2314065 (Refugee)

[2024] AATA 1248

2314065 (Refugee) [2024] AATA 1248 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2314065

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Genevieve Hamilton

DATE:13 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2024 at 12:28pm

CATCHWORDS

REFUGEE – protection visa – Timor-Leste – particular social group – homosexual – fear of physical assault – employment – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 April 2023. The delegate refused to grant the visa on 8 September 2023.

3. The applicant appeared before the Tribunal on 30 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.

   CRITERIA FOR A PROTECTION VISA

4. Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.

   Refugee

6. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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). 

7. 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.

8. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).  The persecution must also involve systematic and discriminatory conduct.

10. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

11. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3)), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

16. In his protection visa application the applicant said he was born in Timor-Leste in [specified year], and travels on a Timor-Leste passport.  He is single.  His parents live in [a named village].  He is ethnically Timorese and he is a Catholic.  He arrived in Australia [in] October 2022.  He did not work in Timor-Leste, he was studying and helping his parents and they supported him financially.  He completed [specified] studies at university in [year], in Dili. 

17. The applicant said he left Timor-Leste because he is homosexual and wants to be able to live with his partner.  They were living together in Timor-Leste.  People in Timor-Leste are strict Catholics and therefore do not accept gays.  He and his partner received degrading treatment from the community (mocking, public harassment, social marginalisation and unequal job opportunities).  People are afraid that being gay is contagious.  The authorities will not help because LGBT is prohibited by religion.  Community harm is not generally against the law if no physical damage is done.  There was psychological harm but that cannot be proved in Court.  The mistreatment of gay people is not taken seriously because they are not considered normal. 

18. The applicant was invited to provided more information about his application, the Delegate noting that he did not apply for protection until 7 months after his arrival.  He was asked a number of specific questions about his relationship and his experiences of discrimination.  However, he did not respond to the Delegate’s letter.

19. At the hearing the applicant said he was one of [number] children, [some] are younger and studying at university in Dili.  His father is a farmer.  The applicant completed his education and after that did voluntary work for [an agency 1].  He arrived in Australia in October 2022 and applied for protection in April.  He wants to stay and work here.  If he goes back to Timor-Leste he will have to face the fact that he is gay, which he has never disclosed before.  He was teased about being like a girl at high school.  Asked what this meant, he said he walked and talked like a girl.  He realised he was gay in senior high school.  He has had six relationships but none lasted.  One came to Australia but then returned to Timor-Leste.  He has only had sex with a woman once, that was when his friends all wanted to go to a brothel.  They would have thought it strange if he said no, and he did not want to disclose his orientation.  He did not enjoy it at all. 

20. The applicant said one of his relationships was with a classmate at university, one was a neighbour, and two different men in his village.  The one in Australia, he did not realise was gay until they asked him for a massage.  These relationships were all secret, and he did not have any evidence of then.  People in Timor-Leste hide their orientation, because people would object and protest strongly.  Asked if he experienced serious harm the applicant said he would be beaten up if people knew.  Once someone threw stones at him when he was leaving campus.  If he goes back, he will have to act like a man if he does not want to be called a woman.  The Tribunal put it to the applicant that being a gay man was not the same as being a woman.  The applicant agreed that this was the case.  The Tribunal asked the applicant if there was any open social life for gay men in East Timor.  The applicant said there was not. 

21. The Tribunal asked the applicant about his delay in applying for protection.  The applicant said when his compatriot went home he realised that he did not want to. 

22. The Tribunal said it would need to consider whether the available country information disclosed a real chance of serious harm for gay men in Timor-Leste.  He said the only way to prevent being seriously harmed is to stop being that way.  His family would be angry and ashamed.  People he had had relationships with may contact him, which would put him at great risk because he wants to get a job to support his siblings’ education. 

    FINDINGS AND REASONS

23. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Timor-Leste.

24. The Tribunal accepts that the applicant is a homosexual man and that homosexual men constitute a particular social group in Timor-Leste. 

25. The Tribunal does not accept that the applicant was living with a partner in Timor-Leste, as this was not reflected in his hearing evidence.  The applicant claimed it was in the context of this relationship that he personally experienced degrading treatment from the community causing psychological harm.  The applicant’s hearing evidence indicated that his relationships were brief.  As the Tribunal does not accept that the applicant was in a partnership, it also does not accept that he experienced the harm he claimed.  At the hearing he said stones were thrown at him on campus but the Tribunal is not persuaded as to the motive for this.

26. The country information about the treatment of homosexual men in Timor-Leste is limited but it does not present a pattern of violence or other serious harm.  The political culture is pro-Pride and anti-discrimination.    

27. The US State Department Country Report on Human Rights Practices states:

    The constitution and law are silent on consensual same-sex sexual conduct and other matters of sexual orientation and gender identity.

    Violence against LGBTQI+ Persons: While physical abuse in public or by public authorities was uncommon, lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons were often verbally abused in public. The penal code establishes discrimination due to sex or sexual orientation as aggravating factors in determining criminal penalties. A 2017 study conducted for Rede Feto, the national women’s advocacy network, of lesbian and bisexual women and transgender men in Dili and Bobonaro documented the use by family members of rape, physical and psychological abuse, ostracism, discrimination, and marginalization against LGBTQI+ individuals.

    Discrimination: The law prohibits discrimination based on sexual orientation, gender identity or expression, or sex characteristics. The NGO Coalition on Diversity and Action noted transgender members of the community were particularly vulnerable to harassment and discrimination.

    Access to education was limited for some LGBTQI+ persons who were removed from the family home or who feared abuse at school. LGBTQI+ individuals were sometimes discriminated against in some public services, including at medical centers. Transgender students were more likely to experience bullying and drop out of school at the secondary level. Civil society organizations asked the government to include LGBTQI+ community issues in its national inclusive-education policy.

    Availability of Legal Gender Recognition: Legal gender recognition was not available.

    Involuntary or Coercive Medical or Psychological Practices Specifically Targeting LGBTQI+ Individuals: While advocates reported that societal and familial pressure on LGBTQI+ persons to give up their identity persisted, there were no reports of so-called conversion therapy being practiced, nor has the government spoken out on this issue. There were no reports of so-called gender normalization surgeries on intersex children.

    Restrictions on Freedom of Expression, Association, or Peaceful Assembly: There were no restrictions on freedom of expression, association, or peaceful assembly related to LGBTQI+ issues. President Jose Ramos-Horta and senior members of the government attended and spoke at the July Pride Parade attended by several thousand.

28. The relevant DHA COISS Thematic Report states:

    Official treatment There are no official restrictions on expression, association or peaceful assembly related to LGBTIQ+ issues.  During the 2022 presidential election, President Jose Ramos-Horta publicly urged equal recognition and non-discrimination of the LGBTIQ+ community.   In 2022, President Ramos-Horta and senior members of the government attended and spoke at the July Pride Parade attended by several thousand people.  Nevertheless, there are no policies or programs that directly address LGBTIQ+ issues in Timor-Leste.

    Societal treatment including reports of violence and discrimination USDOS notes that while physical abuse in public or by public authorities is uncommon, LGBTIQ+ people are often verbally abused in public.  Freedom House notes that LGBTIQ+ people report ‘extreme’ cases of physical violence from strangers and relatives, including cases of ‘corrective’ rape and forced marriage.  The Spotlight Initiative notes that despite significant progress towards equality, LGBTIQ+ people face a higher risk of violence and discrimination from their families, communities and in institutional settings.

    LGBTIQ+ people experience violence from family members. A 2017 study by the national women’s network group, Rede Feto of lesbian and bisexual women and transgender men in Dili and Bobonaro documented the use by family members of rape (including corrective rape), physical and psychological abuse, ostracism, discrimination, and marginalization towards respondents of the survey. 87 per cent of respondents reported experiencing harassment and violence at some point in their lives; 72 per cent reported experiencing these more than once and 11 per cent almost daily. Most of the abuse occurred within the home, although they also occurred in public spaces.  86 per cent of respondents strongly felt that homophobia existed in Timorese society.  Many respondents highlighted that when they shared their LGBTIQ+ identity with their families, they were often met with discrimination and violence.

    LGBTIQ+ advocates report that societal and familial pressure on LGBTIQ+ people to give up their identity continues to occur. According to USDOS, access to education is limited for some LGBTIQ+ people who are removed from the family home or who fear abuse at school. LGBTIQ+ people experience difficulties accessing employment opportunities due to low rates of access to education and discrimination. This was confirmed by the aforementioned 2017 survey of lesbian and bisexual women and transgender men. Over half of the study’s respondents depended on their families for financial support, 23 per cent were gainfully employed and 19 per cent depended on friends for survival.

    LGBTIQ+ people are sometimes discriminated against in some public services, including in medical centres.  The aforementioned 2017 study of lesbian and bisexual women and transgender men in Dili and Bobonaro found that 32 per cent of respondents reported facing discrimination in various government facilities such as schools and health centres because of their LGBTIQ+ identity.

    Government and NGO support services and advocacy groups Several NGOs operate (with international support) to advocate for the rights of LGBTIQ+ people in Timor-Leste. The Coalition for Diversity Action (CODIVA) is the longest running of these groups and is focused on ending stigma and discrimination against LGBTIQ+ people through training and public education. Another high profile NGO is Arcoiris, which provides community support and runs a shelter for LGBTIQ+ people leaving violent situations.

29. The Tribunal has looked at the Freedom House report referred to by COISS (Freedom in the World 2023): it contains no background data or citations for the statement that LGBTIQ+ people report ‘extreme’ cases of physical violence in Timor-Leste. 

30. The Spotlight Initiative report (Leaving No Youth Behind in Timor-Leste Policy Brief #4 LGBTI Youth) is part of a collaboration between the UN and the NGO Belun.  It says “Timor-Leste has taken steps to protect recognize LGBTI rights, but gaps remain”.  It also says:

    There is limited data on LGBTI youth in Timor-Leste. Few studies on the situation of the group and its members have been conducted. The findings presented in this brief are the result of qualitative data only, in the absence of quantitative data on this group. The data comes from two Focus Group Discussions held in Dili, as well as a 2017 study conducted by Rede Feto and the ASEAN SOGIE Caucus among 57 LBT persons and 2014 research conducted by ISEAN-Hivos among 200 men having sex with men (MSM) and transgender persons. 

31. It is in the context of the focus group discussions that youth reported experiences of violence and discrimination in the home, community and in institutional settings.  The expression “higher risk of violence” is not used in relation to Timor-Leste in particular but to LGBTI youth in general.  The Spotlight report also says that:

    Timor-Leste has shown support for LGBTI rights at the United Nations, by, among other things, sponsoring the 2011 UN Human Rights Council Joint Statement on Ending Acts of Violence Related Human Rights Violations Based on Sexual Orientation and Gender Identity. The Government also accepted two recommendations on LGBTI rights made during the Universal Periodic Review by the UN Human Rights Council in 2016. At the national level, in June 2017, then Prime Minister Dr. Rui Maria de Araújo, publicly denounced discrimination against LGBTI individuals with a focus on youth and encouraged everyone, including schools and families to accept and protect their children who have a different sexual orientation or gender identity.

32. The Rede Feto study relates to lesbian and bisexual women and transgender men.  Their experiences cannot readily be assumed to apply to homosexual men. 

33. The Tribunal acknowledges that Catholic tradition is against homosexuality but it is not prohibited by law in Timor-Leste.  The applicant said community harm is not generally against the law if no physical damage is done.  This is a feature of criminal law in that crimes against the person tend to be mainly concerned with physical harm.  The applicant said that the mistreatment of gay people is not taken seriously because they are not considered normal.  This is not supported by the country information which indicates that gay hate is treated as an aggravating circumstance in the criminal law.  

1. The Tribunal accepts that the applicant may experience public harassment and social discrimination.  His family will be ashamed and embarrassed.  He may also experience discrimination in employment even though that is not legal.  But, based on its evaluation of the country information, the Tribunal is not satisfied that the applicant faces a real chance of serious harm such as a threat to his life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens his capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, threatening capacity to subsist.  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

2. Regarding complementary protection, the country information does not demonstrate a real risk that the applicant will experience arbitrary deprivation of life, carrying out of the death penalty, or torture, or cruel or inhuman treatment or punishment. 

3. As for degrading treatment or punishment, it is defined as an act or omission that causes, and is intended to cause, extreme humiliation.  The risk that any instances of future negative family reaction, public harassment and social discrimination, will be intended to cause the applicant extreme humiliation, and in fact cause the applicant extreme humiliation, is no more than speculative at this stage. 

4. Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that the applicant will suffer significant harm as defined in S 36(2A) on return to Timor-Leste. 

   CONCLUSION

5. 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) or s 36(2)(aa).

6. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

7. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Genevieve Hamilton
   Member