Saturday, April 16, 2016

Rule of Law -- Coming Soon to a Nation Near You!

Thailand’s Licensing Facilitation Act of 2015[i]

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Disclaimer: this article is as much about the law of Thailand as it is about the personal experience I had with immigration.  This is not legal advice.  There were many factors — factual, legal, attitudinal, and emotional — in this story that could easily have altered the outcome.  In short, this article makes no claim about the actual content of the Thai law, which I only know from non-binding translations, or its application, which may be as fickle and complex as the multiple factors influencing this narrative of events.  What it does claim to be is the opinion of one fed up American expat who would rather go to jail than be kicked like a dog by Thai government officials again. 
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Last year, Thailand passed the Licensing Facilitation Act of 2015, which has the potential to completely change the nature of how foreigners are treated by government officials.  I will take you through a stroll of this law in plain English as it applied to the 90 Day Check-in procedure and a visa extension that I recently did. 

I was considering doing just a 30 day border hop visa on arrival because I expect to get either a contract at a new school or a position in a different country within that time.  However, my pregnant wife began having contractions 2 nights before this and our new daughter had to come out 5 weeks early in an emergency c-section.  The baby also developed a mild case of pneumonia and was placed in a newborn intensive care unit.  These developments radically changed my calculations, so I decided that I needed a 60 day extension instead.  I’ll add more details to the story as we delve into the details of the law.

First off, the term “License[ii]” is extremely broad, and is used as it typically is in legal contexts in the United States[1] .  Here it is from section 4, the definitions section, of the law:
      ““License” means an authorization . . . to any person . . . to do any activity . . ., including the granting of license or permission, the registration, the acceptance of notification and the issuance of a certificate of lease or concession” (italics added.)
For foreigners in Thailand, this covers nearly everything we need to do with the Thai government, including the 90 day check-in procedure.  The law is also written in a much more user friendly manner than the 90 day check-in law[2]. 

            To add force to that definition, §3 is a broadly stated override provision that clarifies this law[3].  It also states that this law applies to any permission or license, including registrations and notifications, for any application and for any activity.  Also, any law that is different or inconsistent with this law is overruled through this law. 

            Section 7 of the Act requires public and open standards.  First, the authority[4], [5] must have a written set of rules for licensing requirements, the procedure of reviewing the license application and time frame for making a decision, and a list of documents or other evidence[6] that may be used to prove requirements are met, and whether the applications can be submitted electronically.  It also requires that these are compiled in an agency manual that is available both at the office and electronically.  They must provide a copy of the manual upon request.  They can charge a fee for a printed copy, but even that fee must be stated in the manual.

 These rules may prove helpful in the future since our local immigration office, the Old office, has begun requiring many more documents for teachers to get visa extensions over the last two years.  One requirement is a photo taken at the place of employment.  I know one foreign English teacher that is currently going to school to wait for immigration to show up, despite the fact that it is school holiday, there are no students or other teachers, and he is not required to report to work now!  Other requirements include demanding original, sealed copies of diplomas.  This is a major hassle.  Westerner’s do not routinely travel with these documents[7].  Also, many universities will only release original copies to the actual person, which could require a trip home.  Lastly, our documents are not lacquered on wood the way Thai diplomas are, making them vulnerable to insect or environmental damage.[8]  

These requirements were, curiously, first implemented shortly after I had an altercation with our local immigration office and openly refused to pay a bribe[9].  The first year after that, we heard of no other school (or even the other departments within our school) that were subject to these requirements.  Oddly enough, those requirements also followed me to the school I worked at the next year, though other teachers in different schools reported that they were never asked for original documents.  Some reported that they were never even asked by their agencies for copies of diplomas, so that means they weren’t subject to these ‘new regulations’ at all.[10]

Our local office isn’t the only immigration office that will just make up rules.  One commonly fabricated rule throughout Thailand is not accepting 90 day notices[11] by mail ‘anymore’.  I have seen several times in internet forums for expats in Thailand where one office or another will do this, but it is always limited to that particular office and there is never any new law or rule backing the change.  The office usually tends to revert back to the old rule after a time as well.  In fact, the old immigration office did that to me when I mailed in my last 90 day report, though I don’t know if they have gone back to following the law.

When I needed a visa extension this past week, I had finally had enough of the shenanigans from the Old immigration office, and chose to go to an office in a different province.  (I’ll refer to them as the Old and New offices[12].)  This added over 8 hours of additional travel time to the process.  It also raised eyebrows of officers in the New office, which I don’t fault them for, though I am not the first westerner to travel to the New office because of Old office shenanigans.  I am confident that the New office is well aware of the Act, since they had prominently displayed placards showing the process and estimated extension approval times of 12 or 19 minutes, depending on whether a fine is imposed.  So, we can be fairly sure that all local immigration officers are supposed to know and follow this law.

Section 8 of the act imposes a duty of diligence and communication.  The official must first examine an application for completeness and immediately inform the applicant if any field is missing or is not proven with attached evidence.  If any defects in the application cannot be immediately fixed, then the official must list the defects in the application, specify how long the applicant has to fix the defects, and give a signed copy of this list to the applicant. 

For my last 90 day report, apparently I forgot to include a copy of every single page of my passport for them.  Section 8 required the Old office to list the defects in my report and inform me of them, which they could have easily done since they have both my home address and school (work) address on file.  (Not to mention that my home address was right there on the 90 day report in front of them!)  Instead, they called a teacher at my school to tell me that they were not accepting 90 day reports by mail and that I had to come in to see them in person.  I chose to follow the law and wait for them to do their legally required duty by sending me the defect list[13].  I did inform that teacher that she needed to contact the Old immigration office and explain their duty to them[14],[15].

The third paragraph of §8 even alludes to a cooperative, instead of adversarial, role for officials when it says that “the application has been fixed . . . as suggested by the competent official” (italics added[16].)  It goes further to say that, once an official has made this list of fixes for an application, the official may not request any additional documents or evidence and must consider[17] the application based on the changes suggested by the official.  They may not request additional documents or evidence.  Also, neither may they refuse to consider the application because of a defect they failed to notice earlier.  The law doesn’t directly say that the official must automatically approve the license, but the act only gives 2 reasons to deny a license at this point: either negligence or dishonesty by the government official.  If that happens, then there are two consequences.  Unfortunately, this section is written very badly and is barely intelligible[18],[iii].

The first consequence is that the government agency “may have an order as he think fits.”  This ought to mean that the government agency has some discretion to provide some type of license. 

In my example of applying for a 60 day extension, there might be a couple ways to use that discretion.  One way might be, if the applicant did not meet qualifications, to give a lesser license of maybe 30 or 45 days[19].  The other way would be to just grant the license, but inform the applicant of defects that must be fixed the next time that they apply for the license[20].  This section, read as a whole, implies that officials should err on the side of granting licenses instead of withholding them.  For my 90 day report, I believe they had the discretion to just accept it.  The Old office already had multiple copies of every page in my passport, so lacking one more copy is a minor triviality[21].

The second consequence is that “all relevant” officials must be brought up for disciplinary action “without delay.”  This puts some teeth into the law, if it is followed.  While many longtime expats would expect any consequence for government officials to be a mere slap on the wrist, there are more consequences to follow that really put some bite into the law here.

For my 90 check-in, of course, the Old office never followed the law to begin with because they never sent me the list of defects to fix.  Nobody at the New office ever indicated that they would do their legally required duty and file disciplinary charges against the Old office.  Since this is Thailand, I chose not to push the issue with the New office and just leave after I got my 60 day extension.  There are a couple more sections of the law that are likely to be relevant to expats with visa issues, but they don’t apply to my story because the Old office never did their job to begin with.  I’ll go over those and then finish up the story at the end. 

There will be situations where even the attempts to fix the application fall short and the applicant does not qualify.  That is covered under §9 where it says if “the applicant fails to comply with the suggestion[s].”  If this happens, official may “return” [22], [iv] the application, but must clarify in writing why the application is being “returned”.  If an application is “returned” the applicant may either appeal or, if he still has enough time in the application period, he may reapply.

Section 10 sets up deadlines and accountability for government officials.  First are the deadlines.  Officers must decide whether or not to approve the license within the time frame stated in the agency manual.  Then, they have 7 days to notify the applicant of the decision.  Next come accountability provisions.  If they cannot complete their consideration within 7 days, they are required to “clarify” to the applicant in writing why the consideration is being delayed and repeat this every 7 days until they finish considering the application.  They must also send a copy of the clarification to the Public Sector Development Commission every time they fail to finish considering an application.  If the government officer fails to send this clarification, then the law assumes that this failure causes damages[23] to the applicant[24].

Section 11 covers future changes to licensing rules.  If an application is already submitted and a new law or regulations changes the rules, then one of two things can happen.  If it will prejudice the applicant (make it more difficult to get approval), then the new rules may not be applied retroactively.  On the other hand, if a change to the rules benefits the applicant and makes it easier to get approval, then the new, easier rules may be used to consider the application.

The remaining sections not discussed here do not apply to the story within this article.  They cover One Stop Service Centers and some issues with how the agencies are structured for oversight, etc.  They are unlikely to affect most of the expats who need to deal with immigration concerning marriage or work visas.  So, let’s finish the story.

In Thailand, hospitals do not have nurse’s aides and families are required to do most of the basic care for their sick relatives.  You basically stay at the hospital the entire time and only leave to get food for your loved one[25].  This meant that I needed to stay at the hospital with my wife, and she had to call her niece to help locate all the papers that we would need to copy for the visa application.  After a couple trips out of the hospital for copies and back to the hospital, where parking is always a 15 minute walk or more from the room, we were now ready to go.  However, all the extra hassle cost us an extra day, so now I had to go to the New office with a visa that expired the day before.

One of my sisters-in-law was kind enough to drive us to this other province which was 3 ½ hours away.  On the advice of a long time expat, I took my toddler daughter with me to help emphasize that this was a serious medical problem.  We finally got to the New office around 4:30, and there were about 7 or 8 others waiting at the time.

 The officer at the New office kindly took my application, even though my visa was now expired.  Then the problems began . . .  The officer notified me that they didn’t have a current 90 day registration in the system, and told me that I’d have to pay a fine.  So, I informed her about what had happened with the Old office and how they never did their job.  I also added that I refused to tolerate their corruption or incompetence any longer.  I also quoted this licensing law to the officers at the New office.  

The officer asked me, “Why you didn't just go in to see them?”  
“Why can't they do their job,” I replied, “and send me written notification of their denial as required by Thai law?”  
“But how can they mail you?” she queried.
I really had to strain to keep my anger and sarcasm in check as I replied that “One, they have my address on the 90 day registration form that I sent them, and, two, they have an entire file on me from the last two years.”
“Should I just start going to the Old office and do their job for them?” I asked as my patience slipped away.  The officer looked perplexed.

At this point, I told the officer that I refused to pay the late fine, gave my daughter to my sister-in-law, and presented my hands, saying "Go ahead, arrest me, but I refuse to pay a fine because a government officer is too lazy or incompetent to do their job."

 We had already been there for over an hour at that point; so much for the 12 – 19 minutes posted on the wall.  I could tell that this had become quite a spectacle for the other people waiting with us.  It is very uncommon for people in Asia to make such a bold display like I had done, and I knew that it was putting the officer in a difficult position.  Should she show her power and just arrest me as an arrogant farang[26] who doesn’t understand “Thai Culture”[27]?  Or, should she show herself to be calm and compassionate?  I don’t know why she chose the latter path, but I suspect that it had something to do with me quoting Thai law to her from memory.

Then, my sister-in-law handed her phone to the officer to speak with my wife.  My wife told her of just a few of the previous extortion attempts and other misdeeds by the Old office.  The officer told my wife that she could tell that I was being sincere and honest with her, as I was still standing there with my hands outstretched and ready for the cuffs, and would see what she could do. 
  
Yes, I probably lost a little face, and was probably too blunt.  I did try to play it cool, but I just have no f**ks left to give about Thai Immigration[28].  The officer did tell my wife that she was waiving the fine because she could tell that I was being sincere about the misdeeds of the local clown posse that passes for immigration in our province.  Later, some other expats explained a little bit about actual Thai culture, and said that, if anything, I probably gained a little face at this office from the experience.  Since I went back to see my wife in the hospital instead of going to the Bangkok Hilton, I’d say it was a good day.
  
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Edit:
It was suggested that  a 90 day check in is not covered under the law, that it was not “… a permission to stay, as defined under the Immigration Act, is not a license . . . “  This is a typical argument that we could see from Thai government officials.  Here's the relevant sections of the law and my response.
Section 3. This Act applies to the granting of all permissions or licensing as well as all registrations or notifications in which the application for those are required by laws or rules prior to do any activity. All laws or rules which are contrary to, or inconsistent with, this Act shall be repealed and replaced by this Act.  [emphasis added]

Section 4. In this Act:  “License” means an authorization to be made by the official to any person prior to do any activity as prescribed by laws, including the granting of license or permission, the registration, the acceptance of notification and the issuance of a certificate of lease or concession;


You bring up a good point.  I thought about addressing this in the original article more thoroughly, but I didn’t want to get lost in details.  Also, the only arguments for that proposition are really bad, if not outright stupid.  (I’m NOT saying that you’re stupid for bringing them up!  You were smart to recognize the types of arguments we may encounter.) 

So, let’s look at this by section.  In sect 4, it specifically includes the acceptance of a notification.  Well, at the top of the form it says "Notification of staying in the Kingdom over 90 days." It can't get much clearer that this is a notification.  Period.  Case closed.

“But,” the official may say, “it must be prior to do any activity, and you haven’t done anything yet.”  Of course not, because prior means before, and I am registering before continuing my stay in the kingdom.  The activity in question is living, and, if living is done by a foreigner within the kingdom, then they must submit this notice.  “Oh,” says the official, “but you should have submitted this before coming to stay in the Kingdom.”  That is pure nonsense: the form clearly says for “continuing to stay in the kingdom,” not “coming to stay in the kingdom.” 

“Oh,” says the official, “but you don’t understand Thai culture.”  It’s at this point that you either present your hands to be cuffed, like I did, or just ask them how much tea money they are going to extort from you.

Now, on to sect 3 of the law.  We’ve looked at the “prior to do any activity” portion of that phrase.  The extra part in sect 3 is “required by laws or rules.”  “Oh,” says the official, “but the 90 day notice isn’t required – we won’t throw you in jail if you don’t submit it.”  Nope.  There are still fines, and, if you refuse to pay the fines, you may be arrested and deported.  Bad consequences follow if you don't.  So, yes, it is required.

Further, that argument sill ignores the fact that sect 3 is an override provision.  The purpose of sect 3 is to expand the law to cover portions of the law that might arguably not be covered.  This section of the law is to expand the law, not to retract it.

Sorry if this portion feels like you have wasted your time with minutiae and silly straw man arguments.  Writing this feels like I’m kicking a dead horse, but, having dealt with Thai immigration more than I ever care to, this was a good thing to include.




           




[1] This is only a correlative observation; no causative link is known between the way this word is used here and any specific use in any jurisdiction.
[2] This law still is not well written, but better than most.  I have had problems because of the way 90 day check-in law was written.  By its own words, supplemented by cannons of statutory interpretation (that are required due to the obtuse language), it should not cover anyone staying with family in the kingdom in a non-commercial situation.  I found out that this interpretation was wrong while being extorted for an 800 baht bribe that may be a fun story for another day.
[3] For non-legal folks, this little symbol means “section.”  It refers to specific sections of the law.
[4] Section 4 states that ““Authority” means the authority having charge and duty to grant license.”  [sic]  First, this is a circular definition — very poor writing.  Second, it’s not clear who the authority is.  It should be the main office of the governmental agency.  For this article, that should be the head immigration office in Bangkok, but it could be regional or divisional offices.  (For those of us acquainted with the way that certain offices conduct their business, it would not be surprising to find that those offices claim that they are the authority and then make drastic revisions to the work manual.)
[5]Elsewhere in the law, §15, it refers to “the authoritative agency,” which would be consistent with how the term agency is used in legal contexts to mean the entire organization.  So, this seems to indicate that footnote 4, above, is correct.
[6] For example, the visa extension rules for family reasons suggest medical certificates as evidence.  It doesn’t explain what medical certificate means, but the hospital seemed to understand and gave us a stamped statement the baby’s and my wife’s medical conditions.
[7] Americans normally use transcripts, and not diplomas which are easily forged and readily available in Bangkok.  I was forced to have my diploma express shipped.  I didn’t just inconvenience my friend, it also cost me the equivalent of 2 day’s pay.
[8] My original law school diploma has been permanently damaged by ants that made a nest in the mailing tube.  It will cost around $35, which is more than a day’s pay for teachers here.
[9] In US legal parlance, it would be termed giving into an extortion demand, but, under Thai law, it is called paying a bribe, though the paying person should still be considered a victim of the crime.  The difference appears to be only semantic but has real consequences.  For example, in a recent anti-bribery scheme scandal here, Thai authorities seemed oblivious even to the possibility of officer’s demanding ‘tea money’ bribes, a practice that the entire Royal Thai Police force is notorious for doing. 
[10] The Licensing Facilitation Act was already passed when these shenanigans occurred in the second year, but had not yet taken effect.
[11] For people outside Thailand, Thai immigration rules require that we update our place of residence with the local immigration office every 90 days. 
[12] I’m relieved and happy to share this story, but need to keep some details limited so that I am not falsely charged with criminal libel, which is a popular way for corrupt government officers to silence dissent here.
[13] Yes, I could have tried to be proactive, but that would have meant going to the Old office where they could threaten me and attempt to extort another bribe. 
[14] Of course, that never happened, nor did I expect that it would.  Their lack of professionalism is astounding.
[15] Seriously, passing messages for official business?  What’s next, passing applicants notes saying
“Do you like Thailand?
          Circle one:
          Yes  or  No”
[16] This could, possibly, be a mistranslation with no intention of requiring officials to be helpful to applicants, though that interpretation is out of step with the rest of the act.
[17] “Consider,” seems to be mistakenly used in place of “accept” or “grant the license” when read in context with the rest of the paragraph.
[18] The consequence portion of §8 uses “proviso language,” which is notoriously confusing and a sign of very poor legal drafting.
[19] These are just illustrative examples, and not to be taken as actual examples of government official’s authority.
[20] The Old office has done that before.
[21] It is, however, a wonderful breach of law if you need to extract a little tea money.
[22] This appears to be a specific legal definition of “giving a document back, usually with a short written report by a government officer.”  It does not mean a rejection, however, though the text of the law seems to indicate that this would be a rejection.
[23] In legal terms, damages means harm and, if you win in court, is normally compensated with money.  I would guess that there is a corruption law somewhere that allows people to sue in situations like this.
[24] This may seem trivial, but the Old office shenanigans had put a 2,000 baht fine into the system for me.  That is two days’ pay, and could potentially be recoverable.
[25] Just imagine taking a vacation at a really crappy hotel where the floor is just as comfortable to sleep on as the couch.  (The nice thing about sleeping on the floor is that you don’t have to worry about accidentally making the holes in the couch bigger.)  Now, imagine that you are on vacation with your wife, who has been in a really bad mood because she looked like she was 9 months pregnant when she was 5 months pregnant, and by 7 months looked like she might actually burst open.  Now, imagine that the understandably grumpy and overly pregnant wife just had her abdomen sliced open in order to remove a baby that she cannot physically see or hold because she hurts too much to move from the bed.  Now, imagine trying to take care of that person when she needs to use the bathroom, or needs food.
[26] Farang is Thai for foreigner.
[27] The common excuse used when Thai officers do not want to follow the rules of law or common decency.  It has become a common punch line for jokes among expats.
[28] Please pardon the language.
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