care for elderly mother – psychological vulnerability – best interest of the child – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 November 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be citizens of Thailand (a matter the Tribunal accepts on the basis of the information before it) applied for the visa on 8 August 2016.

3. The delegate refused to grant the visa on the basis that he/she was not satisfied that the applicant’s fear of harm from her former husband by way of his threats to kidnap their young child from Thailand if they returned there, is not objectively supported by the country information.  The delegate therefore did not accept her claims that she and her daughter are owed protection obligations as outlined in s.36(2) of the Act.

4. The Tribunal notes that since the application the applicant’s daughter has turned [age] years of age and is an Australian citizen.  She has therefore been withdrawn from the application and this application refers to the claims of the first-named applicant only.

5. The applicant appeared before the Tribunal on 14 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother,
   [Ms A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

13. 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.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims at the time of application

15. The applicant married a [Country 1] national in [Country 1] in 1997.  Their marriage was troubled as the applicant found out her husband had cheated on her.  The marriage continued and in March 2023 the applicant fell pregnant.  Her mother-in-law told her to abort the child on learning it was a girl because the family only wanted boys.  Her pregnancy was traumatic because her husband and his family were unsupportive. 

16. The applicant’s mother who lives in Australia urged the applicant to travel to Australia to be near her and the applicant came as a dependent on her husband’s student visa.  They lived with the applicant’s mother in Australia.

17. The applicant’s husband during her pregnancy partied and began an affair with one of his co-students.  Their child was born but the applicant’s husband continued to go out with other women.  Her husband demanded she give him their daughter to leave the country with him and told her that when she and their daughter were removed from Australia to Thailand, he would go to take their daughter. 

18. He then left Australia for [Country 1] in 2015 and the applicant suspects it was with another woman.  He has not returned to Australia since that the applicant is aware of. 

19. Her husband also threatened to place a stop on her passport and her mother in the event they tried to travel to [Country 1] or Thailand as he was determined to get full control of their daughter by pointing to the applicant’s insufficient ability to provide for her. 

20. The applicant claimed that if she was returned to Thailand her husband would track her down, steal her daughter and take her to [Country 1] where she would have no access. 

21. On return to Thailand, she would struggle to look after herself and her daughter as she has no supportive family in Thailand.  She would not find work as she has few skills and does not want to resort to escort work to survive.  She could not relocate within Thailand for the same reasons. 

22. The applicant claimed the Thai authorities would not protect her because they would not want to get involved in a family matter.  In any event, she would need to pay significant bribes to obtain assistance.

23. The applicant does not receive any financial assistance from her husband for the care of their child and the applicant is reliant on her elderly mother for all her daily needs who until recently was working, but due to a workplace incident could no longer do so.

    Claims at the time of review

24. Asked whether now that her daughter would be safe in Australia as an Australian citizen, there was any reason the applicant personally feared serious harm on account of her race, religion, nationality, membership of a particular social group, or political opinion, the applicant stated that on the basis of her own profile she did not fear harm.  She could not see that she would be targeted in Thailand on her own, even though she would have difficulty finding work and would find it challenging to return after so many years in Australia.  She stated that these difficulties were not her concern; her primary concern was being separated from her [age]-year-old Australian citizen daughter who was leading a positive life in Australia and was benefitting from opportunities she would not have in Thailand.  She stated that it would be unreasonable to leave her daughter with her elderly mother who had problems with her back and who could not provide the applicant’s daughter with the kind of care that she needed now and into the future.  This would be particularly so as the applicant’s mother entered her later years.  Taking the child with her to Thailand would present difficulties for the applicant in terms of being able to ensure her Australian citizen daughter had an optimal quality of life.

    FINDINGS AND REASONS

25. This case did not involve issues of credibility as the Tribunal found the applicant genuine and it was evident to the Tribunal that the applicant had experienced family violence in her marriage, even though the applicant stated that she was not aware that family violence could include such matters as coercive control, economic and financial abuse, emotional and psychological abuse, monitoring, and cultural and spiritual abuse.[1]  The Tribunal identified that the applicant felt helpless due to her husband’s abandonment of her and her child and was reduced to pleading for money from him for her daily necessities.  When he did not accede to her requests, she would rely on her mother to help her.

    [1] ‘National Domestic and Family Violence Bench Book’, Contents - National Domestic and Family Violence Bench Book (aija.org.au).

26. As explained to the applicant at hearing the Tribunal could not take into account compelling or compassionate circumstances.  Its role was confined to identifying whether Australia owed her protection obligations for reasons under s.5J or to determine whether she met the complementary protection criteria. 

27. On 7 August 2024, the applicant’s representative wrote to the Tribunal noting that the applicant conceded that the harm she feared she would face in Thailand does not reach the threshold of persecution under either the refugee criteria s.36(2)(a) or the complementary protection criteria s.36(2)(aa).  Nonetheless, it would be an abrogation of the Tribunal’s obligations if it did not examine all the evidence to make a decision independently.

28. Having considered the material before it the Tribunal is unable to find that there is a real chance that the applicant will face persecution for any reasons pursuant to s.5J of the Act. The Tribunal does not have evidence that the Thai authorities or any non-state actors in Thailand will mistreat or persecute the applicant for any reason discernible on the evidence.  The Tribunal concedes that the applicant may find it difficult to adjust to life in Thailand again, but there is nothing to suggest she could not make a living of some sort in Thailand given she has some education and is motivated to ensure her daughter in Australia receives everything she needs to have a good standard of living.  Any hardship experienced would not be because the government or the economy of Thailand would be targeting the applicant for any reason due to any characteristics particular to her.

29. 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

30. 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).

31. 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 she 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. 

32. Given the Tribunal has rejected that any of the harm the applicant might experience on return to Thailand encompasses persecution or serious harm under the Act, the Tribunal also finds that it is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm due to any adverse profile with the Thai authorities or any other non-state actors. 

33. 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 state or non-state actors.

34. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

35. 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

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

    Ministerial intervention

37. The Tribunal is supportive of referring this case to the Minister under s.417 of the Act on the basis of unique and exceptional circumstances, whereby were the applicant to be returned to Thailand an Australian citizen family unit would be separated.  That is, the applicant would be separated from her Australian citizen mother and [age]-year-old Australian citizen daughter.

38. As it has been argued in the representative’s submission and by the applicant herself at hearing, the Tribunal should consider the multigenerational household of the applicant’s mother, the applicant and her daughter as a distinct family unit consistent with Thai cultural practices.[2]  The applicant’s mother has financially assisted the applicant and her husband and their daughter over the years and has provided them with shelter until the present day (except that the applicant’s husband left in 2015).  It was evident that the family unit had a strong emotional bond considering the experiences they had endured together because of the conduct of the applicant’s former husband.

    [2] Submission by Ms Jaskiran Rekhraj, Legal Aid ACT.

39. The Tribunal notes that the applicant’s mother is now elderly, has had a workplace injury and is in need of care herself; care that the applicant is willing to provide. 

40. Furthermore, from the applicant’s and her mother’s testimony at hearing, it was evident that they had both suffered adverse psychological consequences as a result of the applicant’s former husband’s conduct and are now particularly vulnerable without each other.  The applicant confirmed that her former husband was entirely disrespectful whilst living in her mother’s home, throwing objects and constantly threatening the applicant that he would take the child from her.  The applicant confirmed she and her mother had been frightened for their safety during those times.

41. As a victim of family violence, the applicant was distressed at hearing on recalling her former husband’s conduct.  Given her vulnerability, the Tribunal considers that it would be harsh to send the applicant back to Thailand without her only child who she wants to continue to have an Australian education and does not want her to experience privation.  If the applicant were to return to Thailand it would lead to the separation of the applicant from her only child, and the applicant’s mother from her closest and only relative in Australia (the applicant). 

42. Were the applicant’s daughter to accompany her mother to Thailand their quality of life would be diminished, and it would be disruptive to the applicant’s daughter’s schooling as she has integrated well and sees Australia as her home.

43. The Convention of the Rights of the Child also requires the Tribunal to have consideration to whether it would be in the best interests of the applicant’s child to remain in Australia under the guardianship of an ill and elderly grandmother while her mother returned to Thailand.  Parents also have the right to raise their children in a family environment however that family might be comprised.[3]

    [3] ‘Rights of Children and Families’, cafis_5c_-_rights_of_children_and_families.pdf (dss.gov.au).

44. The Tribunal understands that the applicant’s representative will also provide the Minister with independent documents showing support for the applicant and her mother not to be separated.

    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 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.

    …