2314183 (Refugee)

2314183 (Refugee) [2023] AATA 4755 (8 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2314183
COUNTRY OF REFERENCE:                   Timor Leste
MEMBER:Kate Chapple
DATE:8 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 November 2023 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – Timor Leste – economic hardship – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 dependant.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

The applicant’s protection visa application lodged 7 August 2023 setting out the following claims (spelling and grammatical errors not corrected):
1.1.[reason applicant left Timor Leste] I FOLLOWED THIS WORK PROGRAM IN AUSTRALIA BECAUSE I HAD TO PAY MY DEBT IN THE VILLAGE. MY LIFE IS VERY DESPERATE AND MY HUSBAND IS VERY DEPRESSED WITH THIS DEBT. I HAD BORROWED FROM RICH PEOPLE IN THE VILLAGE AND HAD PLEDGED MY FAMILY HOUSE AS COLLATERAL. BECAUSE THIS DEBT HAS BEEN OVERDUE FOR TOO LONG, OUR HOUSE WAS ALMOST FORECLOSED AND NOW MY HUSBAND AND I HAVE TO PAY TO SAVE THE HOUSE WE INHERITED.
1.2.[harm experienced by applicant in Timor Leste] EVERY TIME WE LATE PAYING OUR DEBT IS CHARGED MORE THAN 15% INTEREST. THEY ALSO THREATENED US AND ALSO EMBARRASSED OUR FAMILY WHEN ASKING FOR MONEY AT OUR HOUSE.
1.3.[reason applicant didn’t seek help in Timor Leste] NO ONE CAN HELP US.
1.4.[reason applicant did not move to another part of Timor Leste] WE CANNOT RUN AWAY.
1.5.[what applicant thinks will happen to her if she returns to Timor Leste] WE WILL CONTINUE TO BE HARASSED AND FORCED TO PAY THIS DEBT UNTIL PAID IN FULL.
1.6.[reason applicant thinks she will be harmed or mistreated if he returns to Timor Leste] NO ONE WANTS TO DEFEND FATE LIKE US.
1.7.[reason applicant thinks the Timor Leste authorities can’t and won’t protect him] OUR LIVES WILL CONTINUE TO BE CHARGED WITH DEBT.
1.8.[reason applicant thinks he is unable to relocate within Timor Leste] WE HAVE NO WHERE TO GO AND HELPLESS.
Decision record relating to the delegate’s refusal decision.
Case file.
Internal records relating to the applicant.
Application for review
The Tribunal wrote to the applicant inviting her to attend a hearing on 8 November 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant requested a Tetum interpreter, but did not provide any submissions or documents.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted in person on 8 November 2023, with the assistance of an interpreter (via video link) in the Tetum and English languages. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
8.1.The applicant was born in [year] in the mountains of [location] where she grew up with her parents and [number] siblings. The parents own a plantation where the whole family lives. Her father is aged [age]; her mother, [age]. She has an older sister aged [age], and older brother, [age]. The plantation provides food to sustain the family, but it does not make any money.
8.2.The applicant completed senior high school in 2017. She wanted to do further study, however her parents could not afford to pay, so she got a job as a [Occupation 1], earning very little money. [Number] of her siblings are still at school, and the others don’t work. She gave her earnings to her parents to help support the family. She has never married, and didn’t have a partner in Timor Leste.
8.3.Life was very difficult in Timor Leste. Her parents are simple people, they have a lot of children, she couldn’t continue her study because there wasn’t the money, she was the only one who worked, and on a very small monthly salary it was very difficult to sustain her parents and siblings, and pay for her siblings to go to school.
8.4.In 2019, the applicant responded to a vacancy advertised by the Timor Leste Secretary of State for Education to travel to Australia to work for 6 months. They contacted her in August 2022 to let her know she’d been approval for the temporary work program. She came to Australia in February 2023 and worked on a farm in [Town 1].
8.5.The applicant’s visa was due to expire in August 2023. She knew 6 months wouldn’t be long enough to earn the money needed to take home to her parents, so she did what she saw other Timorese doing in Australia: being brave and going outside the system, meaning finding another way of staying in Australia for a long time and working to earn enough money to send home.
8.6.Some friends who had been working in Australia gave the applicant the name of a man who could help her with a protection visa application. She called him and he did the application for her. She doesn’t know what a protection visa is, and she doesn’t know what the man put in her application. She just wanted a visa that allowed her to stay here for a long time.
8.7.The Tribunal read out to the applicant the claims made in her protection visa application and asked her if they were true. The applicant said she doesn’t know about the application; she has told the Tribunal about her true circumstances. She has tried to contact the man since, but his phone has gone dead.
8.8.The Tribunal reminded the applicant of the protection requirements under Australian law summarised at the start of the hearing. The Tribunal pointed out that, based on her evidence, the applicant is unlikely to satisfy the requirements.
8.9.When asked by the Tribunal what she thinks would happen to her if she returns to Timor Leste, the applicant said she would feel sad because she wouldn’t have any money to sustain her parents and siblings. She is currently helping friends with cooking and washing, so she can pay for her house and food. She sends $100 home once or twice a month, or not at all, depending on how much she earns.
8.10.The applicant doesn’t know about any other visa options.
Country information
Timor Leste has experienced significant economic growth since its independence in 2002, with GDP per capita increasing from $453 in 2004 to $1381 in 2020. The economy is almost entirely reliant on oil and gas.[1] Approximately 80 percent of state expenditure comes from a sovereign wealth fund, the Petroleum Fund, but oil and gas income into this fund is now almost negligible due to declining reserves. It is estimated that the fund could be depleted entirely within a decade.[2]
Timor Leste has achieved a medium human development status, positioned 131 out of 189 countries.[3] However, it appears to have experienced a decline between 2014 and 2020, with the poverty rate (based on the international poverty line of $1.90) rising from 22 percent to 27 percent in that period.[4] The poverty rate is higher in rural areas.[5] Forty-six per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.[6] The majority of households are in the informal sector, with only about 23 percent of the working-age population in the cash economy.[7] Household vulnerability is increased by the dependence of nearly 70 percent of citizens on climate-sensitive livelihoods and agricultural production, in a country which experiences frequent floods, droughts, storms, landslides and is impacted by sea-level rises and higher temperatures as a result of both natural climate variability and climate change.[8]
The economy continues to depend on government outlays, and state spending in recent years has fallen due to political impasses.[9] Prior to 2020, Timor-Leste had experienced recession since 2017, attributed to internal political divisions.[10] GDP was estimated to have expanded by 3.4 percent in 2019, recovering from the earlier recession.[11]
[1] Al Jazeera, ‘East Timor: Between hope and unease 20 years after referendum’, 30 August 2019.
[2] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, 20220310150555, p.4.
[3] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30.
[4] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30.
[5] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.
[6] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[7] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, 20220310150555, p.21.
[8] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.
[9] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, 20220310150555, p.4.
[10] Lowy Interpreter (The Interpreter), Timor-Leste: The consequences of Covid-19', 3 April 2020, 20200406074724.
[11] World Bank Group, 'April 2020 Timor-Leste Economic Report: A Nation Under Pressure', 15 May 2020, 20201021131121, p.i.
A media article in 2019 referred to Timor Leste’s largest challenges at that time being illiteracy, unemployment and access to health and sanitation.[12] The country was experiencing political and budgetary uncertainty in late 2019/early 2020, in the leadup to the COVID-19 pandemic. In December 2019, parliamentarians from the dominant party in the governing coalition declined to support the proposed 2020 budget, and the coalition splintered three months later, with prime minister Taur Matan Ruak offering his resignation.
[12] Al Jazeera, ‘East Timor: Between hope and unease 20 years after referendum’, 30 August 2019.
The President declined to appoint a new prime minister or call elections, A new parliamentary majority was formed by a new constellation of parties, and Ruak withdrew his resignation.[13] However, the Parliament still failed to approve a state budget for 2020 until late in the year, and operated under a duodecimal regime which allows for monthly budget appropriations of up to one twelfth of the previous year’s budget.[14] This system, along with the pandemic, constrained public expenditure.[15]
On 13 March 2020 Timor Leste was hit by severe flooding affecting over 9000 people in several parts of the country, with Dili worst hit.[16] Just over a week later, on 21 March 2020, the first COVID-19 case emerged in Timor-Leste.[17] A state of emergency was declared for 30 days in March 2020 in response to COVID-19, and was then renewed with various levels of stringency, and borders were closed from 28 March 2020.[18] The state of emergency included closure of schools and physical distancing, with measures such as sanitary fencing, home confinements and suspension of collective passenger transport activities added during some periods.[19] The total numbers of cases in 2020 was relatively low, with only 131 total cases by the end of February 2021 (much larger case numbers were experienced after that time with the introduction of the Delta variant).[20]
COVID-19 presented novel challenges for Timor Leste. Restrictions on movement and face-to-face interactions – necessary for the large informal sector – hit particularly hard given the country’s limited access to technological supports and relative geographic isolation.[21] The Timor-Leste Government launched a relief package beginning in May 2020 which incorporated cash transfers, emergency food distribution, wage subsidies for those in the formal sector, a credit moratorium and utility subsidies. This package – at 13 per cent of GDP – was one of the world’s largest.[22] The measures included a credit program and emergency loans.[23] Approximately 300,000 households received a monthly payment of $100.[24]
According to the World Bank, despite adopting strong fiscal measures to address the impact of COVID, Timor Leste’s economy contracted by 8.6 per cent in 2020. This was driven through various channels, including public health measures, consumer choices, political uncertainty and international travel restrictions.[25]
[13] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, 20220310150555, p.3.
[14] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31; Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, 20220310150555, p.3.
[15] World Bank Group, 'April 2020 Timor-Leste Economic Report: A Nation Under Pressure', 15 May 2020, 20201021131121, p.i.
[16] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.
[17] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[18] The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021, 20220516084348.
[19] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.33.
[20] The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021, 20220516084348.
[21] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[22] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[23] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[24] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.43, 47.
[25] The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021, 20220516084348.
The UN in Timor-Leste conducted a rapid socio-economic impact assessment in June-July 2020 of 437 households in five municipalities to gauge the impact of the pandemic.[26] A larger nationwide socio-economic impact assessment was conducted in July-September 2021 in partnership with government, using a sufficient sample size to produce statistically representative results at a national level.[27] Much of the below information is drawn from these assessments, which provide a detailed picture of the circumstances faced by the population during the pandemic.
The pandemic exacerbated underlying issues within the country, including disparity in development between rural and urban settings, the effects of climate hazards, and limited access to education, health services, social protection programs and markets.[28] The negative impacts have been greatest on the poorest households, households outside Dili (where wealth is concentrated), and those with high levels of social vulnerability (eg older age, disability, female headed households, larger numbers of dependent children). Even relatively well-off households also experienced losses and challenges including food insecurity.[29] The United Nations report also refers to impacts on education, access to health services, in addition to large increases in the numbers of reported cases of child physical abuse, sexual abuse and rape in 2020 and 2021 compared to 2019.[30]
There is low labour market participation in Timor Leste, with only 45.2 per cent of the working-age population employed in the market economy as at March 2021.[31] A United Nations report explains that this does not include those engaged in subsistence agriculture, which would raise the figure to 61.1 per cent. Most of those engaged in the market economy (86.3%) are self-employed or contributing family workers, and many (over 70%) are engaged in production and sale of agricultural products. Many jobs are characterised by informal work arrangements, insecure employment, unstable and inadequate earnings and low productivity. Persons living with a disability and women are employed at a lower rate. The overall unemployment rate is 11.9 percent, but this rises to 22.1 percent for young people aged 25-29 years, likely related to higher levels of job losses among this group as a result of COVID-19.[32]
COVID-19 and the State of Emergency impacted employment and activities, with 39.3 percent of persons working in the market economy in March 2020 reporting having lost their job for at least some time due to the pandemic, although 90.1 percent of those who lost a job due to COVID were again employment by March 2021.[33]
There were dramatic decreases in household incomes in the first months of the pandemic.[34] Data collected between June and July 2020 found that there was a drastic reduction in the number of persons with any form of income before and after the state of emergency, with almost 59 percent of respondents with an income prior to the crisis having lost it during the period covered by the survey, and 55 percent of those who had retained their income reporting a decrease in earnings.[35] As at July 2020, over half of all respondent households (56.5%) had to survive without revenue, compared to 18.3 percent prior to the State of Emergency. [36] One in every four households had someone in their household who lost their job because of the pandemic, and among those that retained earnings, 55 percent reported a decrease in income.[37] The pandemic-related impacts of limited access to market and disruption of public transportation were further exacerbated by weather and environmental shocks.[38] High costs of living also presented difficulties.[39]
Data collected through a survey in May 2020 indicated that although April and May would ordinarily be the months with the highest levels of food security in a typical year due to harvest patterns, over 40 percent of respondent households were already engaging in coping strategies to reduce the amount of food they are consuming at least once per week.[40] Results of the UN survey in July 2020 similarly indicated that 36.7 percent of participating households were affected by moderate or severe food insecurity, having reduced the quality of their diet due to lack of money or other resources, and around 21 percent of households in the lowest wealth quintiles reporting they had to skip a meal.[41]
Over half of all households were forced to adopt coping strategies which included things such as selling livestock, spending savings, borrowing money and reducing spending on education and health.[42] Since the state of emergency was declared, 68.4 percent of households had received some kind of help (96 percent receiving food support and 48 percent cash support), mostly from the government although these figures include support from church groups and also relatives and friends. Assistance seems to have been concentrated in the capital, with 96 percent of households in Dili receiving help compared to 56.6 percent in other municipalities. The most vulnerable and poor were least likely to have received help.[43]
In response to United Nations data collection, 29.5 percent of all households surveyed indicated they had taken a loan during the year prior to June 2020. Over 65 percent of respondents reported the money they had borrowed was to buy food due to an emergency or crisis, 39 percent routinely used the loan to buy food, 17 percent to invest in a business or garden, and 3 percent to buy farm inputs.[44] Just under half of borrowers (45.6%) obtained a loan through informal lending such as family, friends or colleagues, a quarter through savings and credit cooperatives, and slightly less (22.7%) through a bank.[45] Other providers such as project or micro savings organisations and private money lenders and shop owners only played a limited role.[46] The data indicates that 0.8 percent of surveyed households that had taken a loan had done so through a money lender/shop owner, with accompanying high interest rates, although this figure rose to 1.3% among vulnerable households who had borrowed money.[47]
[26] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.7-8.
[27] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.23, 24, 27.
[28] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[29] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8.
[30] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.14-15.
[31] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8-10.
[32] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8-10.
[33] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.10-11.
[34] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.11.
[35] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.9.
[36] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.9.
[37] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.9.
[38] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.10.
[39] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.61.
[40] 'Rapid Food Security Assessment 2020: Full Report Timor-Leste', Oxfam, 9 June 2020, 20201023143603
[41] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.11.
[42] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.12.
[43] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.13.
[44] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.59.
[45] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.59.
[46] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.59
[47] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, 20220902124342, p.60.
CONSIDERATION OF CLAIMS AND EVIDENCE

The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of her protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
In particular, the Tribunal notes the following guidelines:
16.1.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
16.2.[12] The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims.
The Tribunal considers the applicant’s evidence is a truthful account of her life and experiences in Timor Leste, and the reasons she came to, and continues to stay in, Australia.
The Tribunal accepts that another person, at the applicant’s request, prepared her protection visa application, however the applicant did not, and still does not, understand the nature or purpose of a protection visa and the eligibility requirements for the grant of a protection visa, and was not aware until the hearing of the nature of the protection claims made in her protection visa application.
The Tribunal considers that the protection claims made in the applicant’s protection visa application are false and do not reflect the applicant’s circumstances.
The Tribunal accepts the applicant’s evidence relating to:
20.1.The economic hardship she and her family experienced in Timor Leste, and the ongoing economic hardship her family is experiencing.
20.2.Her motivation to come to Australia and earn sufficient money to support her parents and siblings in Timor Leste.
20.3.Her desire to stay in Australia to continue to earn money to support her parents and siblings in Timor Leste.
The Tribunal considers the applicant’s circumstances accord with those of many Timorese in Timor Leste described in the country information as being engaged in jobs or self-employment or family work characterised by informal work arrangements, insecure employment, unstable and inadequate earnings and low productivity.
The Tribunal considers it is likely the applicant would experience economic hardship if she returns to Timor Leste, however such economic hardship would be at a level commensurate with the broader population, and not targeted at the applicant by reason of her race, nationality, religion, membership of a particular social group, or political opinion.
The Tribunal considers it is not likely that, if the applicant returns to Timor Leste, she would face harm, by cause or nature, that would invoke Australia’s protection obligations.
The Tribunal is satisfied the applicant’s evidence does not give rise to any further claims for protection requiring its consideration.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
26.1.The applicant is a citizen of Timor Leste.
26.2.The applicant’s claims for protection do not satisfy the refugee or complementary protection criterion set out in the applicable law.
26.3.If the applicant is returned to Timor Leste, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
26.4.There do not exist 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 the applicant will suffer significant harm.
CONCLUSIONS
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.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) 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. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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 4755

8 November 2023

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction