2313584 (Refugee)

[2023] AATA 4781

2313584 (Refugee) [2023] AATA 4781 (22 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2313584

COUNTRY OF REFERENCE:                   East Timor

MEMBER:James Silva

DATE:22 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 November 2023 at 2:40pm

CATCHWORDS
REFUGEE – protection visa – East Timor – debt to loan shark – fear of harm from creditors – unable to relocate – unable to obtain assistance – claims in protection application not applicant’s – wishes to remain in Australia for economic reasons – support of family as eldest child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a woman in [age range] from East Timor (Timor Leste), who claims to be a citizen of that country.

2. The applicant arrived in Australia [in] February 2023, as the holder of a Temporary Work (International Relations) visa (class GD subclass 403) visa. On 13 August 2023, she applied for a Protection (class XA) visa. On 1 September 2023, a delegate of the Minister for Home Affairs (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection.

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

12. An excerpt of the relevant law is at Attachment A.

    CLAIMS AND EVIDENCE

    Protection claims

13. In the protection visa application, the applicant claims to have borrowed a large sum of money in Timor Leste, and to have been unable to keep up with the exorbitant interest repayments. Her creditors threatened to harm or kill her. Her family and the authorities did not wish to become involved. She fears that, if she returns to Timor Leste, she will be unable to make the repayments, and her creditors will carry out their threats.

14. At hearing, the applicant stated that she was not aware of the contents of the protection visa application, and that they are not accurate. She wishes to remain in Australia for economic reasons, as she is unable to earn enough in Timor Leste to support her family.

    Background

15. The applicant is [an age] year old woman from [location], in Dili Municipality. She speaks Tetum, Portuguese, Indonesian and English, in order of preference, and identifies as a Timorese Catholic.

16. The protection visa application contains no details of school, employment or family composition. At hearing, the applicant said that she attended secondary school in Dili until [year], completing her higher school certificate equivalent. After that she worked [casually], earning about $115 per month.

17. The applicant said that her parents are alive, and she is the oldest of [a number of children]. The family has a small farm, planting crops such as cassava, corn and potatoes for subsistence, and to sell at the market so that they can buy other basics such as rice, cooking oil and chicken.

18. The applicant said that she is currently near Coffs Harbour, picking [fruit]. She has travelled around with some acquaintances, picking up casual work that pays about $500 per week. If there are funds left over after paying for her own accommodation and food, she sometimes sends money to her family in Timor Leste.

19. The applicant said that she came to Australia on a temporary work visa to help her family, particularly her younger [siblings]. Someone offered her the opportunity to stay longer, and she paid that person $100 to assist her. A [person] filled out the protection visa application form for her, via the telephone. They did not inform her what they had entered on the application form.

    Evidence

20. The evidence before the Tribunal includes the following relevant material:

    §  The protection visa application form, lodged on 13 August 2023. The applicant set out her protection claims in brief responses on the application form.

    §  Partial photocopy (biodata page only) of her Timor-Leste passport, issued [in] 2019.

    §  There was no protection visa interview in this matter.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 1 September 2023.

    §  Review application form lodged online on 3 September 2023.

21. The applicant appeared before the Tribunal on 20 November 2023, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tetum and English languages, who participated via video link. The applicant is unrepresented, and did not submit supporting documents.

    Receiving country

22. The applicant claims that she is a national of Timor Leste. She holds a Timor Leste passport, speaks Tetum and other languages used in that country, and she is familiar with the country. There is nothing to suggest she has any other nationality, The Tribunal accepts that she is a national of Timor Leste, and assesses her protection claims against that country.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Indebtedness

23. In her protection visa application, the applicant gave the following responses to questions about her need for protection:

    §  She borrowed a lot of money (540.00, units not stated), and had to repay 250.00 per week. She could not manage the repayments, as she did not have work.

    §  Her creditors threatened to kill her, and are continuing to look for her.

    §  She was unable to obtain help. This is in part because of the size of the debt, and the documents she signed relating to it. The police and local politicians do not want to become involved. Family members also do not want to become involved.

    §  Relocation is not possible, as the applicant does not have family in other parts of the country, and it is a small country in which her creditors can easily find her.

    §  If she returns to East Timor, she will be unable to repay the escalating debt, and that her creditors will harm or mistreat her.

24. As noted above, the applicant told the Tribunal that a person filled out the form on her behalf, and she does not know what they wrote. She did not recognise these claims when the Tribunal referred to them; she said that they do not reflect the truth.

25. The Tribunal accepts the applicant’s account that she paid a person to complete the application form, hoping that it would extend her stay in Australia and with little or no understanding of what she was applying for. It finds that the protection claims set out on the form are not true. In the circumstances, it draws no adverse inferences about her credibility.

    Economic hardship

26. The applicant said that it is difficult to find employment and a regular income in Timor Leste. She wants to have a more secure future for herself, and, as the oldest child, also provided for her parents and younger [siblings]. The applicant confirmed that she does not fear other harm, for any other reasons, in Timor Leste.

27. The Tribunal found the applicant’s concerns credible, and consistent with general country information. Reports indicate that a majority of households in Timor Leste are in the informal sector, and over 20 percent of the population is below the poverty line.[1]

    [1] Seem for instance: United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021; and Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste',  23 February 2022, p.21.

    ASSESSMENT: REFUGEE CRITERION

28. In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal assesses this in light of the above findings of fact and having regard to other relevant factors such as the applicant’s future conduct and country information.

29. The Tribunal accepts that the applicant is concerned about her future employment and economic prospects if she returns to Timor Leste, and the impact of this on her family. These reflect general economic conditions in that country. They do not, in the Tribunal’s view, involve serious harm to the person (s.5J(4)(b)); or systematic and discriminatory conduct (s.5J(4)(c)); or for one or more of the reasons mentioned in s.5J(1)(a). They therefore do not involve persecution, and do not give rise to Australia’s protection obligations.

30. In light of all the above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if she returns to Timor Leste.

31. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

32. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Timor Leste.

33. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

34. In the present case, the applicant claims to fear economic hardship if she is removed to Timor Leste, by way of diminished employment and income prospects compared to Australia.

35. The applicant has not claimed, and there is no suggestion, that she will be subject to the death penalty, the arbitrary loss of life, or torture. In relation to the other forms of significant harm, the Tribunal notes:

    §  The definition of ‘cruel or inhuman treatment or punishment’ states that it means an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

    §  Similarly, degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

36. The Tribunal accepts, on the basis of the applicant’s evidence and country information, that she will suffer economic hardship if she is removed to Timor Leste. However, this is the result of general economic conditions in that country. It is not the result of any conduct intended to inflict severe pain or suffering, or extreme humiliation, on her. As such, the Tribunal finds that, while the applicant’s fears of economic detriment are genuine and well-founded, they do not entail significant harm as defined in s.36(2A).

37. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor Leste, there is a real risk that he will suffer significant harm, as required by s.36(2)(aa).

    CONCLUSION

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

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

40. 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

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

    James Silva
    Member

    ATTACHMENT A

    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.

    …