2301373 (Refugee) - [2025] ARTA 1734

2301373 (Refugee) [2025] ARTA 1734 (9 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2301373
Tribunal:General Member R Hampson
Date:9 July 2025

Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 09 July 2025 at 1:32pm
CATCHWORDS
REFUGEE – protection visa – Timor Leste – particular social group – child of ex-militia member – independence conflict 1999–2002 – ostracised, bullied, verbal abuse, discrimination, violence – threats of harm by villagers with stones and knives – father imprisoned – grudges of history – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v Minister for Home Affairs (2020) 276 FCR 644
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs[1] on 3 February 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] This is now the Department of Immigration and Citizenship
The applicant who claims to be a national of Timor Leste, applied for the visa on 27 October 2022. 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.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), 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 applicant appeared by MS Teams video before the Tribunal on 28 April 2025 to give evidence and present arguments. A resumed hearing was held on 19 May 2025. The Tribunal hearings were conducted with the assistance of an interpreter via MS Teams in the Tetum and English languages.
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND AND RECEIVING COUNTRY
The applicant claims to be [an age] year old national of Timor Leste.
He claims…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2301373 (Refugee)

Details

AGLC: 2301373 (Refugee) [2025] ARTA 1734
Case: [2025] ARTA 1734
Decision Date: 9 July 2025

CaseChat Overview and Summary

The applicant, a citizen of Timor Leste, sought a review of the delegate's decision denying his application for a protection visa. The dispute arose from the delegate's finding that the applicant did not qualify as a refugee under the Migration Act 1958 (Cth) because his claims of financial distress and social ostracisation did not meet the criteria for significant harm. The matter was heard by the Administrative Appeals Tribunal (AAT). The central legal issues revolved around whether the applicant's experiences in Timor Leste constituted 'significant harm' as defined in the Act, specifically whether the ostracisation, bullying, and threats he faced due to his father's association with a militia during the independence conflict qualified as persecution. The AAT had to consider if these circumstances met the threshold for the applicant to be recognised as a refugee under Australian law.

The AAT assessed the delegate's decision and found that it did not adequately consider the applicant's particular social group status and the historical context of the conflict in Timor Leste. The AAT emphasised that the applicant's father's past affiliation with a militia resulted in ongoing ostracisation, discrimination, and threats of violence against the applicant. This constituted a form of persecution based on a protected characteristic, which the delegate had not sufficiently addressed. The Tribunal concluded that the delegate's finding that there was no intention to cause the requisite level of pain or suffering was incorrect, as the persistent harassment and threats the applicant faced were intentional and severe enough to qualify as significant harm. The AAT remitted the decision to the delegate for reconsideration in light of these findings.

The AAT remitted the matter back to the delegate for further consideration, directing the delegate to reassess the application in light of the Tribunal's findings regarding the applicant's particular social group status and the nature of the harm he faced. The Tribunal did not make a final determination on the applicant's eligibility for a protection visa but highlighted the need for a thorough re-evaluation of the evidence and the specific context of the applicant's situation in Timor Leste. The delegate was instructed to provide detailed reasons for any further decisions made on the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant provided a copy of the biodata page of his Timorese passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Timor Leste and there is no information before me to the contrary. The applicant also furnished his original passport at hearing which I sighted. I find that the applicant is a citizen of Timor Leste, and that Timor Leste is his receiving country for the purposes of assessing his claims for protection.Evidence before the DepartmentProtection visa application In his protection visa application, the applicant in response to the question about why he left Timor Leste stated[2], ‘In the past few years, Me and my family have been struggle to seek for an opportunity to have a stable life and income. We even live in a community that only look at others trough their social class. There is no other hope and way to help myself grow with the limited skills I have. So, I just need to continue work hard and keep finding a job to support my family. However, after been selected to come and work in Australia, I believe that with the skills I have now would allow me to at least have sustainable income to support my family. I am a person that keen to learn and I hope that through this visa I am applying for now would allow me to stay longer so, I can continue supporting my family and to provide long-term’[3].[2] Applicant’s words, grammar and spelling remain.[3] Applicant’s protection visa application dated 27 October 2022. When asked in this application did, he experience harm while living in Timor Leste he replied to the question[4], I have been living in a social pressure where I have no the ability to grow in the community where I lived. People are just seen others based on their social class and I was not even given a chance to engage well with others and seek for possible support to help myself grow and exchange my knowledge to build up my professional career. But There is no way to learn from others and there is limited opportunity to grow to have a stable life and income to support my family affordable life for them’[5].Summary of supporting documents[4] Applicant’s words, grammar and spelling remain[5] Applicant’s protection visa application dated 27 October 2022 The applicant did not provide any further supporting documents to the Department apart from his passport. The interview with the delegate The applicant was not invited to attend an interview with the delegate.Summary of the delegate’s decision The delegate found the applicant was not a refugee as his claims of financial distress do not relate to any of the reasons in s 5J(1)(a) of the Act. The delegate also found the applicant may face economic hardship upon his return to Timor Leste but has not claimed he will be arbitrarily deprived of his life, the death penalty will be carried out on him or he will be subjected to torture. The delegate further stated there was no information before them to indicate the applicant would suffer any of these forms of ‘significant harm’ in s 36(2A)(a)-(c) of the Act if he were to return to Timor Leste.

Decision

Reasons for decision

The applicant was not invited to attend an interview with the delegate.Summary of the delegate’s decision The delegate found the applicant was not a refugee as his claims of financial distress do not relate to any of the reasons in s 5J(1)(a) of the Act. The delegate also found the applicant may face economic hardship upon his return to Timor Leste but has not claimed he will be arbitrarily deprived of his life, the death penalty will be carried out on him or he will be subjected to torture. The delegate further stated there was no information before them to indicate the applicant would suffer any of these forms of ‘significant harm’ in s 36(2A)(a)-(c) of the Act if he were to return to Timor Leste. The delegate consider if the economic harm the applicant faces could constitute ‘significant harm in s 36(2A)(d)-(e) of the Act – ‘cruel or inhuman treatment or punishment or ‘degrading treatment or punishment’ both of which are defined in s 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level or pain or suffering (for cruel or in human treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional. The delegate found there to be no information before them to indicate that there will be a perpetrator of any harm to the applicant and no actual, subjective state of mind, meaning there will be no intention to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment)[6].[6] The delegates decision record, page 3, dated 3 February 2023. The applicant did not provide any further supporting documents to the Department. The delegate therefore found that the applicant is not a refugee as defined by s 5H(1) of the Act and that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act. Evidence before the TribunalPre-hearing submissions The applicant did not provide any further evidence or submissions before the first Tribunal hearing. Hearing on 28 April 2025 The applicant confirmed his background details as [an age-year-old] national of Timor Leste and born in [Island 1], Timor Leste. His ethnicity is Timorese and his religion is Protestant Christian. He is single and never married and has no children. He stated his mother resides in [Island 1], Timor Leste with [Sibling A] in the countryside where they have a small plot of land and grow food to live on. [Sibling A and his] mother do not work formally[7]. [Sibling B] lives in Indonesia with an uncle and has done so since the conflict in 1999. He has another [sibling, Sibling C] who lives in Dili and does not work formally. The applicant explained he sends money every month to assist his siblings and his mother. The applicant is in contact with his mother and siblings once or twice a month.[7] In Timor-Leste, formal work generally refers to employment within the legally recognized, regulated, and documented sector, including wage employment and self-employment. This contrasts with informal work, which is typically unregistered and lacks legal protections. National-Employment-Strategy-2017-20301.pdf, accessed 01 July 2025.

Ratio Decidendi

Legal Principle Established

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