2314381 (Refugee)

[2023] AATA 4759

2314381 (Refugee) [2023] AATA 4759 (17 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2314381

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Penelope Hunter

DATE:17 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2023 at 10:17am

CATCHWORDS
REFUGEE – protection visa – East Timor – member of a particular social group – homosexual man – failure to attend Tribunal hearing – insufficient evidence to make a finding that the applicant is a gay man – the Tribunal found that the applicant’s fear of persecution is not well-founded – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 425 (1), 426(1a) (a), 499
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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of East Timor, applied for the visa on 15 February 2023. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant met the criteria for a protection visa under the Act.

3. The Tribunal wrote to the applicant on 27 September 2023, inviting him to appear before it at a hearing pursuant to s 425(1) of the Act. The Tribunal advised that it had considered all the material before it relating to his application and was unable to make a favourable decision on that material alone. The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case at the hearing on 16 October 2023. The letter advised the applicant that if she did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The letter also advised the applicant that if he were not able to attend the hearing, if he would like to discuss an alternative hearing modality he should advise the Tribunal as soon as possible.

4. No response to this letter was received from the applicant and the applicant did not attend the hearing scheduled for 16 October 2023. The invitation was sent to the email address provided by the applicant. Two SMS reminders were sent to the applicant as reminders of the hearing date location and time. There was no response.

5. As the applicant has not responded to the invitation to attend the hearing, and has not contacted the Tribunal to explain his non-attendance or sought to engage further in the review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal.

6. Given that the applicant failed to attend the hearing and provided no explanation for not appearing, the Tribunal is entitled to proceed pursuant to section 426A(1A)(a) of the Act. It is appropriate in these circumstances for the Tribunal to make a decision on the review without taking further action to allow or enable the applicant to appear before it.

7. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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 BEFORE THE TRIBUNAL

14. The applicant is a single [age]male born in[City 1], Timor-Leste. In his visa application he lists his only family member in his home country as his father. He completed college in 2018, is of the Catholic religion, and claimed to have no previous employment in his home country. He arrived in Australia [in]October 2022 as the holder of a temporary work visa.

15. Is his visa application, the applicant set out the following reasons for claiming protection (in summary):

    i.He left his country for temporary work to Australia to escape the overwhelming feelings he had there being a gay man and not as masculine as people expect a man to be.

    ii.He had always been picked on for being different and friends made fun of him. The religious belief of his society was such that they refused to believe that people like him existed. He always felt unsafe as they tend to be violent and did not hesitate to bully him. So many times he encountered people who pushed him, cursed him and threw objects at him.

    iii.He did not seek help in his home country because there was limited help for a person like him.

    iv.He did not try to move to another part of his country because he claimed that it was not a developed country, and people are not forgiving and all the same across the country.

    v.If he returns he believes that he will face the same treatment again. He will not have the same freedom as normal people. In his community they love gossiping. He was forced to alter his character in order to avoid hatred from others.

16. On 31 July 2023, the Department wrote to the applicant and invited him to provide additional information about their claims under s56 of the Act and provided a detailed explanation of the information required. 

17. In response to the Departments request for information the applicant provided an undated statement, summarised as follows:

    i.He started to have this feeling when he was young, feeling women were like friends but men were more.

    ii.It is hard for him over there because his family and the people around him do not accept him.

    iii.He had relationships with men in Timor-Leste, but they would not last long because his family did not allow him to have those feelings.

    iv.His relationship with his family ended when they kept asking him to stop liking men and be a normal person. He tried but it is hard.

    v.He never tried to tell his family about these feelings, but somebody told them.

    vi.His friend knows about his feeling toward men and supports him.

    vii.In Timor-Leste he will be mistreated physically or morally because he is LGBTQ and, in his country, they do not accept this.

    viii.He is not involved with the LGBTQ community in Timor-Leste or Australia.

    ix.He still practices his religion because his feelings and his religion are two different things.

18. The applicant was not invited to attend an interview with the delegate of the Minister. In refusing the application the delegate stated the applicants claims lacked significant details and there was no evidence provided in support of the claims. While the applicant responded to the Department’s s56 invitation to provide information, the response did not adequately address the concerns raised, nor did it provide the specific details and evidence that was requested. In light of these concerns, the delegate found that the applicant’s claims that they are gay, and they fear persecution in Timor-Leste on this basis to not be credible.

    CONSIDERATION OF CLAIMS, FINDINGS AND REASONS

19. On the basis of the identity evidence submitted to the Department, including a copy of the applicant’s passport, the Tribunal accepts that the applicant is a national of Timor-Leste. The Tribunal will assess his claims on this basis. There is no evidence before the Tribunal that the applicant would be excluded from Australia’s protection obligations on the ground set out in s 36(3) of the Act.

20. The issue for determination by the Tribunal is whether the applicant has demonstrated that he has a well-founded fear of persecution for one of the five reasons set out in s 5J of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country there is a real risk that he will suffer significant harm.

21. The information presented by the applicant about being gay and that gay people are not accepted by East-Timorese society is vague and lacking in detail. He has provided no substantive information about his actual experiences. Particularly, the applicant has provided no details of what people would say to him, how he was made fun of or bullied. The applicant has also not detailed any specific instances of when people pushed him, threw objects or cursed him. He claimed that he felt unsafe because people tended to be violent, yet the applicant has not described any particular instance of actual violence or intended violence that he experienced himself. The applicant has not set out how he had to alter his character. Also, although he claims he will be mistreated physically and morally, the application has provided no details of his actual experiences such that the Tribunal can be satisfied of the applicant’s sexual identity or whether his claims that he is a gay person and experienced harm in the past are factual and credible.

22. Furthermore, had the applicant attended a hearing the Tribunal could have obtained evidence as to the harm he fears on return to Timor-Leste. The applicant claims that he will not have the same freedom as other people, that his community love to gossip and always stick their nose in other people’s business. He references general concerns and on the material before it the Tribunal is not satisfied that there is a basis for either an objective or subjective finding that the applicant will be subject to serious harm should he return to East-Timor in the reasonably foreseeable future.

23. The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material before it in relation to his application but it was unable to make a favourable decision on that information alone. Other than a copy of the delegate’s decision record he has provided no further evidence or submissions in support of his claims. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with him and sought further information from him on a range of details relevant to his claims.

24. On the information before it the Tribunal does not have sufficient information to make a finding that the applicant is a gay man. Therefore, on the basis of the available evidence, the Tribunal does not accept that the applicant suffered threats or mistreatment and does not accept that the applicant left East Timor to escape persecution because of his sexuality, attitudes of family and society or any other claimed or implied reason.

25. On the evidence provided by the applicant, the Tribunal is not satisfied that the applicant’s claims about his sexual identity are factual or reliable. It follows that the Tribunal is not satisfied as to the veracity of the applicant’s claims or that he has been subjected to persecution due to threats or attitudes from people because of being gay or LGBTIQ+ or for any other reason.

26. As the applicant has not raised any other reasons to fear serious harm in East-Timor, considering the totality of the material before it, the Tribunal finds that there is not a real chance that in the reasonably foreseeable future that the applicant will be persecuted for any reason as provided in s 5(J) of the Act. The Tribunal finds that the applicant’s fear of persecution is not well-founded.

27. 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).

28. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

29. For the reasons set out above, due to the unsatisfactory nature of the applicants evidence and the inability of the Tribunal to test and be satisfied as to the reliability of those claims, the Tribunal does not accept  the claims of the applicant that he is a gay man, or that he has had to alter his character or that he had suffered significant harm or any mistreatment in East Timor in the past. It follows that looking forward, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to East-Timor, that there is a real risk that he will suffer significant harm.

30. The Tribunal is not  satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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

    DECISION

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

    Penelope Hunter
    Member

    
    

    ATTACHMENT  -  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.

    …