2314065 (Refugee)

This matter concerned an application for a protection visa by an applicant from Timor-Leste. The applicant claimed he feared persecution due to his homosexuality, alleging he had experienced degrading treatment, social marginalisation, and unequal job opportunities in Timor-Leste. He also expressed a fear of physical assault if his sexual orientation became known. The applicant arrived in Australia in October 2022 and lodged his protection visa application approximately seven months later, in April 2023. The decision under review was made by the Refugee Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth). This involved determining if the applicant had a well-founded fear of persecution for a Convention reason, specifically membership of a particular social group (homosexual men), and whether he would suffer significant harm if returned to Timor-Leste. A secondary issue concerned the application of complementary protection obligations, particularly whether the applicant could reasonably relocate within Timor-Leste or obtain protection from authorities there, and whether the risks he faced were general to the population or personal.

The Tribunal considered the applicant's claims in light of Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines. While acknowledging the applicant's stated fear of mistreatment and discrimination due to his homosexuality in Timor-Leste, the Tribunal found that the applicant had not established a well-founded fear of significant harm. The Tribunal noted that the applicant had not provided a detailed response to specific questions from the Delegate regarding his experiences and relationship history, and that his claims of potential harm were largely speculative. Furthermore, the Tribunal considered the provisions of section 36(2B) of the Act, which preclude complementary protection where it is reasonable for the applicant to relocate to another part of their country of origin, or where the risk faced is general to the population.

The Tribunal affirmed the decision not to grant the applicant a protection visa, concluding that the applicant did not satisfy the criterion in section 36(2) of the Migration Act 1958 (Cth).