2302369 (Refugee)
[2025] ARTA 1398
•7 March 2025
2302369 (REFUGEE) [2025] ARTA 1398 (7 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2302369
Tribunal:General Member T H R Baggiano
Date:7 March 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 07 March 2025 at 8:59am
CATCHWORDS
REFUGEE – Protection Visa – East Timor – race – Timorese – religion – Catholic – better earnings and the better economic situation – debt – economic disadvantage might not amount to persecution – not satisfied that the applicant faces a real risk of serious or significant harm – delay in applying for protection in Australia – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 46, 65, 91, 499
Migration Regulations 1994, Schedule 2
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 on 20 February 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of East Timor, applied for the visa on 27 January 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.
The applicant appeared before the Tribunal on 27 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and receiving country
The applicant claims to be a [age]-year-old national of East Timor.
The applicant has claimed his place of birth as [City 1], his ethnicity as Timorese and his religion as Catholic.
The applicant arrived in Australia on a Temporary [visa] on [date] November 2019. Whilst in Australia, the applicant applied for two separate [visas], as a result of the COVID-19 pandemic, which were subsequently granted on 11 May 2020 and 10 July 2021 respectively. Prior to the expiry of the applicant’s second [visa], a protection visa application was lodged.
Evidence before the Department
In his protection visa application, the applicant claimed that he took the opportunity to work in Australia [but] after almost eight months, he found that he still had unfinished debt in East Timor. He had borrowed money from ‘rich people’ and because the interest rate charged exceeded 35 per cent, he has yet to finish paying the debt. He claimed that his outstanding debt amounted to USD $13,000. He stated that he must pay this debt, otherwise, ‘they’ will claim a debt from his parents’ family who are poor.
In summary, the applicant stated the following in relation to his experience in East Timor:
a.‘They’ sent a note to the applicants’ parents’ house asking the applicant to pay the loan. They also threatened to seize any property from the applicants’ parents;
b.The applicant did not seek help within East Timor as he was already in Australia and no one could help him;
c.The applicant did not try to move to another part of East Timor to seek safety as ‘it is not solve the issue’ [sic];
In summary, the applicant stated the following in relation to what he thinks will happen to him if he returns to East Timor:
a.His parents could victims in relation to the loan. They will be threatened even more;
b.The applicant will be beaten and probably killed if he cannot pay the loan;
c.The applicant and his parents, who are farmers, are poor and they are always oppressed by the rich;
d.The police did not help;
e.He does not think that he could relocate within East Timor to avoid harm as it will ‘not solve the issue as I need to pay it back’.
The applicant was not invited to an interview by the delegate.
Evidence before the Tribunal
Applicant’s oral evidence at hearing
Preparation of protection visa application
The applicant stated that he prepared his own protection visa application and that he did not receive assistance from anyone else. He said that his English language ability was sufficient to prepare the responses to the questions in English. He also stated that his claims are true, complete and correct.
Personal and family background
The applicant was born in [City 1], Lautem.
In East Timor, he lived with his parents, older brother and younger sister. His brother went to work in [a country] but while he was abroad, he discovered that he had blood clotting in his head. Upon return to East Timor, his brother passed away.
The applicant’s father is [Occupation 1] and his mother is a stay-at-home mother. His younger sister is currently attending university.
The applicant financially supports his parents and sister. He keeps in contact with his family every day after work.
Education and employment history
In relation to his education, the applicant stated that he finished high school.
In relation to his employment history in East Timor, the applicant was self-employed for a couple of years while he was still in school. He used to [do specified work].
When the applicant arrived in Australia on his [visa], he undertook seasonal work on a farm. When the applicant transitioned to his subsequent [visas], with the help of his employer, he continued to work on the farm and remains employed to this day.
The applicant earns approximately AUD $4,000 per month in Australia and sends approximately AUD $800 per month to his family.
Reasons for leaving East Timor
Asked why the applicant left East Timor, he stated that he came to Australia to support his parents and sister, specifically with her education. He said that in East Timor, there is no employment. If a person wanted to be employed, they would need to be well connected with government. If there is any employment, the salary is low with the average monthly wage being USD $135. This amount is not enough to support his family.
Asked whether the applicant’s main reason for moving to Australia was for better earnings and the better economic situation, he answered in the affirmative.
I asked the applicant whether he experienced any harm in East Timor. He answered in the negative and stated that the only harm he has is the money he borrowed from people. He explained that he took out a loan when his brother went overseas for work and another after his brother became unwell and subsequently passed away.
Asked whether there were two loans in total, the applicant stated there was one loan but he accessed the money In two stages. The loan was taken out in 2019 for the amount of USD $100,000 for the purpose of funding his brother’s medical treatment and his subsequent funeral and wake.
I noted that in the applicant’s protection visa application, he referenced only a debt amount of USD $13,000. I asked whether this amount was the amount owing at the time he submitted his protection visa application in 2022. The applicant confirmed that this was correct. He had paid down the loan to USD $13,000 in 2022. At the date of hearing, the applicant stated that he still owes around USD $7,500.
The applicant had borrowed this money from his paternal aunt. He stated that only when he has extra money, he pays down the loan.
The loan was borrowed only in his name but was used for his family. There was no written agreement as the loan was made between family members. There was no defined period of time for payment of the loan, nor were any provisions made for late payment or non-payment of the loan. In terms of interest rate, his aunt stated that she is flexible and because they are family, she let the applicant decide what rate interest to pay. The applicant stated that he elected to pay USD $5,000 as interest, in addition to the principal amount owing.
I discussed with the applicant that USD $5,000 forms only five per cent of the total loan amount of USD $100,000 but that in his protection visa application, he claimed that the interest rate exceeded 35 per cent. The applicant explained that the 35 per cent interest rate was correct but because he had been paying the loan for quite some time and because he is related to his aunt, she said that he could decided what rate of interest to continue paying. The applicant could not recall when he stopped paying the high interest rate.
As agreed between the applicant’s aunt and mother, the collateral for the loan was the applicant’s parents’ property which he estimates to be worth USD $80,000.
Asked what the applicant’s aunt did for a living and how she had access to such funds, the applicant explained that his aunt is a professor and her husband is working [overseas].
I drew the applicant’s attention to the statement in his protection visa application that the person who loaned him the money ‘sent a note’ to his parents’ house asking for payment of the loan and that they also ‘threatened to size’ his parents’ property. The applicant confirmed that when he came to Australia, his aunt stated that because she knows that he was working in Australia and because they are family, he should just continue to pay down the debt.
I asked the applicant why he used the word ‘threatened’ in his claim when his oral evidence seems to indicate that his aunt was not threatening him but just encouraging him to continue paying the debt. The applicant explained that at the time of preparing his protection visa application, his aunt and her family had mentioned the 35 per cent interest. At that time, they really needed money so they kept pushing him to pay and it became like a threat to him. His aunt’s husband also spoke to him and urged him to work in Australia to make sure he paid off the debt. The 35 per cent interest applied for a short time.
I stated that it appears that initially when the loan was taken out, his aunt and her family were under some financial pressure so they wanted the applicant to pay down the loan quickly but after he came to Australia and paid off a substantial amount of the loan, the threat and pressure was no longer there. The applicant confirmed my understanding of his account.
Asked if the applicant recalls when his aunt and uncle put this pressure on him and sent the alleged note to his parents’ house. The applicant replied and said that they did not send a note, they just pushed him verbally in around 2020. I asked the applicant why he used the words ‘sent a note’ in his protection visa application if there was only a conversation between him and his aunt and uncle. The applicant explained that this was due to his English language issues, and at that time, he had so much pressure to take care of the debt.
Now that the applicant has paid off a substantial amount of the loan, I asked whether there is any anger, animosity or pressure from his aunt. The applicant stated that there is less pressure compared to before but sometimes she still mentions the date and it shows on her face as well.
The applicant then started talking about his paternal uncle and that uncle’s wife. He stated that they both passed away within months of each other which resulted in their three children living with the applicant’s family. The applicant stated that his paternal uncle’s wife was pregnant but due to complications, she had the choice of saving herself or her baby and ultimately chose to save her baby. The applicant’s paternal uncle allegedly passed away due to ‘voodoo by someone’. Due to these incidents, this was why the applicant was unable to pay back the debt. The children are now around [age], [age] and [age] years of age. The paternal uncle and his wife did not leave any financial provisions or assets for the applicant’s family to support their three children financially. The applicant explained that as per the culture in East Timor, before a family member passes, they can ask one of their remaining family to take care of their children for them. His paternal uncle requested for the applicant’s father to care for his three children. The applicant stated that he financially supports the studies of the three children of his paternal uncle.
I asked the applicant why he did not mention the passing of his paternal uncle and his wife and that this resulted in the applicant’s family having to care for these children financially. He responded by saying that in addition to the pressure from his paternal aunt and her husband, even his siblings were pressuring him to pay off the debt. He said that the debt was the only thing on his mind, which is why he only wrote about that and not about the extended family members that came to live with his family.
Asked whether his paternal aunt and her family would ever harm him for the USD $7,500 that is outstanding, the applicant stated that they do not talk much with his parents anymore but did ask that each repayment needed to be over USD $1,000. He anticipates that it would take him two to three months before he can send this amount.
Asked what he thinks would happen to him if he were to return to East Timor, the applicant stated that it would be a lot of pressure for him as the wages in East Timor are only USD $135 per month. He said that it is because of this reason that he needs to remain in Australia to work and pay off the debt.
I read out the applicant’s statement in his protection visa where he said his parents could be a victim to this loan and that they will be threatened even more. He also stated in his application that he will be beaten and probably killed if he cannot pay the loan. He also stated that he and his parents who were farmers were poor and always oppressed by the rich and that the police did not help. I asked the applicant whether he had a genuine fear of those things that he wrote about as they appear to be different to the oral evidence he has given at hearing. The applicant stated that he does fear for his life if he were to return to East Timor as people kill each other over money.
Asked whether he thinks his aunt and her husband will kill him over a debt of USD $7,500 even though they are his blood relatives and even though they know that the applicant’s family is caring for an additional three children, the applicant stated that his aunt does not talk to him or his family anymore, and when people do not talk to each other, it means they are thinking of harming each other.
I stated that it is an unusual conclusion to jump to especially as the applicant had previously said that his aunt stated that he had made good progress on repayment of the loan and that he does not need to pay the higher interest rate. The applicant explained that in East Timor, even brothers and sisters can become enemies with each other. He stated again that he does not talk to his aunt and her family anymore.
I asked the applicant when he last spoke to his aunt and he said that this would have been in 2023, after which time they changed their number. On the rare occasions that they do communicate with the applicant, they show an ‘angry face’ and no longer speak to the applicant’s siblings. They simply asked for the repayment amount to be USD $1,000 or more.
The applicant thinks that he would need another three to four years to repay the remaining USD $7,500.
I drew the applicant’s attention back to his protection visa claim where he stated that his parents were poor and that they were farmers. I asked the applicant why he had said at the beginning of the hearing that his father is a [Occupation 1] who is still employed and his mother is a stay-at-home wife. The applicant explained that when his father finishes teaching, he comes home to work on the farm, and this included the applicant’s siblings. The farm is part of his parents’ property where they grow banana, corn, cassava and sweet potatoes to sell.
Asked what the applicant meant when he stated that the ‘police did not help’ in his protection visa application, he explained that when his aunt confronted his family about the debt and became angry at the applicant’s mother, they called the police. When the police arrived, the families had spoken amongst themselves and ‘everything was okay’ after that. This occurred in around 2021 when the applicant was in Australia.
Asked whether the applicant thinks the authorities, including police, could protect him in East Timor if he is threatened or harmed, he confirmed that they could.
Asked whether the applicant could relocate to another part of East Timor to avoid harm, the applicant stated that as his parents have land in his province, that is where he will live.
In summary, I stated that the applicant took out this loan with his aunt in around June or July 2019 and then came to Australia on 6 November 2019 and subsequently lodged his protection visa on 27 January 2022. In 2022, the applicant had stated that he owed only USD $13,000 out of the USD $100,000 loan amount. I asked the applicant to explain how he managed to pay off such a significant amount of the loan from 2019 to 2022. The applicant explained that as his father is a [Occupation 1], his father took out a micro loan from the government which helped pay down the debt to the applicant’s aunt. The applicant could not recall the amount borrowed. When I asked the applicant if he could contact his father to obtain documentary evidence of the micro loan, he committed to doing so. I explained that the evidence should show his father’s name, loan amount and who his father is paying the money back to.
I also asked the applicant how he repays his loan to his aunt and whether he transfers payment to her directly. He stated that he transfers the payments to his own family and they provide his aunt with the cash payment. I asked the applicant if he could provide sample evidence of these payments, and he also committed to doing so. He explained that sometimes he transfers funds by [financial institutes] or through the post office. After his passport expired, he also enlisted the help of a friend who he would transfer funds to and the friend would transfer the funds on to the applicant’s family. I asked the applicant that if he is unable to provide the requested evidence within the specified time, that he still write to the Tribunal to explain why.
Issues put to the applicant
I put to the applicant that while I have the utmost sympathy for him in terms of the financial pressure that he is under and his obligation to support his family, general economic conditions in East Timor which may result in economic disadvantage night not amount to persecution and is an issue that applies to the broader East Timorese population. I explained that persecution must involve serious harm against a person for reason of their race, religion, nationality, membership of a particular social group or political opinion. Personal debts, cost of living pressures, economic insecurity and insufficient income to support family might not appear to be directed at the applicant for one of more of the five reasons. When invited to comment on this issue, the applicant did not provide any comments.
I put to the applicant that while his aunt and her family are not speaking much to the applicant or his family and that there is some anger over the debt owed, I find that her more relaxed approach of not enforcing the high interest rate and telling the applicant that because he is family that he can just pay back the debt when he has money indicates that there is not a high level of anger or animosity that would justify her harming or killing the applicant. As the amount owing is now USD $7,500 and because the applicant’s family home is worth USD $80,000, I might find that it is more likely that his aunt goes for his family’s assets rather than harming the applicant. The applicant responded by saying that even though the amount owing is ‘just a little bit’, the aunt is still showing an ‘unhappy face’ towards his parents.
I discussed with the applicant that he provided vague details and very little information about his claims or fear of returning to East Timor when he lodged his protection visa application. There was no mention of the initial loan amount of USD $100,000, nor who exactly he owed money to. I explained that the applicant had the opportunity to provide further details, information and supporting evidence about his claim on the following dates:
a.27 January 2022 when the Department acknowledged his protection visa application;
b.31 January 2022 when the Department issued the applicant with a notification of having lodged a valid protection visa;
c.21 February 2023 when the applicant submitted his review application to the Tribunal;
d.23 February 2023 when the Tribunal acknowledged the applicant’s review application;
e.4 December 2024 when the Tribunal asked the applicant to complete a pre-hearing information form; and
f.16 January 2025 when the Tribunal invited the applicant to a hearing.
Despite the above opportunities, it appears that the applicant failed to provide further particulars and information in support of his claims from the very beginning when he lodged his protection visa up until the commencement of the Tribunal hearing. This lack of detail and information, and his lack of response, might go to the credibility of his claims in part or as a whole because it might not show a genuine fear of returning to East Timor. In response, the applicant stated that he did not think about providing more information as they had already stopped pressuring him. While he did not provide the new information despite being given the opportunity to do so, he is now talking about this information at hearing. He stated that he fears going back he has a relatively big amount of debt to pay.
I explained to the applicant that he arrived in Australia on a [visa] in November 2019 and then applied for two [visas] which were both granted and allowed him to work and remain in Australia up until 2022. Notably, all of these visas are work visas. The applicant did not apply for a protection visa until 27 January 2022, some two years and three months after he first arrived in Australia, and as the applicant mentioned at hearing, the pressure from his aunt was greater at the beginning of the loan period. I stated that this significant delay in applying for a protection given his claims of harm and not applying at the earliest opportunity might go towards the genuineness or credibility of his claims in part or as a whole and might indicate that he applied for the protection visa simply to prolong his stay in Australia and continue working. I also explained that the delay and his visa history might indicate that he applied for a protection visa to stay in Australia for work purposes and to earn money and not because of any refugee or complementary protection reasons with respect to fearing harm if he returns to East Timor. The applicant stated that at the time, he was working but thinking that he did not have money to pay the loan. He was worried that if he did not have the money, they could call the police for the debt which was USD $13,000 at the time. His aunt and her family kept pushing him in 2022. The reason why he applied for the protection visa was because of money pressures and the debt.
The applicant stated that he wishes to work in Australia to pay off his debt and save enough money to start a small business in East Timor.
Post-hearing evidence
The applicant provided the following information after the hearing:
a.Copy of a receipt issued in English, showing the date of 24 November 2024. The receipt confirms that funds have been received from the applicant’s sister. The amount referenced is USD $2,600 and was provided as payment towards the loan of Mr A (the applicant’s father). The receipt confirms that the balance of the loan is now USD $13,000 and contains a signature of an unknown person. The receipt also contains various spelling areas, such as “sump” in instead of “sum” and the words “Authorised Sign” instead of “Authorised Signature”.
Although requested during hearing, the applicant did not provide any evidence of transfers of payment towards his debt to his aunt. He did not provide any reasons for not providing this evidence, as requested by the Tribunal.
REASONS AND FINDINGS
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.[1] 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.[2]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43-44.
[2] Randhawa v MILGEA (1994) 52 FCT 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
As discussed with the applicant, his claims as set out in the protection visa application were brief and lacking in key details, including the original loan amount and who the money was owed to. The applicant explained that due to the financial pressure he was under in 2022, he was focused only on writing about his debt but did not provide finer details about the debt nor details about his paternal uncle’s children whom he is also supporting financially. Taking into consideration the applicant’s circumstances, including his education level (completion of high school) and limited English language abilities, I accept the applicant’s reasons for not providing a more detailed account of his claims.
I also discussed with the applicant his original written claim that should he return to East Timor, he will be beaten and probably killed if he cannot pay the debt. At hearing, the applicant stated that while his aunt initially imposed an interest rate which exceeded 35 per cent, she subsequently stated that she would take a flexible approach and let him decide how much interest he would pay for the balance of the loan (USD $13,000 owing at time of lodgement of protection visa application) and that he should just keep repaying the loan when he has the funds to do so. In addition, the applicant stated that the aunt did not impose a deadline for the loan, nor did she impose any conditions for late or non-repayment as the loan was between family members. In contrast, I find the aunt’s flexible approach to be at odds with the applicant’s claim that he would be beaten or killed for non-payment of debt. As such, I do not accept the applicant’s reasons for the contradiction between his written and oral evidence and do not find his claim of being beaten or killed upon return to East Timor to be credible.
I also put to the applicant that his visa history of having applied for three temporary work visas and the delay in applying for the protection visa (two years and three months after initial entry) could go to the credibility of his claims in part or as a whole. The applicant explained that he did not apply for the protection visa until January 2022 as this was around the time his aunt and her family were pressuring him to pay back the debt. As per the preceding paragraph, I do not accept this explanation as the applicant had advised at hearing that his aunt had not imposed a time limit for the loan and had revoked her initial 35 per cent interest rate, substituting it with a rate that was decided upon by the applicant as the applicant had made good progress with loan repayment. As of 2022, the applicant had allegedly already paid 87 per cent of the loan. As such, I do not accept that the applicant’s claim that he lodged his protection visa in 2022 as this is when his aunt’s alleged pressure on him had increased.
Although the applicant provided a copy of a receipt showing payment of USD $2,600 towards his father’s micro loan, it does not specify the original loan amount nor to whom his father is paying the loan to. As discussed with the applicant multiple times during hearing, I asked him to obtain evidence of his father’s loan which shows his father’s name, loan amount and who his father owes money to. Further, I have concerns about the authenticity of the receipt as it contains various spelling and grammatical errors as mentioned in paragraph 63. As such, I cannot give any weight to this receipt. Further, even if the applicant’s father had taken out a loan, which I do not accept based on the evidence provided, the loan amount would have needed to have been significant enough to aid the applicant in paying down 92.5 per cent of his debt as of today’s date. As the applicant mentioned during hearing, his father is working as a [Occupation 1] in East Timor and wages are much lower than those in Australia. According to the applicant’s timeline, he took out the USD $100,000 loan from his aunt in 2019 and by the time he lodged his protection visa application in 2022, he had USD $13,000 of the debt remaining, meaning that he had already paid USD $87,000. As of the date of the Tribunal hearing in 2025, the applicant claimed that he had only USD $7,500 in debt remaining. This means that the applicant took around three years to pay USD $5,500 from his debt between 2022 and 2025. During hearing, I had also asked the applicant to provide a sample of receipts showing transfer of funds back to his family so that they could deliver payment to his aunt to service his debt. However, no receipts were provided. At this claimed rate of repayment on an Australian wage from 2019, on his father’s East Timorese salary as a [Occupation 1] and with the alleged micro loan taken out by his father for an unknown amount, I do not accept the claim that the applicant borrowed a sum of USD $100,000 and has successfully paid back around 92.5 per cent of this amount since 2019.
Considering the above, I do not accept the following claims as credible:
a.The applicant borrowed the specific amount of USD $100,000 from his aunt;
b.The applicant decided to pay his aunt a total of USD $5,000 in interest, being five per cent of USD $100,000;
c.The applicant’s father took out a micro loan that was substantial enough to have helped the applicant to pay off 92.5 per cent of his USD $100,000 debt to the applicant’s aunt;
d.The applicant’s protection application was lodged in 2022 because of increasing pressure from his aunt;
e.The applicant fears that because he has yet to repay his debt, he will be beaten or killed.
I accept the following claims as credible:
a.The applicant provides financial support to his parents, siblings and cousins;
b.The applicant took out a loan from his aunt for an unknown amount that was less than USD 100,000 in 2019;
c.Due to the satisfactory rate of repayment, the applicant’s aunt removed the 35 per cent interest rate and allowed the applicant to decide what level of interest he wanted to pay;
d.The applicant’s aunt did not impose a due date nor any penalties for late or non-payment of debt due to the fact that she was lending money to a family member;
e.The applicant’s father borrowed an unknown amount of money through a micro loan and from an unknown lender to contribute to paying the debt to the applicant’s aunt.
I cannot make a finding on the exact amount that the applicant borrowed as no corroborating evidence was provided.
Refugee criterion assessment
In making this decision, I have had regard to country information relevant to East Timor.
According to a United Nations socio-economic impact assessment on East Timor in 2021, 46 per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.[3] The majority of households are in the informal sector, with only about 23 per cent of the working-age population in the case economy.[4] Household vulnerability is increased by the dependence of nearly 70 per cent of citizens on climate-sensitive livelihoods and agricultural production, in a country which experiences frequent floods, droughts, storms, landslides and is impacted by sea-level rises and higher temperatures as a result of both natural climate variability and climate change.[5]
[3] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[4] Bertelsmann Stiftung, ‘[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste’, 23 February 2022.
[5] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p 31.
There is a low labour market participation in East Timor, with only 45.2 per cent of the working-age population employed in the market economy as at March 2021.[6] The United Nations report explains that this does not include those engaged in subsistence agriculture, which would raise the figure to 61.1 per cent. Most of those engaged in the market economy (86.3% are self-employed or contributing family workers, and many (over 70 per cent) are engaged in production and sale of agricultural products. Many jobs are characterised by informal work arrangements, insecure employment, unstable and inadequate earnings and low productivity. The overall unemployment rate is 11.9 per cent but this rises to 22.1 per cent for young people aged 25 to 29 years, likely related to higher levels of job losses among this group as a result of COVID-19.[7]
[6] Ibid.
[7] Ibid, page 8-10.
Country information also states that the minimum monthly wage in East Timor is set at USD $115.[8] East Timor’s monthly minimum wage has not been reviewed since its approval by the National Working Committee of the Secretary of State for Vocational Training and Employment since May 2012. Many workers in East Timor have complained that the set current minimum wage is too low and has little effect in protecting workers and their families against unduly low pay or poverty. President José Ramos Horta has recently urged the Government to increase the national minimum wage from USD $115 to USD $150.[9] In comparison, Australia’s national monthly minimum wage was set at AUD $915.90 from 1 July 2024.[10]
[8] ‘National Working Committee approves minimum wage for the private sector’, Government of Timor-Leste, 28 May 2012, < Accessed on 13 February 2025.
[9] ‘President Horta calls for minimum wage increase in Timor-Leste’, Tatoli Agencia Noticiosa de Timor-Leste, 21 June 2024, < Accessed on 13 February 2025.
[10] ‘Minimum Wages’ fact sheet, Fair Work Ombudsman, < Accessed on 13 February 2025.
While I acknowledge and am sympathetic to the pressure the applicant has to provide financially for his parents, siblings and cousins and to pay down his debt to his aunt, as well as the economic situation in East Timor which would result in the applicant’s earnings being significantly lower than what he is earning in Australia, I must determine whether the socio-economic harm the applicant fears is for any of the reasons set out in s 5J(1)(a) of the Act, namely race, religion, nationality, membership of a particular social group or political opinion. In the case of Applicant A v MIEA,[11] the court recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group due to their race, religion, nationality, political opinion or membership of a particular social group. As raised with the applicant during hearing, the economic conditions and lack of employment opportunities throughout East Timor apply to the broader East Timorese population. As such, I find that the harm feared by the applicant is not for any of the reasons set out in s 5J(1)(a).
[11] (1997) 190 CLR 225 at 258
In relation to the applicant’s claims of being beaten or killed by his aunt and her family for the outstanding debt of USD $7,500, I do not find this claim to be credible due to the applicant’s oral evidence that his aunt had revoked the 35 per cent interest rate, allowed him to determine the applicable interest rate, asked him to pay off the debt whenever he had the funds and did not impose a due date for the loan nor any penalties for late or non-repayment. While I acknowledge that there may be some impatience or frustration from the aunt’s side in relation to the debt owing, her willingness to impose flexible terms for the loan is not reflective of a person who wishes to beat or kill the applicant. Even though the applicant stated that the aunt did not provide any penalties for late or non-repayment of loan, the applicant stated in his written claims that his parents were threatened with the seizure of their property. While the applicant’s aunt may be entitled to take legal action in an attempt to seize assets from the applicant or his parents to recoup the debt, this is a normal course of action for any lender and such action does not amount to serious harm. As such, I do not accept that the applicant faces a real risk of serious harm, in the reasonably foreseeable future, by way of being beaten or killed by his aunt or her family for the outstanding debt.
I find that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
Under the complementary protection criterion, I will need to consider whether the applicant has a real risk of suffering significant harm upon return to East Timor.
Based on the applicant’s evidence at hearing, I find that he will not suffer significant harm by way of being arbitrarily deprived of his life, have the death penalty carried out on him, be subjected to torture, be subjected to cruel or inhuman treatment or punishment or be subjected to degrading treatment or punishment as per s 36(2A) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[12] I have not accepted, for reasons set out above, that the applicant will suffer serious harm at the hands of his aunt or her family due to the outstanding debt.
[12] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The harm that the applicant fears in relation to the economic conditions in East Timor and the inability to secure a well-paying job to support his family or service personal debts do not constitute significant harm as conditions resulting from general economic and social conditions apply to the broader population and would not amount to the types of harm set out in s 36(2A) of the Act.
I do not consider the applicant is a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
T H R Baggiano
General Member
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.
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