2313979 (Refugee)

2313979 (Refugee) [2023] AATA 4704 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul O'Connor (MARN: 0854511)
CASE NUMBER:  2313979
COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:David James
DATE:31 October 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2023 at 9:48am
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – economic situation – high cost of living – safety concerns – lack of protection from authorities – 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
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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 4 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 Democratic Republic of Timor-Leste (Timor-Leste), applied for the visa on 3 November 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 8 September 2023 after being re-notified of the delegate’s decision of 24 May 2023 as the original notification had not included the applicant’s notified email address. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal by video conference from the Melbourne Registry of the Tribunal on 25 October 2023 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
The applicant was represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB (2013) 210 FCR 505.
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 (the Department), 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
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Timor-Leste they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application submitted on 3 November 2022 and the annexed copy of the applicant’s Timor-Leste passport and his national identity card;
·The applicant’s application for review of 8 September 2023 and the annexed decision record of 24 May 2023;
·[Bank 1] statement in the name of the applicant for the period of [September] 2023 to [October] 2023, which was forwarded to the Tribunal on 11 October 2023 and 17 October 2023 annexed to an email requesting the applicant’s hearing date of 25 October 2023 be postponed and the applicant’s matter be transferred to Victoria;
·The administrative and movement records of the Department relating to the applicant;
·The applicant’s representative’s written submissions forwarded to the Tribunal on 24 October 2023 in which it is submitted that the applicant, if returned to Timor-Leste, will be unable to obtain employment and then support himself, his wife, his parents and siblings, who will all then suffer malnutrition and ultimately starvation. The submission referred to a series of annexed photos and media reports as to these issues and in part stated that:
UNICEF places Timor-Leste as the second to the bottom on the list with only Chad being lower.
This places children and people in Timor-Leste in the worst possible position for child undernourishment, starvation, death, malnourishment, wasting away, and stunting…
Sending [the applicant] back to Timor-Leste will expose him and his family to these extreme treatments. There is no government support if they are not working. No income means starvation and all the other aspects of the lack of food and sustenance.
The Tribunal and Australia has a chance here to make a difference and to prevent sending [the applicant] to a life of hunger, starvation, malnutrition, and watching his family slowly die. This is not an intended consequence of the migration law.
Protecting [the applicant] would be humane and the right thing to do. He and his family need the support and help from Austrlia. There are many forms of abuse and need for granting refugee status and I believe this is one of them. Clearly, he will suffer as will his family Inhumane treatment on return to Timor-Leste.
[The applicant] sends most of his money he earns to keep his family alive, allow his children to go to school and to be able to survive…
Protecting his family and himself from starvation and death is a sound reason for the remitting of the visa.
We do not understand the level of starvation and the effects on people in countries like Timor-Leste and cannot possibly know what it is like to go for days and weeks and months without food. In the past whole communities died from starvation, villages were found where all were deceased from starvation.
Starvation has been a significant cause of death in Timor-Leste and is still ongoing. Then there are those who have not died but continue to live with extreme conditions such as malnutrition, organ failure, wasting, stunting and child under nourishment…
·Applicant’s Statutory Declaration of 23 October 2023, in which he declares he is married and the father of [number] children. He declares he sends money regularly to his family in Timor-Leste from his earning from working on a farm and this money keeps his family alive and provides for his children’s schooling.
Claims for protection
The applicant, in his visa application, reported that he left Timor-Leste to start a new life in an environment which is safer and has a better economy. He stated that he had not experienced harm in Timor-Leste and had not sought to relocate within Timor-Leste as he would face the same economic and safety issues throughout Timor-Leste. In his claims for protection (as summarised) he states that:
·There is much criminal activity nowadays in Timor-Leste, including the common issues of theft and snatching;
·He fears returning to Timor-Leste as his life will be impacted by the rising cost of living and the bad economy, and he will not be able to support himself, his parents, and his siblings, nor be able to pay for the education of his siblings; and
·The authorities in Timor-Leste will not protect them and many within Timor-Leste are complaining about the government bodies.
Department interview
The applicant was not offered an interview by the Department.
Delegates decision
The delegate’s decision of 24 May 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims that he will not be able to secure employment upon his return to Timor-Leste due to economic reasons and his fear of crime in Timor-Leste did not relate to any of the reasons in s 5(J)(1)(a) of the Act and there was no other information before the delegate to suggest that the applicant would be the subject of harm upon his return to Timor-Leste for one of those reasons. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. In that regard, the delegate found that the applicant could obtain protection from an authority of Timor-Leste, such that there would not be a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 29 September 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 25 October 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 11 October 2023 and again on 17 October 2023 the applicant’s representative requested the Tribunal transfer the applicant’s matter to Victoria and postpone the hearing scheduled for 25 October 2023, as the applicant was now residing in Victoria.
The Tribunal replied to the applicant’s representative on 17 October 2023 and again on 18 October 2023 refusing the applicant’s request to transfer their matter to Melbourne. In this correspondence, the Tribunal proposed that the hearing proceed as listed on 25 October 2023 by way of the applicant attending the Tribunal’s Melbourne Registry and being connected to the Tribunal hearing at the Brisbane Registry by video conference.
On 19 October 2023, the applicant’s representative emailed the Tribunal indicating that the applicant had agreed to attend the hearing by video conference from the Tribunal’s Melbourne registry.
On 20 October 2023, the Tribunal forwarded instructions to the applicant via their representative outlining the process for their appearance at the hearing from the Tribunal’s Melbourne Registry.
Country information
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.[1]
[1] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p8-10.
According to the United States Department of State’s (USDOS) 2022 report on human rights practices in Timor-Leste for the year of 2021, the law prohibits arbitrary arrest and detention and provides rights to individuals to challenge his or her arrest or detention in Court. The law also provides for the right to a fair, timely and public trial, and the independent judiciary generally enforced these rights in Timor-Leste.[2]
[2] ‘Country Reports on Human Rights Practices for 2021 – Timor-Leste’, Bureau of Democracy, Human Rights, and Labor, United States Department of State, 12 April 2022, p 6 Section 1.e.
In their 2022 ‘Timor-Leste Country Security Report’, the USDOS made the following assessment of the Policia Nacional de Timor-Leste (PNTL):
PNTL maintain internal security. The Military is responsible for external security but also augments some domestic security functions. PNTL reports to the Ministry of Interior, and the military reports to the ministry of Defence. The current Prime Minister serves concurrently as the Interior Minister. Civilian authorities maintain effective control over the security forces. Members of the security services have been accused of committing human rights abuses.
PNTL’s policing capability is limited but improving with the assistance from partners in the international community, including the US Government. PNTL continues developing its community policing capacity and is slowly expanding its capabilities in the areas of criminal investigations, personnel/facility protection and traffic control.[3]
[3] ‘Timor-Leste Country Security Report’, Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, US Department of State, 21 November 2022, p 3.
In the Asia Foundation’s Nationwide ‘Timor-Leste Safety, Security and Justice Perceptions Survey 2022’ it is reported that:
Most respondents who experienced crimes or disputes do not retaliate, but only just over half seek assistance. Overwhelmingly, general public respondents see community leaders as the most appropriate initial avenue for reporting a crime/dispute. However, they take different matters to different types of leaders, and the degree to which they perceive a role for the PNTL varies according to the nature of the issue at hand. Of those who experienced a crime/dispute and sought assistance, 43% first responded to an Aldeia Chief, followed by the PNTL (19%), a lian-na’in (10%) or Suco Chief (8%). Those who seek assistance typically have their issues resolved by the first person they report to and feel that they were fairly treated.
Community leaders report good relationships with the PNTL and see them as most appropriate initial mechanism to report crimes and disputes. Proximity plays the most decisive role in determining from whom people seek assistance.[4]
[4] ‘Timor-Leste Safety, Security, and Justice Perceptions Survey, 2022. Summary Findings’, McLeod A & Denney L, The Asia Foundation, p 6.
Review hearing – 19 October 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English and Tetum languages with the applicant and his representative appearing by video conference from the Melbourne Registry and the interpreter likewise appearing from another location.
At the commencement of the hearing, the applicant’s representative outlined the applicant’s claims and conceded that the applicant’s claims did not meet the refugee criterion. However, he submitted that the applicant’s claims did meet the complementary criterion, in so far as his return to Timor-Leste and the loss of his Australian income would mean that he and his family would face starvation, and as such he would suffer significant harm in the form of cruel or inhumane treatment or punishment.

The Tribunal then explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, said that he understood the criteria. However, the applicant’s representative when questioned by the Tribunal agreed that it would be of benefit to have the Tribunal further, and simply, provide an explanation as to the criteria.
The Tribunal then provided a brief outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria.
The applicant told the Tribunal that he had come to Austrlia on a working visa as he wanted to sustain his family in Timor-Leste. He explained that he had obtained employment and his visa through a labour hire company working with the Australian government, [deleted], who arranged his visa, his travel and accommodation.
He said that he had travelled to Darwin and then onto to Brisbane, where he stayed for one night before being taken to Coffs Harbour on the New South Wales Central Coast. The applicant worked on a farm in Coffs Harbour picking blue berries for four months, and was then moved to Tasmania where he worked [on] another farm.
The applicant told the Tribunal that when he finished his contract, he decided that he did not want to return to Timor-Leste as he feared he would not be able to obtain employment there and support his wife, his parents and siblings. The applicant instead decided to stay and apply for a protection visa.
He told the Tribunal that he was married, and his wife lived in [Town 1] where they had lived together in the two years prior to him coming to Australia. He said he had no children, but that he supported his parents and [siblings] (who had incorrectly been recorded as his children in his statutory declaration), together with his wife, through his Australian earnings.
The applicant said that he was currently working on a [farm] and was earning about [amount] per month and had been sending [amount] fortnightly to his family in Timor-Leste. Under questioning, in which the Tribunal referred to his [Bank 1] statement that had been provided to the Tribunal, he agreed that he had actually been sending [amount] monthly to his family. The applicant explained that he had in the previously sent other amounts when requested by his family.
He explained that his parents and [number] of his siblings lived on the family farm in the mountains in [a village] in the administrative post/area of Fohoreim, which was in the Timor-Leste Municipality of Covalima. He told the Tribunal that his [other] siblings were studying [at] [named] University, where they lived in a hostel paid for with his monthly payments to his family.
Under questioning, he told the Tribunal that prior to coming to Australia he had worked with his father on the family farm, where they grew small crops and tendered their animals. He said that through the sale of their produce at the local markets, they had been able to support themselves, including his [siblings] at university.
When asked whether he could return to the family farm and again help his father at the farm so as to support his family, he said he could, but that it would not be economically good to do so.
The Tribunal asked the applicant whether it was his desire to stay in Australia because he could earn more money than he could in Timor-Leste and therefore improve the financial position of his family. The applicant replied by stating that he wanted to stay in Australia to make money to sustain his family and improve things for his family, and to also help his younger siblings with their schooling.
Under further questioning, the applicant agreed that he had been able to support his family including his siblings at university, in the past through his work with his father on the family farm.
It was then put to the applicant that he could return to the family farm where he could work the farm with his father and that the farm would provide his family with enough money to support themselves, but not to the same standard as he had been able to achieve through his Australian earnings. The applicant in reply agreed that he could sustain his family through the farm, but that their situation things was better with the money he earnt here in Australia.
In reply to the Tribunal, the applicant agreed that none of his family had been medically treated for malnutrition. However, he explained that, although he had no evidence to show the Tribunal, there had been periods when he and his family had been ill because of a lack of food but that they had recovered without any medical intervention. In that regard, he told the Tribunal that his grandmother had died from starvation in the mountains, but he did not provide any further details of the circumstances of her death.
The Tribunal then took the applicant through his claims as outlined in his application for the visa. As to his claim that there had been much criminal activity in Timor-Leste, he told the Tribunal that he had been the victim of crime in [Town 1]], where he had lived with his wife selling [products] in the two years prior to his arrival in Australia. He explained that people had taken his goods in [Town 1]] and also when he lived at the family farm. But for explaining that the family farm was near [a location] and people often [came] to steal goods, the applicant was unable to provide any specific details as to the claimed incidents of theft that he and his family had been subject to but for one incident.
Under further questioning, he told the Tribunal that he could report and had reported, these thefts to the police operating at the local administrative level, but not at the village level, and that they had investigated complaints in the past. The applicant also agreed that theft and other criminal activity was something that was faced by all of the population in Timor-Leste and that he and his family had not been specifically targeted by any specific group nor had the police not considered their complaints and provided assistance, when called upon and able to do so.
In relation to his claim that his life will be impacted by the rising cost of living and the economy in Timor-Leste, he told the Tribunal that he will not be able to get a job and cannot earn the same money that he earns in Australia if he returns to Timor-Leste. He also agreed, when asked, that the cost of living and the state of the economy in Timor-Leste was something that was faced by all of the population in Timor-Leste. However, he told the Tribunal that he did not want his family to suffer so he wanted to stay in Australia so he could improve their circumstances.
As to the applicant’s claim that the Timor-Leste authorities will not protect him and his family, he explained that it is very hard in Timor-Leste to protect your family as everyone looks after themselves. However, the applicant agreed that, if needed, he could seek and would receive assistance from the police in Timor-Leste.
In discussions about the information contained in his Statutory Declaration of 23 October 2023, the applicant’s representative explained that he had taken the applicant’s declaration by way of a translation application on his phone, and that there had obviously been some confusion e.g., the applicant’s siblings having been recorded as his children. The applicant also agreed that there had been some confusion as to the details of his family as it had been recorded in his declaration, but that his evidence before the hearing was accurate.
The Tribunal then adjourned for short a period to allow the applicant to take a break and to also allow the applicant and his representative, with the assistance of the interpreter, to review the country information as outlined above at paragraphs 26 to 29.
Upon the reconvening of the hearing, the applicant, when asked whether he wished to comment on the country information (which had been printed and provided to him and his representative at the Melbourne Registry), indicated that he agreed with the information. He further commented that currently in Timor-Leste, if a person commits a crime, the police can arrest them and if your house suffers wind damage, you can inform the local authority who will then assist you. The applicant therefore recognised that there were some services available to him and others from the Timor-Leste authorities for persons in need of help.
The applicant’s representative, after the break in the hearing, indicated that the applicant wished to clarify some of his earlier evidence. The applicant then sought to clarify, but in the view of the Tribunal actually sought to walk back from, some of his earlier statements and evidence. In reply to the Tribunal’s query of the applicant and his representative as to whether they had further discussed his evidence during the break, it was confirmed by them both that they had so discussed the applicant’s evidence and now wished to clarify it before the Tribunal.
In that regard, the applicant told the Tribunal that he could no longer return to the family farm and work the farm with his father, as his father was now too old, and most of the livestock had escaped and the crops had not been maintained. He explained it would cost money to re-stock the farm and his family did not have the money to do so. He said he could not relocate to the farm and there produce an income to sustain himself, his wife and his family because he would have to work the farm alone because of his father’s age and they did not have any money to re-stock the farm.
In reply to the Tribunal asking whether he could use the money he had been sending to his family and his own savings to re-stock the farm, the applicant, after some delay, and attempts to make other statements and not reply to the question, conceded he could do so.
The applicant’s representative then made oral submissions to the Tribunal consistent with his earlier submissions at the commencement of the hearing and his pre-hearing written submissions. He told the Tribunal that the applicant acknowledged that his claims did not meet the refugee criterion, but that he faced a real risk, of significant harm, in the form of cruel and inhumane treatment by way of his starvation and that of his family if he returned to Timor-Leste. He submitted, that given the state of the economy, and the applicant being unlikely to be able to secure employment in Timor-Leste, the applicant and his family would likely face starvation.
He further in submissions told the Tribunal that it had been unfortunate that the applicant had only sought advice and assistance with his application after he had made an application for a review of the department’s decision. The representative stated that he would have urged him to return to Timor-Leste as required by his working visa, and then later return for further work under that scheme. However, it was still his submission that the applicant faced significant harm if he was to return to Timor-Leste. However, under questioning, the applicant’s representative conceded that these economic factors were faced by the population at large and that there was no evidence that the applicant had been targeted for harm or that he and his family had been the subject of the withholding of any government related services.
When asked whether he wished to make any further statement and/or comment to the Tribunal in support of his review, the applicant told the Tribunal that he wished to continue working in Australia because he would not get work if he returned to Timor-Leste. He further explained that if he returns to Timor-Leste, his siblings and any children he has in the future will suffer. He said that the housing situation in Timor-Leste was not good, that the cost of living is very high, and that the political and economic situation in his country was also not good.
He also told the Tribunal that the conditions in Timor-Leste are not good because the martial arts groups in [Town 1]] often throw stones at each other and other people can get hurt. He told the Tribunal that he had once been injured and beaten by one of these groups when he was on his motorcycle and had gone into the wrong neighbourhood. He said he had reported the incident to the police but, as there was no evidence as to what had happened, nothing resulted from his complaint. Under questioning, he told the Tribunal that he had not after this incident been pursued or further sought out by this group, and that his beating on this occasion had been an isolated incident and had resulted because he had strayed into the wrong neighbourhood.
FINDINGS AND REASONS
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. Based on this material the Tribunal finds that the applicant is who he says he is, and a national of Timor-Leste. Timor-Leste is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
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.[5] 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.[6] This is consistent with the established proposition that it is for the applicant to make his or her own case.[7]
[5] Section 5AAA of the Act.
[6] Ibid (with effect from 14 April 2015).
[7] 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.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[8] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[9] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[8] Fox v Percy (2003) 214 CLR 118
[9] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[10] A similar approach is taken in the Department’s Refugee Law Guidelines[11] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[12] which both provide useful guidance for this Tribunal.
[10] SZLVZ v MIAC [2008] FCA 1816 at [25].
[11] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[12] UNHCR, re-issued February 2019 at [203]–[204].
Fear of being a victim of generalised crime in Timor-Leste
The applicant claims to fear being a victim of theft and other criminal activity including violence if he was to return to Timor-Leste, given the criminal activity presently occurring throughout Timor-Leste.
It was the applicant’s evidence in regard to this claim that he and his family had been the subject of many instances of theft. However, but for an incident in [Town 1]], in which the visa applicant described having ventured on his motorcycle into the wrong neighbourhood where he had been beaten, he was unable to provide any specific details of his and/or his family having been the victim of theft. The applicant’s claims in this regard were vague and non-specific and he chose or was only able, to tell the Tribunal that he and his family had been the victim of theft on many occasions at their farm because they lived near [a location], and thieves and criminal often [came] to commit these crimes.
However, it was also the applicant’s evidence that there were police stationed throughout Timor-Leste at the administrative levels of government, and he had previously made complaints to the police. The applicant also said that he believed that the police when they can (and subject to resourcing), would assist him and his family if they so requested.
In regard to the applicant’s claims of fear as to the general security and criminal offending situation in Timor-Leste the Tribunal finds that such fears relate to non-state agents and that any feared harm does not arise from fears of persecution for the reasons provided in s 5J of the Act.
Therefore, the applicant’s fears of persecution are not well founded.
As to the applicant’s risk of significant harm arising from the general security situation and prevalence of criminal activity in Timor-Leste. It was the evidence of the applicant that he could, if needed, seek the assistance of the Timor-Leste police and that he had in the past made complaints to the police as to incidents of theft and his beating, when he had accidentally ventured into the wrong neighbourhood in [Town 1]].
The Tribunal has considered the relevant country information, as outlined above at paragraphs 26 to 29. This information reports that the PNTL’s policing capability is limited but improving with the assistance of partners in the international community and they are slowly expanding their capabilities in the areas of criminal investigations and personal and facility protection. This information also provides that community leaders report good relationships with the PNTL and see them as the most appropriate initial mechanism to report crimes and disputes.
After carful consideration of the applicant’s evidence and the relevant country information the Tribunal is satisfied the applicant would not, if he returned to Timor-Leste, face a real risk of significant harm because of the generalised criminal activities and general security situation as there are effective protection measures available to the applicant and his family through the PNTL.
Economic hardship

The applicant claims that he will not be able to find employment if he returns to Timor-Leste due to the current economic situation in his country. He claims that, if he cannot find employment, he will not be able to support himself, his wife, his parents and siblings or ensure that they do not starve and suffer cruel and inhumane treatment. He also claims that, without his Australia earnings, he will not be able to support and fund his siblings’ education.
However, it was the applicant’s evidence that he had previously been able to support his family and his siblings’ education costs when he worked with his father on the family farm. Following questioning, in reply to his statement that he could derive an income from the farm to support himself and his family the applicant told the Tribunal that as the livestock had since escaped and his father was too old to help with the farm, the applicant could no longer derive an income from the farm. However, under further questioning he had conceded that he could use some of the money he had earned in Australia and/or some of the money he had sent to his family to re-stock the farm, so that an income comparable to that he had earned in the past could be attained.
It had also been the applicant’s evidence that the farm could again support himself, and his family, but it would not provide the same level of income as he had been able to obtain through his work in Australia.
Additionally, the applicant in reply to the Tribunal’s questioning, and the applicant’s representative during submissions to the Tribunal, both conceded that the economic situation in Timor-Leste was not something that was targeted at the applicant and was not a form of persecution for the reasons provided in s 5J of the Act.
As such the Tribunal finds that the applicant’s fears in this regard are not well founded.
Regarding the applicant’s claims and his representative’s submission that the economic situation in Timor-Leste places the applicant at a real risk of significant harm in the form of cruel and inhumane treatment, the Tribunal notes that, in order to amount to significant harm relating to the economic situation in Timor-Leste the state of the economy and the available opportunities of paid work would need to be intended to cause pain or suffering to the applicant. The limitations of Timor-Leste’s economy and job market relate to the population at large and there is no evidence before the Tribunal to indicate that the economic situation and shortcomings in the Timor-Leste economy would or were intended and/or directed specifically at the applicant to inflict significant harm.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the 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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste that there is a real risk, that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Timor-Leste.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

[2023] AATA 4704

31 October 2023

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