AES21 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 699

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AES21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 699

File number(s):	BRG 438 of 2024
Judgment of:	JUDGE COULTHARD
Date of judgment:	20 May 2025
Catchwords:	MIGRATION – Protection (subclass 866) visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – no jurisdictional error established – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 5H; 5J; 5L; 5LA; 36; 476
Cases cited:	NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10
Division:	Division 2 General Federal Law
Number of paragraphs:	50
Date of last submission/s:	7 May 2025
Date of hearing:	7 May 2025
Place:	Brisbane
Solicitor for the Applicants:	The Applicants appeared self-represented by telephone
Solicitor for the First Respondent:	Ms Roeger - The Australian Government Solicitor
Solicitor for the Second Respondent:	The Second Respondent filed a submitting appearance save as to costs

ORDERS

BRG 438 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AES21

First Applicant

AET21

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE COULTHARD
DATE OF ORDER:	20 MAY 2025

THE COURT ORDERS THAT:

1.That the name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.The application is dismissed.

3.The applicants are to pay the first respondent’s costs, fixed in the amount of $5,400.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE COULTHARD

INTRODUCTION

1. Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for The Department of Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicants a Protection (subclass 866) visa.

   BACKGROUND

   Application for a visa and the delegate’s decision

2. The applicants are citizens of Thailand. They are husband and wife. The applicants arrived in Australia on 10 August 2018 on tourist visas. Since arriving in Australia, the applicants have had a child.  The child is now six years old.

3. On 11 October 2018, the first applicant applied for a Protection (Subclass 866) visa (“the visa”) (Court Book (“CB”) 13-27). The second applicant applied for the visa as a member of the same family unit as the first applicant.  They raised the same claims to protection. They claimed to fear harm from gangsters in Thailand from whom they had borrowed money.  They claimed to fear that if they returned to Thailand they would be found by the gangsters and beaten, injured or killed.  They believed the authorities would not assist them as they claim that the authorities are corrupt.

4. On 1 July 2019, the delegate refused to grant the first applicant the visa on the basis that the delegate was not satisfied that the first applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Migration Act 1958 (“the Act”). The delegate refused to grant the second applicant the visa on the basis that she was not a member of the same family unit as a non-citizen who holds a protection visa (“the delegate’s decision”) (CB 54-70).

   Application for review to the Administrative Appeals Tribunal

5. On 6 July 2019, the applicants applied to the Tribunal for a review of the delegate’s decision (CB 71-72).

6. On 26 March 2024 the applicants provided to the Tribunal a completed prehearing information form in which they provided information as to their reasons for claiming protection (CB 77-80).

7. On 22 May 2024, the Tribunal invited the applicants to attend a hearing on 26 June 2024 to give evidence and present arguments relating to the issues arising in their case, stating that it was unable to make a favourable decision based on the information before it alone (CB 82-84).

8. On 26 June 2024, the applicants attended the hearing.  The applicants were assisted by an interpreter in the Thai and English languages (CB 89-92).

9. On 5 July 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (CB 102-118) (“the Decision”).

   THE TRIBUNAL’S DECISION

10. The Tribunal identified that the determinative issue was whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicants were returned to Thailand they would be persecuted for one of those reasons and, if not, whether there are 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 applicants will suffer significant harm as defined in s 36(2A) of the Act [15].

11. The Tribunal set out the criteria for a protection visa [7]-[13]; identified the mandatory considerations and summarised the DFAT country information for Thailand regarding corruption, victims of loan sharks, police and special investigations. The Tribunal also considered reports about recent police operations targeting loan sharks in Thailand and referred to a Business & Human Rights Resource Centre article indicating that the Royal Thai Police continue to mount successful anti loan Shark operations [21]-[23].

12. The Tribunal summarised the applicants’ claims for protection as set out in their visa application [17]:

    (a)They came to Australia on tourist visas because they had borrowed a large sum of money from gangsters and because they had no job and because they could not make any money in Thailand, they could not repay the gangsters;

    (b)They did not try to move to another part of their country as “this is a matter of my parents and at that time I in Australia and until now continue to my studying, so the cases happened when I was already in Australia”; and

    (c)They fear returning to Thailand as they will be found by the gangsters and could be beaten, injured or killed and they do not believe the authorities will assist them as they are corrupt.

13. The Tribunal noted that in their “Pre-hearing information form”, the applicants further claimed that ([16]-[17]):

    We are afraid to go back to Thailand because before we came to Australia we were attacked and threatened if we didn’t return their money. Especially now that we have a daughter who is only 5 years old, we are afraid that she will be insecure about this, therefore I will be request you to consider allowing us to continue living in Australia.

14. The Tribunal summarised the applicants’ evidence at the hearing as follows:

    (a)The applicants arrived in Australia on tourist visas on 10 August 2018 and obtained employment on a small family farm for about six months. After the picking season finished, they moved to [a town in Queensland] where the first applicant worked on a strawberry farm for a year or so before they moved to [a town in Queensland] where they continue to live and where the first respondent works on a strawberry farm while the second applicant works as a masseur in [a town in Queensland] [27];

    (b)Prior to travelling to Australia, the first applicant was a farmer working his family’s rice farm in a province of Thailand. His elderly parents still reside on a small plot on the family farm and his elder brother lives and works elsewhere. He had borrowed some money and because he had not kept up with the repayments the remainder of the family farm had been forfeited to their neighbour, a loan shark who had lent them five million Thai Baht, which he said was roughly the equivalent of AUD $220,000. The family farm had been seized by the loan shark in 2019, after they came to Australia and had stopped making loan repayments [28];

    (c)They had come to Australia because they could not make the repayments on the loan because of droughts and other expenses. In Thailand they could not earn enough money from the farm and there were no other occupations open to them that would allow them to make the repayments on their loan [29];

    (d)The first applicant said that they had originally borrowed 1.7 million Thai Baht and then a further two million Thai Baht to fund new business ventures. A loan agreement was entered in to with the loan shark, a wealthy local neighbour. The agreement provided for monthly repayments of 20,000 Thai Baht per one million Thai Baht of the debt and offered the applicant’s farmland as collateral [30];

    (e)They had not started their new business as they had spent the money that they borrowed on other things including running their family rice farm, so they borrowed further amounts from the loan shark in accordance and their principal debt increased to five million Thai Baht [31];

    (f)The applicants told the Tribunal that as they were unable to make the regular payments some representatives of the loan shark came to their farm and threatened them with harm and damaged their house, a tractor and took some of their property [32];

    (g)The second applicant said that they had at one stage reported these incidents to the local police who took no action because there had been a loan agreement between the applicants and the loan shark. They had not further pursued their complaints with the police or made any complaints about the police response but instead decided to leave Thailand for Australia so they could obtain employment and earn a better income [33];

    (h)The first applicant said that he and the second applicant had not been harmed in Thailand, but they had been the subject of threats of harm by the loan shark. He further explained that notwithstanding having stopped making repayments six months after arriving in Australia, the loan shark had not harmed his parents although the loan shark had taken possession of most of the family farm except the plot where his parents reside in their house. The loan shark had, since their departure from Thailand, occasionally called upon his parents and enquired as to whether the first applicant had or was intending to return to Thailand [34].

15. The Tribunal then discussed the country information with the applicants and the efforts of the police in Thailand and the Ministry of Justice’s Department of Special Investigations in relation to loan sharks, organised crime and corruption. The first applicant told the Tribunal that he was not sure whether the Thai authorities could protect them from harm if he and the second applicant and their child returned to Thailand [35].

16. The Tribunal said that it found the applicants to be honest reliable witnesses and accurate historians as to their experiences in Thailand and the arrangements that they entered into with the loan shark and their difficulties in repaying their loan [43]. The Tribunal said that it accepted the applicants' evidence as to their debt to the local loan shark, that they had been subjected to threats and some property damage and theft after they had been unable to continue making loan repayments as had been agreed ([48]).

17. The Tribunal found that, pursuant to s 5L of the Act, the applicants were members of a particular social group, being “victims of an illegal money lender (loan shark) threatened with harm and demands for repayment of a loan” [48]-[49].

18. The Tribunal however found that there are effective protection measures available to the applicants in Thailand [50]-[51].  In making that finding, the Tribunal referred to the applicants’ evidence that they had only been threatened with harm and not harmed in Thailand; the first applicant's parents had not been threatened and/or harmed notwithstanding the loan shark having taken possession of the majority of the family farm which had been offered as collateral on the loan; they were not sure, what if anything, would happen to them if they returned to Thailand in circumstances of not being able to repay the loan; and the relevant country information.

19. The Tribunal found that notwithstanding some corruption within the Thai police, the applicants can access such protection, such protection is durable and consists of an appropriate criminal law, a reasonably effective police force which is complemented by the Ministry of Justice's Department Special Investigations and an impartial judiciary. The Tribunal found (referring the reports of recent police operations) that the authorities in Thailand have shown a continued willingness and success in combatting loan sharks. The Tribunal referred to s 5LA of the Act (as to what constitutes effective protection measures) and concluded that the protection measures were effective protection measures for the purposes of s 5LA of the Act [51].

20. The Tribunal therefore concluded that the applicants do not face a real chance of persecution involving serious harm if they were in the reasonably foreseeable future to return to Thailand [52] and that the applicants' fears in this regard are not well-founded, referring to s 5J of the Act [53] and that accordingly the applicants are not refugees as defined in s 5H of the Act [57].

21. The Tribunal then turned to consider the complementary protection obligations and whether the applicants will face a real risk of suffering significant harm as a result of their loan and inability to repay it to a local loan shark [54].

22. The Tribunal found that although the country information indicated that there is some corruption in the police, law enforcement and judiciary systems of Thailand there was no information and/or evidence before it to suggest that the applicants will not be able to avail themselves of protection from the Thai authorities if they needed to do so, in relation to their debts to a local loan shark. The Tribunal therefore concluded that it was satisfied that the applicants could obtain protection from an authority of Thailand such that there would not be a real risk that they will suffer significant harm as provided in s 36(2B)(b) of the Act. Accordingly, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, that there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act ([55]-[56]).

23. The Tribunal concluded that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act or the complementary protection obligations in s 36(2)(aa) of the Act and affirmed the delegate’s decision not to grant the applicants protection visas [64].

    PROCEEDINGS IN THIS COURT

24. These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 13 July 2024. The applicant also filed an affidavit on 9 July 2024. The affidavit annexes a copy of the Tribunal’s Decision.

25. Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which they sought to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it sought to rely. Orders were also made as to the preparation, filing, and service of a Court Book.

26. The material before the Court was the first respondent’s response, the first respondent’s written submissions, and the Court Book which contained the applicants’ application and affidavit. Before the hearing commenced, the Court confirmed with the applicants that they had these documents with them.  The applicants said that they did not have a copy of the Response.  A copy was emailed to them by the first respondent’s solicitor.  The Court Book was made an exhibit in the proceedings.

27. The applicants appeared by telephone. They were unrepresented. The applicants had the assistance of an interpreter in the Thai and English languages.

    CONSIDERATION

28. For the applicants to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.

29. The Court explained to the applicants that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal the Court considers that the applicants should or should not be granted the visa.

30. Despite procedural orders permitting them to do so, the applicants did not file an amended application. The grounds of review set out in the application are (without alteration):

    1.Following the decision of the Administrative Appeals Tribunal (AAT) to affirm the refusal of our Protection visas, I, [AES21] and [AET21], my partner seek judicial review from the Federal Circuit and Family Court of Australia.

    2.We contend that the Tribunal erred in its decision, and we present compelling grounds necessitating reconsideration of our application for protection.

    3.During the AAT proceedings, we provided substantial evidence and arguments regarding:

    i.The credible fear of persecution we face in our home country, Thailand, due to threats from criminal gangs.

    ii.The inability of Thai authorities to protect us from these threats despite our efforts to seek legal recourse.

    iii.The severe consequences we would endure if forced to return, including physical harm, extortion, or loss of life.

    In conclusion, we firmly believe that the Federal Circuit and Family Court of Australia, with its commitment to justice and the protection of human rights, will carefully consider our grounds for review and provide a fair and impartial assessment of our claims.

    We remain hopeful that our plea for reconsideration will be met with empathy and adherence to the principles of international law concerning refugee protection.

31. Despite the order requiring them to do so, the applicants did not file any written submissions.  The applicants were given the opportunity to make oral submissions in support of their application for judicial review and in reply to the first respondent’s submissions.

    Ground One 

32. In ground one, the applicants state that they have sought judicial review by this Court.

33. This does not allege or identify any jurisdictional error by the Tribunal.

34. No jurisdictional error is established by ground one.

    Ground Two 

35. In ground two, the applicants contend that the Tribunal erred in its decision.

36. The applicants do not particularise what error they contend the Tribunal made.

37. The Court invited the applicants to explain what error or errors they were referring to or how it is they say the Tribunal “made a mistake” or “got it wrong”.  The applicants told the Court that:

    (a)The Tribunal did not allow them to say anything about their daughter and how not being granted a protection visa would impact on their daughter; and

    (b)The Tribunal asked them to provide documentary evidence about the loan, but they could not provide any such documents because they had been in their car which was taken away.

38. As noted above, the applicants made a submission to the Tribunal prior to the hearing about their concern for their daughter.  The applicants stated:

    We are afraid to go back to Thailand because before we came to Australia we were attacked and threatened if we didn’t return their money. Especially now that we have a daughter who is only 5 years old, we are afraid that she will be insecure about this, therefore I will be request you to consider allowing us to continue living in Australia.

1. The Tribunal referred to this statement in its reasons ([16] and [17]).

2. It is not evident from the Tribunal’s reasons for Decision that it considered the impact of the applicants returning to Thailand with their daughter on her welfare.  However, the Court agrees with the first respondent’s submission, that this was not a relevant consideration to the issue which was before the Tribunal which was whether the applicants were persons to whom Australia owed protection obligations on the basis that they met the criteria for protection as refugees or pursuant to the complementary protection provisions. 

3. The Tribunal accepted the applicants’ evidence as to their debt to the local loan shark and having been subjected to threats and some property damage and theft after they had been unable to continue making loan repayments as had been agreed ([48]). However, the Tribunal found that there were effective protection measures available to the applicants as defined in s 5LA of the Act. This finding disposed of the issue as to whether the applicants had a well-founded fear of persecution having regard to s 5J(2) of the Act for the purposes of determining whether the Tribunal was satisfied that the applicants were persons in respect of whom Australia has protection obligations as refugees. It is also disposed of the issue as to whether the Tribunal was satisfied that the applicants were persons in respect of whom Australia has protection obligations pursuant to the complementary protection provisions in the Act having regard to s 36(2B)(b) of the Act.

4. As to the applicants’ submission that they were unable to produce documents about the loan, the Court is unable to make any finding as to whether the applicants were asked to provide such documents as the transcript of the Tribunal hearing was not put into evidence by the applicants.  It is not evident from the Tribunal’s reasons for Decision that the applicants were asked to provide such documents to the Tribunal.  However, the Court is satisfied that nothing turns on the matter.  This is because the Tribunal, as already noted, accepted the applicants’ evidence as to their debt to the local loan shark and their inability to continue making loan repayments as had been agreed ([48]).

5. Otherwise in ground two, the applicants contend that they “present compelling grounds necessitating a reconsideration of our application for protection”.  This misunderstands the role of the Court in exercising judicial review and does no more than invite the Court to engage in impermissible merits review.

6. No jurisdictional error is established on ground two.

   Ground Three 

7. In ground three (i) to (iii), the applicants invite this Court to review their claims to protection and “provide a fair and impartial assessment of our claims”.  Again, this misunderstands the role of the Court in exercising judicial review and does no more than invite the Court to engage in impermissible merits review.

8. To the extent that the applicants contend in ground three that the Tribunal did not consider their claims or the evidence they presented in support of those claims, the ground must also fail. It is clear from the reasons for Decision that the Tribunal considered the applicants’ claims as set out in the application for the visa, the pre-hearing information provided by the applicants and their oral evidence at the hearing (at [17], [27]-[34], [44]-[47]). The Tribunal said that it accepted the applicants’ evidence as to their debt to the local loan shark, that they had been subjected to threats and some property damage and theft after they had been unable to continue making loan repayments as had been agreed ([48]-[49]).

9. However, as already discussed above, the Tribunal found that there were effective protection measures available to the applicants in Thailand. In coming to that conclusion the Tribunal reasons demonstrate that it considered the applicants’ evidence at the hearing that they did not believe the authorities will protect them ([44]); the applicants’ evidence about reporting the loan shark’s conduct to the local police ([47]); and the country information ([21]-[23]; [50]-[51]). The Court agrees with the first respondent’s written submissions (“FRS” at [31]) that in making that finding the Tribunal correctly had regard to the definition of “effective protection measures” in s 5LA of the Act and considered that definition having regard to the applicants’ evidence and the relevant country information ([51]).  The findings as to effective protection measures that the Tribunal made by reference to the relevant country information were open to it.  As the first respondent submitted, the appropriate weight to place on such information was a matter for the Tribunal (FRS [31] referring to NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11]).

10. No jurisdictional error is established on ground three.

    Another matter

11. The Tribunal (at [37]) identified Vietnam as the receiving country for the purpose of assessing the applicants’ claims to protection.  This is clearly an error.  It is not in contention that the applicants are citizens of Thailand.  This demonstrates a lack of proof reading on the part of the Senior Member.  Regrettable as the error is, the Court agrees with the first respondent’s submission (FRS [34]) that the error is not a jurisdictional error.  It is otherwise clear from the Decision, including the Tribunal’s reference to the relevant country information, that the Tribunal understood that the receiving country was Thailand and that it assessed the applicants’ claims to protection on that basis.

    CONCLUSION

12. Accordingly, for the reasons given above, the application is dismissed.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard.

Associate:

Dated:       20 May 2025