2313785 (Refugee)
[2023] AATA 4676
•26 October 2023
2313785 (Refugee) [2023] AATA 4676 (26 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2313785
COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Wayne Pennell
DATE:26 October 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 October 2023 at 10:33am
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – debtor – loan document – translation not certified by NAATI – credibility concerns – similarities with uncle’s protection visa application – delay in applying for protection – effective state protection – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65, 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997Any 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
This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 5 September 2023.
The applicant, who claims to be a citizen of Timor-Leste, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[3] and therefore she was not a person in respect of whom Australia has protection obligations.[4]
[2]The applicant’s application was received by the Department of Home Affairs on 11 December 2022.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision,[5] and in doing so, she declined to provide the Tribunal with a copy of the delegate’s decision. The Tribunal notes that she was not formally represented in relation to the review.
[5]The applicant’s review application was filed with the Tribunal on 5 September 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.
[6]Migration Act 1958 (Cth), s 36.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
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.[9] 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.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[11]
[11]Migration Act 1958 (Cth), s 5J(1).
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 the Act, which are extracted in the attachment to this decision.[12]
[12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]
[16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]
[17]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Timor-Leste and she provided to the Department a copy of her passport to authenticate this claim.[18] The Tribunal accepts the applicant’s identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Timor-Leste is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[19]
[18]applicant’s passport was issued in Timor-Leste [in] 2022.
[19]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[20]
[20]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[21] 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.
[21]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[22]
[22]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[23] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[24]
[23]Migration Act 1958 (Cth), s 5AAA.
[24]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
MATTERS LEADING UP TO THE REVIEW HEARING
As already identified, when filing her review application with the Tribunal, the applicant declined to provide a copy of the delegate’s decision.
On 25 September 2023, an invitation pursuant to section 424A of the Act (‘section 424A invitation’) was dispatched to the applicant via email inviting her to comment or respond to certain information in respect to her application. That letter explained:
I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
The letter went on to explain to the applicant the particulars of the information and why the delegate was satisfied that she did not meet the definition of a refugee, and why she was not considered to be a person who was owed protection obligations.
The deadline of 10 October 2023 was provided for her response, and accordingly, the letter outlined that:
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
Contained within an email dispatched to the applicant on 26 September 2023 was an invitation (‘hearing invitation’) to attend a hearing of her review application. That hearing was scheduled for 19 October 2023. The applicant appropriately responded to the hearing invitation and accepted the invitation to attend.[25] In doing so, she nominated that [Mr A] as a witness for her. She said that he was her uncle, however the Tribunal notes that prior to the hearing, she did not take the opportunity to provide any statement, statutory declaration or other evidence from him.
[25] Response to the hearing invitation received by the Tribunal on 27 September 2023.
On 29 September 2023, the Tribunal received from the applicant copies of two separate documents. The first document is typed in very small font, and the image is slightly blurred, thereby making it almost impossible to read. It appears to have been typed in a mixture of the English language and another language and purports to have been a loan agreement dated 1 June 2022 between the applicant and another party.
The second document was handwritten in the applicant’s native language, and it was accompanied by a copy written in the English. This document appears to be an explanation about the applicant’s claims.
The Tribunal particularly notes that none of the documents presented to the Tribunal have been certified by the National Accreditation Authority for Translators and Interpreters Ltd (‘NAATI’).
APPLICANT’S BACKGROUND AND CLAIMS
Background
The applicant is a [age] year old woman with no dependants. She claimed that her parents live in Timor-Leste and she has [number] other siblings, all of whom still live in Timor-Leste. After finishing her schooling, she remained unemployed until she arrived in Australia in 2022.
Before coming to Australia, she engaged with an Australia company, [Company 1], for work. As she understands it, [Company 1] advertised with the Timor-Leste Secretary of State and the company was seeking workers to be employed in Australia. She applied to the company and then did some preliminary physical testing and training so that she could understand the type of work that she was to perform in Australia. She passed those tests and [Company 1] arranged employment in Australia for her pending her success in obtaining a visa.
The applicant was granted a Temporary Work (International Relations) (subclass 403) visa on 9 May 2022, and that visa ceased on 8 March 2023. She travelled to Australia, arriving in Darwin [in] June 2022. Her airfare and initial accommodation expenses were paid by [Company 1] on an agreement that she would reimburse the company for those outlays. She stayed in Darwin for one night before travelling to Adelaide where a few days later she started working at [a workplace] in [Town 1] as a [Occupation 1].
She remained working for [Company 1] up until she lodged her application for a protection visa on 11 December 2022. She said that she finished working for that company so that she could make her application for a protection visa. She has since relocated to Queensland where she is still employed as a [Occupation 1].
The applicant failed to provide any written statement outlining her claims, and it was during the review hearing that she gave oral testimony as to what her claims were. Essentially, the applicant testified that she borrowed US$20,000 from her neighbour to help fund the repairs to her parents’ house and the education of her [number] younger siblings. She produced to the Tribunal a copy of the document which she purported to be the ‘loan document’. This was a copy of the same document she sent to the Tribunal on 29 September 2023 as explained in paragraph 23 of these Reasons.
At this point the Tribunal will identify an inconsistency within her claims. As provided in her oral testimony, she said that the money was to be partly to repair damage to her parents’ house, and partly to educate her younger siblings. However, when returning the response to a hearing invitation form, she wrote that she had ‘borrowed $20,000 to build a house and send her younger siblings to school’ (emphasis added). The Tribunal recognises that her comment that the money was to buy a house for her parents differed from her oral testimony where she said that her parents’ house needed repairs and the money was to be used for those repairs, as well as educating her [number] younger siblings.
In her application, she claimed that because she has not repaid that loan, she cannot return to Timor-Leste because she has a well-founded fear that she will automatically go to prison. She also claimed that she cannot relocate to another part of the country for protection because everywhere in Timor-Leste is the same and it is hard to find a good job to pay off the debt. She also claimed that there was very little the authorities of Timor-Leste could do to assist her and protect her.
Notwithstanding those claims, when asked during the review hearing what she thought would happen to her if she returned to Timor-Leste, her response was that she cannot return because ‘if you have a debt in that country people can threaten you’, and this made her afraid of returning.
Returning to the loan document, the document was a typed document in a language other than English, as well as in English. For the purposes of these Reasons has been reproduced below:
KARTA AKORDU IMPRESTA OSAN/LOAN OF AGREEMENT LETTER
Parte dahuluk / First Part: Sra: [Ms B], hanesan osan nain / as an owner of money.
Parte daruak / Second part: Sra. [the applicant], hanesan ema ne’ebe impresta osan / as a money borrower.
Parte daruak impresta osan husi parte dahuluk ho montante $20.000 (rihun rua-mulu,Dolar Amerikanu) pronto selu funan kada fulan ho 10% valor $2.000. The second part has borrowed money from the first part as $20.000 of American Dollars and willing to pay interest of 10% as value = American Dollars per month.
Karik iha dezentendimentu balun ne’ebe akotese sei rekorre ba dialogu hodi bele alkansa sol ne’ebe justu, maibe, iha nivel konflitu rezolusaun ida ne’e mak labele alkansa kompreinsaun mutual make sei rekorre ba Tribunal hodi buka solusaun husi kuadrus legais ne’ebe vigora iha Timor-Leste.
If there some misunderstanding that will happen to dialogue in order to achieve a fair solution but at the level of conflict the resolution cannot be achieve mutual understanding it will be necessary for the court to find solutions through the applicable legal framework in Timor-Leste.
Date of borrow money; Dili, 1 junho 2022.
Osan Nain/Owner of Money: Ema ne’ebe impresta/ Money Borrower
[SIGNATURE] [SIGNATURE] (Sra.[Ms B]) (Sra. [the applicant])
Sasin/Witness:
[SIGNATURE] [SIGNATURE] (Sra. [Ms C] (Sre. [Ms D])
As already identified, this document, being a loan agreement document, contains writing in a language other than the English language. It was not translated by NAATI and therefore the Tribunal places no weight on what it purports to be.
When asked who loaned the money to her, she said it was a neighbour who owned a [specified] business. The Tribunal noted that the suggested loan agreement was made on 1 June 2022, which was before the applicant left Timor-Leste. The applicant was asked if indeed the loan agreement was made prior to her travelling to Australia, why was there any need to have the document in the language of Timor-Leste, as well as in English. She claimed that after she applied for her protection visa, she was told to provide a reason for needing protection, so she sent the translated agreement to the Department. She also said that the two of us (meaning her and the alleged lender) agreed to make the agreement so that she had evidence to show the Department. When probed further about the document, the applicant said that the document was only signed in June or July 2023. Noting that the document was dated 1 June 2022, she was asked to clarify when it was signed, and she again said that it was signed in June or July 2023.
During the review hearing, the applicant said that she had paid back $2,000 to $3,000 off the loan, however later in the hearing she said that she had only paid back $2,000. When asked to describe the repayments she has made to the supposed lender in Timor-Leste, she described that she electronically transferred money from her bank account to her cousin’s or her auntie’s account in Timor-Leste, who then passed on that money to the neighbour (lender), and on occasions she used MoneyGram. She provided no evidence to support that she had been sending money to Timor-Leste.
The Tribunal is not required to make the applicant’s case for her and it is her responsibility to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[26] Nor is the Tribunal required to accept uncritically any and all the allegations she makes.[27]
[26]Migration Act 1958 (Cth), s 5AAA.
[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
The applicant claimed that the purpose of the loan was to repair her parents’ house and pay for the education of her younger siblings. She has not explained why, if a loan was given to her for activities within Timor-Leste, she was given the loan just as she was about to leave Timor-Leste for Australia. The money to repair the house and educate her siblings was for things that are within Timor-Leste, and the Tribunal notes that she has not produced any evidence that she has parents and/or siblings in Timor-Leste as claimed, and nor has she produced any evidence that if indeed she does have parents there, that they own a house, and the house needs repairs.
Her application refers to her having lots of debt in Timor-Leste, and the Tribunal particularly notes that she was asked by the delegate and the Tribunal to produce evidence to support her claims. The only steps she took was to provide a loan agreement document, being a document she manufactured only a few months ago so that she had evidence to show the Department. No evidence or other material was provided in relation to her parents’ home or educating her siblings.
Applicant’s evidence
The applicant relied upon her uncle as a witness. There was no statement, statutory declaration or affidavit made by him which was provided to the Tribunal. She disclosed that he was from Timor-Leste and he had arrived in Australia a couple of years before she did. She was asked if she knew whether he was a permanent resident; all she knew was that he was in Australia on a visa and was applying for a protection visa.
Subject to the provisions of section 424AA of the Act, the Tribunal identified to the applicant that her claims and the protection claims made by her uncle in his application were identical. She was asked whether she had colluded with him in respect to her claims, however she denied that her uncle or anyone else typed her application or had anything to do with her application, and she said that her uncle only shared his thoughts with her. When asked if he had told her what to put in her application, her response was to tell the Tribunal that it has been a long time since she made her application and she has forgotten if he helped.
For clarity the applicant’s actual claims as they were provided within her application, and her responses to the various questions in the application, are as follows:
Provide reasons why this applicant left that country or those countries:
I AM WRITTEN TO THE GOVERMENT OF AUSTRALIA PART OF EMIGRATION BASED ON THE PROBLEM THAT I FACED IN MY COUNTRY BECAUSE I AM IN LOTS OF DEBT IN MY COUNTRY SO THEY ASK ME TO PAY THEIR MONEY BACK BUT I HAVE NOT SUFFICIENT MONEY. IF I DO NOT PAY THEIR MONEY AUTOMATICALLY I WILL GO TO THE PRIZON IN THE FUTURE, BUT AT THE MOMENT I STILL IN AUSTRALIA THAT'S WHY I WANT TO APPLY FOR PROTECTION VISA SO THAT THE GOVERMENT OF AUSTRALIA CAN PROTECT ME HERE IN AUSTRALIA SO THAT I CAN EARN MORE MONEY WHEN I GET BACK HOME I CAN SOLVE ALL THE PROBLEMS THAT I FACED. SO I HAVE WILLING TO APPLY FOR PROTECTION VISA SO I HOPE THE GOVERNMENT OF AUSTRALIA PART OF EMIGRATION WILL BE CONTACT TO HAVE AN INTERVIEW WITH YOU. THANK TOU FOR YOUR CONSIDERATION LOOK FORWARD TO HEAR FROM YOU. Did this applicant experience harm in that country or those countries? No Did this applicant move, or try to move, to another part of that country or those countries to seek safety? No Give details for why this applicant did not try to move to another part of the country
or those countries.
EVERYWHERE IN MY COUNTRY IS SAME. HARD TO FIND A
GOOD JOB FOR PAY OFF MY DEBT
Explain what the applicant thinks will happen to them if they return to that country or those countries: MY FINANCIAL CRISIS WILL REMAIN UNSOLVED Does this applicant think they will be harmed or mistreated if they return to that country or countries? No Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back? No Give details about why
this applicant thinks the authorities could not, or would not, protect them.
NOTHING MUCH OUR GOVERNMENT CAN DO TO HELP ON OUR PERSONAL DEBT ISSUE
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed? No Give details about why
this applicant is unable to
relocate.
I AM NOT SURE ON THIS
The application made by her uncle was lodged with the Department on 18 September 2020, which is almost two years before the applicant travelled to Australia. In his application, he provided the following description of his claims:
Provide reasons why this applicant left that country or those countries: I AM WRITTEN TO THE GOVERMENT OF AUSTRALIA PART OF IMIGRATION BASED ON THE PROBLEM THAT I FACED IN MY COUNTRY BECAUSE I AM IN LOTS OF DEBT IN MY COUNTRY SO THEY ASK ME TO PAY THEIR MONEY BACK BUT I HAVE NOT SUFFICIENT MONEY. IF I DONT PAY THEIR MONEY AUTOMATICALLY I WILL GO TO THE PRIZON IN THE FUTURE, BUT AT THE MOMENT I STILL IN AUSTRALIA THAT'S WHY I WANT TO APPLY FOR PROTECTION VISA SO THAT THE GOVERMENT OF AUSTRALIA CAN PROTECT ME HERE IN AUSTRALIA SO THAT I CAN EARN MORE MONEY WHEN I GET BACK HOME I CAN SOLVE ALL THE PROBLEMS THAT I FACED. SO I HAVE WILLING TO APPLY FOR PROTECTION VISA SO I HOPE THE GOVERNMENT OF AUSTRALIA PART OF IMIGRATION WILL BE CONTACT TO HAVE AN INTERVIEW WITH YOU. THANK YOU FOR YOUR CONSIDERATION LOOK FORWARD TO HEAR FROM YOU. Did this applicant experience harm in that country or those countries? No Did this applicant move, or try to move, to another part of that country or those countries to seek safety? No Give details for why this applicant did not try to move to another part of the country
or those countries.
EVERYWHERE IN MY COUNTRY IS SAME. HARD TO FIND A GOOD JOB FOR PAY OFF MY DEBT
Explain what the applicant thinks will happen to them if they return to that country or those countries: MY FINANCIAL CRISIS WILL REMAIN UNSOLVED Does this applicant think they will be harmed or mistreated if they return to that country or countries? No Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back? No Give details about why
this applicant thinks the authorities could not, or would not, protect them.
NOTHING MUCH OUR GOVERNMENT CAN DO TO HELP ON OUR PERSONAL DEBT ISSUE
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed? No Give details about why
this applicant is unable to
relocate.
IM NOT SURE ON THIS
When careful examination and consideration is given to similarities of the claims made by the applicant and her uncle, and the manner in which they were drafted, the Tribunal has concerns as to the veracity of the claims made by the applicant. When asked about those similarities, her responses were vague and ambiguous and her explanation that she and her uncle shared their thoughts was not convincing evidence and the Tribunal rejects her explanations.
When her evidence about those similarities is assessed against her evidence that the loan document she provided to the Tribunal; that document was only manufactured and produced to the Department when she had to provide evidence to support her claims of an alleged US$20,000 debt.
Particularly noted is the date of the loan document, which is 1 June 2022, yet her testimony was that the loan document was only produced in June to July 2023. This all gives rise to a concern of the veracity of not only her original application and claims, but also the loan agreement or document she seeks to rely upon. The credibility and authenticity of that document is questionable and the Tribunal gives it no weight when considering the applicant’s claims.
Evidence – the applicant’s uncle
When the review hearing commenced, the applicant’s uncle appeared with the applicant inside the hearing room. He was asked to wait outside whilst she gave her evidence. When it was his time to give evidence, he could not be located in the building. He was contacted on his mobile phone and he said that he was about an hour away from the Tribunal. His evidence was then given over the telephone.
As already discussed, he did not provide a statement, statutory declaration or other document in support of the applicant’s application and claims. He told the Tribunal that he arrived in Australia in 2019 on a Temporary Work (International Relations) (subclass 403) visa. At present he is on a bridging visa because he made an application for a protection visa in September 2020.
Pursuant to section 424AA of the Act, he was asked questions about the similarity of the applicant’s claims and the claims he made in his own application for protection, as well as the similarity of the way the claims were drafted in both of those applications. He denied any involvement in the applicant’s application.
The Tribunal’s findings about the applicant’s uncle is that he was evasive when answering questions, his evidence was unconvincing and in the Tribunal’s view, he was an unimpressive witness. His evidence mirrored the applicant’s evidence so far as to her claims, and this was unsurprising given that his claims for protection are identical to hers, and the Tribunal places no weight on what he told the Tribunal.
DELAY
The applicant purports that the loan she arranged with her neighbour took place before she arrived in Australia. The Tribunal notes that she arrived in Australia [in] June 2022 and her application for a protection visa was not made until 11 December 2022, which is a passing of six months. The Tribunal finds that this period is a significant delay.
When the Tribunal is considering the significant delay of six months between the applicant’s arrival in Australia to when she made her application for a protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety[28] and the Tribunal particularly notes that the only explanation the applicant had for the delay in making her application was that she left the company and made the application so she could work longer in Australia to pay back the debt. She repeated this comment a number of times throughout her testimony, and the comment formed part of her section 424A response or comment when she wrote:
When I arrived in Australia, I worked at [Company 1] for 6 months and got a salary so small that I couldn’t pay back the money I borrowed. From all of that, I made the decision to get a protection visa so that the Australian Government coul (sic) protect me and allow me to stay longer in Australia to work and earn more money to be able to repay my debts, help my parents and send my younger siblings to school.
[28] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
The Tribunal has very carefully considered that significant period of delay between the applicant’s arrival in Australia and her application for a protection visa, and the explanation about leaving her employment to make an application. That explanation was in the Tribunal’s view a nonsensical explanation because on one hand her claim is that she had a debt which she was repaying, however she left her employment just to make an application for protection. In that regard, the Tribunal finds that the significant delay and the applicant’s explanation for that delay troubling.
When carefully assessing all of the circumstances surrounding the delay in the applicant making her application, the Tribunal is satisfied that the noteworthy delay casts significant doubt on the genuineness of her claims that she has a well-founded fear of persecution if she were to return to Timor-Leste, and finds that the delay in lodging her protection visa application adds weight to the finding that her claims do not appear to reflect the reality of her circumstances.
COUNTRY INFORMATION
State protection and loan sharks
Under section 5J(2) of the Act, a person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Section 5LA(1) of the Act provides circumstances where effective protection measures are taken to be available to a person, including where the relevant state, or a party or organisation is willing and able to offer protection, and the protection is durable and accessible to the person. If protection is provided by the relevant state, the protection should consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
The applicant claims that she cannot return to Timor-Leste for fear of harm from being placed into prison because of an outstanding debt, and she would be subjected to threats by the person who loaned her the money.
In respect to reliable and credible country information about loan sharks or illegal money lending in Timor-Leste, there is only limited and undetailed information which was located regarding illegal money lending, and no information was located in relation to the consequences of failing to make repayments.
Data gathered by a United Nations survey in July 2020 indicated that 0.8 per cent of surveyed households in Timor-Leste indicated that they had taken a loan and had done so through a money lender/shop owner, with accompanying high interest rates, although this figure rose to 1.3 per cent among vulnerable households who had borrowed money.[29]
[29]United Nations Timor-Leste, with United Nations Development Program 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, page 60.
In an online article published in October 2022, reference is made to human trafficking and illegal loans being issued at very high interest rates. For the purpose of the applicant’s claims, relevant parts are extracted as follows:
The government of Timor-Leste on Wednesday approved legislation containing measures aimed at trying to streamline actions to protect the country’s citizens abroad, amid growing concerns about migrants deceived by human trafficking networks.
Fidelis Magalhães, the cabinet office minister, told Lusa that the decree-law is part of a set of measures that the government is steering through to deal with the “great concern” caused by the phenomenon of Timorese nationals being deceived and abandoned abroad, predominantly in Portugal.
The lack of work in Timor-Leste is resulting in an exodus of young workers, with Portugal having become one of the main destinations, and with many Timorese taking advantage of easier entry conditions than other countries.
This demand is leading to the appearance of agencies and advertisements trying to trick young Timorese, who are charged large sums of money with the promise of work or visas.
Many end up being deceived and then left practically abandoned in the host countries, including Portugal. The most dramatic situations have been seen in Lisbon and in Serpa, in the interior of the Alentejo, with many Timorese living on the streets and others living in groups in temporary facilities.
Families also end up with large debts, in the form of illegal loans issued at very high interest rates.
“The government has instructed the Ministry of Interior and relevant agencies to investigate and stop this practice,” said Magalhães, the minister. “Investigations are ongoing and we call on the MP [Office of Public Prosecutions] to be more proactive.”
In relation to the decree-law now approved, the minister said that it gives the government scope to act in a faster way in several situations, stressing however that it is also necessary to think in terms of public policies that don’t help perpetuate the current illegalities.
“This issue is not only a legal issue,” he said. “The government should not encourage illicit activities. This support should not be an incentive for families to continue paying for these trips, without responsibility, and that then, if it goes wrong, the government helps.”
The military official said that the authorities continue to investigate “illegal agencies” involved in potential cases of human trafficking, which have led to “more than five thousand Timorese” now being in situations of “abandonment” or hardship abroad.[30]
[30]Macau News Agency, ‘Timor-Leste: Government moves to protect citizens abroad, amid trafficking fears’, 20 October 2022,
When considering the country information as outlined above, the Tribunal accepts that there are credible reports to show that state protection is available to those Timor-Leste citizens who are subjected to the activities of loan sharks, and rejects the applicant’s claims that she would not be protected by the government or the government authorities if she returned. The country information further shows that the government and the government authorities are well aware of loan sharking in Timor-Leste, and measures are being taken to prosecute those involved.
In conclusion, when careful assessment is applied to both the country information and the applicant’s claims, the Tribunal is satisfied that the government and government authorities are able to provide state protection to the applicant upon her return to Timor-Leste.
CONCLUSION AND REFUGEE FINDINGS
The reliable country information quoted above shows that the Timor-Leste government and the government authorities are equipped with the ability to protect individuals from societal harassment and harm from those members of society involved in loan sharking. The Tribunal particularly notes that the applicant claims that the authorities in Timor-Leste cannot provide her with protection, and the Tribunal rejects that claim as the information contained within the country information refutes her allegations.
Therefore, the Tribunal is satisfied (and so finds) that in general, a person within Timor-Leste is likely to be able to obtain effective state protection against loan sharks, and when carefully considering the credible and reliable country information, the Tribunal finds that the authorities in Timor-Leste are willing and able to provide effective protection to persons within the jurisdiction.
In respect to the applicant’s claim that she borrowed money from her neighbour prior to leaving Timor-Leste, the only evidence of that loan has been what is described as a loan agreement document. However, this document is rejected by the Tribunal as it was her testimony that the document was only drafted and signed by her and the loan shark when she had to provide evidence to the Department in June to July 2023 of her claims. Given the country information refers to steps taken by the Timor-Leste government against loan sharks, the Tribunal considers that it is unlikely that a loan shark charging an exorbitant interest rate against the current policies of the Timor-Leste government would actively engage in drafting and signing their name to identify themselves as a loan shark.
A further complicating feature of the applicant’s application which hampers any credibility that her claims may have is the extraordinary delay between her arrival in Australia to when she made her application, which was approximately six months. The Tribunal finds that the delay casts significant doubt on the genuineness of her claims that she has a well-founded fear of persecution if she were to return to Timor-Leste, and finds that the delay in lodging her protection visa application adds weight to the finding that her claims do not appear to reflect the reality of her circumstances.
Having regard to, and carefully considering all the facts, features and circumstances as outlined above, the Tribunal finds that the applicant is not a person in respect to whom Australia has protection obligations as defined in the Act.[31]
[31]Migration Act 1958 (Cth), s 36(2).
Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has she satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to her.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[32] the Tribunal has considered the alternative criterion.[33] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Timor-Leste, there is a real risk that she will suffer significant harm as it is defined in the Act.[34]
[32]Migration Act 1958 (Cth), s 36(2)(a).
[33]Migration Act 1958 (Cth), s 36(2)(aa).
[34]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons she claims if she returned to Timor-Leste. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[35]
[35]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Timor-Leste now or in the reasonably foreseeable future she will be arbitrarily deprived of her life, the death penalty will be carried out on her, she will be subjected to torture or to cruel or inhuman treatment or punishment, nor will she be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Timor-Leste, she will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
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 section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy any of the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior MemberATTACHMENT - Extract from Migration Act 1958 (Cth)
5 (1) Interpretation
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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.
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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.
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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.
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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
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(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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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