2314053 (Refugee)

2314053 (Refugee) [2023] AATA 4644 (7 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2314053

COUNTRY OF REFERENCE: East Timor
MEMBER:James Silva
DATE:7 December 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 December 2023 at 12:08pm
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – particular social group – homosexual man – social disapproval – employment – economic conditions – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a man in his [age range] from East Timor (Timor-Leste), who claims to be a citizen of that country.
The applicant arrived in Australia [in] January 2023, as the holder of a [visitor] visa. On 14 February 2023, he applied for a protection (class XA) visa. On 8 September 2023, a delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
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.
An excerpt of the relevant law is at Attachment A.
CLAIMS AND EVIDENCE
Protection claims
The applicant claims to require protection in Australia, as a homosexual (gay man).
Background
The applicant is [an age] year old man from the village [named in] [Town 1], [District 1], Timor-Leste. He speaks Tetum, English and Portuguese, in order of preference, and identifies as a Timorese Catholic. The online application form contained only basic background information; he provided some more detail at the hearing.
The applicant lived at an address in [Town 1], [District 1], for at least ten years before coming to Australia. According to Google Maps, this is some [distance] south of Dili, near the southern coast. At hearing, the applicant said that he used to travel to Dili during holidays, usually for less than a week.
The applicant attended primary school ([between specified years]), middle school ([between specified years]) and high school ([between specified years]) in [Town 1]. He wrote that he had no employment history; after completing his studies, he helped his parents. At hearing, he confirmed that after finishing school, he helped his family (he mentioned an uncle) farming, eg. tending to the [specified fields and animals].
The applicant listed his father and mother as members of the same family unit not included in the application. However, a family photograph suggests that his immediate family is somewhat larger. At hearing, he said that his father farms his own land. The applicant is the youngest of [number] children. Of his [specified family members], one works as [an occupation 1] in [Village 1], and the other works as [an occupation 2] in Dili. The applicant has [other family members], one of whom is [an occupation 3], and another ([Sister A]) moved to Australia many years ago.
The applicant gave his relationship status as ‘never married’ on the application form, but referred to his male partner in the body of his protection claims. There was detailed discussion of this at hearing (see below).
The application holds a passport issued [in] 2022, valid for ten years. He provided a full copy of the passport with the protection visa application. The applicant said that he had not travelled previously. He flew from Dili to Darwin, and at the time of applying for his protection visa, was in [Town 2].
At hearing, the applicant said that he initially lived with his sister and brother-in-law, but he has since moved to Melbourne where he lives in a share house consisting of [number] people, [mostly] men from Timor Leste and the [Country 1] wife of one of them.
Evidence
The evidence before the Tribunal includes the following relevant material:
§ The protection visa application form, lodged online on 14 February 2023.
§ The applicant provided a copy of his Timor Leste passport, issued [in] 2022; and his Timor Lester national ID card, issued [in] 2022.
§ There was no protection interview in this matter. The delegate wrote to the applicant on 27 July 2023, requesting additional information under s.56, but there was no response.
§ The protection visa decision record of 8 September 2023.
The applicant appeared before the Tribunal on 22 November 2023, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tetum and English languages, who appeared by video link. The Tribunal took evidence from the applicant’s sister, [Sister A]. The applicant did not provide any supporting documents.
The Tribunal received a copy of the applicant’s online visitor visa application, lodged on 6 November 2022. The information contained in that is broadly consistent with the claims that the applicant provided at hearing, except for the claimed purpose and duration of the visit. It is therefore not relevant to the present decision.
Receiving country
The applicant claims to be a national of Timor Leste. He holds a Timor Leste passport, speaks Tetum (alongside English and Portuguese) and is familiar with that country. There is nothing to suggest that he has any other nationality. The Tribunal accepts that he is a national of Timor Leste, and assesses his protection claims against that country.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of Claims
The Tribunal has taken into account the AAT Migration and Refugee Division’s Guidelines on the Assessment of Credibility (Credibility Guidelines) both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
Assessing claims involving sexual orientation (and gender identity) requires particular care. They often involve private matters of self-identity, sexual conduct and other personal experiences. For individuals, these may be complex, evolving and/or entail some uncertainty or stress. Past experiences of discrimination or other harm may shape how a person thinks about and expresses their identity. The Tribunal has drawn on recent studies and commentary[1] on these questions.
[1] For instance: Berthelot, Will --- "Sexual Orientation And Gender Identity As A Basis For Refugee Claims In Australia" [2020] UNSWLawJlStuS 1; (2020) UNSWLJ Student Series No 20-01
Country information about the treatment of LGBT+ people in Timor Leste is essential context for understanding and assessing the applicant’s claims. Information discussed at hearing indicates that there are no official restrictions relating to LGBT+ issues in Timor Leste[2]. On a positive note, President Ramos-Horta and other senior government officials attended the Pride Parade in July 2022, promoting equal treatment for the LGBT+ community[3]. On the other hand, there are no specific policies or programs directed towards the community. Nonetheless, anecdotal evidence indicates that LGBT+ people are subject to social discrimination and harassment, such as verbal abuse in public[4]. In some instances, strangers or relatives may be physically violent.[5]
[2] US Department of State: Country Reports on Human Rights Practices for 2022 - Timor-Leste, 20 March 2023, p.15:
[3] Ibid.
[4] Ibid, pp.14-15.
[5] Freedom House: Freedom in the World 2023 - Timor-Leste, 2023: >
In the present case, the Tribunal notes that the applicant is relatively young ([age] years of age) and appears to have limited life experience outside his home area. These factors may make it more difficult for him to come to terms with questions about sexual orientation, particularly given negative family and community attitudes towards LGBT+ people. The Tribunal acknowledges that these are challenging issues and takes them into account when assessing the applicant’s claims and evidence.
Even so, the Tribunal has concerns about the accuracy of the applicant’s statements at various times, such as whether or not he was (or is) in a relationship, and his adverse experiences in Timor Leste. At hearing, the applicant gave the impression that his key priority was to secure permission to stay and work in Australia, and that the substance of his protection claims – namely, his claimed homosexuality and fears relating to this – were secondary considerations and possibly simply a means to an end. The Tribunal’s full assessment follows.
Sexual orientation
In his protection visa application, the applicant wrote that he is homosexual, and had been living together with an unnamed partner in Timor-Leste. He provided no further details and did not respond to the Department’s letter requesting further information.
During this review, the Tribunal sent a pre-hearing letter to the applicant, with a copy of the questions that the delegate had put to him and alerting him that the Tribunal would like to explore these and similar matters to assist with fact-finding. At hearing, the applicant provided some limited evidence about his claimed homosexuality.
Sexual orientation: In response to the Tribunal’s questions, the applicant described himself as a ‘gay man’ and said that he became aware of his attraction to men at the age of about 17. This was closely linked with his friendship with a schoolfriend, which he described as a ‘boyfriend’ relationship.
Relationship in Timor Leste: At the start of the hearing, the applicant said that he is in an ongoing relationship with a man named [Mr A]. He gave the following further (and sometimes differing) evidence in relation to this:
§ He and [Mr A] met in high school. They used to ‘hang out’ together, enjoying each other’s company. The applicant implied that it was around this time that he started to realise his same-sex attraction. The two became ‘boyfriends’. When asked whether he and [Mr A] had the opportunity to spend time alone, and develop an emotional or intimate bond, the applicant replied briefly ‘no’.
§ The applicant gave [Mr A’s] birthdate as [DOB 1] and said that he ([Mr A]) continues to live in their village of [Village 1]. He lives with his family (i.e. parents) and works in the [fields].
§ In response to questions, the applicant said that he and [Mr A] remain in contact through messaging services (WhatsApp video and chat). They do not have much contact now, only when they have time. Asked whether there is anything in their messages to show that they are partners, the applicant replied ‘no’.
§ The Tribunal noted the applicant’s statement in his protection visa application: ‘We are living together since we were in Timor Leste’ and asked for details. The applicant said that in around 2021, he and [Mr A] stayed together in a hostel in Dili for about two weeks, while [Mr A] was doing a course in Dili. He said that they stayed in a shared room with bunk beds; there was no problem doing so.
§ In relation to [Mr A's] background and his attitude to the relationship, the applicant said that while he (the applicant) views himself and [Mr A] as being in a relationship, [Mr A] does not ‘think like that’. He is not sure whether [Mr A] has had other relationships or intimate contacts, as they do not discuss these ‘private’ things.
Family/community perceptions: The protection visa application refers to the applicant’s community and neighbours having inflicted psychological harm on the applicant and [Mr A], implicitly because they knew of their sexuality and relationship, and rejected them for that reason.
At hearing, however, the Tribunal had difficulty eliciting details from the applicant as to what his family and community know (or might surmise) about his sexual orientation. He said that he has discussed this only with his sister in Australia, shortly after he arrived in Australia. As for other family members, he said that they do not know that he is gay and – in later comments about a brother-in-law [Brother-in-law A] (who allegedly attacked him) - he added that they might presume it. He emphasised that he tries to conceal his sexuality from his family, having heard them make derogatory comments about LGBT people in the past.
LGBT contacts in Timor Leste: The Tribunal explored whether the applicant had sought information about or contacts with other LGBT individuals in Timor Leste. He said that there may be one or two gays in [Town 1], but he ‘was not concerned about them’. Similarly, he had not enquired about any LBGT support groups in Timor Leste, for the same reason. The Tribunal noted recent country information that President Jose Ramos-Horta had participated in a Pride Parade in Dili in 2022, and later called on people to appreciate and not discriminate against LGBT people in Timor Leste. The applicant said that he had not been aware of that and was ‘not concerned’. The Tribunal noted the applicant’s use of that phrase several times during the hearing and asked whether this meant that he did not view these matters as relevant to him. He replied that his focus is on avoiding his family calling him ‘gay’ or ‘trans’. The Tribunal took this to mean that his fear of family rejection has overshadowed other interests in exploring LGBT issues in Timor Leste.
Contacts/enquiries in Australia: The applicant said, in response to the Tribunal’s questions, that he did not have any information about the situation for LGBT people in Australia, prior to his travel in January 2023. He said that since arriving here, he has undertaken seasonal work picking fruit, and is ‘not overly concerned with these groups’.
The applicant said that he moved from his sister’s home [in New South Wales] to Melbourne, after a friend alerted him to work opportunities there. He lives in a share house with other Timor Leste men, one of whom is living with his [Country 1] partner (female). He said that he has not met any LGBT people in Australia but has observed some in public (based on their clothing and appearance). He has not looked online for information or made enquiries about any support groups or other activities, as he does not identify himself as gay. He went on to suggest that he meant that he does not identify publicly as gay, because of his fear of rejection from family and friends. The Tribunal signalled its surprise that the applicant had not at least sought information about LGBT people in Australia, since arriving here in January 2023.
The applicant told the Tribunal that his sister in Australia is aware of his sexuality, having broached the subject with him shortly after he arrived. She had listened to him and assured him of her support. In oral evidence, [Sister A] confirmed that the applicant is gay. She said that he seemed to be traumatised by his experiences in Timor-Leste, and she had not had more detailed conversations with him.
Adverse experiences in East Timor
The applicant wrote in his protection visa application that the community (namely their neighbours) did not accept gay relationships, fearing that they will encourage other family members to become gay. They harassed and mocked the applicant; ostracised him; and made it difficult for him to find work. The applicant characterised this as ‘degrading treatment’ and wrote that it caused him and his partner psychological harm.
The applicant states that the police and other authorities were unable to protect him, as there had been no physical harm.
At hearing, the applicant reiterated that he had felt the pressure of family and societal disapproval of LGBT people. The Tribunal understood him to mean that he found the general attitudes to be oppressive, and that he had not in fact suffered ‘degrading treatment’ or ‘psychological harm’ as a result of any targeted action against him personally.
Later in the hearing, however, the applicant referred to an occasion in late 2022 when his [Brother-in-law A] tried to attack him. The applicant had gone to his brother’s home with a cousin, when [Brother-in-law A], who was drunk at the time, threw a rock at him and chased him with a machete. The applicant ran away and hid in an aunt’s home. Local people called the police. The police attended the scene but, after confirming that no one had been physically hurt, left without taking any further action. In response to the Tribunal’s comments (in which it noted the applicant’s earlier evidence that no one in his community knew about his sexual orientation), he explained that [Brother-in-law A] and others presumed that he was gay.

In her evidence, the applicant’s sister [Sister A] said that in December 2022, [Brother-in-law A] became upset when the applicant was talking to his ‘boyfriend’. [Sister A] thought that [Brother-in-law A] disapproved of the applicant’s and [Mr A’s] contacts, suspecting they were in a relationship. [Brother-in-law A] had been drinking and had arguments with others when he got drunk. On this occasion, he tried to intimidate the applicant because he is gay.
Future plans
The Tribunal noted the applicant’s apparent lack of interest in LGBT issues in Australia to date and wondered how he saw his opportunities in Australia compared with those in Timor-Leste. He said that in Australia, the community was not fussed about LGBT matters (he implied that LGBT and other people were free to pursue their private lives without interference), and he wanted the chance to live and work here ‘normally’, make money and perhaps continue his education.
In relation to his future as a (claimed) gay man in Timor-Leste, the applicant said that he doubted that he would look to ‘resume’ a relationship with [Mr A]; he would prefer to live by himself, rather than with a partner. Asked to compare this with his plans if he were able to stay in Australia, the applicant replied that he would like to live freely in Australia. He intimated that the main difference was that there was a more tolerant environment in Australia that would give him options such as pursuing a relationship if he so chose. He would be afraid of doing so in Timor-Leste.
Analysis and findings
The applicant’s claims and evidence concerning his sexual orientation present a somewhat complex, mixed picture.
§ His description of his attraction to [Mr A], his overriding fear of his family’s reaction to any news of his sexual orientation, and his reluctance to engage with other LGBT people suggest, at face value, that he has a same-sex attraction and is worried about the consequences if he were to act on this. As noted above, his relative youth and inexperience, and awareness of anti-LGBT sentiment in his family and community may all shape how he comes to term with such matters, and how he articulates his feelings. Overall, the Tribunal formed the impression that the applicant’s written claims and his reference to himself at hearing as a ‘gay man’ were formulated for the purpose of this application, and he is in fact grappling with questions of self-identity
§ At the same time, there are some broad questions about the applicant’s reliability as a witness. This was evident at hearing when he sometimes gave contradictory answers within a short timeframe and (as noted at hearing), tension between his written and oral claims and evidence.
   First, the Tribunal has difficulty believing that the protection visa application, which the applicant claims to have written himself just over two weeks after arriving in Australia, genuinely reflects his personal fears. Rather, they appear geared towards the criteria for the protection visa. For instance, his references to himself as a ‘gay man’ and his description of the treatment of LGBT people in Dili and elsewhere do not sit well with his evidence at hearing that he had no real information about, or identity with the LGBT community in either Timor-Leste or Australia at the time.
§ Similarly, the Tribunal found the applicant’s statements that he was not concerned about or interested in other LGBT people disquieting. One interpretation of this may be that he is coming to terms with his own identity; and does not feel a connection with openly gay people or with the broader LGBT community. However, there was also the sense that he does not really feel that he has much in common with LGBT people
   Second, the applicant’s oral evidence exposed some of the claims in the protection visa application as inaccurate and misleading. For instance, he indicated at hearing that he and [Mr A] were not ‘living together since we were in Timor Leste’; that the community and neighbours did not target both him and [Mr A] (inflicting psychological harm on them); and that he did not suffer social ostracism or job discrimination. Rather, his evidence suggested that it was his fear of such possible consequences if he were to be open about his sexual orientation that motivated him to leave Timor-Leste.
   Third, although the applicant’s written claims were focused on his (claimed) fear of persecution or significant harm in Timor-Leste as a gay man, it was clear at hearing, from his statements and his conduct in Australia, that his priority is to be allowed to live and work in Australia. He claimed that Australia offered a more favourable climate for him as a gay man, insofar as he would be living independently of his family and community and have broader options in terms of coming out and broader acceptance. He struggled to imagine what his future conduct would be, in Australia or Timor-Leste, or what the consequences might be.
In light of the above, the Tribunal accepts as plausible that the applicant is same-sex attracted, and is in the process of coming to terms with his sexual orientation. It accepts that he had romantic feelings towards [Mr A], but it is not satisfied that that this was a ‘relationship’, or that [Mr A], the applicant’s family or anyone perceived it as such.
The Tribunal accepts that the applicant’s family and neighbours may wonder about his sexual orientation, and that the applicant, aware of generally negative attitudes to LGBT persons, feels under some pressure. It also accepts that in December 2022, his drunken brother-in-law became verbally abusive and chased him with a machete; and it accepts as plausible that this was partly because of his suspicions about the applicant’s sexuality. However, it appears that the brother-in-law has a drinking problem, and becomes generally abusive. There is no claim or evidence that he, or anyone else, has threatened or tried to assault the applicant in the past. The Tribunal is satisfied that this was not part of any sustained homophobic threats or attempted violence against the applicant. Moreover, the Tribunal notes that the applicant’s family intervened and called the police, who responded but did not lay charges as there had been no physical encounter. The Tribunal accepts that this incident unsettled the applicant, but it is not satisfied that it amounted to any credible threat to inflict serious or significant harm on him.
The Tribunal accepts that societal disapproval of LGBT people in the applicant’s family complicates his coming to terms with his sexuality; and causes him some stress. It accepts that Australia offers a more favourable environment to explore these issues, due to general attitudes and the applicant’s independence from his family.
ASSESSMENT: REFUGEE CRITERION
In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal assesses this in light of the above findings of fact and having regard to other relevant factors such as the applicant’s future conduct and country information.
In the protection visa application, the applicant claimed to fear ‘continued degrading treatment and public harassment from the communities, excluded by the people, don’t have friends and unequal job opportunities’, implicitly for reason of his membership of a particular social group, such as ‘gay men in Timor-Leste’. The Tribunal accepts for the purpose of this decision that there exists such a particular social group.
The Tribunal accepts as plausible that the applicant is attracted to other men, but finds on the available evidence that he has not developed his thinking about his sexual identity, and is not motivated to have intimate contacts, relationships or social contacts with any gay men. It finds that his priorities in Australia are to seek residency and work, and the support of other people from Timor-Leste; and in Timor-Leste, to resume contacts with his family.
The Tribunal is not satisfied that the applicant has any genuine or well-founded fears of serious harm arising from his past experiences in Timor-Leste. It accepts that there was one occasion in December 2022 when his brother-in-law was verbally abusive, threw a stone at the applicant and came after him with a machete. It appears that [Brother-in-law A] was in part motivated by his perception of the applicant as being gay. However, the Tribunal notes that this occurred while [Brother-in-law A] was in a drunken rage, the applicant does not appear to have been at immediate risk of injury, family and neighbours stepped in to assist the applicant, and there were no similar prior incidents, from [Brother-in-law A] or others. The Tribunal is not satisfied that this incident, or the family’s decision to call the police, gives rise to a real chance of serious harm in the future. The Tribunal accepts that this incident was upsetting, and even traumatic, but is not satisfied that it resulted in serious psychological or other harm for the applicant.
The Tribunal accepts that the applicant is concerned about his family’s and community’s response if he opens up to them about his sexuality although, as he intimated at hearing, it appears that at least some suspect that he is gay. Having regard to country information about attitudes towards and the treatment of LGBT people in Timor-Leste, it considers there is a real chance that some family or community members will signal their disapproval, and that the applicant may experience some instances of verbal abuse or harassment. While this may include some elements of the kind of harm that the applicant referred to in his protection visa application – such as some verbal abuse, instances of social rejection or some degree of discrimination – it is not satisfied that such harm, even cumulatively, involves serious harm amounting to persecution. The Tribunal reaches this conclusion having regard to the applicant’s experiences in his home area to date, including that he appears to have strong family and community ties (notwithstanding some suspicions about his sexuality).
The Tribunal explored at hearing whether – given the applicant’s concerns about the reactions of his family and community if he opens up to them about his sexuality, and his brother-in-law’s drunken conduct on one occasion – he considered that he would face a lesser risk (i.e. not a real chance of persecution) elsewhere in Timor-Leste: s.5J(1)(c). In reply, he said that he did not want to live anywhere in Timor-Leste except with his family in their village. Furthermore, he felt traumatised by his brother-in-law’s attempted attack in late 2022. The Tribunal notes the applicant’s apparent independence in moving to Melbourne to live and work, although it also recognises that there may be some expectation that he returns to his family if he goes back to Timor-Leste.
The Tribunal finds that there is no real chance of the applicant’s family, or members of the community, inflicting serious harm amounting to persecution on him, for reason of his (actual or suspected) homosexuality. Having regard to the reasonably foreseeable future, and the possibility that he may choose to open up about his homosexuality, the Tribunal similarly finds that, while the applicant may face some criticism or instances of rejection, there is no real chance of him being subject to persecution, in his village of [Village 1] or in the country as a whole.
Section 5J(3)(c)(vi) makes clear that requiring a person to modify their behaviour by altering their sexual orientation or concealing it is not a reasonable step to avoid persecution, such that a person does not have a well-founded fear of persecution. In the present case, the Tribunal finds that the applicant’s conduct in Timor-Leste to date reflects in large part his uncertainty about his sexual orientation, and also his wariness about negative societal attitudes, including from his family. It considers that he has been keen to avoid disappointing his family, or provoking criticism. However, having regard to the applicant’s conduct in Timor-Leste and Australia, as well as country information, it is not satisfied that he has in the past modified his conduct to avoid a real chance of persecutory harm. It finds that, similarly, he would not need to modify his conduct to avoid a real chance of persecution in the future, if he returns to Timor-Leste and his home village.
In sum, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in his home village or in Timor-Leste as a whole; or that he would need to modify his conduct in order to avoid a real chance of such persecution.
Conclusion
The Tribunal accepts as plausible, albeit with some reservations, that the applicant is a member, actual or imputed, of a particular social group of gay men in Timor-Leste. Having regard to his personal circumstances in Timor-Leste and Australia, his future conduct and relevant country information, the Tribunal is not satisfied that he has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1) (including any actual or imputed homosexuality), now or in the reasonably foreseeable future, if he returns to Timor-Leste.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b).[6]
[6] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
Based on the findings of fact and analysis above, the Tribunal finds that there is no real risk of the applicant being subject to significant harm at the hands of his family, the local community or the others, including as a person suspected of being homosexual. The Tribunal notes that the applicant, in his protection visa application, specifically referred to having suffered degrading and humiliating treatment in the past, citing as examples public harassment, social ostracism and job discrimination. The Tribunal notes that the definition of ‘degrading treatment or punishment’ in s.5(1) means ‘an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable […]’. The Tribunal is not satisfied that the applicant has in the past been subject to such treatment, including during his brother-in-law’s drunken conduct in December 2022. It also finds that there is no real risk of such harm if he returns to Timor-Leste.
For the reasons set out above, the Tribunal formed the strong view that the applicant’s overriding concerns are with general economic and social conditions in Timor-Leste. The latter included the kind of family and societal pressures on young people generally, as well as conservative and homophobic attitudes, and associated discrimination, in families, communities and institutional settings. The Tribunal is not satisfied that such general economic and social conditions give rise to a real risk of significant harm. Insofar as the applicant may face an elevated risk of physical and/or psychological harm, due to anti-LGBT sentiment, the Tribunal is not satisfied that this amounts to a real risk of significant harm in his home village, or in Timor-Leste as a whole.
The Tribunal concludes in light of the above findings of fact and analysis that there are no substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. That is, there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering (physical or mental) is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of their life or the death penalty.
Accordingly 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-Leste, there is a real risk that he will suffer significant harm, as required by s.36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. There are no claims, and nothing to suggest that he satisfies the criterion set out in s 36(2)(b) or (c), on the basis of his membership of the same family unit as a person who holds a protection visa. As such, the applicant cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member

ATTACHMENT A
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 4644

7 December 2023

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Immigration

Administrative Law

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Natural Justice

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