2301373 (Refugee)
[2025] ARTA 1734
•9 July 2025
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 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v Minister for Home Affairs (2020) 276 FCR 644Any 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 he was born in [Island 1], Timor Leste and his ethnicity is Timorese and his religion is Catholic.
The applicant came to Australia first [in] June 2022 on a Temporary Work [visa]. He applied for a protection visa on 27 October 2022.
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 Department
Protection 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.
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 Tribunal
Pre-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.
The applicant’s father is in prison in Timor Leste. The applicant explained his father will be in prison for up to 15 years. He said,
‘people made up an untrue story saying he had committed a crime. My father is ex militia the group who were against independence in East Timor so he was not liked and neither was our whole family. They made up stories he was committing [Crime 1] but this didn’t happen. He has been in prison now for 18 months. Before he went to prison, he raised [a type of animal] and they ranged freely. Once my father went to prison people stole all our animals’.
The applicant has previously lived in Dili and then in [Island 1], Timor Leste. On arrival in Australia, he lived in [Location 1] and then relocated to [Location 2] and then [Location 3].
The applicant stated he studied [Area of study 1] at university and completed a degree in this in Timor Leste. He did not work in this field in Timor Leste. Upon arriving in Australia, the applicant has worked as [an Occupation 1] and travelling to where the work is to do so.
The applicant initially obtained a [temporary work] visa through an agency in Timor Leste to travel to Australia to work.
Protection visa application process
When asked about the preparation of his protection visa application he lodged with the Department he said he had help from a man name [Mr A] and he paid him $[amount] to do so. He said he told him information about himself but did not write the information himself and only found out when he got the information from the Tribunal what was written in the application and when he asked someone to translate this for him.
I asked him about the delay in lodging the protection visa as he arrived in Australia [in] June 2022 and lodged the protection visa application on 27 October 2022. He said that because he initially came to Australia on a [temporary work] visa, he did not know about the protection visa until he spoke with other Timorese people in Australia who told him there was a visa that allowed him to stay here and be protected.
Reasons for leaving Timor Leste
When asked about why he left Timor Leste the applicant said, ‘in East Timor I and none of my family can work. People weren’t happy that I was coming here. People tried to cancel my trip through the village chief’. I asked him about why people were not happy about this and he said, ‘people call us the militia generation. They don’t like the children of militia living in Timor. They even tried to stop my journey at the airport. They told the airport officials not to let me in but the airport officials feared the law so they let me in. They don’t like children of militia to be able to live well like them. Because the militia were against East Timorese independence, they were supporting Indonesia. They killed Timorese and burnt down their houses and my father was a part of this so no one likes us’.
Experience of harm in Timor Leste
The applicant on my questioning said he had experienced harm as ‘people did not like us and threw rocks at house and at school, they bullied us and said, militia child you cannot come to school here’.
He explained, ‘when I would go to apply for work, they would recognise me and say I could not work here. So, I am grateful I got the opportunity to come to Australia. In Timor no one likes anyone related to Militia. People stole my money from my motorbike and I took it to Court but until now I have not got my money back even though I knew who stole my money. Even in the streets people shout at us ‘son of militia’. There is no one to protect us and say to them they cannot say that’.
When asked what he feared if he were to return to his home country, he said, ‘in the short term people don’t like me and if I went back with money, they would kill me as they don’t want militia children to have good quality of life like them’. When asked how they would find out he had money, he said, ‘I have money because people know when we come to Australia we work. I have saved a little and I send money every week or month’.
Protection from authorities
I asked him who he feared would harm him if he were to return to Timor Leste he said, ‘not everyone because there are other militia families and we look out for each other but we receive threats always’. When asked if he could seek protection from the police or the authorities he said, ‘the police are the same and we get the same response, we are children of the militia’.
Consideration of relocation
When asked if he could move to another part of Timor Leste that is safer to avoid the harm he explained, ‘Everywhere is the same’. They would find out and I would be treated the same. Timor is not like Australia where neighbours don’t know each other and talk but in Timor, with neighbours they have breakfast, coffee, play cards and then information travels very fast’.
When asked about his mother and siblings who still reside in Timor Leste, he said, ‘safe or not safe about our life we never really feel safe. Because my family cannot get money or work, they survive from month to month and if I go back, it will be very hard’. When asked how they and you (the applicant) survived before he came to Australia, the applicant said, ‘before I came here, he could just get food but never money. In Australia fruit and vegetables and animals have a price but in East Timor 60% of produce does not have a price or is very small’. He explained this is how he and his family subsisted on food they could grow and or trade for other products but not money.
Further and new claims
When asked if he had anything further to add in support of his claims, the applicant said,
‘in July 1999 my father [Father A] was involved in the Militia group Aitarak and they had a fight with Falintil (The Armed Forces for the National Liberation of East Timor) the East Timorese forces and in August 1999 when Timor got the option to vote in the referendum or stay with Indonesia when the vote was completed the results came out and 75% of Timorese voted for independence and with this the militia groups did not want Timor to be independent and they heard the results so they attacked Dili and burnt down houses and killed people and my father killed two people called [Victims A and B]. So, our family went to [Town 1]. In 2002 when Timor transitioned to full independence our family returned from [Town 1]. When we got back to Dili people did not like us. We kept having to move accommodation’.
When asked about the passage of time until his father went to prison, the applicant said, ‘they were accusing my father of carrying out [Crime 1] but according to his health assessment he was in normal condition with no change but I don’t understand the court system. There was no hard evidence so he wasn’t put in jail then. The occurrences of the past, people did not want to consider them’.
I asked him if these crimes his father went to prison for were the militia crimes and different to the crimes he has now been sent to prison for. He said, ‘they had to find a way of putting people they don’t like into jail. [Crime 1]. I don’t know any more detailed information because I wasn’t there. I asked my father if this problem happen or not. I also asked my mother and they both said the same thing that nothing had happened. My mother said, people really don’t like us’. I asked if his father could appeal the charges, the applicant said, ‘because he is already old, in 3-4 years, we can request the court for a shorter sentence. The impact of this has caused a lot of sadness in our family. Sometimes I am ruminating on my families suffering. My mother calls crying because my father is in prison and she is alone’.
I put to the applicant that I had concerns about the extensive passage of time between the independence conflict in 1999 that he claimed he and his family had lived in the shadow of with his father as a member of the former militia and him now seeking protection regarding this. He said, ‘who am I going to ask in Timor for help. I got here and found the Australian government could help us then I wanted that’. I asked why then did he not leave Timor Leste until 2022, to which, he said, ‘I wanted to go somewhere else but I had no money’. I asked how he came to be able then to travel to Australia in 2022, he said, ‘the Australian and Timorese governments worked together and I did not pay, they take it out of our salary when we start work here’.
The applicant was asked if he could provide any evidence of any type to support his claims that his father was now in prison and had been a member of the Aitarak militia. The applicant stated he had document in Timor Leste and would request [Sibling A] to send them to him and he would provide them to the Tribunal.
Post-hearing submissions
The applicant provided the Tribunal with the following documents following the first hearing:
·The untranslated and translated documents from [Court 1] of the first instance ‘settlement of penalty’ dated [December] 2023 for [Father A] (the applicant’s father) sentenced to a term of 7 years in prison for [Crime 1].
Resumed hearing on 19 May 2025
The hearing was resumed on 19 May 2025 to take further evidence from the applicant with regard his father’s membership of the Aitarak militia during the 1999 independence conflict and his fathers recent prison sentence.
Family of Ex-Militia member
I asked the applicant several more direct questions regarding his fathers involvement with the Aitarak militia and how this came about. He said he was not sure about how it came about as he was a child and had never asked his father but explained, ‘in 1999 he became involved in physical abuse and burning of the land and buildings because of the results of the Referendum and then he ran away to [Town 1] and then in 2002 we came back but others can’t accept his return and it is very uncomfortable there so we moved to [Island 1]. In [Island 1] people still don’t like us so we move around there. We made a connection with Indonesian soldiers who choose to live there rather than go back so we settled there. My uncle accompanied my father’.
He explained he and his mother remained in Dili as her brother protected her when her husband, the applicant’s father, fled to [Town 1]. His mother was protected by her brother because she is the only sister left [in the family]. [Sibling B] was taken by an uncle and fled to Indonesia where [he/she] has remained ever since and was adopted by his/her uncle and has not returned to Timor Leste as [they fear] people knowing who [he/she] is as ‘a child of the militia’.
When his father returned to [Island 1] in 2002 after the conflict had ended the applicant’s mother was given some land by her brother and the family subsisted there from the land and this is where the applicant’s mother still resides.
On my questions regarding how his mother coped with the notion that her husband had been a member of the militia the applicant said it had been very difficult for his mother as her family ‘bullied her’ because of this but she ‘was not brave enough’ to do anything about her circumstances. Her extended family have avoided the issues surrounding her husbands more recent imprisonment. The applicant said his mother ‘cannot respond’ to any of the bullying or harassment she has suffered and still suffers in the community or it will get worse’. I asked the applicant about [Sibling A] who he said also still resides in [Island 1] and how life is for [him/her] there, he said [he/she] does the same as his mother and does not respond to the bullying and verbal abuse as [he/she] is often told [he/she] has ‘no right to live in Timor as a child of the militia’. The applicant claimed this was also why he must support his mother and siblings because they could not work in Timor Leste as no one will employ them because of the militia history.
I put to him that there were many other families who had members who were involved in the militia in the 1999 independence conflict. The applicant said that yes this was true and many had left Timor Leste for the United Kingdom, Canada, Australia and Indonesia for protection and many families have remained and are the subject of bullying, harassment and discrimination with regard employment, housing and like his father false criminal charges brought against them.
I further put to the applicant information from the Commission for Reception, Truth and Reconciliation (CAVR), implemented in 2001, facilitated reintegration for many low-level militia members by allowing them to confess and perform community-based reparations.[8] This process often extended to their families, enabling some to return to villages.’ The applicant said that the government struggled to look after their own soldiers let alone the ex-militia soldiers and their families who they considered as ‘animals’.
Father’s criminal conviction and prison sentence
[8] 'Timor-Leste: Reconciliation and Return from Indonesia', International Crisis Group (ICG), 18 April 2011, p.5, 20250502101514, accessed 19 May 2025.
The applicant supplied the Tribunal with a document listing his father’s conviction of [Crime 1] and his sentence of 7 years. The applicant claimed his father is innocent and these charges were a ‘set up’ as a punishment by the village to him for his work with the militia from 1999-2002.
I asked the applicant several questions about this to determine an understanding of the process ending in his father being jailed for 7 years.
He said that,
‘there [was no evidence]’. This case was resolved in [Island 1], culturally. They reported to the head of the culture and asked for the testimony of 5 witnesses and they, the 5 witnesses, said they knew nothing. Therefore, this cannot be resolved as there are no witness statements. They made it up and my father had no idea about this case and they escalated to the minister of public/police. [Case details deleted]. The party is guilty but the tribunal (the court system) cannot continue but want to sit together to solve the case but it cannot be resolved. This then continued into the tribunal’.
The applicant explained further,
‘my father did not understand the process of the case and did not do a statement to ministry of public to defend himself. People told him don’t make a statement because it might get you in jail. He was too scared and said he had a lawyer but he didn’t. Because he did not make a statement it escalated from the ministry of public to the tribunal. He was then asked if he did the offences. He said no. Because there is no declaration, they said he is lying. Therefore, when he spoke, he was unable to defend himself and he was sent to prison’.
On my questioning regarding how the current offences were related to his father’s involvement in the Aitarak militia some 20 years previously the applicant said they (the villagers) had been waiting for ‘the right moment’ to seek revenge on him.
I put to the applicant my concerns that 75 percent of ex militia were never convicted of any offences resulting from the conflict and many of those who were convicted were high ranking officers[9] The applicant responded, ‘They will not come with the militia reasons but look for other ways to revenge the suffering in the past with a different case always looking for opportunities. There is no direct militia reasoning’.
[9] Timor-Leste: Reconciliation and Return from Indonesia', International Crisis Group (ICG), 18 April 2011, p.5, 20250502101514, accessed 19 May 2025.
I spoke with the applicant further regarding his claims of bullying because of his father’s militia membership and asked him for further specific examples of what this meant and what he feared specifically if he were to return to Timor Leste in the future. He said that if he went back to Timor Leste he would ‘bring money back’ and people in the village would know this and would harm him as they see he does not ‘deserve a better life as the son of ex-militia’.
At this time the applicant also raised a fear that he maybe cursed or have voodoo/witchcraft carried out on him to harm him as one of his uncle’s was subject to such a curse and died within 15 minutes. He gave an example of his fear of this having happened to him in the past in a different context. He said,
‘I physically hurt my girlfriend and after that the witchcraft happened to me and someone had to guide me to fix me. My throat close and it was as if a bee was stinging me (an anaphylactic reaction). I asked my cousin to help and he gave me an herb to drink that fixed me’.
I put to the applicant that this claim was now new information before the Tribunal that was not previously before the original decision maker and as such, I would make adverse findings on this unless considered otherwise. The applicant said, ‘I didn’t need to speak about this but the member asked me so I must tell this (referring to the witchcraft claim).
At the time of this resumed hearing the applicant had indicated on his response to hearing form that he wished the tribunal to hear from 2 witnesses, [Sibling A] and his cousin. At the resumed hearing on 19 May 2025 the applicant stated the witnesses were not available to give evidence. I asked the applicant if he wished to provide the Tribunal with written statements from his witnesses to which he agreed.
These written statements were provided to the Tribunal in post hearing submissions and will now be addressed in the following paragraphs.
Post hearing submissions
Statement of [Sibling A] (the applicant’s [sibling])
The Tribunal received two documents an untranslated and an English translated version of the statement of [Sibling A] dated 27 May 2025. [Sibling A] states [their] father, [Father A] was involved in the Aitarak Militia in 1999 and killed and bullied people setting fire to their homes and cars. Because of this involvement [their] family have been bullied and people have tried to kill them. [Sibling A] states that in 2016 [the applicant] was attacked by a group with sticks and katana (sword) saying ‘your dad milisi (untranslated) killed my family and now it our turn to killed milisa family. [Sibling A] further stated that in 2018 when [he/she] and [the applicant] were travelling to their farm they were set upon by 6 people who attacked them with stones ‘but luckily we have katana at that time so they were scared and ran away’.
Statement of [Cousin A] (a cousin of the applicant)
The Tribunal received two documents an untranslated and an English translated version of the statement of [Cousin A] dated 28 May 2025. He states that because of his uncles involvement in the Aitarak militia he has now (2022) been ‘falsely accused [of Crime 1]. The [prosecutor] provided 5 witnesses who did not know of or see the [crime] but stated they did. The community leader dismissed the case but the [prosecutor] took the case further to the public ministry (Tribunal). His uncle was requested to participate but did not as he stated his innocence. However, later the [prosecutor] appeared before the public ministry (Tribunal) with 7 witnesses who said the [crime] took place in 3 locations but in the past to the community leader they alleged there were 7 locations. He stated that even though there was no evidence and the witnesses to the tribunal were ‘fake’ his uncle was still sent to prison for 7 years.
Country Information
Independence Conflict
Timor Leste was internationally recognised as an independent nation in 2002 following its liberation from Indonesia in 1999. This liberation in 1999 by way of a UN run referendum which saw the Timorese people vote overwhelmingly for independence[10]. In the months leading up to the referendum the Indonesian government, military and police recruited militia from among the Timorese people to attempt to influence the vote. East Timorese people joined the militia forces for various reasons some opportunistic who were paid to participate and willing to engage in criminal violence, some were forced to join at threat of death and others agreed with the Indonesian sovereignty[11].
[10] 20 years of independence for East Timor, Timor-Leste - Early Day Motions - UK Parliament, accessed 26 June 2025.
[11] 'Lundry, C. "'Revisiting Passabe: Lisan and Reconciliation in Timor-Leste’, Cultural Studies in the Asian Context, Vol. 12, No, 2, 2019, pp.105-109, 20250502102842, accessed 18 May 2025.
During this period the militias and the Indonesia backers carried out the premeditated ‘scorched earth’ campaign that included killing, rapes, theft, destruction of property and forced the displacement of half of the population into West Timor or other places in Indonesia. This destruction was only dissipated with the forced intervention of the UN sponsored International Force for East Timor (INTERFET). Indonesia was forced out and the country went into transitional administration under the United Nations Transitional Administration in East Timor (UNTAET) that eventually led to independence in 2002[12].
Aitarak militia
[12] Ibid.
The Aitarak militia organisation was led by Eurico Guterres and their task was to counter the fight for East Timorese independence and provide security. The group engaged in the fight against Fretilin (the Revolutionary Front for an Independent East Timor political party[13]) and deployed across the border to attack this group. The also suppressed pro independence protesters. The group was seen as a regular part of the Indonesian armed forces and were provided weapons as such. At its height the group was reported to have up to 1500 members[14].
Life for family of Aitarak militia members in post conflict East Timor
[13] Fretilin - Wikipedia
[14] “Fear for safety / Possible “disappearance” / Fear of East Timor.” Amnesty International. 31 August 1999. AI Index: ASA 21/124/99. Accessed 18 May 2025.
A Commission for Reception, Truth and Reconciliation (CAVR), implemented in 2001, facilitated reintegration for many low-level militia members by allowing them to confess and perform community-based reparations.[15] This process often extended to their families, enabling some to return to villages. However, the process has been criticised for prioritising perpetrators’ reintegration over victims’ needs, which can leave families of militia members in a precarious social position if victims feel justice was incomplete.[16]
[15] 'Timor-Leste: Reconciliation and Return from Indonesia', International Crisis Group (ICG), 18 April 2011, p.5, 20250502101514
[16] 'Timor-Leste: Reconciliation and Return from Indonesia', International Crisis Group (ICG), 18 April 2011, p.1, 20250502101514
After the 1999 independence referendum[17] in Timor-Leste, many ex-militia members initially fled to West Timor with other refugees due to fear of retribution and uncertainty about their future in the new nation.[18] Over time, some former militia members did return to Timor-Leste under a joint Indonesian and Timor-Leste program known as the Commission on Truth and Friendship (CTF).[19] Their reintegration was often facilitated through traditional reconciliation ceremonies known as ‘lisan’, which aimed to restore community balance and allow ex-militia to live again among their former neighbours.[20]
[17] 'East Timor: Indonesia's invasion and the long road to independence', Alison Rourke, The Guardian, 30 August 2019, 20250507110108
[18] 'Timor-Leste: Reconciliation and Return from Indonesia', International Crisis Group (ICG), 18 April 2011, p.1, 20250502101514; and 'Lundry, C. "'Revisiting Passabe: Lisan and Reconciliation in Timor-Leste’, Cultural Studies in the Asian Context, Vol. 12, No, 2, 2019, pp.105-109, 20250502102842
[19] 'Timor-Leste: Reconciliation and Return from Indonesia', International Crisis Group (ICG), 18 April 2011, pp.5-6, 20250502101514
[20] 'Lundry, C. "'Revisiting Passabe: Lisan and Reconciliation in Timor-Leste’, Cultural Studies in the Asian Context, Vol. 12, No, 2, 2019, pp.105-109, 20250502102842
However, the process was complex and fraught with challenges. While some ex-militias were able to return and participate in community life after undergoing reconciliation, others remained in Indonesia due to fear of prosecution, lack of legal clarity, or community resistance.[21]
[21]'Timor-Leste: Reconciliation and Return from Indonesia', International Crisis Group (ICG), 18 April 2011, p.1, 20250502101514
In the village of Passabe, the site of the two worst massacres that followed the referendum in 1999, some ex-militia did return and were reintegrated, though studies show that the depth and permanence of reconciliation has varied by individual and community.[22] In areas like Passabe, spiritual and customary practices (lisan) have supported reconciliation, moving beyond ‘negative peace’ (absence of violence) to tentative community cohesion. Families of former militia members may benefit from these practices but remain vulnerable to the possibility of historical grievances resurfacing.[23]
[22] 'Lundry, C. "'Revisiting Passabe: Lisan and Reconciliation in Timor-Leste’, Cultural Studies in the Asian Context, Vol. 12, No, 2, 2019, pp.105-109, 20250502102842; Note – this paper also discusses a documentary (also entitled Passabe, by James Leong and Lynne Lee, 2006 – no web link was found for free access to the documentary) which explored reintegration of militia into the village
[23] 'Lundry, C. "'Revisiting Passabe: Lisan and Reconciliation in Timor-Leste’, Cultural Studies in the Asian Context, Vol. 12, No, 2, 2019, pp.105-8, 20250502102842
There is evidence that family grudges and communal conflicts persist in Timor-Leste, which are occasionally linked to past militia violence and political affiliations. Grudges between families can be longstanding and are not always based solely on political or militia involvement; they may also stem from land disputes, forced labour, or other local grievances.[24]
[24] 'The Law and Its Limits: Land Grievances, Wicked Problems, and Transitional Justice in Timor-Leste', Bernardo Almeida, The International journal of Transitional Justice, 5 April 2021, 20250506131106; and 'Timor-Leste-State of Conflict and Violence', Asia Foundation, 2017, pp.12-13, 20250505143240
While some militia leaders, like Joa Sarmento[25] and Augstinho da Costa[26], were convicted for crimes, many higher-ranking perpetrators, particularly Indonesian military officers[27], have evaded justice, often protected in Indonesia.[28] This, according to a 2019 study, has created a perception of impunity, which can indirectly affect families of militia members, as communities may direct frustration towards them instead of untouchable Indonesian figures.[29]
[25] 'EAST TIMOR: Militia leader convicted for human rights abuses', Cultural Survival, 12 August 2003, 20250502090659; and 'Pro-Jakarta militiaman jailed for 8 years', Age, The Australia, 13 August 2003, 20250502091352
[26] 'East Timor: militia member sentenced in murder of local UN worker', ReliefWeb, 17 July 2001, 20250501093848
[27] 'The Militias in East Timor: Personal Encounters', A. Walter Dorn, Peace Magazine, Fall, 1999, 20250502095135
[28] 'Timor-Leste indicts militia members, Indonesian officers for 1999 crimes - UN mission', United Nations, 6 November 2002, 20250502094803
[29] 'Lundry, C. "'Revisiting Passabe: Lisan and Reconciliation in Timor-Leste’, Cultural Studies in the Asian Context, Vol. 12, No, 2, 2019, pp. 14, 20250502102842
In 2008, former militia members, including Eurico Guterres, rejected the Indonesia-Timor-Leste CTF report, which blamed militias and Indonesian forces for 1999 atrocities. Their refusal to acknowledge responsibility may perpetuate distrust, affecting their families’ ability to fully reintegrate.[30] The case of Guterres, a notorious Aitarak militia leader, illustrates ongoing tensions.[31] In 2021, Guterres received a high Indonesian award, sparking outrage amongst human rights groups and civil society both in Indonesia and internationally.[32] Rights groups described the award as a ‘serious betrayal of humanity and morality’ and called for its revocation.[33] While the search results do not specifically mention large-scale public outrage or official government statements from Timor-Leste itself, the condemnation from rights organisations and activists was widespread, and Timorese civil society was among those who criticised the decision.[34] It is inferred from the media articles footnoted that the recognition Guterres received may have exacerbate feelings of injustice for Timorese communities, potentially increasing scrutiny or hostility towards families of former militia members associated with such figures.[35]
[30] 'CTF report: Burying some inconvenient truth', Aboeprijadi Santoso , The Jakarta Post, 22 July 2008, p.13 (refer to footnote 120), 20250502083204
[31] 'Militia leader vows fight for his East Timor', Cameron W. Barr, The Christian Science Monitor, 6 October 1999, 20250501093602
[32] 'Militia leader’s honour slammed as insult to East Timor and Australia', Chris Barrett and Karuni Rompies, The Sydney Morning Herald, 16 August 2021, 'Militia leader’s honour slammed as insult to East Timor and Australia', Chris Barrett and Karuni Rompies, Sydney Morning Herald, The, 16 August 2021, 20250501100807; 'Outrage as Indonesia honors massacre-tainted militia leader', Katharina Reny Lestari, UCAnews (Union of Catholic Asia), 14 August 2021, 20250507112201; 'Rights Activists Slam Indonesian President for Awarding Medal to Timor Ex-Militia Leader', Ronna Nirmala, Benar News, 13 August 2021, 20250507112548; 'Former pro-Indonesia chief’s award irks rights groups', Phnom Penh Post, The, 15 August 2021, 20250507114050; and 'Rights groups urge Jokowi to revoke ‘betrayal’ medal for Timorese war criminal Eurico Guterres', Asia Pacific Report, 14 August 2021, 20250507112844
[33] 'Rights groups urge Jokowi to revoke ‘betrayal’ medal for Timorese war criminal Eurico Guterres', Asia Pacific Report, 14 August 2021, 20250507112844; 'Rights Activists Slam Indonesian President for Awarding Medal to Timor Ex-Militia Leader', Ronna Nirmala, Benar News, 13 August 2021, 20250507112548; and 'Outrage as Indonesia honors massacre-tainted militia leader', Katharina Reny Lestari, UCAnews (Union of Catholic Asia), 14 August 2021, 20250507112201; 'Former pro-Indonesia chief’s award irks rights groups', The Phnom Penh Post, 15 August 2021, 20250507114050
[34] 'Journalists honoured in Timor-Leste while activists slam award to former militia leader', CIVICUS Monitor, 17 November 2021, 20250507113743
[35] 'Militia leader’s honour slammed as insult to East Timor and Australia', Chris Barrett and Karuni Rompies, The Sydney Morning Herald, 16 August 2021, 'Militia leader’s honour slammed as insult to East Timor and Australia', Chris Barrett and Karuni Rompies, Sydney Morning Herald, The, 16 August 2021, 20250501100807; 'Outrage as Indonesia honors massacre-tainted militia leader', Katharina Reny Lestari, UCAnews (Union of Catholic Asia), 14 August 2021, 20250507112201; 'Rights Activists Slam Indonesian President for Awarding Medal to Timor Ex-Militia Leader', Ronna Nirmala, Benar News, 13 August 2021, 20250507112548; and 'Rights groups urge Jokowi to revoke ‘betrayal’ medal for Timorese war criminal Eurico Guterres', Asia Pacific Report, 14 August 2021, 20250507112844; and 'Former pro-Indonesia chief’s award irks rights groups', The Phnom Penh Post, 15 August 2021, 20250507114050
The Timorese government led by figures like Xanana Gusmão and José Ramos-Horta, has prioritised national unity and reconciliation.[36] However, high profile cases like the conviction of Richard Daschbach (a defrocked priest supported by Gusmão, and a former rebel army leader fighting the Indonesian military in the 1990s) show that political elites’ actions can stir controversy, potentially complicating community dynamics for families linked to past conflicts.[37]
[36] 'A Generational Clash: Timor-Leste’s Political and Economic Future', Ramil Mercado, Centre for Strategic and International Studies (CSIS), 28 September 2023, 20250502094116
[37] 'Xanana Gusmão condemned over visit to paedophile priest', Ian Lloyd Neubauer, Al Jazeera, 17 February 2021, 20250502110657
While the CAVR and customary practices have enabled some families of militia members to reintegrate, the process is uneven. Victims’ unresolved grievances and the lack of accountability for Indonesian perpetrators create a fragile social fabric, where families of militia members may face subtle discrimination or conditional acceptance.[38]
Communal and ideological conflicts
[38] 'Timor-Leste: Reconciliation and Return from Indonesia', International Crisis Group (ICG), 18 April 2011, 20250502101514; Timor-Leste-State of Conflict and Violence', Asia Foundation, 2017, 20250505143240
Timorese society is deeply rooted in extended family networks, with kinship ties extending to distant relatives and even close neighbours or friends, often addressed using familial terms.[39] During the resistance against Indonesian occupation, these strong family bonds provided a foundation for solidarity, trust and mutual support, helping communities endure hardship and organise for independence.[40] While family networks promoted unity, they could also contribute to communal and inter-familial conflict, especially over land or property, sometimes escalating into violence involving youth groups or martial arts gangs.[41]
[39] 'Importance of the Family in Timor-Leste', Government of Timor-Leste, 16 August 2011, 20250505144051
[40] 'Importance of the Family in Timor-Leste', Government of Timor-Leste, 16 August 2011, 20250505144051
[41] 'Timor-Leste-State of Conflict and Violence', Asia Foundation, 2017, pp.12-13, 20250505143240; and 'Convulsions of Nation-Building: Violence-ridden East Timor on the eve of elections', Jeff Kingston, Asia Pacific Journal, 1 March 2025, 20250507075103
The distinct Timorese family structure and cultural practices were key arguments for independence, emphasising the differences with the occupying Indonesian forces and reinforcing a unique national identity.[42]
[42] 'Importance of the Family in Timor-Leste', Government of Timor-Leste, 16 August 2011, 20250505144051
The culture of family in Timor-Leste played a foundational role in both uniting communities for the independence struggle and shaping responses to conflict, while also serving as the main mechanism for social cohesion, resilience[43] and peacebuilding.[44] Traditional systems such as fetosaa-umane (inter-familial exchanges established through marriage) help build solidarity, trust, and social cohesion between families and communities.[45] However, while these traditions are central to peacebuilding and conflict resolution, they can also create challenges, such as financial pressures and perpetuation of gender inequality, which may occasionally contribute to conflict within families.[46]
[43] 'Importance of the Family in Timor-Leste', Government of Timor-Leste, 16 August 2011, 20250505144051
[44] 'Understanding and Strengthening Resilience for Peace', Centre of Studies for Peace and Development (CEPAD), 7 May 2025, pp. 35-36, 20250507115753; and 'Culture and its Impact on Social and Community Life - A Case Study of Timor-Leste', Constantino da C. C. X. Escollano Brandao., Belun NGO, July 2012, pp. 22-26, 20250507120615
[45] 'Culture and its Impact on Social and Community Life - A Case Study of Timor-Leste', Constantino da C. C. X. Escollano Brandao., Belun NGO, July 2012, pp. 14 & 22-25, 20250507120615
[46]'Culture and its Impact on Social and Community Life - A Case Study of Timor-Leste', Constantino da C. C. X. Escollano Brandao., Belun NGO, July 2012, pp. 24-26, 20250507120615
Overall, while the broader environment is stable and improving, individual families with militia associations might still face social challenges rooted in community memory and trauma, but there is no indication of widespread, official discrimination against them.[47]
Police and Judicial process in Timor Leste
[47] 'Collecting the bones: community healing in Timor-Leste', Lisa Palmer, Australian Strategic Policy Institute, 9 September 2021, 20250501091938
At a village level, the local justice system which is community based i still utilised as faster and more accessible. They are constituted by local community and village leaders and rely on traditional customs and practices[48]. When matters are not resolved or cannot be resolved at this level, they are referred to the formal District court system of which there are 4 including Dili, Suai, Baucau and Oecusse Districts. Timor Leste has a Penal Code and a penal Procedure Code which is the basis for its criminal law[49].
[48] Timor-Leste_Local-Governance_Jan17.pdf, accessed 26 June 2025.
[49] Legal Research in Timor-Leste - Globalex, accessed 26 June 2025.
The Timorese Penal Code favours alternative penalties such as fines and suspended sentences to prison sentences. It is noted that sentencing in [Crime 1] is inconsistent and not commensurate to the relevant offence and length of prison sentences vary greatly. The Courts will also consider customary law and have regard to informal mediation between the family of the defendant and the victim[50].
[50] [Information deleted]
In the Timorese criminal justice system [Crime 1 details deleted].
CONSIDERATION OF CLAIMS AND EVIDENCE
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 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.
Mandatory considerations
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, 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Credibility and Findings of Fact
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[51] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and nor does the Tribunal require rebutting evidence before it can find that a particular factual assertion by an applicant has not been made out.
[51] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees | UNHCR Australia, accessed 26 June 2025.
I accept the applicant paid someone to prepare his protection visa application and the claims outlined in this document were scant and did not include the claims regarding his father’s militia involvement that were presented at the hearings.
Whilst the applicant’s listed witnesses did not give oral evidence, I have given weight to their written statements which are consistent with the applicant’s oral testimony and I accept them as supportive of his claims.
Considering the above I accept the following claims as credible:
a.The applicant’s father was a member of the Aitarak militia in Timor Leste during the independence conflict.
b.The applicant has experienced harassment, ostracism, threats of harm and actual harm because of his father’s membership of the militia.
c.The applicant has found it difficult to obtain formal work in Timor Leste because of this militia history in his family.
d.The applicant’s father is now in prison serving a 7 year sentence for [Crime 1].
e.The applicant came to Australia on a [temporary work] visa and his opportunity for him maybe in itself cause for potential harm against him as he is seen to be undeserving of this because of his fathers militia history. This is along with the harm he may face if he were to return to Timor Leste with money and be more able to assist his family and this may also been seen by other Timorese as undeserving for, he and his family to have this opportunity for a better life given his father’s militia history and now his imprisonment for [Crime 1].
I do not accept the following claims:
·The applicant will be subjected to witchcraft or a curse placed on him because of his father’s militia involvement. I do not accept this claim as the applicant could not provide any evidence of this occurring in the past to, he, his father or anyone in his family where this could be considered a course of action to seek revenge as is the cultural nature of these practices in Timor Leste.
·The link the applicant has made between his father being convicted of [Crime 1] and sentenced to 7 years in prison as of December 2023 as a direct consequence of his membership of the Aitarak militia during the 1999-2002 independence conflict. Whist I find it reasonable to consider the applicant’s process that these charges have been a ‘set up’ by local villagers to seek revenge on his father and the court system is rudimentary at best, his father was unrepresented and did not contest the charges as he was advised by friends this would indicate his guilt. I cannot accept in its entirety given the passage of time between the independence conflict in 1999 and his father’s [Crime 1] charges in 2023.
Does the applicant satisfy the refugee criterion for protection?
To be eligible for grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Timor Leste, and owing to that fear, is unable or unwilling to avail himself of the protection of Timor Leste. This requires me to be satisfied that there is a real chance the applicant would suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched impossibility. An applicant may have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent[52]
[52] Chan Yee Kin v MIEA (1989) 169 CLR 379.
On consideration of the applicant’s circumstances I find that if he were to return to his home area of [Island 1], Timor Leste there is a real chance, being a possibility that is not remote or far fetched that he would face a serious harm at the hands of villagers who have harmed him in the past for being ‘a child of the militia’. As discussed in paragraph 59 above, the applicant, in the company of [Sibling A], has been attacked on at least 2 occasions by villagers with katana’s (swords) and on the second occasion 6 villagers attacked them with stones but he was able to chase the attackers away by carrying his own katana. I accept these events constitute serious harm.
This harm is compounded by him returning to [Island 1] in the reasonably foreseeable future, with financial means to create a better life for himself and his family. I accept the is a real chance he may be subjected to further serious harm as this accumulation of wealth, by him, is seen to be undeserving by those in the community in which he would return to, as he is the child of a former militia member who is now also in prison for [Crime 1] offences.
I accept the above accounts of harm are serious harm as set out in s 5J(5) and I note the instances of harm in that section are not an exhaustive list. I accept the applicant has been subject significant physical harassment by threats of harm to him by villagers with stones and knives stating on several occasions he feared for his safety.
I accept the applicant has been subjected to significant denial of the capacity to earn a livelihood of any kind and this denial has threatened his capacity to subsist. The applicant has been unable to obtain formal employment in Timor Leste apart from working on his parents land and living from foodstuffs grown there. The applicant admits food is cheaper in his country of origin and therefore he can survive but he states that is all he can do is feed himself and his mother and siblings particularly now his father, another income earner is imprisoned for a 7 year sentence.
The harm is for one of the reasons set out in s 5J(1)(a) of the Act. I accept the applicant is fears being persecuted for reasons of his membership of a particular social group namely ‘children and family of ex-militia members who were involved in the independence conflict between 1999-2002 in Timor Leste’.
I consider that this group meets the criteria as a ‘particular social group’ as it is identifiable by ‘the characteristics of association by way of family’ with particular members of society, namely the Aitarak militia involved in the 1999-2002 independence conflict and that the common characteristics or attributes of this group are not a shared fear of persecution. Any modification of the applicant’s behaviour to avoid harm in Timor Leste would conflict with a characteristic that is fundamental to his identity or conscience, conceal an innate or immutable characteristic or alter her family identity or conceal who he is by his name and family of origin. Therefore, he cannot be required to take steps to modify his behaviour such as returning to Timor Leste and living discreetly to avoid feared persecution pursuant to s 5J(3). The Tribunal considers that the group of “families of former Aitarak militia involved in the 1999 East Timor independence conflict” is identifiable by the characteristics of relationship and militia service and nationality and that the common characteristics or attributes are not a shared fear of persecution. Moreover, the Tribunal accepts that the applicant’s identity as a son of a former Aitarak is an immutable characteristic incapable of modification: s 5J(3)(b).
Does the harm feared by the applicant extend to all areas of Timor Leste?
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[53]
[53] FCS17 v Minister for Home Affairs (2020) 276 FCR 644 at [80]–[81].
100. The Tribunal was unable to locate any current country information specifically addressing internal relocation for families of Aitarak militia in Timor Leste. Accordingly, considerations such the population size and distribution and the importance of kinship networks are significant. Having considered the applicant is from the home area of Dili and then moving to [Island 1], which is outside of Dili (he and his family moved to this location after the 2002 conflict to feel safer) and he has still experienced serious harm in this area then I must consider if the applicant could relocate to another area away from his home areas of either Dili or [Island 1] is feasible.
101. The applicant has claimed that Timor Leste is a relatively small country. Country information indicates a total population of 1.4 million people[54] and whilst most of the country is geographically habitable some 70 percent of the population live in rural areas[55], 42 percent living below the poverty line[56] with a large percentage of the population engaged in agriculture[57]. The applicant has claimed that people can often be tracked down through kinship networks, meaning that the applicant would not be able to relocate to avoid the chance or risk of harm. It is particularly considered that the applicant’s father is now in prison as a [Crime 1] offender and this along with his militia affiliation means his family, namely the applicant are at greater risk of being subject to discussion, gossip, innuendo and ultimately social stigma, discrimination and harassment as an accumulation of these points. Meaning he and his family have been topic of discussion in recent times and the applicants return would be noted and further discussed with a level of hostility as he would return with accumulated savings for which he is seen as undeserving because of the circumstances regarding his father.
[54] Timor-Leste Population (2025) - Worldometer, Population of Timor Leste, accessed 07 July 2025.
[55] Timor-Leste | UNICEF Australia, How we are helping the children of Timor Leste, accessed 07 July 2025.
[56] Ibid.
[57] Timor-leste-Country-Fact-Sheet.pdf, Timor Leste at a glance, accessed 07 July 2025.
102. I have therefore also considered if the applicant could reasonably relocate to the capital city of Dili given it has a population of some 350,000 people even though his family are originally from the city. This is a point I have debated as anonymity in a city of this size is a reasonable presumption. I have discussed this with the applicant at hearing, reviewed extensive country information and have taken the applicants claims both individually and cumulatively into consideration. Given the ongoing historical grudges regarding militia members remaining unprosecuted and even reviled, the applicant’s father’s current imprisonment of [Crime 1] offences, his possible return to the country with wealth of his own, his family in Timor Leste’s reliance on him for financial support. His family have previously lived in Dili and are therefore known there and kinship networks transit family information rapidly on the ground such as if he were to return to Dili and be looking for work. I consider his relocation to Dili particularly not deemed safe from a real chance of harm.
103. I have also considered if the applicant could relocate to another area of Timor Leste completely away from Dili, [Island 1] or [Town 1] where his family are known. The applicant would then need to relocate to a rural area unknown to him or his family. He would need to obtain work to earn enough money to also support his mother and siblings along with accommodation and daily living expenses for himself. Relocating to a rural area would likely mean a reliance on agricultural informal work. Most Timorese living in rural areas rely on subsistence farming, working the land to grow and raise food for their daily needs and early little formal income from this pursuit[58]. Thus, leaving the applicant with limited ability to support himself and his mother and siblings. His mother and [Sibling A] subsist at present, on land given to his mother by her brother but rely on the applicant for anything further than daily food.
[58] Timor-Leste | UNICEF Australia, How we are helping the children of Timor Leste, accessed 07 July 2025.
104. After careful consideration and weighing all the options regarding relocation that maybe available to the applicant I have concluded there is a real chance the applicant will face harm if he were to relocate anywhere within Timor Leste for the numerous and varied reasons discussed in the above paragraphs.
105. I find that the real chance of serious harm relates to all areas of Timor Leste. The essential and significant reason for that harm is the applicants membership of a particular social group, ‘families of former members of the Aitarak militia involved in the 1999 independence conflict’.
Effective State protection
106. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
107. Country information indicates levels of discrimination and social stigma against former militia members and their families is prevalent and while the reconciliation processes have helped, some families still experience ostracism or distrust[59]. It is further noted that family grudges and communal conflicts persist in Timor-Leste, which are occasionally linked to past militia violence and political affiliations. Grudges between families can be longstanding and are not always based solely on political or militia involvement; they may also stem from land disputes, forced labour, or other local grievances.[60] Issues regarding the evasion of justice even by high-ranking militia leaders created a perception of impunity, which can indirectly affect families of militia members, as communities may direct frustration towards them instead of untouchable Indonesian figures.[61] In 2021, Guterres received a high Indonesian award, sparking outrage amongst human rights groups and civil society both in Indonesia and internationally.[62] Rights groups described the award as a ‘serious betrayal of humanity and morality’ and called for its revocation.[63] While country information do not specifically mention large-scale public outrage or official government statements from Timor-Leste itself, the condemnation from rights organisations and activists was widespread, and Timorese civil society was among those who criticised the decision.[64] It is inferred from the media articles footnoted that the recognition Guterres received may have exacerbate feelings of injustice for Timorese communities, potentially increasing scrutiny or hostility towards families of former militia members associated with such figures.[65]
[59] 'Collecting the bones: community healing in Timor-Leste', Lisa Palmer, Australian Strategic Policy Institute, 9 September 2021, 20250501091938.
[60] 'The Law and Its Limits: Land Grievances, Wicked Problems, and Transitional Justice in Timor-Leste', Bernardo Almeida, The International journal of Transitional Justice, 5 April 2021, 20250506131106; and 'Timor-Leste-State of Conflict and Violence', Asia Foundation, 2017, pp.12-13, 20250505143240
[61] 'Lundry, C. "'Revisiting Passabe: Lisan and Reconciliation in Timor-Leste’, Cultural Studies in the Asian Context, Vol. 12, No, 2, 2019, pp. 14, 20250502102842
[62] 'Militia leader’s honour slammed as insult to East Timor and Australia', Chris Barrett and Karuni Rompies, The Sydney Morning Herald, 16 August 2021, 'Militia leader’s honour slammed as insult to East Timor and Australia', Chris Barrett and Karuni Rompies, Sydney Morning Herald, The, 16 August 2021, 20250501100807; 'Outrage as Indonesia honors massacre-tainted militia leader', Katharina Reny Lestari, UCAnews (Union of Catholic Asia), 14 August 2021, 20250507112201; 'Rights Activists Slam Indonesian President for Awarding Medal to Timor Ex-Militia Leader', Ronna Nirmala, Benar News, 13 August 2021, 20250507112548; 'Former pro-Indonesia chief’s award irks rights groups', Phnom Penh Post, The, 15 August 2021, 20250507114050; and 'Rights groups urge Jokowi to revoke ‘betrayal’ medal for Timorese war criminal Eurico Guterres', Asia Pacific Report, 14 August 2021, 20250507112844
[63] 'Rights groups urge Jokowi to revoke ‘betrayal’ medal for Timorese war criminal Eurico Guterres', Asia Pacific Report, 14 August 2021, 20250507112844; 'Rights Activists Slam Indonesian President for Awarding Medal to Timor Ex-Militia Leader', Ronna Nirmala, Benar News, 13 August 2021, 20250507112548; and 'Outrage as Indonesia honors massacre-tainted militia leader', Katharina Reny Lestari, UCAnews (Union of Catholic Asia), 14 August 2021, 20250507112201; 'Former pro-Indonesia chief’s award irks rights groups', The Phnom Penh Post, 15 August 2021, 20250507114050
[64] 'Journalists honoured in Timor-Leste while activists slam award to former militia leader', CIVICUS Monitor, 17 November 2021, 20250507113743
[65] 'Militia leader’s honour slammed as insult to East Timor and Australia', Chris Barrett and Karuni Rompies, The Sydney Morning Herald, 16 August 2021, 'Militia leader’s honour slammed as insult to East Timor and Australia', Chris Barrett and Karuni Rompies, Sydney Morning Herald, The, 16 August 2021, 20250501100807; 'Outrage as Indonesia honors massacre-tainted militia leader', Katharina Reny Lestari, UCAnews (Union of Catholic Asia), 14 August 2021, 20250507112201; 'Rights Activists Slam Indonesian President for Awarding Medal to Timor Ex-Militia Leader', Ronna Nirmala, Benar News, 13 August 2021, 20250507112548; and 'Rights groups urge Jokowi to revoke ‘betrayal’ medal for Timorese war criminal Eurico Guterres', Asia Pacific Report, 14 August 2021, 20250507112844; and 'Former pro-Indonesia chief’s award irks rights groups', The Phnom Penh Post, 15 August 2021, 20250507114050
108. Considering this information which shows the fragile nature of the whole of Timor-Leste still 23 years on and the lack of punishment of high-ranking militia members with 75 percent of those indicted by the UN based Serious Crimes Unit, established in 2000 still at large with only 84 individuals every convicted[66] meaning the general sense among villagers as the applicant has claimed is that he and his family have not been punished for his father’s crimes and opportunities are taken to harass, threaten, intimidate and ostracise them. I am not satisfied that the applicant would be able to relocate as village culture is that of spreading this type of information to ensure the sentiment of shunning these families of militia is maintained and validated as it has not been achieved through formal means such as the UN based Serious Crimes Unit. I accept the concept of widespread village justice still prevails.
[66] 'Timor-Leste (East Timor)', Center for Justice and Accountability (CJA), 2009, 20250502134741
109. I am not satisfied that the applicant would have access to effective protection from harm. Country information indicates that the Timorese government and authorities have historically taken limited interest in involving themselves in matters of families of former militia members. They like other village and community members have been affected by the conflict and hold the grudges of this history[67].
[67] 'Lundry, C. "'Revisiting Passabe: Lisan and Reconciliation in Timor-Leste’, Cultural Studies in the Asian Context, Vol. 12, No, 2, 2019, pp. 14, 20250502102842
110. Having concluded that the applicant meets the refugee criterion in s 36(2)(a), the Tribunal has not considered the alternative criterion in s 36(2)(aa) of the Act.
CONCLUDING PARAGRAPHS
111. I am also satisfied that the applicant does not have a right to enter and reside in a third country and meets s 36(3) of the Act.
112. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
113. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing date: 28 April 2025 and 19 May 2025.
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.
…
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.
…
and 'Former Timor militias reject CTF report', Yemris Fointuna and Abdul Khalik , The Jakarta Post, 15 July 2008, 20250502085730
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