2314025 (Refugee)

Case [2023] AATA 4576

2314025 (Refugee) [2023] AATA 4576 (6 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2314025

COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:David James

DATE:6 November 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 06 November 2023 at 1:02pm

CATCHWORDS
REFUGEE – protection visa – East Timor – fear of harm from informal loan provider – no assistance or protection by family or authorities – no response to invitation to comment and loss of right to hearing – vague and undocumented claims, including identity of lender, amount and terms of loan and repayments and incidents of threats or harm – return travel and delay in applying for protection – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c), 424A(1), 425(3)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
Hasran v MIAC (2010) 183 FCR 413; [2010] FCAFC 40
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant, who claims to be a citizen of the Democratic Republic of Timor-Leste (Timor-Leste), applied for the visa on 16 August 2023. 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.

  3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 8 September 2023. The applicant did…

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Details
AGLC
2314025 (Refugee) [2023] AATA 4576
Case
[2023] AATA 4576
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a protection visa refusal. The applicant, who is from East Timor, claimed to fear harm upon return due to an inability to repay a substantial debt to an informal loan provider. The applicant asserted that she would be jobless, tortured, and/or killed as a consequence of this debt, and that neither her family nor the authorities would provide assistance due to the size of the debt and signed loan documents. She also claimed she could not relocate within Timor-Leste as she had no relatives elsewhere and her existing relatives were avoiding her, and that the country was too small for her to evade detection. The decision under review was made by a delegate who was not satisfied that the applicant met the criteria for a refugee or that there was a real risk of significant harm upon return.

The court was required to determine whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under the Act, and if there was a real chance of such persecution upon return to Timor-Leste. Alternatively, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Timor-Leste, the applicant faced a real risk of suffering significant harm as defined in the Act. These issues were to be assessed in light of the documentary evidence provided by the applicant, including her protection visa application, passport, and application for review, as well as administrative and movement records.

The Tribunal considered the applicant's claims and the documentary evidence. It noted that the applicant had not been offered an interview by the Department. The Tribunal had invited the applicant to comment on the delegate's decision and to attend a hearing, but the applicant failed to respond in writing by the specified deadline and did not request an extension. Consequently, the Tribunal exercised its discretion under section 424A of the Act to proceed with a decision on the review without further action, finding that the applicant had lost her entitlement to appear before the Tribunal. The Tribunal also had regard to country information and guidelines prepared by the Department of Home Affairs and the Department of Foreign Affairs and Trade. The Tribunal affirmed the delegate's decision, finding that the applicant's claims were vague and undocumented, including the identity of the lender, the loan amount and terms, and specific incidents of threats or harm. The Tribunal was not satisfied that the applicant had established a well-founded fear of persecution or a real risk of significant harm upon return to Timor-Leste, particularly in light of the lack of specific evidence and the applicant's failure to engage with the Tribunal's invitations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 16 August 2023 and the annexed copy of the applicant’s Timor-Leste passport; ·The applicant’s application for review of 8 September 2023; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in her visa application, outlined her claims for protection as summarise below, being that:·She fears she will be threatened or killed because of her inability to repay a debt in Timor-Leste. She borrowed a large sum of money at a high interest rate in Timor-Leste;·She will jobless if she returns to Timor-Leste and she will be tortured and/or killed because she will be unable to pay the interest every month and the capital of the loan will keep increasing every month;·She is not able to seek help from the authorities or her family because of the large size of the debt and because she had signed documents relating to the loan;·She did not try to relocate within Timor-Leste as she does not have any relatives in other parts of the country and her relatives are avoiding her because of this debt, she also cannot relocate as Timor-Leste is a small country and she will be easily found; and·The authorities do not want to get involved in her problem and will not provide her with assistance.Department interview The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 8 September 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant would be able to avail herself of effective state protection on any return to Timor-Leste should she need to do so. 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

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 8 September 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant would be able to avail herself of effective state protection on any return to Timor-Leste should she need to do so. 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 13 October 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 2 November 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. Invitation to comment on or respond to information On 9 October 2023, the Tribunal wrote to the applicant pursuant to s 424A of the Act, inviting the applicant to respond and/or comment on the delegate’s decision of 8 September 2023. The invitation was sent to the last address provided in connection with the review, and advised that if the response and/or comments were not provided in writing by 23 October 2023, the Tribunal may make a decision on the review without taking any further steps to obtain the applicant’s comments and/or response to the delegate’s decision, and that the review applicant would lose any entitlement she might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.Cancellation of hearing of 31 October 2023 The review applicant did not respond and/or comment on the information within the prescribed period (by 23 October 2023) and no extension was requested by, or granted to, the applicant. In these circumstances, the Tribunal, noting that s 424A(1)(a) and (b) of the Act were satisfied, has exercised its discretion to make a decision on the review without taking any further action. The Tribunal in this regard notes that the section uses the word ‘may’ and has had regard to the court’s decision in Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, where the court found that the combined effect of this section with s 425(3) of the Act, is that an applicant loses his or her right to appear before the Tribunal.

Ratio Decidendi

Legal Principle Established

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 EVIDENCEIssues 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 16 August 2023 and the annexed copy of the applicant’s Timor-Leste passport; ·The applicant’s application for review of 8 September 2023; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant, in her visa application, outlined her claims for protection as summarise below, being that:·She fears she will be threatened or killed because of her inability to repay a debt in Timor-Leste. She borrowed a large sum of money at a high interest rate in Timor-Leste;·She will jobless if she returns to Timor-Leste and she will be tortured and/or killed because she will be unable to pay the interest every month and the capital of the loan will keep increasing every month;·She is not able to seek help from the authorities or her family because of the large size of the debt and because she had signed documents relating to the loan;·She did not try to relocate within Timor-Leste as she does not have any relatives in other parts of the country and her relatives are avoiding her because of this debt, she also cannot relocate as Timor-Leste is a small country and she will be easily found; and·The authorities do not want to get involved in her problem and will not provide her with assistance.Department interview