2206860 (Refugee)
[2025] ARTA 1883
•8 September 2025
2206860 (Refugee) [2025] ARTA 1883 (8 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2206860
Tribunal:General Member D Younger
Date:8 September 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 08 September 2025 at 11:18am
CATCHWORDS
REFUGEE – protection visa – East Timor – economic hardship – travelled to Australia for employment opportunities to support family – unaware of false claims in application – loss of work rights – consistent and credible claims at hearing – Ministerial consideration – best interests of the child – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 351, 369, 499, 501J
Migration Regulations 1994 (Cth), Schedule 2CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 May 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application, which was lodged on 11 May 2022 in the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal. The Tribunal is satisfied that the applicant has lodged a valid review application.
The applicant, who claims to be a national of Timor-Leste (also known and referred to throughout this decision as East Timor), applied for the visa on 5 June 2021. The delegate refused to grant the visa on the basis that:
the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act).[1]
[1] Delegate’s decision record, pg 1.
The applicant appeared, in person, before the Tribunal on 24 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence [from Partner A], the applicant’s de facto partner and fiancé. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages. The applicant was self-represented in relation to the review.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criteria or complementary protection criteria of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[2]
Mandatory considerations
[2] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs / Immigration and Multicultural Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and receiving country
The applicant claims to be [an age]-year-old[3] Timorese citizen, born in [Village 1], Timor-Leste[4] and of Timorese ethnicity and Catholic religion.[5] That information is consistent with his passport information and hearing evidence, and are accepted by the Tribunal.
[3] Based on the Date of Birth in passport.
[4] PVA, pg 2; passport.
[5] PVA pg 7; confirmed at hearing.
In his protection visa application (PVA), the applicant stated he legally departed Dili, East Timor, [in] March 2020 and arrived in Australia using his Timorese passport issued [2019] (expiry [2024]), and arriving on a ‘visitor’ visa.[6] At hearing, the applicant said he had come to Australia on that date as a seasonal worker visa as part of the Pacific Labour Scheme, which is accepted by the Tribunal because it is consistent with Department records and his other oral evidence.
[6] PVA pg 8.
The applicant lodged his PVA on 5 June 2021, which was approximately one year, 3 months after his arrival date.
The applicant provided a copy of his passport to the Department as part of his PVA, and the delegate accepted that the applicant had provided sufficient evidence of their identity consistent with their narrative and biometrics, and that Timor-Leste was his receiving country.[7] There is no information before the Tribunal indicating otherwise. The Tribunal therefore finds that the applicant is a citizen of Timor-Leste, and that is his receiving country for the purposes of assessing his claims for protection.
[7] Delegate’s decision record pg 1-2.
Evidence considered in this review
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal with respect to his claims for protection, which include, but are not limited to, the following documents considered in the review:
· Applicant’s PVA lodged 5 June 2021
Department’s decision, titled Protection Visa Decision Record, dated · 10 May 2022
Application for review to the Tribunal dated 11 May 2022·
Response to hearing notice dated 20 July 2025·
Statement of [Partner A], undated·
Statement of [Ms A], undated·
Birth certificate of [Child A], the child of the applicant and [Partner A]·
Medical records pertaining to [Partner A’s] older child, [Child B]·
Letter of support from Director, [Preschool 1]·
Financial records of the applicant and partner.·
Evidence before the Department
PVA
In the PVA, the applicant ticked ‘no’ to questions as to whether he received assistance from an interpreter or anyone else to complete the application.[8] However, he answered ‘yes’ to the question of whether he would need an interpreter if called to interview, stating ‘Tetum’.[9]
[8] PVA pg 15-16.
[9] Note 8.
He had ‘never married’, and in terms of family details, he only stated that his parents were East Timor citizens, and provided no other family member information.[10] He answered ‘yes, by phone and once a month’ to the question of whether he had contact with family members outside Australia.[11] As to address history, he specified he had lived in [Municipality subdivision 1], Dili, East Timor from birth until [March] 2020, and then came to Australia.[12]
[10] PVA pg 3, 6.
[11] PVA pg 3.
[12] PVA pg 4.
He was educated to the end of high school at [High school 1], and provided no employment history.[13] He said his ‘activities’ were study and that he was financially supported by his family.[14]
[13] PVA pg 9-10.
[14] PVA pg 9.
The Department provided the following summary of the applicant’s claims for protection, which the Tribunal adopts as being an accurate reflection of the evidence in the PVA:
In summary, the applicant left Timor-Leste seeking a new life in a safer country with a good economy. He did not experience harm in Timor-Leste but he does not want to return due to the poor economy, the rising cost of living and the level of criminal activity in Timor-Leste. There is a political crisis in Timor-Leste so he cannot find a job or support his family.[15]
[15] Delegate’s decision record, pg 2.
The applicant said ‘yes’ to the Declarations pages of the application, which includes the warning that giving false or misleading information is a serious offence, and confirmation that the information provided in the application is truthful and honest in every way.[16]
Department’s decision record
[16] PVA pg 14-15.
The delegate did not find the applicant’s claims to be credible that he would experience future harm/mistreatment in East Timor, because his application was lacking in details and supporting information.[17] The delegate also noted that he had not provided any financial details about his family in Australia or overseas and the extent of financial commitments to his family, and that Department records indicate that he arrived [in] March 2020 on a seasonal worker visa.[18] The delegate had therefore proceeded with their assessment on the basis that the applicant ‘travelled to Australia for employment opportunities and has applied to remain in Australia for financial reasons due to the economic and employment conditions in Timor-Leste.’[19]
[17] Delegate’s decision record, pg 3.
[18] Delegate’s decision record, pg 4.
[19] Note 18.
With respect to the refugee criteria, the delegate was not satisfied that there is a real chance that, if the applicant was returned to Timor-Leste, he will be persecuted for one or more of the reasons in s5J(1)(a) of the Act and therefore found the applicant is not a refugee as defined in s5H(1).[20]
[20] Delegate’s decision record, pg 5.
With respect to the complementary protection criteria, on the basis of country information, the delegate found that he may face some level of economic hardship if he returns, but the delegate was not satisfied that this reached the threshold of significant harm.[21] Therefore, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Timor-Leste, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act.[22]
[21] Delegate’s decision record, pg 7-8.
[22] Note 21.
Evidence before the Tribunal
The applicant’s review application and Response to hearing notice did not provide any further evidence in relation to his claims for protection, or any additional claims for protection.
The applicant provided a statement from his partner, [Partner A], and his partner’s mother-in-law, [Ms A], at the same time as his Response to hearing notice.
[Partner A’s] statement is to the effect that:
· She and the applicant have a [child] together, [Child A], who is turning [age] this year
· She and the applicant have been in a loving and committed relationship for the past 3 years, and together they are raising 2 children – [Child A], and [Partner A’s child, Child B] who is [age] years old and has special needs
· The applicant has taken on the ‘role of a devoted and reliable father figure to both children’
· The applicant has a ‘strong and emotionally significant’ bond with [Child B] who has formed a deep attachment to him, which is ‘critical for her emotional and developmental wellbeing’
· The applicant shares an unbreakable connection with [Child A] full of ‘love, trust and security’
· The stability of their family home and the wellbeing of their children depends heavily on the applicant’s presence, as he provides emotional, physical and practical support every day and is an essential part of the routines that keep their house running smoothly – especially for [Child B], who thrives on structure and familiarity
· She is concerned that separating the applicant from the children would cause profound emotional distress and upheaval for the entire family, including negative long-term effects on their children’s development and sense of security.
[Ms A’s] statement is to the effect that she met the applicant 3 years ago when he became a vital part of their family. She confirms the information in [Partner A’s] statement as to [Partner A] and the applicant’s children, and states that the applicant provides the family with love, guidance and stability. She also refers to [Partner A] and the applicant being devoted to each other and raising their children in a nurturing and secure environment, and she has witnessed their positive relationship personally. She is confident that the applicant is of good character and integrity, and is committed to supporting his family and making a positive contribution to society.
Following the hearing, the applicant provided the further documents referred to in the list above. These included medical evidence from Dr [A], General Practitioner, to the effect that [Child B] has a diagnosis of Attention Deficit Hyperactivity Disorder and is currently undergoing assessment of whether [he/she] also has a diagnosis of Autism Spectrum Disorder, as at 21 August 2025. The other documents are summarised (where relevant) below, with respect to the request for this matter to be granted Ministerial consideration.
Evidence at hearing
Asked if he recalled the application and claims for protection, the applicant gave evidence to the effect that:
· he remembered the person who had assisted him with the application, and that he was a [Country 1 national] contact through a friend who he paid $[amount] to
· all the applicant did was give the person his passport and contact details, and that person drafted all of the submissions, and the applicant was just told to wait for the result
· that person made the claims for protection and the applicant did not know what they were then, as he did not receive a copy at the time
· It was only recently that the applicant became aware of what was written in the form, because he read through it and saw there was a reference to ‘[Country 1]’ in there. The applicant said his claims for protection are different to what was put in the form by that person.
The applicant said he had been in a de facto relationship with [Partner A] for about 3 years, and they had been a couple for almost 4 years. They recently were engaged. They have [a young child] together, [Child A], who was born in Australia. [Partner A] is an Australian citizen. [Partner A] also has a [child, Child B], who is [age] years old and has an intellectual impairment which he understands to be ‘ADHD’. He said that they were trying to gather information about a partner visa, but at the moment he is particularly focused on trying to obtain work rights. The family unit is living together in [City 1, State 1] along with [Partner A’s sibling], who is an Australian citizen. The applicant has no other family in Australia.
The applicant grew up in Ermera and went to high school there. He moved to Dili to study at [University 1], where he completed a degree in ‘[Degree 1]’. After that he was unable to get work in Timor-Leste – he tried applying for a job at [Company 1], but he was unable to get a position there, and although he applied for a lot of jobs he was unable to get a secure one. He worked as [an Occupation 1] for about 1 year, but this income, of $115 per month was the minimum wage and was insufficient to support his [family]. The applicant felt responsible for his family as his father passed away in 2017.
The applicant’s parents were both Timorese citizens. His mother, now a widow, lives between Ermera and his [sibling’s] house in Dili. She is not working, and grows [plants] on the family farm to support herself and the family. The applicant is the [birth order] child; he has [siblings of varied ages]. His [siblings] are all currently studying at university; none of them are working. They are on paid scholarships, as otherwise they would not be in a financial position to study. The applicant has a close relationship with his family in Timor-Leste, and is in regular contact with them.
The applicant told the Tribunal he came to Australia to work in the Pacific Labour Scheme, on a seasonal work visa. He started working in [Workplace 1] in [State 2], and then he applied for his protection visa and was doing some [Occupation 2] work. He left the job at [Workplace 1] because they were not paying him properly, and when he raised an issue with this he lost his work rights in Australia. He has tried a few times to reapply for work rights, but he has been unsuccessful. He really wants to work in Australia to support his family in Australia and his extended family in Timor-Leste. He is financially supported by his partner through her Centrelink benefits and due to renting of a family friend, but financially things are difficult.
Asked whether he had intentions of applying for his PVA when he arrived in Australia, the applicant said he did not originally have any intention to apply, but he became dissatisfied with his work arrangements, and he found out about the PVA process and decided to apply to obtain better financial support for his family.
The applicant confirmed that the claims for protection in his PVA are not his. Asked about his reasons for claiming protection now, the applicant gave evidence to the effect that:
· it is very difficult to find employment in Timor-Leste and the applicant is concerned about the economy there
· the applicant was not satisfied with his previous job in Timor, as it did not provide adequate financial support for his family
· the applicant did not experience any harm or mistreatment in Timor-Leste, and does not consider there is any real threat of harm to him in the future, but he is just not satisfied with the work availability and pay there
· the applicant needs to work in order to support his family in Australia and his family in East Timor, since his father has passed away.
Asked what he thought would happen to him if he goes back to Timor-Leste, the applicant said he would prefer to work in Australia as there are better opportunities here, but if he has to go back he will try to start his own business. He said that part of his fears about the economy are due to political changes in Timor-Leste, and that he would prefer to get a secure job if he can. He said when his father was alive he had worked in [Sector 1], and their family has a small [plantation] which they harvest once per year, which is enough to support the family throughout the year and his family have continued to do that without his father and the applicant. He said that whether or not they have a good season depends on the climate, as some years the climate means they do not get a good harvest, and they do not have any other means of financial support at the moment.
The applicant’s partner, [Partner A], gave evidence confirming her written statement. She further told the Tribunal:
· [Child B] has a diagnosis of Autism ‘level 2’ and ADHD, and this has caused [him/her] to struggle a lot in various aspects, and that routine and stability are very important to assist [Child B], and that since the applicant has come into their lives, [Child B] has formed a very strong attachment with him and should the family lose him, this would cause [Child B] a lot of distress
· She is an Australian citizen
· She and the applicant started living together in 2022
· She and the applicant were engaged on 6 December 2024
· She is aware of the applicant’s circumstances in applying for the PVA, being that he needed to work to financially support his family and that he came here on a seasonal work visa, but his contract was broken
· She confirmed that they are living with her [sibling], an Australian citizen, and that she is receiving Centrelink benefits, and that financially things are difficult, but they survive.
Concerns discussed with the applicant
The Tribunal discussed with the applicant its concerns in relation to his economic claims, that:
· he might not meet the refugee criteria on the basis that the claimed harm does not appear to be directed at him for any of the reasons in s 5J of the Act
· he might not meet the complementary protection criteria, on the basis that the claimed harm might not amount to significant harm as defined under the Act
and the applicant did not have any comment in relation to those concerns.
ANALYSIS, REASONS AND FINDINGS
Country information
In making its decision, the Tribunal has considered country information with respect to the economic situation in Timor-Leste.
Economic situation
The United Nations (UN) in Timor-Leste conducted a socio-economic impact assessment on East Timor in 2021 in partnership with government, using a sufficient sample size to produce statistically representative results at a national level.[23] This assessment provided that:
a. 46 per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.[24]
b. The dependence of nearly 70 percent of citizens on climate-sensitive livelihoods and agricultural production such as rainfed farming, fishing, and forest-based livelihoods increases households’ vulnerability, while low income/poverty limits households’ ability to overcome climate impacts. Women, children, people with disabilities and older people face a disproportionate burden as they depend comparatively more on climate-sensitive livelihoods and face malnutrition, water scarcity, heat impacts, limited mobility, and often reduced capacity to overcome shocks (IFRC 2021, 13).[25]
c. There is a low labour market participation in East Timor, with only 45.2 per cent of the working-age population employed in the market economy as of March 2021. A United Nations report explains that this does not include those engaged in subsistence agriculture, which would raise the figure to 61.1 per cent. Most of those engaged in the market economy (86.3% are self-employed or contributing family workers, and many (over 70 per cent) are engaged in production and sale of agricultural products. Many jobs are characterised by informal work arrangements, insecure employment, unstable and inadequate earnings and low productivity. The overall unemployment rate is 11.9 per cent but this rises to 22.1 per cent for young people aged 25 to 29 years, likely related to higher levels of job losses among this group as a result of COVID-19.[26]
[23] United Nations in Timor Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[24] Note 25, pg 6.
[25] Note 25, pg 31.
[26] Note 25, pg 8-10.
Factual findings & credibility
In ascertaining whether an applicant engages protection obligations, the Tribunal needs to make fact findings on relevant matters, and in doing so may assess credibility in relation to the applicant’s claims. Section 5AAA of the Act specifies that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims; or to establish, or assist the applicant in establishing, their claims.
The Tribunal has taken into account the Department’s Protection Visa Guidelines[27] and the ‘UNHCR Handbook’,[28] with respect to its guidance on assessing credibility in protection matters, including the difficulties often faced by applicants in obtaining documents or other independent evidence, and circumstances where the benefit of the doubt should be given to applicants who are generally credible but not able to substantiate all their claims. However, the Tribunal is not required to uncritically accept every claim made by the applicant, or to have contrary evidence available before finding that a particular factual assertion by an applicant has not been made out.[29]
[27] 17 April 2024 at [15.4.6].
[28] ‘UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES’, 1 FEBRUARY 2019, AT [196], [203]-[204].
[29] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (19980 86 FCR 547.
The Tribunal accepts that the applicant’s claims in the PVA are not his claims, on the basis of his hearing evidence. The Tribunal has therefore not considered the protection claims in the PVA any further.
The Tribunal finds the applicant’s claims at hearing to be credible, as the concerns of the applicant are consistent with country information, and consistent with his background profile and his partner’s evidence. He was forthright in providing information to the Tribunal, including as to the situation with respect to his loss of work rights in Australia, and how he did not have concerns about any real threats of harm in Timor-Leste.
On that basis, the Tribunal accepts the applicant’s claims at hearing, that:
· it is very difficult to find employment in Timor-Leste and the applicant is concerned about the economy there
· the applicant was not satisfied with his previous job in Timor, as it did not provide adequate financial support for his family
· the applicant did not experience any harm or mistreatment in Timor-Leste, and does not consider there is any real threat of harm to him in the future, but he is just not satisfied with the work availability and pay there
· the applicant needs to work in order to support his family in Australia and his family in East Timor, since his father has passed away.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal has considered whether there is a real chance of serious harm to the applicant if he were returned to his home area in Ermera, Timor-Leste, in the reasonably foreseeable future, as a result of his claims relating to the economy and concerns about not being able to get a job or a sufficiently-paid job to support his family.
The Tribunal acknowledges the applicant’s concerns of familial responsibility, [after] his father having passed away, as well as the familial obligation to provide financial support for his Australian family. Further, the Tribunal is concerned about not being able to get a job, or a well-paid job, on the basis of his experience in Timor-Leste before he came to Australia where, despite his university degree, he was still only able to obtain casual work as [an Occupation 1]. The applicant did not claim to have experienced past harm due to economic reasons whilst in Timor-Leste, as his family had been able to support themselves through growing [plants] for harvesting and the applicant did have the employment mentioned.
The Tribunal finds that the applicant’s economic concerns amount to a subjective fear of future economic harm.
In assessing the refugee criteria, the Tribunal must determine whether the economic harm claimed by the applicant is for any of the reasons set out in s 5J(1)(a) of the Act. In Applicant A v MIEA,[30] the court recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group due to their race, religion, nationality, political opinion or membership of a particular social group.
[30] (1997) 190 CLR 225 at 258.
Here, the applicant does not claim, and nor is there any evidence to support, that the applicant’s economic concerns are for any of the reasons in s 5J(1)(a) of the Act. As a result, the Tribunal does not accept that these claims are for any refugee-related reason in s 5J of the Act.
For the above reasons, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution or that the applicant is a refugee as defined in s 5H(1) of the Act. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Based on the factual findings above, the Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste, there is a real risk of significant harm to the applicant relating to economic hardship.
The country information as summarised above, supports the applicant’s concerns about the economy in Timor-Leste and with respect to employment issues. Based on that and the applicant’s profile, including that he faced difficulties in obtaining past employment in Timor-Leste, the Tribunal accepts that the applicant may face difficulties on return to Timor-Leste with respect to securing a job and/or a job of sufficient income to support his extended family. On the other hand, protective factors of the applicant’s background include that:
· the applicant has some experience working in [Sector 1] in Australia, and that is the largest area of employment in Timor-Leste
· the applicant does have higher education in the form a degree from Timor-Leste, although he has not worked in that sector
· the applicant is now [age] years old and is no longer within the ‘youth’ range, indicated in the country information which has a higher unemployment rate, which he would have been at the time of experiencing his previous employment difficulties after leaving university
· given the applicant’s evidence that he is close to his family, it would be likely the applicant would live with or near his family who, on his evidence, have been able to sustain themselves through growing [plants] on their own plantation – this familial support is an informal means of assisting him on his return, which is supported by available country information.
The Tribunal has considered whether any economic hardship would amount to the applicant suffering significant harm on the basis defined in s 36(2A) of the Act, and finds that it would not, considering his personal profile and the protective factors set out above.
It has been determined in Australian courts that the complementary protection criteria under the Act are focused on acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person.[31] There is no evidence that any person/group will intentionally harm the applicant for economic reasons, such as preventing him from employment in Timor-Leste. On that basis, the Tribunal finds that any economic difficulties the applicant might experience upon returning to Timor-Leste would not amount to significant harm under the Act, as the harm would not be due to any intentional act or omission of any group/person towards the applicant.
[31] For example, GLD18 v MHA [2020] FCAFC 2.
Further, the applicant’s economic concerns are a real risk faced by the population generally for the purposes of s 36(2B)(c) of the Act, taking into account the country information set out above, and therefore would not amount to significant harm.
For the above reasons, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, defined in s 36(2A) of the Act, if he is removed from Australia and returned to Timor-Leste. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of same family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Ministerial intervention consideration
The Tribunal considers that the circumstances of the applicant in this matter, with respect to the applicant’s family unit in Australia, warrant consideration by the Minister pursuant to s 351 of the Act.
This section gives the Minister a discretion to substitute for a decision of the Tribunal, another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so. In doing so, the Tribunal has had regard to the Minister’s guidelines on ministerial powers which provide, in s 8, that a review tribunal may refer a case to Department if the member believes the issues involved fall within the unique or exceptional circumstances described in s 4 of the guidelines. Examples of unique or exceptional circumstances are described in s 4, and include ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident’.
Under s 5, other relevant information includes:
· ‘circumstances that may bring Australia's obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations
· circumstances that may bring Australia's obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia's migration programme’
Having regard to the ‘Ministerial Instructions – requests for use of the Minister’s intervention powers under sections 351 and 501J of the Migration Act 1958’ (Ministerial Instructions), [32] the Tribunal is not aware of the applicant’s circumstances falling within any of the ‘Requests that are inappropriate to refer’ in s 12. In particular, based upon the Department’s Movement Records as recently provided to the Tribunal, there is evidence that:
· The applicant could apply for a Partner visa while in Australia but is subject to condition 8503 (s 12.1.4)
· The applicant holds a bridging visa E with condition 8512 (s 12.1.10).
[32] Issued by the Minister on 4 September 2025.
The applicant has provided evidence that they are the parent of an Australian citizen who was a minor at the time the request for ministerial consideration was made, as required by s 13.1.1 of the Ministerial Instructions, namely the Birth Certificate of [Child A], Date of Birth [date], which was issued [in] August 2024.
The applicant’s de facto partner and fiancé, [Partner A], is an Australian citizen, based upon her oral and written evidence. [Partner A’s child, Child B], also an Australian citizen who is currently [age] years old, has complex needs based upon the evidence of [his/her] medical diagnosis of Attention Deficit Hyperactivity Disorder, and that [he/she] is also being assessed for Autism currently. The applicant has provided various documents in support of this diagnosis and [his/her] care needs, as well as the need to maintain the stability of [his/her] routine and family structure, including in the General Practitioner report, speech pathology reports, the support letter from [Child B’s] kindergarten, and the statements from [Ms A] and [Partner A].
[Partner A] and the applicant have [a young child, Child A], who was born in Australia, and the evidence of the applicant, as well as [Partner A] and [Ms A], supports that the applicant has a strong bond with [him/her] also.
The consequences of the affirmation of the Department’s decision will mean that the applicant’s family unit, including his Australian citizen fiancé and step-[child], and Australian-born [child], will be likely to be separated from him. Such consequences give rise to strong compassionate circumstances for the applicant to remain in Australia with his family unit, especially given the complex care needs of [Child B].
Although the Tribunal has not accepted that the applicant meets the criteria for a protection visa, for the reasons set out above, in the applicant’s particular circumstances, of working in this sector warrant Ministerial consideration.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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