2202295 (Refugee)
[2025] ARTA 1701
•16 July 2025
2202295 (Refugee) [2025] ARTA 1701 (16 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2202295
Tribunal:Clyde Cosentino
Date:16 July 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 16 July 2025 at 9:34am
CATCHWORDS
REFUGEE – protection visa – Thailand – financial debt – fears harm from moneylender friend – new claims – borrowed money from influential local politician – connected to mafia and police – threatened to kill – fled to another province – credibility concerns – no enquiries and threats to the applicant’s family – applied for protection after becoming unlawful non-citizen – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
Subramaniam v MIMA (1998) VG310Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister on 2 February 2022 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 national of Thailand, applied for the visa on 11 June 2020.
The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complimentary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
BACKGROUND
Evidence before the Department
Protection visa application
The applicant lodged an application for a protection visa on 11 June 2020. In that application, he provided the following information:
·He was [age] years old at the time of lodgement of his protection visa application.
·He was born in Muang, Khonkan, Thailand.
·He has never married.
·Before coming to Australia, he resided at [District 1], Khon Kaen, Thailand. He lived there from [year] until [November] 2019.
·He acquired Thai citizenship at birth.
·He arrived in Australia on a visitor visa [in] November 2019.
·He left Thailand because he was “[loaned] money from a friend” and that he “can’t [afford] to pay [it] back because of high interest”. He claims that “they will mistreat [him] if [he] can’t pay back that money”. He “escape[d] to Australia to [hide]”.
·He claims that he never experienced harm in Thailand.
·He claims that he did not try and move to another part of the country to seek safety “because [he] [does not] think [he] will be safe in Thailand”. He claims that “[they] will [find him] because they know everything”. He claims that “they know people working for government”.
·He claims that he thinks he will be harmed or mistreated if he returns to Thailand.
·He claims that “they will kill [him] because [he had] already escaped”.
·He claims that he does not think the authorities of Thailand can and will protect him if he goes back. He does not believe the government can help him.
·He claims that he will not be able to relocate within the country to an area where they would not be harmed. He claims that “[they] will [find him] because they know everything”. He claims that “they know people working for government”.
Delegate’s decision
As mentioned above, the delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complimentary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
Evidence before the Tribunal
On 20 February 2022, the applicant lodged an application for review of the delegate’s decision not to grant him a protection visa.
The Tribunal hearing – 19 May 2025
The applicant appeared before the Tribunal on 19 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
At the hearing, the Tribunal referred the applicant to his original application made to the Department. It referred him to his claims for protection lodged on 11 June 2020 at the Department and asked him if he recalled that application and the claims made in that application. The applicant stated that he did.
When asked whether he put that application together himself, he stated that his cousin helped him put the application together.
When asked whether the claims he made in his application to the Department were true and correct, he stated that they were.
When asked whether these were the claims he wished to raise at the Tribunal hearing, he stated they were.
The Tribunal indicated that on 20 February 2022, he lodged an application for review at the Tribunal. It indicated that he lodged with that review application the delegate’s decision which refused his visa. It indicated that he did not lodge any further material or written arguments with that review application. It asked whether he recalled lodging this review application. He stated that he did.
The Tribunal indicated that on 23 February 2023, he received a letter from the Tribunal sent to the authorised email address he provided to the Tribunal. It indicated that the letter emailed to him on this date invited him to provide any material and written arguments for the Tribunal to consider and that he should do that as soon as possible. He did not provide further information or material in support of his claims at the time of his review application as invited by the Tribunal. It asked him whether he recalled receiving this letter. The applicant stated that he was not sure about this letter in 2023.
The Tribunal indicated that on 22 January 2025, he was sent a pre-hearing information form (through a link) for him to complete. In that form, one of the questions was: “In your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country? Any other evidence?” The Tribunal indicated that he did not provide any information or further evidence in support of his claims here. It asked whether he recalled receiving this pre-hearing information form. He stated that he did not receive this.
The Tribunal indicated that on 1 May 2025, he was emailed a hearing invitation from the Tribunal to attend this hearing about the review of the decision to refuse the grant of a protection visa. It indicated that he provided a response to the hearing invitation. The applicant stated that he remembered doing this.
The Tribunal indicated that, in that hearing invitation, he was invited to provide any evidence to support his case. It also referred him to the decision of the Department which had set out its reasons and that he should have regard to this and any change of circumstances. It asked the applicant whether he recalled reading this form. The applicant stated that he did.
When asked where he last lived in Thailand, he stated [Village 1], [District 1], Konkan Province. He had lived there for about [number] years since his birth.
He stated that he still had his mother and father and [sibling] living in that village. They all lived together.
He stated that he completed [Course 1] at University.
He had his own business in Thailand. [business details deleted]
He stated that he came to Australia on a visitor’s visa [in] November 2019. The visa was for three months.
When asked whether he had lawful immigration status when he applied for a protection visa, he stated he was not lawful when he applied. He stated that he had asked to apply for his protection visa before the expiry of his visitor visa but that it did not eventuate, and he ended up applying for his protection visa a few months after he became unlawful. He confirmed that he applied as an unlawful non-citizen.
When asked what his reason was for applying for a protection visa, he stated that he wanted to stay in Australia for four to five more years before he returned to Thailand because the people “opposite him” would not be in power in four to five years’ time. When asked what he meant by the “people opposite him” he stated he was referring to a local politician and his network of influential people and police officers.
When asked who this ‘local politician” was, he stated that he was the head of the [District 1] council. When asked again what the name of the local politician was, he stated that his name was [Politician A].
When asked how long this local politician had been in power for, the applicant stated for “[number] sessions”. He has been elected for a [number] session. He stated that he was first elected in [year].
When asked why he feared this local politician, he stated that [Politician A] was very influential. He can give orders to local police and mafia to have them kill the applicant.
When asked why [Politician A] would want to kill the applicant, he stated that he had an unofficial loan to him. When asked how much the loan was for, he stated [amount] Baht. When asked when he took this loan out, he stated in 2017 or 2018. He stated that he borrowed at different times. Sometimes he borrowed [amount] Baht and on other occasions he borrowed [amount] Baht. Interest on the loan was at 20 per cent. The applicant stated that he could not pay the interest on the loan and his debt accumulated.
When asked why he left Thailand, he stated for the “safety of his life”.
When asked when he stopped paying the interest on the loan, he stated around the end of 2018.
The Tribunal indicated that it might have concerns about this evidence as no harm happened to him from the time he stated he could not pay the loan to the time he came to Australia, which was about one year where he remained in Thailand. He stated that nothing happened to him because he was hiding from [Politician A] and his network. He hid at his father’s birthplace in [Province 1]. When asked how long he was hiding there for, he stated for about eight or nine months. The Tribunal asked him whether he hid there until he came to Australia. The applicant stated that he did. When asked whether he hid there because of [Politician A] and his network of people, he stated this was the case.
The Tribunal indicated that it might have concerns with his evidence here. It indicated that he had said nothing at the start of the hearing that he had been living in a different Province for eight or nine months when the Tribunal asked him where he last lived before coming to Australia. He stated that he thought the Tribunal was asking him about where he was living in the place he grew up. He did not think it included the place where he had fled to.
The Tribunal indicated that it might have concerns that he never mentioned anything about [Politician A], about escaping him or going into hiding in his protection visa application or at any stage during the review process. The applicant stated that, at the beginning, he thought the Tribunal was asking him about how he lived his life where he grew up. He did not think that it included the time when he had escaped and fled [Politician A].
At this point, the Tribunal indicated that it had not made up its mind at all about his application and was raising matters as they arose for his comments for the Tribunal to consider. He acknowledged that he understood.
The Tribunal indicated that it might have concerns that his protection visa application had very little detail written in it about his claims. It indicated that he made no mention at all about a loan from a local politician called [Politician A], nor did he make a claim of how important this was, nor did he make any mention of the size of the loan (which was substantial) nor did he make any mention about how he escaped to another province because he feared this man. It indicated that he did not give any details about the loan and why he took it out. Further, there was no information added at all during the review process (as explained at the start of hearing) to explain his original claims. The applicant stated that when he applied for this visa, he asked his cousin to help. However, he did not give his cousin details. He just told him that it was an unofficial debt. He stated that he wanted to be in Australia for a while to wait for [Politician A] to be out of power first. He stated that he did not give details in his protection visa application.
When asked what harm he fears if he returns, he stated that his life is not safe.
The Tribunal indicated that it might have concerns that he gave evidence that his family are all still living at his former address. It indicated that if [Politician A] wanted to harm the applicant he would have gone after his family as well but has not done so. The applicant stated that his family have not been involved with this matter and that his parents have no property and that [Politician A] only wanted to harm the applicant.
When asked whether [Politician A] has threatened the applicant while he has remained in Australia, the applicant stated that [Politician A] has not threatened him while he has resided in Australia. He stated that he blocked [Politician A] on all the applicant’s social media channels and communication channels. However, [Politician A] told the applicant (before the applicant departed Australia) that if the applicant did not pay the money back that [Politician A] would kill the applicant. When asked when [Politician A] said this to him, the applicant stated before he fled to [Province 1]. [Politician A] told the applicant this over the telephone.
The Tribunal indicated that it might have concerns that the applicant did not mention this at all in his protection visa application or at any time leading up to the hearing that [Politician A] himself made direct threats to kill the applicant. The applicant stated that [Politician A] did not continue to threaten him. After [Politician A] had threatened to kill the applicant, the applicant blocked [Politician A] and then ran away. The Tribunal indicated that it might have concerns that none of these claims of threats had been raised in his protection visa application or at any time throughout the review process when given the opportunity to do so. The applicant stated that he did not give these details to his cousin who helped him write his application at the time.
When asked why he thought the police or authorities could not protect him he stated because [Politician A] is very influential. He is a local politician. He can control the police in his home area. The debt he has with [Politician A] is unofficial. Which means that the applicant cannot make formal complaints against [Politician A].
The Tribunal indicated that it might have concerns that he mentioned that [Politician A] was an influential politician and that he controls the local police. However, it appears that the applicant has given no particulars at all about [Politician A] in his protection visa application or at any time leading up to the hearing. The applicant stated that he did not give details to his cousin who helped him write up the protection visa application. The applicant stated that he cannot recall receiving some of the letters from the Tribunal inviting the applicant to provide further information or material in support of his claims.
The Tribunal indicated that it might have concerns that the application lodged in 2020 appears to be vague and lacking in detail about his claims. The Tribunal indicated that it might have further concerns that he has provided no further information in support of those claims right up to the Tribunal hearing. It indicated that this might go to the credibility of his claims in part or in whole. The Tribunal asked whether he had any comments to make on this. The applicant asked whether the Tribunal would consider the evidence he gave at the hearing. The Tribunal confirmed that it would take into account all his evidence provided in his application form and leading up to, and including his oral evidence given at the hearing.
The Tribunal indicated that it might have concerns that he came to Australia on a visitor visa, that this visitor visa expired and that he did not apply for a protection visa until after he became unlawful in Australia. The Tribunal indicated that this might show that he applied for a protection visa to regularise his immigration status so that he could become lawful in Australia. The applicant stated that he applied for a visa before the three-month visa period expired. However, the person who helped him in Australia (his cousin) and the person who helped him in Thailand were different people. He stated that maybe the information was not the same. This might be the reason why his application was rejected.
The Tribunal indicated that it might have concerns that the delay in lodging his protection visa after he became unlawful might go to the credibility of his claims. The applicant stated that he accepted this as put to him.
When asked why he could not relocate safely elsewhere in Thailand, he stated because [Politician A] would know where to find him. He stated that he has networks around the country and it would not matter how far away from home he was, [Politician A] would still be able to locate him.
The Tribunal indicated that it might have concerns that he did not provide any details about [Politician A], about the amount of the loan nor about the particulars of loan. It indicated that this might go to credibility of his claims. The applicant stated that the Tribunal had stated to him that it would consider all the information it had received at the hearing. The applicant stated that he admitted that he did not provide information earlier as he did not receive an email in 2023 about providing any further information.
When asked whether there was anything else he wished to say in support of his claims which he wanted the Tribunal to consider, the applicant stated there was nothing else.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
The applicant provided a copy of the biodata page of his Thailand passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Thailand and there is no information before the Tribunal to the contrary. The Tribunal, therefore, finds that the applicant is a citizen of Thailand, and that Thailand is his receiving country for the purpose of assessing his claims for protection.
Criteria for 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 Immigration and Citizenship, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant engaged Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
The Tribunal has significant concerns about the credibility of the applicant’s claims overall. There are a number of significant omissions and inconsistencies between his written claims and oral evidence at the hearing, and significant delays in providing evidence when invited to do so during the review process which the Tribunal considers significant. There has also been a significant delay in the applicant’s lodgement of his protection visa since last arriving in Australia. The Tribunal has considered all these factors individually and cumulatively and finds that they significantly undermine the credibility of his claims overall. For the reasons given below, the Tribunal does not accept any of his claims.
The Tribunal has considered the applicant’s main claim of fear of harm, as made in his protection visa application. His claim relates to a loan of “money from a friend” which the applicant cannot afford to pay back because of high interest rates. He claims that he will be “mistreated” if he cannot pay back this money. He fears that he will be “killed” because he has “already escaped”. He fears that “they” will find him because “they know everything” and “they know people working for government”. As a result he escaped to Australia to hide.
However, the applicant has made new claims at the hearing and has provided new set of circumstances which were never provided in his original application or at any stage in the review process leading up to the hearing. At the hearing he made new claims that [Politician A], a local politician, threatened to kill him (by ordering local mafia and police to do this) if he did not pay the loan back. [Politician A] was never identified in his original claims as the person threatening to kill him nor was he ever identified at any stage throughout the review process leading up to the hearing nor was he identified as a person who had power over mafia and police. The applicant made new claims at the hearing that the loan was taken out in 2017 or 2018. This was never claimed in his original application or at any stage throughout the review process leading up to the hearing. He made new claims that [Politician A], along with local mafia and police officers, wanted to kill the applicant if he did not pay back his loan. This was never claimed in his original application or at any stage throughout the review process leading up to the hearing. He claimed at the hearing that he owed a significant amount of money, namely [amount] Baht, which he borrowed at different intervals. This was never claimed in his original application or at any stage throughout the review process leading up to the hearing. He made new claims at the hearing that he went into hiding in Thailand for eight to nine months before coming to Australia, and that he hid at his father’s birthplace of [Province 1], which was a different province to where he was residing. This was never claimed in his original application or at any stage throughout the review process leading up to the hearing.
The Tribunal finds that at no time from the beginning of his protection visa application process throughout the review process itself were any of these new claims raised and that all the new claims were raised at the hearing only. The Tribunal finds that significant claims were omitted in his original protection visa application only to be added as new claims at the hearing and that this goes to the credibility of his claims overall.
The Tribunal has considered the applicant’s response that he thought the Tribunal was referring to where he grew up when he mentioned that he had lived all his life in Kankan Province and not mentioning anything about residing in [Province 1] when in hiding. However, the Tribunal does not accept this response given that residing for eight to nine months in a different province (namely [Province 1]) is a significant period of time to be living somewhere without mentioning that he had done so. The applicant did not mention having lived in [Province 1] for eight to nine months in his protection visa application (particularly after he stated that everything in there was true and correct at the hearing). He did not mention at the start of the hearing, when it was asked of him by the Tribunal, whether he had lived anywhere else outside of Konkan Province. It was only when the applicant made the new claims that he was hiding from [Politician A] that he made mention that he hid in [Province 1]. The Tribunal finds that applicant’s response that he lived for eight to nine months in [Province 1] as not credible at all given that he has never mentioned it anywhere leading up to the hearing, including at the hearing itself when given the opportunity at the start of it to provide this information.
The Tribunal has considered the applicant’s response that when he applied for his protection visa he asked his cousin to help but that he did not give his cousin all the details to put into the protection visa. It has considered his response that he told his cousin that it was an unofficial debt. It has considered his response that he wanted to wait until [Politician A] was out of power first and that he did not give details in his protection visa. It has considered his response that he does not recall receiving invitations from the Tribunal throughout the review process inviting him to provide further information and evidence. Having considered these responses, and the evidence before it, the Tribunal does not accept them as a reason for him not including the new claims in his protection visa application or reasons for his omissions of claims in his protection visa application.
The applicant has claimed in his protection visa application that he escaped from Thailand to Australia “to hide”. However, he did not think this significant or important enough to put this detail and other details of why he escaped to Australia to hide in the protection visa application when the opportunity arose at the very beginning, claims which he decided to raise only at the hearing when queried. The Tribunal finds that if the applicant knew that he wanted to escape to Australia, he would have done all he could to raise his fears from the outset. He did not do so. The Tribunal finds these actions by the applicant, and his actions of not providing any further details or information about his claims throughout the review process, even when invited to do so, as significant and going to the credibility of his claims as a whole.
Even considering his response that he wanted to wait until [Politician A] was out of power, at no time when writing up his claims in his protection visa application or anywhere throughout the review process did the applicant identify “[Politician A]”, who he claimed was a local politician from his area, nor did he mention at all why he might be dangerous to the applicant, when he threatened to kill the applicant, how he had influence over local mafia or police or what was the significant amount of money loaned to the applicant by [Politician A] and the dates when the money was loaned to the applicant. None of this information was ever provided by the applicant in his protection visa application, or at any time in the review process leading up to his hearing. The Tribunal finds this lack of detail and information in his application and throughout the review process leading up to the hearing, when invited to do so, as going to the credibility of his claims as a whole.
The Tribunal does not accept the applicant’s response that because it was an “unofficial debt” he did not give his cousins details when writing the protection visa application. Given his evidence that he borrowed a significant loan of [amount] Baht from a person called [Politician A] who he claims was a dangerous local politician and who he claims had threatened to kill him for not repaying the loan, the Tribunal finds that, were the applicant genuine in fearing this man for the claimed reasons made, he would have included the significant and important details about [Politician A] and the significant amount of money borrowed, the threats made to him by [Politician A] and his “hiding” in a different province for eight to nine months before escaping to Australia. The applicant did not provide any of these details in his protection visa application or at any stage leading up to the hearing, when he had the opportunity to do so on several different invited occasions. The Tribunal finds this lack of detail and information in his application and throughout the review process leading up to the hearing as going to the credibility of his claims as a whole.
The Tribunal does not accept his response that he does not recall receiving invitations from the Tribunal throughout the review process inviting him to provide further information and evidence, given that all the letters from the Tribunal inviting him to provide further information and evidence were sent to his last known authorised email address. The Tribunal knows that he received its correspondence at this email address given that he responded to the hearing form that he would attend the Tribunal hearing. The Tribunal finds the applicant’s response here to not be credible.
The Tribunal finds that the applicant’s original claim is that he originally borrowed money “from a friend”. At the hearing, he changed those claims to say that he borrowed the money from a powerful local politician called [Politician A] who had influence over local mafia and police. The Tribunal notes that never has the applicant stated, when raising this new claim, that [Politician A] was “a friend” or the “friend” that he borrowed money from. The Tribunal raised its concerns to the applicant at the hearing that he never mentioned at all in his protection visa application a [Politician A], a local politician who was dangerous and who had connections to local mafia and local police and that this was the man who wanted to kill him. The applicant’s response was that because it was an unofficial debt that he did not give all the details to his cousin who helped him complete the application for him. However, given the Tribunal’s reasons and finding already (above) that it does not accept this response, the Tribunal finds the applicant’s original claim that he borrowed money as a loan from a friend, as opposed to his new claim at the hearing that he took a loan from a powerful local politician called [Politician A] who was influential with local mafia and police as being significantly inconsistent and therefore going to the credibility of his claims as a whole.
The Tribunal notes the applicant’s oral evidence that his family have not been targeted at all by [Politician A] or by local mafia or by police and are still living in the same area that they have lived in for a long time (and in the same area where the applicant has lived in as well). The Tribunal has considered the applicant’s response that his family have not been involved with this matter and that his parents have no property and that [Politician A] only wanted to harm the applicant. However, given the claimed substantial size of the loan ([amount] Baht) and given that that the applicant has claimed that this local politician is powerful and has connections with local mafia and police, and given that he has claimed that this local politician wants his money back and has threatened to kill the applicant as a result, the Tribunal finds it difficult to accept that a man of [Politician A’s] claimed influence has not made enquiries of and threats to the applicant’s family by way of his claimed local mafia and police in order to find the applicant. The applicant has provided evidence that his family have not been approached or threatened in any way. The Tribunal finds the applicant’s evidence that his family have not been threatened as consistent with the Tribunal’s findings that he has not been threatened or targeted by a local politician called [Politician A] or his local mafia or police.
The Tribunal finds it significant that the applicant came to Australia on a visitor visa and waited until he was an unlawful non-citizen before applying for a protection visa. It finds on the evidence before it that the lodgement of his protection visa application helped him to regularise his status in Australia and not because he feared he would be harmed if he returned to Thailand. The applicant delayed in lodging his protection visa application by waiting for his visitor visa to expire and then applying for a protection visa. The Tribunal notes that in Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in the lodgement of a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. The Tribunal finds that the applicant’s delay in applying for a protection visa is a relevant consideration in the assessment of credibility of his claims for a protection visa, strengthened by the other credibility findings the Tribunal has made relating to his claims. It finds that this delay in lodging his protection visa application and his subsequent late application after he was an unlawful non-citizen to go to the genuineness of his claims overall.
Having considered all the evidence before it and having made a credibility assessment of all the claims individually and cumulatively, the Tribunal does not accept that the applicant was threatened with serious harm or any harm from [Politician A], a local politician in his home area in Thailand, who had influence over local mafia and police because the applicant could not pay back [an amount] Baht loan. It does not accept on the evidence before it that the applicant took out a loan at all with [Politician A] or with a friend which has resulted in him fearing for his life. It does not accept on the evidence before it that the applicant went into hiding for eight to nine months in [Province 1]. On the evidence before it, the Tribunal does not accept that the applicant escaped to Australia to run away from debt he has not paid back. Having considered the evidence before and having assessed this evidence both individually and cumulatively, the Tribunal finds the applicant’s claims to not be credible at all.
Given the Tribunal’s above, it finds that there is not a real chance that the applicant will suffer serious harm or any harm by a friend who loaned him money or by a local politician called [Politician A] who loaned him money or his associates or local mafia or local police if he were to return to Thailand. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason and is not a refugee as defined in s 5H(1) of the Act.
The Tribunal has therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[2] For the same reasons discussed above, the Tribunal finds that there is not a real risk that the applicant will suffer significant harm any harm by a friend who loaned him money or by a local politician called [Politician A] who loaned him money or his associates or local mafia or local police as a necessary and foreseeable consequence of his being removed from Australia to Thailand.
[2] MIAC v SZQRB [2013] FCAFC 33
The applicant has not claimed to fear harm for any other reason if he returns to Thailand and the Tribunal finds no other protection claims arising on the facts.
CONCLUSION
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).
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 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.
Date of hearing: 19 May 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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