2313952 (Refugee)

2313952 (Refugee) [2024] AATA 1282 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2313952

COUNTRY OF REFERENCE: East Timor
MEMBER:Jessica Henderson
DATE:26 February 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 February 2024 at 2:18pm
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – no Convention nexus – threats from a money lender – fear of physical assault – employment – subsistence farming – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of East Timor, applied for the visa on 16 August 2023. The delegate refused to grant the visa on the basis that they can access adequate State protection from any possible harm.
The applicant appeared before the Tribunal on 26 February 2024 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
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance of serious harm to the applicant arising for a refugee nexus reason. If there is not, then the next issue will be whether there is a real risk of significant harm to the applicant, and whether it is a risk that is faced by the population generally. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s claims to the Department
The applicant applied online for a protection visa on 16 August 2023
His claims in the August 2023 application were set out in the following terms:
I chose not to go back to East Timor and apply for a protection visa because I had been threated or killed, because I borrowed a lot of money for [amount] and every week, I had to pay [amount] dollars in interest, but I did not have the money to pay that much money because I had no work if I went back to east Timor, so I was threated with heath if I could not pay their debts. And currently they are looking up to me
He said he had experienced harm, saying:
They will daily be tortunring me, whenever I go back to Timor-Leste, because I will be jobless and unable to the interest every month as the interest and capital will keep increasing every month
He did not seek help with the country as:
The amount which I borrowed, was so hug[e], and no one will help me to settle this amount, which I started pay them monthly interest, I also sign some documents with them, and no one can help me ever Police or local Politician keep avoiding from me, as they do not want to get involved in this case.
He did not try to relocate as he does not have relatives in other parts of the country, and his family is avoiding him due to his loans.
He states that he will be harmed and mistreated if returned to East Timor, he cannot access protection from the government and that he will be found if he tries to relocate.
Applicant’s claims to the Tribunal
The applicant did not provide any submissions or evidence to the Tribunal ahead of the hearing.
During the hearing on 26 February 2024 the applicant said that his protection visa application had been completed by a third party that he had been referred to through a member of the Timor Leste community in Australia, and with whom he had never met in person. The applicant confirmed that he had never borrowed money from a money lender and did not press any claims related to money lenders or debt. He said that his claims related to financial hardship because of Timor Leste’s economy.
The change in the applicant’s claims is consistent with the available country information which suggests that individuals do often rely on loans from friends, family and colleagues to meet household expenses in Timor-Leste. A household survey conducted by the United Nations Development Assistance Framework in 2020 indicated that only 1.3% of vulnerable households and 0.8% of all households surveyed took out money from private money lenders or shop owners, while almost half (45.6%) said they had borrowed from friends, family or colleagues; a quarter through savings and credit cooperatives and 22.7% through a bank.[1] An Oxfam-led assessment of food security in Timor-Leste in 2020 reported that the main lenders were village savings and loans community/ savings groups (68%), friends and relatives (16%), cooperatives (7%) and banks and microfinance institutions (6%). The statistics also show that borrowing from private money lenders is relatively rare. Only 5% reported borrowing from private money lenders.[2]
[1] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.59-60
[2] ‘Rapid Food Security Assessment 2020: Full Report Timor-Leste’, Oxfam, 9 June 2020 p.18.
The applicant presented as a forthright and helpful witness, and the Tribunal believes that he is telling the truth about his present claims and the reason for the error in his application.
Economic claim
The available country information about Timor Leste’s economy is grim. The Tribunal accepts that Timor Leste is one of the poorest countries in the Asia Pacific region, with high unemployment and 25% of the population living below the poverty line.[3] The government is heavily reliant on international aid.[4] Seventy per cent of the country’s population are rural and rely on agriculture for their livelihoods. Subsistence agriculture is common as is a lack food security for many households.[5]
[3] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[4] ‘United Nations Development Assistance Framework (UNDAF) 2015-2020 in Timor-Leste: Evaluation Report’, United Nations Development Program (UNDP), May 2019, p.11.
[5] ‘Pacific Finance Sector Brief: Timor-Leste’, Asian Development Bank (ADB), October 2019.
Timor Leste’s economy is almost entirely reliant on oil and gas and 80% of government spending comes from the Petroleum Fund. Unfortunately Timor-Leste has already collected 99% of the revenues payable from current fields of production and it is estimated the Petroleum Fund could be entirely completed within a decade.[6] In 2021 the United Nations reported that the overall unemployment rate in Timor-Leste was 11.9%, but among young people it rose to 22.1%, with only 45% of the working age population employed in the market economy as at March 2021.[7]
[6] Bertelsmann Stiftung, ‘[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste’.
[7] United Nations Development Program] ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’.
The Covid19 pandemic reportedly made the situation significantly worse. Food insecurity role and 40% of households reported that they were forced to engage in reduced food intake and selling livestock.[8]
[8] Timor-Leste – Rapid Food Security Assessment 2020 | Oxfam in Asia
The applicant’s evidence to the Tribunal included the following:
a.His father died when he was a child and his mother supported her [children] by working on a farm;
b.He is [position among the siblings]. [Details deleted].
c.He completed secondary school and married a girl that he went to school with in about [specified year].
d.He has [number of children, ages and genders specified]. His wife and children are living with his wife’s parents.
The applicant explained to the Tribunal the nature of the work that he had been doing in Timor Leste. Fundamentally [details deleted]. If a customer came along he received cash; in Australian money he received $5 for a [unit]. If no customer came along then he was reliant on friends to lend him food or the means to purchase food. He and his wife and children squatted on the riverbank. He considered this work preferable to working on a farm, where he would only ever get enough food to eat in return for his labour and would have no access to cash.
Refugee criteria
The Tribunal accepts that the applicant will suffer economic harm if he is returned to Timor Leste, and that it may be a subsistence level threat.
The Tribunal is not satisfied that the essential and significant reason for the identified harm would be for one of the grounds listed in s 5J(4)(a).
The Tribunal asked the applicant whether he had any characteristic that distinguished him from the general population and made life harder for him. He replied that he has the same problems as everyone else. The Tribunal asked him about each of the refugee nexus reasons in turn. He said that there was nothing about his race that made life more difficult for him than anyone else. He noted that there had been religious problems for Catholics in Timor Leste in 2006 but said that they had resolved. He said that he identified as a citizen of Timor Leste and there was nothing about his nationality that distinguished him. He indicated that he did not have time or energy to follow politics, but that he voted in each election and supported the government.
With regards to whether he formed part of a particular social group, the applicant gave some thought to any distinguishing characteristics and confirmed that he did not have any disability or other immutable personal characteristic. He said that being a person who worked on the river put him at different risk of harm to people who worked on farms, but confirmed that he chose to work on the river and could go and take up farming with his mother if he chose to.
The Tribunal is satisfied that the applicant’s claims do not arise for a refugee nexus reason.
Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criteria
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 reiterates its finding that there is risk of economic harm to the applicant flowing from the economy of Timor-Leste. However, the economic risk to the applicant does not arise from the intentional or deliberate act or omission of a third person such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture.
In any event, the economic risk falls into the exception in s 36(2B)(c): it is a risk faced by the population of Timor-Leste generally.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica Henderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1282

26 February 2024

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