2313700 (Refugee)

[2023] AATA 4702

2313700 (Refugee) [2023] AATA 4702 (2 November 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2313700

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Genevieve Hamilton

DATE OF DECISION:  2 November 2023

DATE CORRIGENDUM

SIGNED:15 November 2023

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Paragraph 35 of the decision record – the sentence states ‘on return to Malaysia […].’ This is to be replaced with ‘on return to East Timor […].’

Genevieve Hamilton
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2313700

COUNTRY OF REFERENCE:                   East Timor

MEMBER:  Genevieve Hamilton

DATE:  2 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2023 at 4:01pm

CATCHWORDS
REFUGEE – protection visa – East Timor –business owner – borrowed money from creditor – unable to by debt – claimed threats of harm were made from the creditor – denied protection by police – inconsistent evidence – credibility issues – not satisfied that the applicant faces a real risk of significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505

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 dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 15 August 2023. The delegate refused to grant the visa on 4 September 2023.

1. The applicant appeared before the Tribunal on 30 October 2023 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 A PROTECTION VISA

1. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

1. The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.

1. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

Refugee

1. Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).

1. 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.

1. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

2. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

1. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their

   behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications

that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).

1. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

Complementary Protection

1. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

1. Under s 36(2B) Australia does not have complementary protection obligations where:

·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

·the risk is one faced by the population of the country generally and not by the applicant personally.

Mandatory considerations

1. 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.

CLAIMS AND EVIDENCE

1. In his protection visa application the applicant said he was born in [year] in Timor-Leste and is a citizen of and travels on a passport of that country. He is ethnically Timorese. He said he was never married and was not in contact with relatives outside Australia and had no partner, parents, siblings or children. He arrived in Australia in February 2023.

1. The applicant said he chose not to go back to East Timor because he had been threatened with being killed, because he borrowed a lot of money ($540) and every week he had to pay

   $250 in interest, and he could not pay it if he went back to East Timor because he would have no work, and they were looking for him. They would torture him daily as the interest and capital would keep increasing. No one would help him settle his debt. He had signed documents, and even the police and politicians would avoid getting involved in this case. He did not have relatives anywhere else in his country, and the people he owed could find him anywhere, and even his relatives were avoiding him. Even if he could pay part of the interest while working in Australia the debt would increase.

1. At the hearing the applicant said he has parents, [older] siblings and a wife and children. The Tribunal asked his application included no family members. The applicant said his friend made the application for him, he just told him the reasons. The applicant confirmed that he was in contact with his family. Asked why the application said that he was not in contact with his family the applicant said he wasn’t at first. The Tribunal noted that the application had been made about six months after he came to Australia and presumably he was in contact with family by then. The applicant did not respond.

1. The applicant said his father and brother [Job 1] on rented farmland. They own a house in his home town. He also owns a house there. After finishing school he also became a [Job 1] initially working with his father.

1. The applicant decided to start a business purchasing [goods]to sell in the local supermarkets but the price dropped. He started it in 2021. He thought this would improve their lives. He had no experience with this business. He borrowed money from a person in his home town who he heard was lending money to people (name of [Mr A]). He did not know him before. The Tribunal asked what this person’s reputation was like. The applicant said he did not know. The Tribunal asked if he made enquiries about that. The applicant said he just went along with his friends’ advice. He didn’t consult his father or brother. He did not know the last name of the person he borrowed from. He did not have any documentation of the transaction. The Tribunal to the applicant that in his application he had said that he signed documents. The applicant said he did not. Then he said that he said signed something that said what date he would pay the money back. He said that he did not keep a copy and there were no records of any transactions. He did not pay any of the money back.

1. After that he was threatened continually with being killed. [Mr A] said he would use “his organisation” against him. Asked what he meant by this the applicant referred to a [group]. The Tribunal asked if there were any records at all of him being threatened. It was over the phone but he had no recordings. He told his friends about it, they said he should be careful. The last time he was threatened was in October 2022. He went to the police but they did not prepare a case. He had no record at all of his visit to the police. The applicant claimed the police can also be friends with the organisation. Asked what he told the police the applicant said he told them he had borrowed money and could not pay it back. Then he said that he told them he had been threatened. Asked if he had heard from [Mr A] since coming to Australia the applicant said he hadn’t. The Tribunal put to the applicant that in his application he had said they were still looking for him. The applicant said they might be in East Timor but he had not heard anything. The Tribunal put to the applicant that he was contradicting his written application which might raise a doubt about the credibility of his claims. The applicant maintained that he was telling the truth.

1. The Tribunal asked the applicant about the terms of the loan. The applicant said the interest was 30%. The Tribunal asked the applicant what the period of the loan was and over what period the interest accrued. The applicant did not understand the nature of the question. The Tribunal said if the applicant had a loan there would be agreed details about when he had to make repayments and pay it all back and whether the interest was added on at the end of the loan or periodically. The applicant said he had to pay back monthly. The Tribunal asked the applicant how much he had to pay per month. Asked how much he had to pay, the applicant said it was $250 per month.

1. The Tribunal asked the applicant whether he expected to get a better price for the vegetables. The applicant said he did not think about it. The Tribunal put to the applicant that he might have made some calculations about the cost of buying the goods and the cost of selling them, and the likely profit, given that he had a substantial loan to service. The

applicant reiterated that he did not consider this. The Tribunal put to the applicant that it had doubts about the credibility of this account.

1. About his delay in making an application until about 6 months after arrival, the applicant said he was hoping for another pathway. The Tribunal put to the applicant that it would think that if he had a genuine fear of being harmed he might make an application sooner.

1. The applicant did not make any other protection claims. He said he wanted to continue working in Australia.

FINDINGS AND REASONS

1. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Timor-Leste.

1. The applicant did not claim to fear harm because of his race, religion or nationality, membership of a particular social group or political opinion. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm as defined in ss 5J(4) and (5) for any of the reasons specified in s 5J(1). The applicant therefore does not have a well- founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).

1. With regard to complementary protection, the applicant’s credibility was in question because of the false information in his application regarding his family and whether he was in contact. His explanation for this (that the information was put in by another person) suggested a casual attitude to the truth. The applicant’s claim at hearing that he was not immediately in contact with family was belied by the fact that he had been in Australia for about six months when he made his application.

1. The Tribunal does not accept that the applicant established a business selling [goods]to supermarkets. That he commenced this business claiming no background in it, but without planning any of the financial aspects of it, especially considering that he claimed to have borrowed a significant amount of money for it and hoped for its success, was not plausible. Moreover, even if the business was entirely conducted in cash it might be expected that he would be able to supply some evidence of his producers and customers.

1. It follows that the Tribunal does not accept that the applicant borrowed money to finance this business.

1. The Tribunal does not accept that the applicant borrowed money. The purpose was for the [his]business, but the Tribunal has not accepted its existence. The applicant was not able to provide the last name of his creditor, which was not plausible, nor had he given any consideration to the lender’s reputation, which was not readily plausible. Moreover there is no record of such a loan, and the applicant gave inconsistent evidence initially about whether there was any documentation of it. In the end he said he did sign something but he did not have a copy, therefore the Tribunal can give this evidence little weight. The applicant was not at ease in discussing the term of the loan or how the interest was calculated and when it was payable, which meant that his account lacked the clarity of detail associated with a true claim of being in debt.

1. It follows that the Tribunal does not accept that the applicant was threatened in relation to the said loan, by the lender or any organisation, and was denied protection by the police. Again, even though the threats were over the phone he did not record the content in any way at the time. He also gave inconsistent evidence as to whether he was still pursued after he

came to Australia. He was not able to provide any evidence at all of a meeting with the police, and was not able to persuasively explain why this was the case.

1. If the applicant had a genuine fear of being harmed on return to Timor-Leste, it might be expected that he would do so sooner than he did, which is also relevant to the Tribunal’s consideration of his claims.

1. In summary, the Tribunal is not satisfied that the applicant faces a real risk of significant harm as defined in s 36(2A), i.e. arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.

1. Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that the applicant will suffer significant harm on return to Malaysia warranting complementary protection.

CONCLUSION

1. 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) or s 36(2)(aa).

1. 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.

1. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

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

Genevieve Hamilton Member