2204101 (Refugee) - [2025] ARTA 1515

2204101 (REFUGEE) [2025] ARTA 1515 (7 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2204101

Tribunal:General Member S Waring
Date:7 May 2025

Place:Brisbane
Decision:The Tribunal affirms the decision not to grant a protection visa to either applicant.

Statement made on 07 May 2025 at 1:37pm

CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – pro-democracy protests – fear of detention – fear of killing – return visits to Thailand – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 348, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33

Any 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 for Home Affairs on 21 March 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Thailand, applied for the visas on 24 February 2020. The delegate refused to grant the visas on the basis that the applicants do not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 21 March 2022 the applicants lodged an application for review with the former Administrative Appeals Tribunal (the AAT).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The issue to be considered in this case is whether the applicants engage Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
As a preliminary matter the Tribunal must consider whether the Tribunal should proceed to determine the review application without holding a hearing.
Decision without a hearing
For the reasons outlined below, the Tribunal has decided to proceed with the review without holding a hearing.
On 22 January 2025, the Tribunal invited comment and/or evidence from the applicants by sending a pre-hearing information form to them advising that the Tribunal file was being prepared to be given to a member.
The primary applicant ([named]) returned the pre-hearing form on 24 January 2025 requesting the Tribunal to “Please refer to my application”.
On 5 March 2025, a Notice of Hearing was sent to the applicants advising that this matter had been constituted to a Tribunal member. It was requested that the applicants complete and return, an attached Response to hearing notice form. The Notice of hearing invited the applicants to a hearing on 20 March 2025 to give evidence and present arguments. This notice stated that if the applicants request the Tribunal to make a decision without a hearing, and the Tribunal proceeded to make a decision because it considers the issues can be determined in his absence, this does not guarantee that they will receive a favourable decision.
The Notice of hearing invited the applicants, if they had not already done so, to provide witness statements, written submissions and other documents to be relied on to support his case by 13 March 2025.
The Tribunal is satisfied that the Notice of hearing was valid.
On 7 March 2025, the response form was submitted to the Tribunal. The primary review applicant had signed the response form and (for both applicants) he had marked the box stating, “No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing.”
The Tribunal is satisfied that this method of declining the hearing invitation meets the requirements of s 106(3)(b)(ii) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and, subject to other criteria, enlivens the Tribunal’s discretion to consider a determination of this application according to s 106 of the ART Act.
In s 106(3) the ART Act outlines some circumstances in which the Tribunal may reach a decision without a hearing. The first requirement is that (as in this case[1]) the only parties to the proceeding are the applicants and a non-participating party to the proceeding or the hearing of the proceeding [s 106S(3)(a)]. The Department is a non-participating party.
[1] Section 348A(1) of the Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act
As set out above, the Tribunal is satisfied that the requirements of s 106(3)(a) and s 106(3)(b)(ii) of the ART Act have been met.
Additionally, s 106(3)(c) of the ART Act requires that it must appear to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The term ‘adequately determined’ is not defined in the ART Act.
At issue in this case is whether the applicants engage Australia’s protection obligations under the refugee criterion or the complementary protection criterion set out in the Act.
Having examined the materials submitted for consideration, the Tribunal is satisfied that this application does not give rise to any novel questions of fact or law and further, that it is reasonable to infer that the applicants have presented the case they wish to present and that they do not wish to elaborate further on their claims.
The Tribunal is satisfied that in the circumstances of this case, the issues requiring consideration can be adequately determined in the absence of the parties. This matter has therefore been determined on the evidence available to the Tribunal.

BACKGROUND

[Applicant 2] is now [age] years of age having been born in Chiang Mai, Thailand where she attended high school (in [Subdistrict 1]) until [specified year]. [Applicant 2] worked in paid employment in [industry 1] in [District 1], Thailand between July 2014 and February 2019.
[The primary applicant] is now [age] years old having been born in Phetchabun where he later attended high school (in [Subdistrict 2]) until [year]. In [District 1], Thailand he was a self-employed farmer between May 2007 and June 2014 followed by employment in [industry 1] between July 2014 and February 2019. During a period of unemployment (unpaid between February 20 and February 2020) [the primary applicant] was an environmental activist.
The applicants applied for protection on 24 February 2020 having last arrived in Australia [in] February 2020. They previously visited Australia:
·[October] 2019 to [January] 2020
·[June] 2019 to [September] 2019.
Both applicants are of Asian ethnicity, follow the Buddhist religion and have a degree of proficiency in the English language.
The applicants disclose they were married [in] January 2011 and list two children within their family unit as:
·a daughter named [name] born in Chiang Mai, Thailand. [She] is now [age] years of age
·a son named [name] born in Lamphun, Thailand. [He] is now [age] years of age.
Evidence before the Department and the Tribunal
No interview with either applicant was undertaken by the Department.
Materials before the Department delegate included:
·the applicants’ protection visa application.
·supporting documents including passports and National ID cards sighted by the Department as part of an identification test.
·household Registration Certificates
·articles published in the media:
-     2 August 2017, Australia/Thailand: Urge Junta To End Repression (Human Rights Watch)
-     January 2018, Thailand Country Summary (Human Rights Watch)
-     31 March 2019, Thai Politics after the flawed 2019 Election: Guided Democracy, Elite Politics, Myths about Wachiralongkorn and the Need to Build Social Movements (Giles Ji Ungpakorn)
-     21 May 2017, Thailand: Junta Entrenched 3 Years After Coup
·a letter dated 26 July 2017 from Human Rights Watch to the Australian foreign minister.
Information from records before the Department:
·leading the delegate to suspect the applicants had returned to Thailand twice since the 2018 incidents
·showing that both applicants delayed applying for protection until some 8 months after their arrival in Australia following the 2018 incident. An arrival is recorded [in] June 2019 with the protection visa being recorded as lodged on 24 February 2020.
The applicants were invited (in Department letter 11 February 2022) to comment on this information on the basis that it was ‘unfavourable information’ which could be (all or part of) the reason for a refusal of the protection visa application. The applicants did not respond to this invitation and no further evidence or submissions have been submitted by the applicants.

29. Movement records showing dates of the applicants’ entries into and departures from Australia, are also before the Tribunal.
30. The totality of evidence before the Tribunal is discussed and examined below.
The protection visa application
31. The protection visa application describes the circumstances and claims of both applicants as follows (verbatim):
Reasons for leaving Thailand and being fearful to return
“Early in the year 2018, My wife and I have joined the protesting rallies for democracy in nearby town ([District 1], Lamphun Province), We are one of many to have signed the petition demanding the NCPO to give-up power, to reinstate democratic election process and return the power to the people of Thailand. Soon after, I have learnt that many of us who have signed that petition have been contacted by the local police (also with a team of military squad) authorities and they have taken them to the municipal police station for an interview and interrogated as they have accused us as part of the resistant group. Many of them have never returned.
My wife and I have the death threat from a group of military personals (NCPO enforcer who have taken over the control of duly elected government) at my hometown ([District 2], Lamphun Province) on [a day in] January 2018.

(Background: In a year 2014 coup, military leaders, taking the name National Council for Peace and Order (NCPO) and led by then Army Chief, General Prayut Chan-o-cha, overthrew the civilian government administered by the Pheu Thai political party, which had governed since 2011 following the elections that were generally considered free and fair. The military-led NCPO
maintained control over the security forces and all government institutions).
The situation in Thailand after the military dictatorship (NCPO) have taken control and the human right crisis especially in my hometown ([District 2], Lamphun) is getting worsened by the days. I have feared for my life and wellbeing and I never want to return home as my life and my wellbeing will be in gravely danger and a fear of being persecuted. Therefore, I have planned to escape the country by way of applying for the visitor visa to come to Australia in 2019.
Under Section 44 of the country's interim constitution, which has been in effect since July 2014. It gives the junta and Prayuth Chan-Ocha, a former general (the leader of the NCPO) who serves as Thailand's prime minister, absolute power to stop and suppress "any act which undermines public peace and order or national security, the monarchy, national economics or administration of state affairs".

Relocation and protection within Thailand

The applicants disclose that they did not seek help within Thailand (or try to relocate) because:
“In my view, the Military, NCPO, the Police and Bureaucrat are all in the same corrupted team, so there is no point to try to seek help from authority, people of Thailand either have to tolerate by them and went on their own businesses or you resist and face the consequences. Many people just flee the country whenever they can, luckily, I am one of those people who could flee the country and seek asylum in Australia, all the people who is working in the government, be it an Urban or Rural area, they are all answer to the military Junta who rules the country with absolute power, they still rule the people under Section 44 of the country's interim constitution, which has been in effect since July 2014. It gives the Junta NCPO and Prayuth Chan-o-cha, a former general who serves as Thailand's prime minister, absolute power to stop and suppress "any act which undermines public peace and order or national security, the monarchy, national economics or administration of state affairs".
As the reasons I have mentioned above, the government official who is working with or appointed by NCPO, be it in an Urban or Rural area, they are all answer to the Military Junta, so it would
be pointless to relocate to another part of the country. That is the reason I am seeking to apply for asylum, hence, the protection visa application to Australia.
As I have mentioned above, the people who is working in the government, be it an Urban or Rural area, they are all answer to the military Junta who rules the country with absolute power, so it would be pointless to move to another part of the country.”
The applicants believe the Thai authorities could not protect them because (verbatim):
“Since coming to power, the NCPO has systematically suppressed political dissent. During 2016-18, the NCPO routinely detained those who expressed political views and harassed citizens who publicly criticised the government. As part of systematic restrictions to the rights to freedom of expression, peaceful assembly and association, the government has targeted civil society and opposition politicians.
Thailand is now among the region's most repressive regime a long with Myanmar and Cambodia, resistant, if caught, will be met with tortured, jail-time or even disappearance (meaning you will be killed).Further, in May 2016, the police commissioner, who has been appointed by NCPO, has announced that anyone violating its orders (Junta) would be tried in military court. During 2016-17, the NCPO continued to summon members of the opposition Party, as well as anyone accused of opposing military rule, for "attitude adjustment", aimed at compelling them to stop expressing political opinions against the junta. Failure to report to the junta's summons is considered a criminal offence.
Thousands of people have been summoned and pressured to stop making political comments. Those summoned are held incommunicado for up to seven days without charge. Detainees undergoing "attitude adjustment" have often been compelled to agree in writing that they will not leave Thailand without the military's permission nor participate in any political activities. In January 2018, the bodies of several anti-junta activists who had fled to Laos in 2014 were found floating in the Mekong River, 'stuffed with concrete'. Human rights groups expressed concerns this may be indicative of sanctioned or unsanctioned hit squads taking out junta critics.”
The applicants’ claims in summary
In general terms, the applicants’ claims centre upon their fear of being persecuted or killed by Thai authorities for having made past expressions (via protest and petition) of anti-government opinions, if they return to Thailand.
The applicants’ claims are summarised as follows:
·they expressed political opinions critical of the Thai government when, in early 2018:
-they joined protest rallies for democracy in a nearby town
-they signed a popular petition demanding that the National Council for Peace and Order (NCPO) give up power, reinstate democratic election process and return the power to the people of Thailand.
·as many of the people who signed the petition were interrogated by local police and a team of military squad (and did not return) they are fearful of being identified as part of a resistance group and subject to persecution and mistreatment if they return to Thailand
·they face a death threat from the military group which took control of the duly elected government in their hometown ([in] January 2018) causing a human rights crisis which worsens day by day
·their lives and well-being are in grave danger if they return to Thailand because the NCPO systematically suppresses political dissent and routinely detains those who express anti-government views
·they will face restrictions on their rights to freedom of expression, peaceful assembly and association if they return to Thailand as the government’s repressive regime uses Article 44 of the Constitution (and other laws and orders) to target civil society as well as opposition politicians
·punishments for opposing military rule or violating NCPO orders include torture, jail-time and ‘attitude adjustment’. Thousands of people have been summoned, detained without charge and pressured to stop making political comments
·they continue to fear persecution if returned to Thailand because of the human rights abuses occurring there
·they cannot seek protection from authorities in Thailand due to pervasive corruption.
Each of these claims is examined below.
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 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
Identity and country of nationality
The applicants claim to be from Thailand. They provided copies of their passports and ID cards to the Department. In the absence of evidence to the contrary, the Tribunal accepts the applicants’ claimed identity and citizenship of Thailand. The Tribunal finds the applicants’ country of nationality and receiving country for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is Thailand. The evidence before the Tribunal does not suggest that either applicant has the right to enter and reside in any safe third country for the purpose of s 36(3) of the Act.
Supporting Materials
The Tribunal has had regard to the media articles and the Human Rights Watch letter submitted by the applicants. These materials mainly relate to events prior to 2020 or to high profile political dissidents and therefore, while supportive of the applicants’ claims of past abuses by the NCPO in Thailand, they offer less support to the applicants in the Tribunal’s assessment of their future risk of harm.
Political Opinion
The applicants state that (along with many others) they signed a petition in early 2018 demanding that the NCPO give up power, reinstate democratic election process and return power to the people of Thailand.
The applicants recount joining the protesting rallies for democracy in a town near their home in early 2018.
The applicants do not submit that they became high profile activists due to their actions, that they were leaders of the protests or that they were involved in organising or promoting the petition.
The applicants do not submit that they personally became of interest to authorities in 2018 or that they were themselves apprehended, interviewed or interrogated by the authorities.
The applicants do not submit that they were personally targeted by NCPO enforcers who took control of the duly elected government in their hometown.
The protection visa application discloses that the applicants departed Thailand (in February 2020) using the Thai passports issued to them in their home country. The Tribunal is satisfied therefore, that the applicants were not targeted by authorities (at the border) in terms of restrictions on their movements. The applicants do not disclose in their visa application whether, when they travelled outside Australia, they returned to Thailand in either 2019 or 2020. The Tribunal makes no finding on this issue.
There is no evidence before the Tribunal to suggest that the applicants have been identified as persons of interest to the Thai authorities for being activists or part of a resistance group (or for any other reason).
Based the available evidence, the Tribunal is satisfied that the applicants played a very low-profile role in any protest or petition and that they were neither personally targeted for their pro-democracy actions nor identified as part of a resistance group when they lived in Thailand.
The applicants do not submit that they have been politically active (on pro-democracy or other issues) since first coming to Australia in June 2019 – on social media for example. They do not state that, if returned to Thailand they would (publicly or otherwise) express anti-government views. Based the available evidence, the Tribunal is not satisfied that the applicants would assume a high-profile (or any) role in expressing their political opinions if returned to their home country.
Current Country Information
The latest country information report on Thailand published by the Department of Foreign Affairs and Trade (DFAT) on 18 December 2023 details changes which have occurred (since 2018) in the political environment in Thailand, including that there have been two general elections since then. It is reported that there is an active political opposition currently in Thailand.
The DFAT report discloses:
Thailand held national elections on 14 May 2023, for the second time since the restoration of democracy in 2019. The Asian Network for Free Elections (ANFREL) described the elections as being ‘well-run’ and ‘mostly free and fair’. Critics pointed to flaws including a constitutional framework that favoured military backed parties, restrictions on freedom of speech, and state-sponsored disinformation campaigns. While there were some reports of vote buying, there were no reports of violence and ANFREL did not observe voter intimidation or undue influence at polling stations. Voter turnout was a record 75 per cent.[2]
[2]    at 2.24
…corruption thrives in Thailand, ranked 101 out of 180 countries in Transparency International’s 2022 Corruption Perceptions Index. In 2020 (the most recent available figures), Transparency International found that a quarter of Thais had paid a bribe to access public services in the previous year, and 40 per cent of Thais thought the police were mostly, or all, corrupt.[3]
[3]    at 2.27
The constitution contains numerous human rights commitments, including freedom of expression, peaceful assembly, and association. The government does not always respect these rights in practice.[4]
[4]    at 2.32
The National Human Rights Commission of Thailand (NHRCT) was established in 2017. It is mandated to investigate violations, promote human rights, make recommendations to the government on the protection of human rights, and prepare human rights situation assessments. OHCHR currently rates the NHRCT as an ‘A’ status institution, meaning it is fully compliant with the Paris Principles governing national human rights institutions. It regained this status in 2022 after having been downgraded to ‘B’ status for several years for perceived shortcomings. Human rights organisations have criticised the NHRCT as lacking independence, as well as failing to hold state officials to account for human rights abuses.[5]
[5]    at 2.33
Article 34 of the Constitution guarantees the right to express opinions, make speeches, write, print, publicise and express by other means, although allows for this right to be restricted by law for the purpose of maintaining state security, public safety, public order or good morals, or for protecting the health of the people. While Article 44 guarantees the right to assemble peacefully, it allows for this right to be restricted by law for the purpose of maintaining state security, public safety, public order or good morals, or for protecting the rights or liberties of other persons.[6]
[6]    at 3.14
Despite these Constitutional guarantees, human rights activists have criticised the government for its frequent use of judicial harassment or ‘lawfare’ to silence critics, including under the following laws:
• Section 112 of the Criminal Code (Lèse-Majesté)
• Article 116 of the Criminal Code (‘the Sedition Law’)
• Sections 326 to 333 of the Criminal Code (criminal defamation)
• the Computer-Related Crime Act (2007; amended 2017)
• the Public Assembly Act (2015)
• the Emergency Decree on Public Administration in Emergency Situation (2005)
• NCPO decrees (2014-2019)[7]
The DFAT report examines the treatment of protesters in Thailand (in paras 3.41 to 3.46) as follows:
3.41 Large-scale street protests have been a feature of political unrest in Thailand since at least the 1970s. Most are peaceful, however some have involved deadly violence and destruction of property, as well as wide- scale disruption of businesses and public services. Official responses have often involved excessive force. Crackdowns by security forces killed dozens or hundreds of protesters in 1973, 1976, 1992 and 2010. No one has ever been held accountable for this violence.
3.42 Beginning with the Thai political crisis of 2005-2006, Thailand experienced a decade of intense political conflict between the royalist-conservative Yellow Shirts and the pro-democracy, pro-Thaksin Red Shirts (see People involved with the Red Shirt movement). Following the 2014 coup, the NCPO severely restricted freedom of expression and assembly, including through Order 7/2557, which banned political gatherings of more than five people, and Order 3/2558, which gave authorities wide-ranging powers to detain individuals accused of ‘actions intended to undermine or destroy peace and national security’. Hundreds of protesters were arrested under these laws, including for peaceful acts such as reading George Orwell’s ‘1984’ in public and giving a three-finger salute made popular by the film ‘The Hunger Games’.
3.43Starting in early 2020, student groups led a series of protests in response to the disqualification of progressive politician Thanathorn Juangroongruangkit and the dissolution of the Future Forward Party. The protester’s demands included reform of the constitution and education system, an end to conscription, and, most controversially, reform of the monarchy. At their height, these protests attracted tens of thousands of participants. While most were in Bangkok, protests also occurred throughout the country. The majority were non-violent, although some protesters threw Molotov cocktails, metal bars and other objects at police, and some burned vehicles and tires. Dozens of people were injured during the protests, including protesters, police, and journalists. In October 2020, a 14-year-old protester was shot dead near Din Daeng Police Station. A 28-year-old man was arrested for his killing; he reportedly had no connection to authorities.
3.44 On-and-off demonstrations persisted into 2021, with police using water cannons, tear gas, batons, and rubber bullets to disperse protesters, hundreds of whom were arrested on charges including sedition, lèse-majesté, and breaching COVID-19 restrictions. Many of these cases were ongoing at the time of publication. Amnesty International and Human Rights Watch accused police of using excessive force during the protests and in some cases of torturing protesters in custody; authorities denied these accusations. DFAT is aware of prosecutions against street vendors, businesses and others who were perceived as supporting the protests, even when they were not directly involved. In November 2021, the Constitutional Court found three protest leaders had intended to ‘overthrow the monarchy’ and ordered protest groups ‘to cease further action in these matters’. By 2022, large-scale protests had mostly ceased.
3.45Notwithstanding the issues described above, many people who attend protests do not suffer long-term consequences for their participation. In-country sources told DFAT that young people who had participated in the 2020-2021 protests but subsequently abandoned their activism had been able to graduate university and secure jobs, including in the civil service. Two protest leaders won seats in the May 2023 national elections, despite facing ongoing legal issues related to their protest activity.
3.46DFAT assesses that active anti-government protesters in Thailand face a moderate risk of official discrimination in the form of arbitrary detention, judicial harassment, intimidation, and surveillance. DFAT assesses they face a low risk of violence in the form of excessive security responses and possible torture or mistreatment in custody.
[7] at 3.15

57. The Tribunal considers the DFAT report as presenting reliable evidence that many people who attended past protests do not currently face long-term consequences for their participation. Despite the applicants alleging to have taken part (in 2018) in protests and petitioning the government, the DFAT report persuades the Tribunal that, if returned to Thailand, the applicants face a low risk (if any) of violence in the form of excessive security responses and possible torture or mistreatment in custody.
58. The Tribunal gives significant weight to the DFAT report because it is based on current information from sources which are specifically tasked with conducting country assessments. By contrast, the supporting materials provided by the applicants are to be viewed with caution as they are dated and take no account of changes in Thailand’s political landscape since 2019.
59. Having regard to the DFAT report and the examination of the applicants’ evidence and supporting materials from media sources, the Tribunal is satisfied that there is only a remote or speculative chance (and therefore not a ‘real chance’) that given their very low profile politically, they would be targeted for any harm by the current Thai authorities if they return to their home country.
REASONS AND FINDINGS
60. The issue in this case is whether the applicants have a well-founded fear of persecution or a real risk of significant harm due to their alleged opposition to the Thai government. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Do the applicants satisfy the refugee criterion for protection?
61. The supporting materials provided by the applicants focus on erosions of freedoms and rights in Thailand, large public protests and the high-profile cases of individual political leaders being harmed by the Thai authorities. These materials do inform the Tribunal why the applicants may have held (or still hold) views opposed to the Thai government. Having regard to the examination of evidence above however, the Tribunal considers the applicants had (and continue to have) no more than a very low political profile.
Serious Harm
62. From the wording of the visa application, it is unclear to the Tribunal whether the claim is being made that the applicants received a death threat personally (from the military group which is alleged to have taken over their town) or whether their community generally felt their lives were endangered by the military group.
63. Based on the available evidence, the Tribunal does not accept that the military group (or anyone) personally targeted the applicants with violence or threats while they were in Thailand. There is no evidence before the Tribunal regarding the perceptions within the applicants’ town (specifically) when the military allegedly took it over. As such, the Tribunal does not accept that the community of the applicants’ hometown feared for their lives or that the applicants continue to fear for their lives due to the military takeover of their town.
64. The applicants claim that they will suffer from restrictions of their rights to freedom of expression, peaceful assembly and association if they return to Thailand.
65. In assessing these claims (and having regard to s 5J(5) of the Act) the Tribunal is guided by instances of harm that should be considered as ‘serious harm’. These would include, for example, a threat to a person’s life or liberty, a significant physical harassment or a significant physical ill-treatment of the person, or circumstances that threaten the person’s capacity to subsist.
66. Based on the available evidence, the Tribunal is satisfied that there is only a remote or speculative chance and therefore not a ‘real chance’ that given the very low profile of the applicants, they would be targeted for any significant physical harassment or ill-treatment by the current Thai authorities for having been among hundreds of people who participated in public protests, or because they signed a petition in 2018, or for holding political opinions that oppose the Thai government.
67. The Tribunal acknowledges that the applicants seek to avoid losing democratic (and other) freedoms if they return to Thailand. The Tribunal finds however, that these hardships, as challenging as they may be, are not such severe forms of harm that they fall within the kinds of conduct covered by s 5J(5).
68. For the reasons given above, and having considered the applicants’ claims individually and
cumulatively, the Tribunal is not satisfied that if either applicant returned to Thailand he or she would face a real chance of persecution for any reason set out in s 5J(1)(a) of the Act, or for any other reason. The Tribunal does not find that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act. Neither applicant is therefore, a refugee as defined in s 5H(1) of the Act.
69. The Tribunal does not find that the applicants satisfy s 36(2)(a) of the Act.
Do the applicants satisfy the complementary protection criterion for protection?
70. Having found the applicants do not satisfy the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether in the alternative, they are able to engage Australia’s protection obligations under the complementary protection criterion (in s 36(2)(aa) of the Act) because there are substantial grounds for the Tribunal to believe that there is a real risk either applicant would suffer significant harm as a necessary and foreseeable consequence of their removal from Australia to Thailand.
71. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
Physical harm
72. The Tribunal must consider the examples of ‘significant harm’ set out in ss 36(2A) of the Act when assessing this aspect of the complementary protection criterion. Actions or treatment constituting significant harm include arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment.
73. The Tribunal has above concluded that the applicants do not face a real chance of any physical harm if they return to Thailand.
74. Based on the available evidence the Tribunal is not satisfied that, if they return to Thailand, the applicants would be subject to physical actions that fall within the scope of ‘significant harm’ in ss 36(2A) of the Act.
Restricted freedoms
75. 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). It is significant for this case that s36(2B)(c) specifies a proviso that there is not taken to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that “the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.”
76. The Tribunal considers that the risks of restricted freedoms (including rights to freedom of expression, peaceful assembly and association) are risks faced by the population of the country generally rather than risks faced by the applicants personally.
77. Based on the available materials (and having regard to s36(2B)(c) of the Act), the Tribunal is satisfied that the potential harm of restricted freedoms, does not constitute ‘significant harm’ because the risks of such harm are faced by the Thai people generally and not by the applicants personally.
78. For the reasons given above, the Tribunal concludes that the applicants do not have a real risk of significant harm as a necessary and foreseeable consequence of their removal from Australia to Thailand. Therefore, the Tribunal concludes that neither applicant satisfies the complementary protection criterion in s 36(2)(aa) of the Act.
Other criteria – member of the same family unit
79. Finally, as neither applicant has claimed to be a member of the same family unit as another person in respect of whom Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, and given there is no evidence before the Tribunal to suggest the contrary, the Tribunal also finds that the applicants do not satisfy s 36(2)(b) or s 36(2)(c) of the Act.

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