2314584 (Refugee)

2314584 (Refugee) [2023] AATA 4756 (26 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2314584
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:Mara Moustafine
DATE:26 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 October 2023 at 2:54pm

CATCHWORDS
REFUGEE – protection visa – Timor-Leste – member of a particular social group – homosexual man – family pressure to marry a woman – economic hardship – unable to find secure employment – no evidence of harm or threats for being gay – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a citizen of Timor-Leste and is [age]. He arrived in Australia on a GD-403 Temporary Work (International Relations) visa [in]October 2022 which was valid until 5 July 2023. The applicant applied for a protection visa on 28 March 2023.
CLAIMS AND EVIDENCE
Protection visa application
According to his Protection visa application form, the applicant was born in [DOB] in[City1], Timor-Leste. He identified his ethnicity as Timorese and his religion as Western Catholic/Catholic and stated that he has never married. The applicant speaks, reads and writes in Indonesian and English. He completed his high school education in Dili in 2014 and worked [on] a farm in [City 1]until coming to Australia. He left Timor-Leste legally [in]October 2022 using his own passport. In Australia, the applicant has worked [on] farm[’s] in the [State 1]in Australia until March 2023. He is in regular contact with his family outside Australia.
The applicant provided copies of his Timor-Leste passport and identity card.
In summary, the applicant’s protection claims, as set out in his application form, were as follows:
a.He wants to move to Australia because he is a gay and likes same sex. He decided to stay in Australia because only Australia can give gay rights and protection. In his country many people discriminate against gays, including his family and friends. He believes in Australia he can live freely with his ‘disorder like gay.’
b.He does not want to return to Timor-Leste as ‘they’ have discriminated against him and his life and future will be destroyed because there is no sense of peace in his life where he lives. If he returns there his family and friends will not accept him because he is a gay man and they threatened that they will beat him or kill him.
c.He did not experience harm in Timor-Leste.
d.He does not think he will be harmed or mistreated if he returns to Timor-Leste.
e.He thinks the police and community leaders will protect him if he goes back.
On 8 September 2023, the delegate refused to grant the applicant a Protection visa as she was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
Protection Visa Application
On 17 September 202, the applicant applied to the Tribunal for a review of the Department’s decision.
On 25 September 2023, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case on 12 October 2023.
The applicant appeared before the Tribunal on 26 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.
The Tribunal discussed with the applicant his background in Timor-Leste, his reasons for leaving and why he fears returning there. Where relevant to his protection claims, the applicant’s evidence is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, Findings and Reasons
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
On the basis of his Timor-Leste passport presented at the hearing, the Tribunal accepts that the applicant is a national of Timor-Leste and considers Timor-Leste as the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria, respectively.
Applicant’s claims
At the start of the hearing the applicant told the Tribunal that another person had assisted him to fill in Protection visa application form in English on the basis of what he told him in Tetum. However the form had not been read back to him so the applicant did not really know what was in it. He said: ‘This is about a work visa – so we can work here.’ It became clear during the course of the hearing that the applicant was not aware of the content of his application form.
The applicant told the Tribunal that he came to Australia to work under an Australia government program which he really appreciated because his family needed his support. In Timor-Leste, he previously worked for 6 months for a company named [Company 1], unloading containers for $115 per month and before that helped his uncle and other relatives. In Australia, he first worked on [farm 1] near [State 1] for 3 months. He never worked on a [farm], as stated in his form. For the past 4-5 months he has been working in timber at[Company 2]. He understood that the work visa on which he came to Australia was a temporary visa for 9 months. However, he really needed to stay here and keep working as he was supporting his extended family in Timor-Leste. As his parents were deceased, he was supporting his two younger siblings who were still at school and his older sister’s children. If he returned to Timor-Leste, he feared he would be unemployed.
The applicant told the Tribunal that his auntie in Timor-Leste had been pressuring him to get married but he did not want to do so as he needed to work to look after his siblings and his sister’s children. The Tribunal drew to the applicant’s attention that according to his application form, the reason he wanted to stay in Australia was that he was gay. Asked if he was aware of these claims in his application form, the applicant did not respond directly but said if he went back his auntie wanted him to marry a woman but he did not really like women and did not want to be asked why he had no girlfriend. He just wanted to focus on working and looking after the children. Asked if he ever had relationships with men either in Timor-Leste or Australia, the applicant said no and confirmed that he did not want a gay relationship. He confirmed that no one had ever harmed him or threatened to beat or kill him because he was gay or did not like women.
The applicant confirmed that he had never experienced harm in Timor-Leste and that the only reason he feared returning to Timor-Leste was unemployment.
At the end of the hearing, the applicant reiterated his gratitude to the Australia government for giving him the opportunity to work in Australia to support his extended family in Timor-Leste. He said he wished to continue working in Australia for a long time. The Tribunal explained to the applicant that its role was confined to assessing whether or not he was owed protection as a refugee or under the complementary protection criterion.
As discussed with the applicant, the Tribunal appreciates that, like many of his compatriots, the applicant and his family face economic difficulties in Timor-Leste, one of the poorest countries in the Asia-Pacific region with high rates of unemployment[1].
[1]United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021. In 2021 the UN reported that the overall unemployment rate in Timor-Leste was 11.9%, but among young people it rose to 22.1%. Only 45% of the working age population were employed in the market economy as at March 2021.
The Tribunal accepts that if he returns to Timor-Leste, there is a real chance the applicant may experience economic hardship as a result of being unable to secure employment with a pay commensurate with his earnings in Australia. However, as the Tribunal is not satisfied that the economic hardship would be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion, it does not constitute a well-founded fear of persecution as that term is defined in s 5J.
The Tribunal has also considered whether on the evidence before it, there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste there is a real risk that the applicant will suffer significant harm. The Tribunal is not satisfied that any economic hardship the applicant may experience in Timor-Leste through unemployment would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor has the applicant suggested that he will be subjected to the death penalty in Timor-Leste for any reason. Therefore, the Tribunal is not satisfied that the economic hardship feared would meet the definition of ‘significant harm,’ as defined in s 36(2A).
Having considered all of the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Timor-Leste or that there is a real chance he will suffer serious harm as defined in the legislation if he returns there now or in the reasonably foreseeable future. Nor is the Tribunal satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste there is a real risk that the applicant will suffer significant harm.
CONCLUSIONS
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).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
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.
…

[2023] AATA 4756

26 October 2023

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

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