2313953 (Refugee)

2313953 (Refugee) [2024] AATA 1140 (9 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2313953
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Brendan Darcy
DATE:9 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 January 2024 at 3:11pm
CATCHWORDS
REFUGEE – protection visa – East Timor – economic hardship – economic problems not related to race, religion, nationality, memberships of particular social group or political opinion – late claims of converting from Islam to Catholicism – false claims as applicant born a Catholic – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 1 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 the Democratic Republic of Timor-Leste (Timor-Leste, also known as East Timor), applied for the visa on 17 March 2023. The delegate refused to grant the visa on the basis that the applicant’s economic hardship claims did not enliven ss 36(2)(a) and 36(2)(aa) of the Act.
The applicant appeared before the Tribunal during two scheduled hearings on 13 November 2023 and on 19 December 2023 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum[1] and English languages.
[1] Tetum (Tetun) is an Austronesian language spoken on the island of Timor. It is one of the official languages of Timor-Leste and it is also spoken in Belu Regency and in Indonesian West Timor. Tetun-Prasa is the form of Tetum that is spoken throughout East Timor. Although Portuguese was the official language of Portuguese Timor until 1975, Tetun-Prasa has always been the predominant lingua franca in the eastern part of the island. Tetum language, Wikipedia, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born [date] [in] Timor-Leste’s Liquica Province and claims to be a citizen of Timor-Leste.
A copy of the applicant’s Timor-Leste passport’s bio-page is on Departmental file ([deleted]). The passport was issued [in] 2020.
The applicant was granted a Class GD Subclass 403 International Relations visa on 28 October 2021 and arrived in Australia holding that visa [in] January 2022. The applicant’s Subclass 403 was granted as part of the Pacific Australia Labour Mobility (PALM) scheme, which gives Pacific islander and Timor-Leste workers opportunities to access a range of short-term and long-term jobs in Australia.
The applicant applied for a Class XA Subclass Protection visa on 17 March 2023 and was granted an associate Bridging visa on 14 April 2023.
The applicant’s claims for protection are contained in the applicant’s online Protection visa application form. Below is a summary:
·     The applicant had been looking for an employment for a while but it was difficult to find a job;
·     The applicant was happy to be selected for work in Australia (through the PALM scheme);
·     The applicant finally had the job and income to support his family;
·     The applicant wanted to obtain a protection visa to stay longer in Australia, and continue to earn income and provide more support his family in Timor-Leste; and
·     The applicant was living with nothing in Timor-Leste and there were not many opportunities for him to apply his skills.
The applicant further claimed that according to the same application form, the applicant speaks, reads and writes English, Bahasa Indonesian and Tetum; and that he belongs to the Roman Catholic religion. It also states that he has never been married and that his current employment is [farm] worker.
A delegate acting on behalf the Minster refused to grant the visa to the applicant on 31 August 2023.
On 8 September 2023, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal.
As mentioned above, the applicant appeared before the Tribunal to give evidence and provide arguments as to the reasons a Protection visa should be granted to him. He was assisted by an interpreter in the Tetum and English languages.
At the beginning of the hearing, the applicant provided an untranslated statement in Tetum dated 22 April 2022. The applicant explained that the document was from a third party (a village chief) who vouched for the economic hardship he and his family have experienced and will experience.
On 21 November 2023, the Tribunal invited the applicant to comment on the delegate’s decision record dated 31 August 2023 as adverse information, and to do so in writing by 5 December 2023.
On 1 December 2023, the Tribunal received an undated and unsigned statement in English indicating that the applicant holds a well-founded fear in returning to Timor-Leste on the basis he and his family are Muslim by religion, but he decided to become a Catholic. The statement stated that he suffered physical violence from his father and his brother due to his apostasy from Islam and that there is due to the lack of effective protection when he has reported an incident in October 2021. The applicant further claimed the situation affected him mentally whereby he suffered depression and trauma. It states the statement was written with the help of his friend. No other documentation or evidence, medical or otherwise was attached to the submission.
In the light of this new claim, the Tribunal invited the applicant for a second hearing. On 19 December 2023, the applicant attended a second hearing.
(The applicant did not address the adverse information raised in the letter sent to the applicant on 21 November 2023, either in his written submission or at the second hearing.)
There are no non-disclosure certificates attached to the applicant’s Departmental or Tribunal files.
Country information: Timor-Leste
Timor-Leste, officially the Democratic Republic of Timor-Leste, is a country in Southeast Asia. It comprises the eastern half of the island of Timor, of which the western half is administered by Indonesia, the exclave of Oecusse on the island's north-western half, and the minor islands of Atauro and Jaco. Australia is the country's southern neighbour, separated by the Timor Sea. The country's size is 14,874 square kilometres (5,743 sq mi). Dili is its capital and largest city.
East Timor was settled by waves of Austronesian and Papuan peoples, which are reflected in the country's diverse mix of cultures and languages reflecting its links to Southeast Asia and Melanesia, despite its small area. East Timor came under Portuguese influence in the sixteenth century, remaining a Portuguese colony until 1975. Internal conflict preceded a unilateral declaration of independence and an Indonesian invasion and annexation. Resistance continued throughout Indonesian rule, and, in 1999, a United Nations–sponsored act of self-determination led to Indonesia relinquishing control of the territory. On 20 May 2002, as Timor-Leste, it became the first new sovereign state of the 21st century. That same year, relations with Indonesia were established and normalized, with Indonesia also supporting East Timor's accession into ASEAN.
There is no DFAT country information report pertaining to Timor-Leste.
The United States of America’s Department of State does, however, published a 2022 country report on Timor-Leste’s human rights practices. That report stated:
Timor-Leste is a multiparty, parliamentary republic. After the presidential run-off election on April 19, which was free, fair, and peaceful, Jose Ramos-Horta became president of the republic. After free, fair, and peaceful 2018 parliamentary elections, in which Taur Matan Ruak led a three-party coalition to a parliamentary majority, Ruak became prime minister.
The national police maintain domestic security. The military is responsible for national defense with limited domestic security responsibilities. The national police report to the Ministry of Interior, forensic police report to the Ministry of Justice, and the military reports to the Ministry of Defense. The prime minister served concurrently as the minister of interior. Civilian authorities maintained effective control over the security forces. There were credible reports that members of the security forces committed some abuses.
Significant human rights issues included credible reports of: arbitrary killings; government corruption; lack of investigation and accountability for gender-based violence; violence against persons with disabilities; and the worst forms of child labor.
The government took steps to prosecute members and officials of the security services who used excessive force or engaged in corruption; however, public perceptions of impunity persisted.
The United Nations, in their 2021 Socio-Economic Impact Assessment of COVID-19 in Timor-Leste, reported that 45.2 percent of the populations working-age group were employed in the economy as of March 2021. However, the report also identified that the participation rate in the economy did not include those persons that were otherwise engaged in subsistence agricultural production. The report stated that when those working in the subsistence agricultural sector were taken into consideration the figure of employment was raised to 61.1 per cent. The report also provided that many jobs are informal in their arrangements and that the overall unemployment rate is 11.9 per cent but raises to 22.1 per cent when young people aged between 25 to 29 years are included.[2]
[2] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p8-1
ASSESSMENT OF CLAIMS AND FINDINGS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a Protection visa.
Country of reference
According to the Protection visa application, the applicant claims to be citizen of Timor-Leste and provided a copy of his Timor-Leste passport and national identification card.
Between December 1975 and October 1999, Timor-Leste was occupied by the Republic of Indonesia (Indonesia) after it was declared its independence from its former colonial rulers in the Portuguese Republic (Portugal) on 28 November 1975.
Accompanying the formal annexation in July 1976, Indonesia extended nationality to the East Timorese, but allowed those who wished to retain their Portuguese nationality to do so.[3]
[3] Jerónimo, Patrícia (March 2017). "Report on Citizenship Law: East Timor (Timor-Leste)" (PDF). cadmus.eui.eu. Badia Fiesolana: European University Institute. Archived (PDF) from the original on 4 April 2018. Retrieved 26 April 2021, p.10
When Timor-Leste regained its independence in May 2002, a national act of the same year determined all persons born, regardless of the place of their birth, to East Timorese parents, or in the territory to parents whose nationality was unknown, parents who were stateless, or to unknown parents, became nationals of East Timor. Children of foreigners born in East Timor were allowed to declare that they desired to have East Timorese nationality upon reaching the age of majority (17 years).[4]
[4] Ibid, p.14.
At the time of the applicant’s birth in [year], Indonesia recognised Timor-Leste as one of its twenty-seven provinces and the applicant had been a citizen of the Republic of Indonesia. The country information outlined above and the submitted identity documents indicates that the applicant acquired citizenship of Timor-Leste in 2002 and is recognised as a citizen of that internationally recognised independent and sovereign country.
Based on this material the Timor-Leste is therefore the receiving country for the purpose of assessing the applicant’s claims for protection under ss 36(2)(a) and 36(2)(aa).
Third country protection
Section 36(3) applies in relation to any country apart from Australia, including countries of which the non-citizen is a national.[5] In short, under these provisions, Australia is taken not to have protection obligations in respect of a person who: has a right to enter and reside in any other country - whether permanently or temporarily; and has not taken all possible steps to avail him/herself of that right.
[5] Although the provisions of s 36(3)–(7) have usually been considered in relation to ‘safe third countries’, the prevailing view is that they are not limited to third countries but can apply to a country of which the non-citizen is a national, including the country of flight: see NBGM v MIMIA (2006) 150 FCR 5 22 at [12], [54], [210], with the High Court not disturbing this aspect of the Full Court’s reasons: see NBGM v MIMA (2006) 231 CLR 52, to be read with MIMIA v QAAH of 2004 (2006) 231 CLR 1.
The Tribunal has considered whether the applicant has a right to enter and reside in Portugal or in Indonesia as a third country for the purposes of s 36(3).
The question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.[6]
[6] Section 36(6). Subsection (7) provides that subsection (6) does not, by implication, affect the interpretation of any other provision of the Act. Note that the state and effect of foreign law are questions of fact and as such, are susceptible of proof by expert evidence from a witness suitably qualified to express an opinion about the laws of the relevant foreign state. However ‘it is not necessary for a court or tribunal to resort to expert evidence of that kind in order to make a finding as to the effect of a relevant law of a foreign country.
Under terms of the 2002 Constitution, dual nationality was allowed and thus East Timorese nationals were allowed to retain their Indonesian and/or Portuguese nationalities.
Because Portugal did not recognise East Timor's declaration of independence or the legitimacy of the Indonesian annexation, Law 308-A/75 passed in 1975 did not apply to East Timor. The law established that persons born or domiciled in Portugal's overseas possessions immediately lost their Portuguese nationality upon independence, regardless of whether new nationality rules had been established.[7] Nationals of East Timor, who were Portuguese prior to 25 April 1976, were able to retain their Portuguese nationality.[8]
[7] Op Cit, Jerónimo, p.18.
[8] Ibid, p.20.
As the applicant was not born prior to 25 April 1976, the applicant would not be eligible to obtain Portuguese citizenship and there is no evidence of any existing right to enter and reside in Portugal.
With regards to Indonesia, Timor-Leste’s constitution did not include a provision barring dual citizenship, so the new Timorese citizens were not deprived of their previous citizenship statuses, most prominently their Portuguese and Indonesian citizenships. The coexistence in the same individual of Portuguese and Timorese citizenships is not problematic since both Portugal and Timor-Leste allow dual citizenship. The same cannot be said of Indonesia. Indonesian law does not allow dual citizenship and therefore the East Timorese who opted for Indonesian citizenship are deemed by Indonesian authorities to have renounced their Timorese citizenship.[9]
[9] Ibid, p.19.
The applicant is a citizen of Timor-Leste. For all intents and purposes, Indonesia ceased considering the applicant to be a citizen of its Republic after the Indonesian People’s Consultative Assembly recognised East Timor’s separation from the rest of the Republic on 19 October 1999. With no other evidence of any existing citizenship or other rights to enter and reside any part of Indonesia, the Tribunal accordingly does not accept Indonesia is an available third country to the applicant for the purposes of s 36(3).
Findings
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish such a claim.[10] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish, or assist in establishing, the claim.[11] This is consistent with the established proposition that it is for the applicant to make his or her own case.[12]
[10] Section 5AAA of the Act.
[11] Ibid (with effect from 14 April 2015)
[12] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’. Similarly, that an applicant claims to face 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 of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
Overall, the Tribunal found the applicant to have elaborated on his dispositive claims at the scheduled hearing in a consistent and reliable manner with his otherwise limited written claims.
Where the written information in the applicant’s application for a protection visa did not align with the applicant’s oral evidence, the Tribunal has placed more weight on the oral evidence about his personal particulars.
Accepted personal circumstances
The Tribunal accepts the following aspects about the applicant’s personal circumstances:
·     The applicant was born in [year] in Liquica province, as claimed, and that he was raised in that area of Timor-Leste;
·     The applicant is ethnically Lakalei,and he speaks, reads and writes Tetum and Bahasa Indonesia, and speaks Mambai (Mambae), a language indigenous to the island of Timor, and understands some Portuguese and English;
·     The applicant’s mother passed away and his ageing father continues to reside in Liquica;
·     The applicant was a farmer who owned his own land largely for subsistence and for commercially cultivating and harvesting coffee;
·     The applicant has one sister who is married and lives in Timor-Leste;
·     The applicant has two brothers who are currently enrolled in tertiary level coursework in Timor-Leste;
·     The applicant completed secondary education and does not have any trades or qualifications;
·     After leaving school, the applicant has worked in various employment [in] Liquica and Dili and helping his father on his farm;
·     Since arriving in Australia, the applicant has been working in the horticultural sector in the Bundaberg region of Queensland and in the viticultural sector in Mildura in north-western Victoria; and
·     The applicant has never married or lived in a de facto relationship, and he does not have any children or dependants of his own.
Late religious claims
As outlined above, the applicant provided a written statement dated to raise claims that he had been too nervous to provide an earlier hearing.
When the applicant appeared before the Tribunal on a second occasion on 19 December 2023, the Tribunal asked the applicant to elaborate on his new claims. The applicant responded that it was religious in nature. The Tribunal sought more details. The applicant said he is English was weak and a friend wrote the new claims. He said that he personally wanted to make additional comments about his economic and financial situation and to thank the Tribunal for the opportunity it had provided to give evidence and argue his position. He said the claims were about moving from Islam to Catholicism but admitted that he was born a Catholic who received religious instruction in that religion, received support from those in Catholic religious institutions and he had participated in the parish with other ordinary Catholics while living in Liquicia. He added that he maintains his religion as a Roman Catholic and said that it was not his decision to advance the claims about being an apostate from Islam while in Timor-Leste.
The Tribunal accepts the oral evidence at this second hearing that the applicant was not born into a Muslim family who later converted to Catholicism or that his Muslim family members disapproved of such a religious conversion or that that any of Muslim family members harmed and harassed the applicant in the past. By the applicant’s own admission at the later hearing, these written claims were fabricated. The Tribunal accepts the applicant’s explanation that he had advanced this set of contrived written claims on the advice of a third party who writing it and submitting it on the applicant’s behalf.
The Tribunal accepts the applicant to have been born into and raised in the Roman Catholic faith tradition whereby he participated in baptism and other sacraments which are significant signifiers of his belonging to the Catholic Church. The Tribunal also accepts the applicant remains a Roman Catholic as outlined in the second hearing. The Tribunal notes the applicant did not advance any claims about facing a real chance of serious harm or a real risk of significant harm based on his lifelong membership of the Catholic Church, should he return to predominately Catholic Timor-Leste.
As the applicant has abandoned his written claims to have any deep, urgent or genuine fears to have suffered physical maltreatment, mental torment and severe discrimination on the basis he converted from Islam to Catholicism in the past, should he return to his country of nationality and reference, the Tribunal finds that the applicant did not not hold a well-founded fear of serious harm based on the religious claim or any other related reason, either at the time of his departure from Timor-Leste to Australia or at the time of application. Neither does the applicant hold any well-founded fears of persecution, either subjectively or objectively considered, based on religion, should he return to his country of nationality, either now or into the foreseeable future.
The Tribunal accordingly finds the applicant does not have a real chance of serious harm for any of his contrived written reasons about religion or arising his accepted lifelong membership to the Catholic Church or any other related reasons mentioned in s.5J(1)(a) if he were to return to Timor-Leste.
Based on the same reasons, the Tribunal accordingly does not have any substantial reasons for believing the applicant will suffer a real risk of significant harm arising from his late written claims about religion or based on religious grounds, as a necessary and foreseeable consequence of being removed from Australia for Timor-Leste, will amount to significant harm of any kind defined in s 36(2A), as required by the Act’s complementary protection provisions.
In this regard, the applicant does not satisfy either sections 36(2)(a) or 36(2)(aa).
Economic hardship
At hearing the applicant was invited to elaborate on his reasons seeking to apply for a protection visa. Reflecting his written claims, the applicant stated he held a well-founded fear arising from the foreseeable economic hardship he would face in returning to Timor-Leste.
The applicant said that since working in Australian though the PALM programme he has been remitting money to materially support his father and to pay his brothers’ tuition fees. He added that by applying for a protection visa, it would allow him to remain in Australia to work so he could achieve his three goals: to financially support his family in Timor-Leste; to support his brother’s completing higher education; and to build a house. He said that while the money was good, he still had not only the responsibility to financially support his family, but also to the company who were being paid by farmers or agribusinesses to pay him as an agricultural worker in Australia. Should he return to Timor-Leste, the economy was not strong and finding work was difficult.
The Tribunal enquired whether the applicant’s economic hardship was attributable for one of the five nexus reasons required by the refugee criteria. The Tribunal outlined at the beginning of the hearing that to have a well-founded fear of persecution it must be because of his race, religion, nationality, membership of particular social group or his political opinion. The applicant said those reasons were not relevant.
The Tribunal specifically discussed the refugee criteria’s definition of serious harm as the significant economic hardship where the denial threatens a person’s capacity to subsist and the denial of the capacity to earn any livelihood where the denial threats a person’s capacity to subsist. The Tribunal pointed out that subsistence living as his family has mostly relied upon in the past was acceptable under the refugee criteria. The applicant responded by asking the Tribunal as to how will he support his family as he is the head of the family (as the eldest brother). The Tribunal responded he is one of three adult brothers who have the combined capacity to support each as well as their father. The applicant said his family relies on him and he would find it extremely difficult to find work; that salaries are low, and it would affect his brother’s education and capacity to earn better incomes. The applicant noted one of his brothers was studying nursing and he would find it difficult to find work. The Tribunal pointed out that hospitals and health clinics exist all over Timor-Leste indicating that finding work in that country’s health sector should be as difficult as the applicant suggested.
The Tribunal enquired into the relevant of the untranslated document submitted at the hearing (see paragraph 21). The applicant explained that the document was from a third party (village chief) who vouched as to the economic hardship he and his family have experienced. The Tribunal accepts this, but it neither adds nor detracts from the Tribunal’s consideration towards whether the legal tests under consideration.
The Tribunal also invited the applicant to comment on whether the degree of economic hardship he would face would amount to specific kinds of significant harm as required by the Act’s complementary provisions. (Significant harm’s definition as outlined in s 36(2A) was discussed at the beginning of the hearing). The applicant responded that he would face a huge burden upon return.
The Tribunal also enquired into the reasons the applicant did not return to Timor-Leste to apply for another Subclass 403 visa so he could return to earn an income in Australia. The applicant said there were expenses in applying including undertaking the physical, language and health tests to qualify for a Subclass 403 visa, and he found it difficult to save money due to the familial responsibilities and the company who had been paying his Australian wages. As discussed in the hearing, the applicant had substantially narrowed his eligibility in being granted further temporary work visas in applying for a protection visa. The Tribunal notes that in returning to Timor-Leste as failed asylum seeker, this will impact adversely on him financially as he will have real chance of being excluded from returning to Australia and accessing its labour marker on temporary visa for at least three years.
At the second hearing held on 19 December 2023, the Tribunal provided the applicant to elaborate on his earlier economic circumstances. The applicant said that all that he had said in the earlier hearing had been true and correct. He then asked if he could remain in Australia for three years, to which the Tribunal explained that it could not negotiate on its decision making duties whereby he could remain in Australia for such a sustained period.
In considering the applicant’s fears about economic hardship, the Tribunal has considered sources about the Timorese economy. Timor-Leste has experienced significant economic growth since its independence in 2002, with GDP per capita increasing from $453 in 2004 to $1381 in 2020. The economy is almost entirely reliant on oil and gas.[13] Approximately 80 percent of state expenditure comes from a sovereign wealth fund, the Petroleum Fund, but oil and gas income into this fund is now almost negligible due to declining reserves. It is estimated that the fund could be depleted entirely within a decade.[14]
[13] Al Jazeera, ‘East Timor: Between hope and unease 20 years after referendum’, 30 August 2019.
[14] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, 20220310150555, p.4
Timor-Leste has achieved a medium human development status, positioned 131 out of 189 countries.[15] However, it appears to have experienced a decline between 2014 and 2020, with the poverty rate (based on the international poverty line of $1.90) rising from 22 percent to 27 percent in that period.[16] The poverty rate is higher in rural areas.[17] Forty-six per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.[18] The majority of households are in the informal sector, with only about 23 percent of the working-age population in the cash economy.[19]
[15] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30.
[16] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30.
[17] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.
[18] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021
[19] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, 20220310150555, p.21
Household vulnerability is increased by the dependence of nearly 70 percent of citizens on climate-sensitive livelihoods and agricultural production, in a country which experiences frequent floods, droughts, storms, landslides and is impacted by sea-level rises and higher temperatures as a result of both natural climate variability and climate change.[20]
[20] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.
The economy continues to depend on government outlays, and state spending in recent years has fallen due to political impasses.[21] Prior to 2020, Timor-Leste had experienced recession since 2017, attributed to internal political divisions.[22] GDP was estimated to have expanded by 3.4 percent in 2019, recovering from the earlier recession.[23]
[21] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, 20220310150555, p.4
[22] Lowy Interpreter (The Interpreter), Timor-Leste: The consequences of Covid-19', 3 April 2020, 20200406074724.
[23] World Bank Group, 'April 2020 Timor-Leste Economic Report: A Nation Under Pressure', 15 May 2020, 20201021131121, p.i.
The Tribunal accepts Timor-Leste is among of the poorest countries in the Asia-Pacific region. Formal employment opportunities are concentrated in Timor-Leste’s public sector and in businesses that supply the government, and the nation relies heavily on funding from petroleum wealth. The Tribunal accepts the applicant does not have a real chance of accessing such well-paid and secure employment given his low educational attainment.
Given the country information above, the Tribunal accepts that if the applicant should return to Timor-Leste into the reasonably foreseeable future, there is a real chance he will experience economic hardship as a result of being unable to secure employment that pays as well as that in Australia and that he and his family would be better off by remaining in Australia. Should the applicant return to his country of nationality, the Tribunal accepts that in not being able to remit sufficient earnings from Australia to his family members, this will have an adverse impact on his family, which results in a real chance of his brothers postponing or discontinuing their tertiary studies to find work and to support their father as well as each other.
As discussed in the hearing (and not withstanding his contrived claims), the applicant did not advance that his economic problems relate to his race, his religion, his nationality, any memberships of a particular social group or his political opinion. Indeed, he accepted his prospective economic hardship was not for one of these five reasons mentioned under s 5J(1)(a). As the economic harm feared by the applicant is not directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion, it does not constitute a well-founded fear of persecution as that term is defined in s 5J.
Furthermore, as discussed in the hearing, the Tribunal has considered whether the applicant will face a real chance of economic hardship that amounts to serious harm. Should the applicant return to Timor-Leste, the Tribunal accepts he will face challenges in finding low paid employment. Nonetheless he is a motivated and hardworking individual. He has not claimed any disabilities; indeed, the applicant passed a physical test for the grant of a Subclass 403. While the applicant does not have dependants of his own, it is accepted he has familial responsibilities towards providing, at least in part, for his ageing father. Furthermore, should the applicant encounter prolonged joblessness – as many unskilled Timorese workers do – the applicant will have access to contributing in and relying on his family’s mixed subsistence and commercial farming on their private holding – as the applicant and his family has done in the past. In this regard, the Tribunal notes the abovementioned UN report that subsistence agricultural sector is a significant source of livelihood for the Timorese. Taking all these circumstances into cumulative account, the Tribunal is satisfied the applicant can return to his country of nationality without being subjected to a real chance of serious harm, including significant economic hardship or the denial of the capacity to earn any livelihood where the denial threats his and his family’s capacity to subsist, or any other serious harm non-exhaustively listed in s.5J(1)(a) or as required by s.5J(4)(b).
Based these accepted circumstances in relation to the applicant facing a real chance of economic hardship, the Tribunal accordingly finds the applicant does not have a real chance of serious harm for any of the reasons mentioned in s.5J(1)(a) if he were to return to Timor-Leste.
In this regard, the applicant does not have a well-founded fear of persecution as required by s 36(2)(a).
Complementary protection provisions
With regards to the complementary protection provisions, the Tribunal similarly accepts there is a real risk of harm arising from economic hardship if the applicant were to return to Timor-Leste. The question is whether this hardship amounts to significant ham.
Significant harm is different from the concept of serious harm as required by s 91R(1)(b)/s 5J(4)(b) in the context of s36(2)(a).[24] With this in mind and based on the same personal and familial circumstances outlined above, it does not accept the applicant’s degree of economic hardship in the context of the available country information about the Timorese economy amounts to any significant harm, including being subjected to torture, being subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment as required by s 36(2A).
[24] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].

Furthermore, the Tribunal does not accept that any economic harm for which the applicant has a real chance of encountering in being removed from Australia to Timor-Leste by way of reduced earning capacity, financial hardship due to familial responsibilities and relying on subsistence farming, would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. The applicant does not suggest that he will be subjected to the death penalty in Timor-Leste for any reason. For these reasons the Tribunal does not accept that the economic harm feared by the applicant would meet the definition of ‘significant harm’, as that term is exhaustively defined in s 36(2A).
The Tribunal accordingly does not have substantial reasons for believing the applicant will suffer a real risk of significant harm arising from his economic hardship claims, as a necessary and foreseeable consequence of being removed from Australia for Timor-Leste, based on the applicant’s accepted and foreseeable economic hardship, will amount to significant harm of any kind defined in s 36(2A), as required by the Act’s complementary protection provisions.
In this regard, the applicant does not meet the requirements set out under s 36(2)(aa).
Conclusion
There are no more residual claims to consider in this application.
Having assessed all of the applicant’s claims individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c) or s.5H if he is returned to the Democratic Republic of Timor-Leste, and does not satisfy the criterion in s 36(2)(a)
Having assessed all of the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Lest there is a real risk of significant harm, including that the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subject to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treating or punishment, pursuant to s.36(2)(aa) of the Migration Act.
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
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 1140

9 January 2024

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