2112237 (Refugee)

[2023] AATA 4665

2112237 (Refugee) [2023] AATA 4665 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112237

COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:Wayne Pennell

DATE:11 December 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 11 December 2023 at 5:46pm

CATCHWORDS

REFUGEE – protection visa – Timor-Leste – particular social group – victim of loan shark – identical claims in multiple protection visa applications – threats from creditor – fear of detention – economic conditions – delay in applying for protection – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 424A, 499
Migration Regulations 1994, Schedule 2

CASES

Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 7 September 2021.

2. The applicant, who claims to be a citizen of Timor-Leste, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Timor-Leste, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]

   [2]The applicant’s application was received by the Department of Home Affairs on 18 September 2020.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision,[5] and in doing so, he declined to provide the Tribunal with a copy of the delegate’s decision. The Tribunal notes that he was not formally represented in relation to the review.

   [5]The applicant’s review application was filed with the Tribunal on 12 September 2021.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

5. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

6. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

7. The Act also provides that 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, and 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.[11]

   [11]Migration Act 1958 (Cth), s 5J(1).

8. 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 the Act, which are extracted in the attachment to this decision.[12]

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14]

   [13]Migration Act 1958 (Cth), s 36(2)(a).

   [14]Migration Act 1958 (Cth), s 36(2)(aa).

10. 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

    [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

11. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

    [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

12. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

13. The applicant claims to be a citizen of Timor-Leste and he provided to the Department a copy of his passport to authenticate this claim.[18] The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Timor-Leste is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[19]

    [18]applicant’s passport was issued in Timor-Leste [in] 2018.

    [19]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

14. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[20]

    [20]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

15. In accordance with Ministerial Direction No. 84 made under the Act,[21] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [21]Migration Act 1958 (Cth), s 499.

    MATTERS LEADING UP TO THE REVIEW HEARING

16. When filing his review application with the Tribunal, the applicant declined to provide a copy of the delegate’s decision. Consequently, on 26 October 2023, an invitation pursuant to section 424A of the Act (‘section 424A invitation’) was dispatched to the applicant via email inviting him to comment on or respond to certain information in respect to his application. The Tribunal explained:

    I am writing on instruction from the Senior Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

17. The section 424A invitation went on to explain to the applicant the particulars of the information and why the delegate was satisfied that he did not meet the definition of a refugee, and why he was not considered to be a person who was owed protection obligations. To assist him, a copy of the delegate’s decision record was enclosed within the email dispatched to him.

18. Specifically, the section 424A invitation outlined to the applicant that when his protection visa application was assessed, the delegate was not satisfied that any of his claims for protection were credible because he did not provide any explanation why the claims contained within his application were identical to claims found in 24 other protection visa applications from other Timor-Leste citizens; and that his claims regarding his loan debt were not credible but instead were a fabrication.

19. The Tribunal provided the applicant a deadline of 10 November 2023 for his comments or response, and accordingly, the section 424A invitation outlined that:

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

20. On 7 November 2023, the Tribunal received an email containing the applicant’s response to the section 424A invitation. In that email, the applicant had enclosed six photographs, a PDF copy of a handwritten statement in an undisclosed language, and another copy written in English purporting to be an English translation. Also enclosed was a video recording of an unidentified male person who appeared to be reading from a pre-prepared document. The video is approximately 52 seconds in length. The Tribunal notes that no explanation was provided in respect to the relevance of any of that material to the applicant’s application and claims.

21. In respect to the handwritten statement, it outlined as follows:

    Linguage English

    I want to comment or respond about the reason I was type on paper I was claim the protection visa like:

    1.   I was born in Timor-Leste on [date].

    2.   My incurred a large debt in Timor-Leste and was unable to pay it back.

    3.   I fear this I will be imprisoned if I was unable to settle my debts and

    4.   I wish to remain in Australia in order to earn enough money to solve my financial problems in Timor-Leste.

    Everything that I was put in the paper is it true not false. When I was got the contract to work in Australia, I was got large debts. I was borrowed the money from [Mr A] US[amount], every month I have to pay 10% (us[amount]). Money that I was borrowed from [Mr A], I was using to build my house, paid school fee for my kids and help my mother because my father was died. when I was arrived in Australia, I was directed to work at company [Employer 1] but under the agency [Agency 1]. That company I was work, I can’t got enough money to paid it back because the salary I got from agency [Agency 1] it is very lower and that contract I was sign only stay at Australian 6 months, that’s why I was thinking to claim the protection visa because if I just stay only 6 months, I think I can’t paid it back and if I back to my country, automatically I will be imprisoned. Because of the reason I was type, that’s why make me think to claim Protection visa so that I can stay longer in Australia to earn enough money to solve my financial in Timor-Leste. My respectful to Australian Government, Administrative Appeal Tribunal, Department of Home Affairs and Emigration to help me to stay longer and earn enough money to solve my financial in Timor-Leste.

    I also have evidence video record loan agreement, picture about my house I build, kids, wife and my mother.

    Thanks you for your consideration look forward to hear from you.

22. No explanation was provided by the applicant to explain the images contained in the six photographs, or the handwritten document or the PDF document. Nor was there any explanation given about the video which he provided such as who the person was in the video, and what relevance or connection that person had to the applicant’s claims.

23. Having received the applicant’s response to the section 424A invitation, on 13 November 2023 an invitation was extended to him to appear at an in-person hearing scheduled for 28 November 2023. The applicant appropriately responded and accepted the invitation to attend the hearing,[22] and in doing so, he again provided a copy of the same short video he had earlier provided to the Tribunal on 7 November 2023, along with the handwritten statement. He also provided a copy of a document purporting to be a ‘loan agreement letter’ dated [in] October 2019 relating to the applicant borrowing USD[amount] from [Mr A variant]. It is also noted that when responding to the hearing invitation he specifically indicated in the response form that he was not relying on the oral evidence of any other witness.

    [22]Response to the hearing invitation received by the Tribunal on 17 November 2023.

24. The applicant also advised the Tribunal that he was now living in [Town 1] in New South Wales and wished to appear at the hearing by telephone. Arrangements were put in place to accommodate that request.

    Section 438 certificate

25. The Tribunal has been provided with the Department’s file in relation to the comment made in the delegate’s decision record that the contents contained within the applicant’s application relating to his claims are identical to protection visa applications lodged with the Department by 24 other Timor-Leste citizens. The Department has placed restrictions on a document contained within that file and issued a certificate pursuant to section 438 of the Act.[23]

    [23]Certificate issued 15 November 2023.

26. The purpose of the certificate being issued was the disclosure of a nominated document would be contrary to the public interest because it would disclose the lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods.

27. Prior to the hearing, a copy of the section 438 certificate was emailed to the applicant. The certificate was signed and clearly relays the stated public interest reasons on the certificate. During the hearing the applicant was asked whether he wished to make any submissions in respect to the certificate. He declined to make any submissions and the certificate’s validity was not challenged.

28. The Tribunal has given regard to the public interest in protecting the Department’s methodologies and investigative methods and finds that it is not in the public interest to disclose the contents of the document to which the section 438 certificate relates, and except insofar as it was discussed in broad terms in these Reasons, the Tribunal has not provided the certified information to the applicant.

    APPLICANT’S BACKGROUND AND CLAIMS

    Background

29. The applicant is a citizen of Timor-Leste. Within his application he disclosed that he had never married and that there were no other members of the same family unit as him that were not included in the protection visa application.

30. His migration record shows that on 13 November 2019 he was granted a [temporary visa]. That visa was to expire [in] May 2020. He arrived in Australia [in] November 2019 and was employed by [Employer 1]. Subsequently, when his work visa expired he was granted a Bridging visa C on 28 May 2020. He later lodged an application for a protection visa on 18 September 2020.

31. For clarity the applicant’s actual claims as they were provided within his protection visa application, and his responses to the various questions within the application, are as follows:

Provide reasons why this applicant left that country or those countries:
I AM WRITTEN TO THE GOVERMENT OF AUSTRALIA PART OF IMIGRATION BASED ON THE PROBLEM THAT I FACED IN MY COUNTRY BECAUSE I AM IN LOTS OF DEBT IN MY COUNTRY SO THEY ASK ME TO PAY THEIR MONEY BACK BUT I HAVE NOT SUFFICIENT MONEY. IF I DONT PAY THEIR MONEY AUTOMATICALLY I WILL GO TO THE PRIZON IN THE FUTURE, BUT AT THE MOMENT I STILL IN AUSTRALIA THAT'S WHY I WANT TO APPLY FOR PROTECTION VISA SO THAT THE GOVERMENT OF AUSTRALIA CAN PROTECT ME HERE IN AUSTRALIA SO THAT I CAN EARN MORE MONEY WHEN I GET BACK HOME I CAN SOLVE ALL THE PROBLEMS THAT I FACED. SO I HAVE WILLING TO APPLY FOR PROTECTION VISA SO I HOPE THE GOVERNMENT OF AUSTRALIA PART OF IMIGRATION WILL BE CONTACT TO HAVE AN INTERVIEW WITH YOU. THANK YOU FOR YOUR CONSIDERATION LOOK FORWARD TO HEAR FROM YOU.
Did this applicant experience harm in that country or those countries?
No
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
No
Give details for why this applicant did not try to move to another part of the country or those countries.	EVERYWHERE IN MY COUNTRY IS SAME. HARD TO FIND A GOOD JOB FOR PAY OFF MY DEBT
Explain what the applicant thinks will happen to them if they return to that country or those countries:
MY FINANCIAL CRISIS WILL REMAIN UNSOLVED
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
No
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No
Give details about why this applicant thinks the authorities could not, or would not, protect them.	NOTHING MUCH OUR GOVERNMENT CAN DO TO HELP ON OUR PERSONAL DEBT ISSUE
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
No
Give details about why this applicant is unable to relocate.	IM NOT SURE ON THIS

1. The Tribunal is aware that the delegate had reservations in respect to the veracity of the applicant’s claims and on 7 July 2021 the delegate wrote to him seeking a response to:

   Your claims in your Protection visa application are identical to the claims in 24 Protection visa applications made by other persons. This leads me to suspect that your claims do not relate to you and you did not personally experience the events described in them.

   You are invited to comment on the above information.

1. As already explained in these Reasons, the Tribunal was aware of information contained within the Department’s file that the format of the applicant’s application, in particular his claims, including the spelling and grammatical errors, were identical to 24 other protection visa applications lodged by citizens of Timor-Leste.

2. Pursuant to section 424AA of the Act, that information was outlined to the applicant during the hearing and he was invited to comment. He explained that coming from a poor country, a majority of people who come to work in Australia borrow money and make their application to stay in Australia. He went on to say that he did not type his application for a protection visa, instead he had a friend type it for him. He paid a friend $80.00 to type the application and the information contained within the application and the claims made were provided by the applicant to his friend, who in turn transferred that information into the application. The applicant further said that before the application had been lodged, he read the document and confirmed the information and claims made were correct. When asked about his friend, he said that his friend had also been an applicant for a protection visa but was unsuccessful in his application and has since returned to Timor-Leste in 2022.

3. The applicant was proposes that his claims are his own claims. He sent the details of those claims to his friend, who then completed the application on his behalf. From what he told the Tribunal, it is purely coincidental that his claims are the same as the others referred to in the other 24 applications, all of which have the same typeset, font, formatting, along With identical spelling and grammatical errors. The Tribunal rejects his proposal and finds his evidence on this point is without credibility because of the 24 applications; six of those were lodged between July 2020 and August 2020, which is prior to his application being lodged on 18 September 2020.

4. When careful assessment and analysis is applied to the contents and formulation of the application made by the applicant in comparison to the other 24 applications, there is an uncanny resemblance between all applications, including the applicant’s, from which the only reasonable hypothesis for the Tribunal to reach is that they were all typed by the same person, or were in some way copied by the individual applicants prior to the applications being lodged. Notwithstanding the obvious features just identified, the applicant maintained that his claims were legitimate and completely independent of the other applications. The Tribunal does not accept that claim.

5. When discussing his claims for protection, the applicant’s testimony was that prior to travelling to Australia, he and his partner and [children] lived in a house owned by his brother. He said that he cannot go home because he does not have enough money to pay back the loan of USD[amount] he borrowed from his neighbour [in] October 2019. He described his neighbour as a friend, and there was a loan agreement signed between them. The Tribunal acknowledges that when he lodged his protection visa application with the Department, a copy of the loan agreement along with a short letter written in both Tetum and English accompanied that application. Amongst the loan agreement was a provision that the applicant was willing to repay his neighbour:

   INTEREST OF 10% (US [amount]) PER MONTH

6. The applicant explained that he understood that to be USD[amount] per month. He went on to explain that the neighbour’s loan was a cash transaction, and the applicant’s partner was present at the time of the transaction. It is noted by the Tribunal that the applicant did not provide a statement or statutory declaration from his partner, nor did he make her available as a witness.

7. The applicant told the Tribunal that his partner video recorded the lender reading out the signed letter of the loan agreement. The circumstances surrounding the video are discussed later in these Reasons. The Tribunal was told that the money was not placed into a bank account, but instead it was given to his partner. The applicant left Timor-Leste and travelled to Australia soon after, and he claimed that the money was to be used to build his house and help his mother, partner and his children. Notably, the applicant told the Tribunal that his house was not built until, as the applicant described it “2020 or 2021”. Because the house is not fully constructed, his partner and children are still living in his brother’s house. He provided a series of photographs of the house, including images of his partner, mother and children at this house. As already identified, there was no statement or statutory declaration from his partner or mother to authenticate those images.

8. The applicant further explained that he had been in Australia for about three months when the COVID 19 pandemic took place and work opportunities lessened and he was getting about three days’ work a week. He decided that he could not repay the loan, and it was then he realised that because he could not repay the loan, he experienced a well-founded fear of persecution if he had to return to Timor-Leste.

9. He was asked to explain whether he had made any repayments on the neighbour’s loan. He claimed that he did not start making the repayments on the loan until October 2020, which the Tribunal observed was after he had lodged his protection visa application. He also said that over the period that he has been in Australia he has repaid $[amount] to his neighbour. He explained that he did not make the payments directly to his neighbour, but instead sent the money in lots that he described as [specified amounts] to his partner. The money was transferred from the [named] bank in Australia to an account at the [named] Bank in Timor-Leste, from there his wife would then make cash payments to his neighbour. When asked about the most recent payment, he said that his last payment was in February 2023.

10. The applicant also said that during the time that he has been in Australia, he has spoken to his neighbour about six times, with the last occasion being in February 2023. He said that his neighbour told him that he still owed $[amount] on the loan. The Tribunal finds that suggestion about him only owing $[amount] at complete odds with the purported loan agreement where it suggests that it was an agreement that the applicant:

    HAS BORROWED MONEY FROM THE FIRST PARTY AS MUCH AS, [amount] US DOLLARS, AND IS WILLING TO PAY INTEREST OF 10% (US [amount]) PER MONTH.

11. The Tribunal does not accept that the purported loan agreement and the loan agreement document between the applicant and the neighbour as claimed by him is a genuine loan. The Tribunal has arrived at that conclusion after carefully assessing the applicant’s evidence about having already repaid $[amount] and therefore the neighbour has told him that he currently owes $[the reminder] and comparing that testimony against the written loan agreement document he relied upon. Even if the most basic of calculations is applied to the figures just quoted by the applicant, clearly there is no calculation of interest despite the loan agreement document outlining that his interest repayments were USD[amount] per month and that did not include repaying the principal amount.

12. Returning to the video evidence relied upon by the applicant, he said that the person shown in the video is his neighbour, and the person who he borrowed the USD[amount] from. When asked when the video was recorded, he said that it was when the money was lent to him [in] October 2019 and the letter of agreement was signed. He said that his partner recorded the video on her phone. When asked if his partner was aware that he had applied for a protection visa, he said that she was aware of his application. He was then asked to explain when the video came into his possession, and he responded by saying that his partner sent it to him last month (October 2023), and he then provided a copy to the Tribunal. He acknowledged that notwithstanding the video recording existing well prior to his protection visa application and the review application being lodged, he did not provide a copy of the video to the Department or the Tribunal. He acknowledged that he had received a letter from the Department prior to the delegate’s decision being made for him to provide any evidence he wanted to rely upon, and he accepted that the Tribunal also gave him the same opportunity to provide that video. Yet, he did not do so.

13. Section 423A of the Act provides that because the applicant presented evidence at the hearing which was not presented to the delegate prior to the delegate’s decision being made, the Tribunal is to draw an unfavourable inference as to the credibility of the evidence if the Tribunal is satisfied that he did not have a reasonable excuse for not presenting the evidence earlier.

14. The applicant told the Tribunal that he recalled receiving a letter in an email from the Department acknowledging the receipt of his application, the letter also advised that he should provide to the Department any evidence he relied upon to support his application. When asked that if he always had this video, why was it that he did not provide the video to the delegate. His response was that he forgot that he had it. The Tribunal does not accept that. If this video recording is legitimate as he claimed, it was clearly undertaken for the purposes of recording his neighbour who purportedly gave him the loan. The Tribunal has reservations about the true nature of the recording, and does not accept that it is an authentic recording of his neighbour at the time of the alleged loan.

15. The video does not contain a date stamp on the footage, and nor was the applicant’s partner called to give evidence about the authenticity of the recording. He claimed that the recording was made in October 2019, which is over four years ago, yet it never entered his thoughts that he should provide a copy of the video to the Department when asked if he had additional evidence. Even when lodging his review application with the Tribunal and subsequently being advised in September 2021 to provide evidence he relied upon, he still did not take the opportunity to remember that he had the video. His excuse is that he had forgotten about it.

16. When carefully assessing the applicant’s evidence about the video and why it was not earlier disclosed, the Tribunal does not accept that he simply forgot about it, and nor does the Tribunal accept that his excuse is a reasonable one. Pursuant to section 423A of the Act the Tribunal finds that an unfavourable inference should be drawn as to the credibility of the video evidence he seeks to rely upon as he does not have a reasonable excuse for not raising it at an earlier occasion with the delegate.

17. The applicant was asked about his relationship with his neighbour and whether he had spoken to him since he has been in Australia. The applicant’s evidence was that they knew each other very well and he had spoken to his neighbour on six occasions since arriving in Australia, with the last time being in February 2023.

18. It was the applicant’s evidence that in 2020 or 2021 he built a house in Timor-Leste, and the money loaned by his neighbour was used to pay for that house. When asked by the Tribunal why he cannot go back to Timor-Leste, he said that he cannot go back until he has enough money to pay back the loan. He was then asked if it was purely because he needed to earn money in Australia to pay back the loan, that is, it is purely an economical reason he cannot go back. He told the Tribunal that if he did not repay the loan he would go to prison if he returned to Timor-Leste. He went on to say that he will be taken to court by his neighbour, although there is no evidence before the Tribunal that there have been any threats by his neighbour.

19. In respect to the applicant’s claims, the Tribunal was in possession of country information. Pursuant to section 424AA of the Act, that country information was explained to him in that the government of Timor-Leste was taking proactive action to protect the interests of Timor-Leste citizens who are subjected to private loans which have high interest rates. He responded to say that he understood what the Timor-Leste government has recently done to stop those people giving the loans, but the reality is that citizens like him will always go to private lenders as opposed to going through a legitimate financial institution to get an approved loan.

    DELAY

20. The applicant purports that the loan was arranged before he left Timor-Leste, and the loan agreement letter he provided was dated [in] October 2019. The Tribunal notes that he arrived in Australia [in] November 2019 and his application for a protection visa was not made until 18 September 2020, which is a passing of ten months. The Tribunal finds that this period is a significant delay.

21. When the Tribunal is considering the significant delay of ten months between the applicant’s arrival in Australia and when he made his application for a protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

22. Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety[24] and the Tribunal particularly notes that the applicant’s only explanation was that he wanted to remain working in Australia so that he could repay the loan to his neighbour.

    [24]     ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

23. When carefully assessing all of the circumstances surrounding the delay in the applicant making his application, the Tribunal is satisfied that the significant delay casts doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Timor-Leste, and finds that the delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

    CONCLUSION AND REFUGEE FINDINGS

24. The issues in this case are whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect of whom Australia has protection obligations as defined in the Act.[25]

    [25]Migration Act 1958 (Cth), s 36(2).

25. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

26. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]

    [26]Migration Act 1958 (Cth), s 5AAA.

    [27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    Country information – State protection and loan sharks

27. Under section 5J(2) of the Act, a person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Section 5LA(1) of the Act provides circumstances where effective protection measures are taken to be available to a person, including where the relevant state, or a party or organisation is willing and able to offer protection, and the protection is durable and accessible to the person. If protection is provided by the relevant state, the protection should consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

28. The applicant claims that he cannot return to Timor-Leste for fear of harm from being placed into prison because of an outstanding debt, and he would be subjected to threats by his neighbour who loaned him the money.

29. In respect to reliable and credible country information about loan sharks or illegal moneylending in Timor-Leste, there is only limited and undetailed information which was located regarding illegal moneylending, and no information was located in relation to the consequences of failing to make repayments. However, in this case, the Tribunal acknowledges that the applicant’s neighbour, being the lender, appears to have a good relationship with the applicant and they have spoken on the phone six times since the applicant has been in Australia, and there is an absence in the evidence of his neighbour ever making any threats of harm towards him.

30. Data gathered by a United Nations survey in July 2020 indicated that 0.8 per cent of surveyed households in Timor-Leste indicated that they had taken a loan and had done so through a moneylender/shop owner, with accompanying high interest rates, although this figure rose to 1.3 per cent among vulnerable households who had borrowed money.[28]

    [28]United Nations Timor-Leste, with United Nations Development Program 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, page 60.

31. In an online article published in October 2022, reference is made to human trafficking and illegal loans being issued at very high interest rates. For the purpose of the applicant’s claims, relevant parts are extracted as follows:

    The government of Timor-Leste on Wednesday approved legislation containing measures aimed at trying to streamline actions to protect the country’s citizens abroad, amid growing concerns about migrants deceived by human trafficking networks.

    Fidelis Magalhães, the cabinet office minister, told Lusa that the decree-law is part of a set of measures that the government is steering through to deal with the “great concern” caused by the phenomenon of Timorese nationals being deceived and abandoned abroad, predominantly in Portugal.

    The lack of work in Timor-Leste is resulting in an exodus of young workers, with Portugal having become one of the main destinations, and with many Timorese taking advantage of easier entry conditions than other countries.

    This demand is leading to the appearance of agencies and advertisements trying to trick young Timorese, who are charged large sums of money with the promise of work or visas.

    Many end up being deceived and then left practically abandoned in the host countries, including Portugal. The most dramatic situations have been seen in Lisbon and in Serpa, in the interior of the Alentejo, with many Timorese living on the streets and others living in groups in temporary facilities.

    Families also end up with large debts, in the form of illegal loans issued at very high interest rates.

    “The government has instructed the Ministry of Interior and relevant agencies to investigate and stop this practice,” said Magalhães, the minister. “Investigations are ongoing and we call on the MP [Office of Public Prosecutions] to be more proactive.”

    In relation to the decree-law now approved, the minister said that it gives the government scope to act in a faster way in several situations, stressing however that it is also necessary to think in terms of public policies that don’t help perpetuate the current illegalities.

    “This issue is not only a legal issue,” he said. “The government should not encourage illicit activities. This support should not be an incentive for families to continue paying for these trips, without responsibility, and that then, if it goes wrong, the government helps.”

    The military official said that the authorities continue to investigate “illegal agencies” involved in potential cases of human trafficking, which have led to “more than five thousand Timorese” now being in situations of “abandonment” or hardship abroad.[29]

    [29]Macau News Agency, ‘Timor-Leste: Government moves to protect citizens abroad, amid trafficking fears’, 20 October 2022,

1. When considering the country information as outlined above, the Tribunal accepts that there are credible reports to show that state protection is available to those Timor-Leste citizens who are subjected to the activities of loan sharks, and rejects the applicant’s claims that he would not be protected by the government or the government authorities if he returned. The country information further shows that the government and the government authorities are well aware of loan sharking in Timor-Leste, and measures are being taken to prosecute those involved.

2. In conclusion, when careful assessment is applied to both the country information and the applicant’s claims, the Tribunal is satisfied that the government and government authorities are able to provide state protection to the applicant upon his return to Timor-Leste.

3. The reliable country information quoted above shows that the Timor-Leste government and the government authorities are equipped with the ability to protect individuals from societal harassment and harm from those members of society involved in loan sharking. The Tribunal particularly notes that the applicant claims that the authorities in Timor-Leste cannot provide him with protection, and the Tribunal rejects that claim as the information contained within the country information refutes his allegations.

4. Therefore, the Tribunal is satisfied (and so finds) that in general, a person within Timor-Leste is likely to be able to obtain effective state protection against loan sharks, and when carefully considering the credible and reliable country information, the Tribunal finds that the authorities in Timor-Leste are willing and able to provide effective protection to persons within the jurisdiction.

5. A further complicating feature of the applicant’s application which hampers any credibility affixed to his claims is the extraordinary delay between his arrival in Australia and when he made his application. The Tribunal finds that the delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Timor-Leste, and finds that the delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

6. Added to the Tribunal’s findings about the extraordinary delay in making his application is the concern the Tribunal has in respect to the striking similarity between the applicant’s claims as they are depicted within his application to those which are depicted in his niece’s application and the other 24 Timor-Leste applicants. What cannot be ignored is that if each of those applications were to be viewed individually, there is a possibility that at first blush they would not raise a concern in respect to their credibility.

7. However, when viewed collectively there is an overwhelming concern that en masse those claims within the other applications appear identical or are formulated in a strikingly similar fashion so far as their content and the manner in which there are drafted, including the spelling and grammatical errors, are concerned. In echoing the delegate’s observations, it is the Tribunal’s view that although it is acknowledged that different applicants might face similar circumstances and/or have similar experiences, the extent of the similarities between claims made by the applicant and those claims found within the other 24 applications, including details around personal circumstances, satisfies the Tribunal to conclude that his claims regarding his financial debt are not credible and have been fabricated.

8. Having regard to, and carefully considering all the facts, features and circumstances as outlined above, the Tribunal finds that the applicant’s application and the claims he makes lack veracity and are entirely devoid of any credibility, and the applicant is not a person in respect of whom Australia has protection obligations as defined in the Act.[30]

   [30]Migration Act 1958 (Cth), s 36(2).

9. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has he satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

   COMPLEMENTARY PROTECTION CONSIDERATIONS

10. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[31] the Tribunal has considered the alternative criterion.[32] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Timor-Leste, there is a real risk that he will suffer significant harm as it is defined in the Act.[33]

    [31]Migration Act 1958 (Cth), s 36(2)(a).

    [32]Migration Act 1958 (Cth), s 36(2)(aa).

    [33]Migration Act 1958 (Cth), s 36(2A).

11. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Timor-Leste. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[34]

    [34]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

12. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Timor-Leste now or in the reasonably foreseeable future he will be arbitrarily deprived of his life, the death penalty will be carried out on him, he will be subjected to torture or to cruel or inhuman treatment or punishment, nor will he be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

13. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

14. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Timor-Leste, he will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

15. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

16. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

17. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy any of the criteria in section 36(2) of the Act.

    DECISION

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

    Wayne Pennell
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Act 1958 (Cth)

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country, in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …