2315550 (Refugee)

2315550 (Refugee) [2023] AATA 4861 (27 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2315550
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:David James
DATE:27 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 November 2023 at 4:42pm
CATCHWORDS
REFUGEE – protection visa – East Timor – borrowed money and became involved with violence and crime – credibility – some information in application copied from work friends – no past harm or fear of harm – previous visas, travel and returns – change of employment in breach of working visa condition – intention to work for better income and no wish to stay permanently – cautious but honest oral evidence – country information – lack of employment, general economic situation and crime faced by community generally – availability of state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Democratic Republic of Timor-Leste (Timor-Leste), applied for the visa on 1 September 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 28 September 2023. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 22 November 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 applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Timor-Leste they would be persecuted for one of those reasons and, if not, whether 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 as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application submitted on 1 September 2023 and the annexed copy of the applicant’s Timor-Leste bio data page of his passport;
·The applicant’s application for review of 28 September 2023 and the annexed Protection Visa decision Record of 28 September 2023; and
·The administrative and movement records of the Department relating to the applicant.
Claims for protection
The applicant, in his protection visa application made the following claims for protection (as summarised) below:
·He left Timor-Leste because he had borrowed and become involved with violence and crime;
·He did not try to relocate within Timor-Leste as he was already in Australia; and
·He was not harmed or mistreated in Timor-Leste but fears being harmed and killed if he was to return to Timor-Leste.
Department interview
The applicant was not offered an interview by the Department.
Delegates decision
The delegate’s decision of 28 September 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that there was no information before them to suggest that the applicant would be denied or purposefully excluded from accessing state protection for any reason. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. In that regard, the delegate found that the applicant could obtain protection from an authority of Timor-Leste, such that there would not be a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 7 November 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 22 November 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Country information
The United Nations, in their 2021 Socio-Economic Impact Assessment of COVID-19 in Timor-Leste, reported that 45.2 per cent of the populations working-age group were employed in the economy as of March 2021. However, the report also identified that the participation rate in the economy did not include those persons who were otherwise engaged in subsistence agricultural production. The report stated that, when those working in the subsistence agricultural sector were taken into consideration, the figure of employment was raised to 61.1 per cent. The report also provided that many jobs are informal in their arrangements and that the overall unemployment rate is 11.9 per cent but raises to 22.1 per cent when young people aged between 25 to 29 years are included.[1]
[1] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p8-10.
In their 2022 ‘Timor-Leste Country Security Report’, the Unites States Department of State (USDOS) made the following assessment of the Policia Nacional de Timor-Leste (PNTL):
PNTL maintain internal security. The Military is responsible for external security but also augments some domestic security functions. PNTL reports to the Ministry of Interior, and the military reports to the ministry of Defence. The current Prime Minister serves concurrently as the Interior Minister. Civilian authorities maintain effective control over the security forces. Members of the security services have been accused of committing human rights abuses.
PNTL’s policing capability is limited but improving with the assistance from partners in the international community, including the US Government. PNTL continues developing its community policing capacity and is slowly expanding its capabilities in the areas of criminal investigations, personnel/facility protection and traffic control.[2]
[2] ‘Timor-Leste Country Security Report’, Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, US Department of State, 21 November 2022, p 3.
In the Asia Foundation’s Nationwide ‘Timor-Leste Safety, Security and Justice Perceptions Survey 2022’ it is reported that:
Most respondents who experienced crimes or disputes do not retaliate, but only just over half seek assistance. Overwhelmingly, general public respondents see community leaders as the most appropriate initial avenue for reporting a crime/dispute. However, they take different matters to different types of leaders, and the degree to which they perceive a role for the PNTL varies according to the nature of the issue at hand. Of those who experienced a crime/dispute and sought assistance, 43% first responded to an Aldeia Chief, followed by the PNTL (19%), a lian-na’in (10%) or Suco Chief (8%). Those who seek assistance typically have their issues resolved by the first person they report to and feel that they were fairly treated.
Community leaders report good relationships with the PNTL and see them as most appropriate initial mechanism to report crimes and disputes. Proximity plays the most decisive role in determining from whom people seek assistance.[3]
[3] ‘Timor-Leste Safety, Security, and Justice Perceptions Survey, 2022. Summary Findings’, McLeod A & Denney L, The Asia Foundation, p 6.
Review hearing – 22 November 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English and Tetum languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, requested that the Tribunal explain the criteria to him.
The Tribunal then provided an outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria.
Under questioning, the applicant’s evidence (as summarised) was that he had most recently come to Australia on a working visa, arriving [in] August 2023. He said that he had previously travelled to Australia for work on three earlier occasions, also on working visas that were the result of arrangements between Timor-Leste and Australia. He said that on his previous visits to Australia, he had stayed for periods of approximately six months and had worked for a company called [Company] [doing a job task] in Tasmania.
He told the Tribunal that prior to his most recent arrival recently in Australia, and both in between and before his earlier arrivals in Australia for work, he had been living in Dili in his parent’s former home with his [sisters and brothers]. He said that, prior to obtaining work in Australia he had worked as [an Occupation]. He said that he had obtained this job through the recommendation of an uncle, but that as he had left that job for better earnings in Australia, he would no longer be able to return to that work in Dili.
He explained that only one of his sisters and one of his brothers were employed in Dili and that he was responsible for supporting his family with his Australian earnings as both of his parents had passed away.
He further explained that he was presently working in [Town], Queensland, [doing a job task] for a different company. He told the Tribunal, in reply to its questions, that he had moved to Queensland to find a job with better pay than his employment with [Company] in Tasmania. Under further questioning he told the Tribunal that his visa required him to work for [Company] [doing a job task] in Tasmania, and he understood that by having left Tasmania and his employment, he had breached the conditions of his current working visa.
He then told the Tribunal that when he had first come to Australia in 2018, [Company] did not employ many people and the money was good. However, he said that on his later working visas, he found that [Company] had recruited more workers from Timor-Leste and the pay was not as good as it had been in the past. He said that he didn’t feel satisfied with his pay in 2023, so he made the decision to quit his job with [Company] in Tasmania, in breach of the conditions of his working visa, and look for a better job. He said that he was now more satisfied with his job in [Town], and in an attempt to stay in [Town] and in this employment, he applied for the protection visa.
When asked why he had applied for the protection visa, he told the Tribunal that it did not mean he wished to stay in Australia permanently, but rather that he just wanted to continue to work and earn a better wage.
Under questioning he told the Tribunal that some of his friends had assisted him in completing his visa application, and that he had copied some of the information from the applications of his friends. He was unable to provide any details as to who these friends were, but for saying that some had worked with him, but he did not know their names.
Under further questioning, the applicant told the Tribunal that he did not fear returning to Timor-Leste, but that he just needed a visa that allows him to work in Queensland. He explained that he just wanted to keep his job in [Town] and contribute to Australia by paying tax as he wanted to work here in Australia legally and not hide. He emphasised that he only wants to work legally in Australia, and that he applied for a protection visa as a means to remain working in Australia at a workplace of his choice.
He further told the Tribunal that he had no problems with returning to Timor-Leste, but that he just wanted to extend his stay in Australia to earn more money. He said that there are no jobs in Timor-Leste and if he returned to Timor-Leste, he would not be able to help his family and sustain them to the same extent that he has with his Australian earnings.
The Tribunal then took the applicant through his claims that had been made in his application. In relation to his claim that ‘he had borrowed and become involved with violence and crime’, he told the Tribunal that was not correct. He further explained that there were huge differences between Australia and Timor-Leste, as he can freely walk around at night in Australia but that in Timor-Leste he cannot, and it is even dangerous to visit your friends at night in Dili.
As to his claim that ‘he was not harmed or mistreated in Timor-Leste but fears being harmed and killed if he was to return to Timor-Leste’, he told the Tribunal that this was also not correct.

The Tribunal reminded the applicant about the description of the refugee criterion that had been provided to him at the commencement of the hearing. The applicant subsequently told the Tribunal that he did not fear any harm for any of those reasons (race, religion, nationality, membership of a particular social group, or political opinion).
The applicant, in response to the Tribunal additionally reminding him of the complementary protection criterion, told the Tribunal that he did not have any fears of suffering significant harm (arbitrary deprivation of life, death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment) if he was to return to Timor-Leste in the future.
The applicant, under further questioning, told the Tribunal that he was not scared of returning to Timor-Leste, but that he just wanted to stay here in Australia for work, not for the work that his visa provided for, but for the better income he was earning in [Town]. He further explained that his wish to remain employed in [Town] is why he made application for the protection visa.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be citizen of Timor-Leste and provided a copy of his Timor-Leste passport and national identification card. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Timor-Leste. Timor-Leste is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[4] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[5] This is consistent with the established proposition that it is for the applicant to make his or her own case.[6]
[4] Section 5AAA of the Act.
[5] Ibid (with effect from 14 April 2015).
[6] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[7] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[8]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[7] Fox v Percy (2003) 214 CLR 118
[8] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[9] A similar approach is taken in the Department’s Refugee Law Guidelines[10] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[11] which both provide useful guidance for this Tribunal.
[9] SZLVZ v MIAC [2008] FCA 1816 at [25].
[10] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[11] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal, having had the opportunity to assess the applicant in person during the hearing, found the applicant to be an honest and reliable witness who answered the questions of the Tribunal as to the best of his ability throughout the hearing. Although the applicant did not understand some of the Tribunal’s questions, he was not evasive but rather cautious in providing answers, and when matters were further explained to him, he provided a prompt reply to the Tribunal.
Fears of Harm
In his visa application the applicant claimed to have borrowed money and become involved with violence and crime. Although he had not been harmed in Timor-Leste, he had claimed to fear being harmed or killed if he returned to Timor-Leste.
However, at the hearing, the applicant told the Tribunal that those claims were incorrect and that he had was scared about returning to Timor-Leste as he had done so three times before after also arriving in Australia on working visas.
It was the applicant’s unambiguous position that he had arrived in Australia most recently [in] August 2023 on a working visa in order to earn money by [doing a job task] in Tasmania, as he had done so on three earlier occasions since 2018. Further, he told the Tribunal that he made his application for the protection visa because he had left his employment in Tasmania, which was a condition of his working visa, and had moved to Queensland. He had there obtained a better paid job at [Town], and the protection visa was a means for him to maintain that employment and remain in Australia to earn more money for himself and his siblings living in Dili, in Timor-Leste.
In that regard, it was the applicant’s evidence that he did not want to permanently remain in Australia, but that he wanted to remain on a short-term basis to earn more money before he eventually returned home to Timor-Leste. He explained to the Tribunal that this was the reason for his application a protection visa, and not because of any fears of harm that he had as to his return to Timor-Leste.
When questioned the applicant agreed that he had no fears of persecution involving serious harm arising from issues relating to race, religion, nationality, membership of a particular social group or political opinion. Additionally, under questioning, he told the Tribunal that he did not have any fears of facing ‘significant harm’ as defined in s 36(2A) of the Act.
Therefore, the Tribunal finds that the applicant’s fears are not well-founded.
The applicant made an additional claim during the hearing as to the lack of employment and general economic situation in Dili and more broadly in Timor-Leste and the level of crime in Dili and the general safety situation in Dili. The Tribunal has considered the country information as outlined above at paragraphs 22 to 24 and finds that the economic situation in Timor-Leste and the general security and claimed levels of crime in Dili are matters that are faced by the community at large in Dili and more broadly throughout Timor-Leste. In that regard, the Tribunal notes that the Timor-Leste police, who have been supported by the United States and Australia, can provide appropriate protection to the applicant, if he so needs such protection, from the criminal activities of others in Dili and more broadly Timor-Leste.
Therefore, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste, that there is a real risk, the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) 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.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Timor-Leste.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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 4861

27 November 2023

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