2316334 (Refugee)

The applicant sought review of a decision affirming the refusal of a protection visa. The applicant, who arrived in Australia in October 2022 on a temporary work visa, claimed he feared returning to Timor-Leste due to his membership in a martial arts group (MAG) and the general crime rate. He also stated that economic conditions in Timor-Leste would make it difficult to support his family if he returned. The Tribunal noted that the applicant had paid someone to complete his Protection Visa Application (PVA), and the MAG membership was not initially included, with the applicant explaining this omission was at the suggestion of the person who assisted him.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, as a refugee, or under section 36(2)(aa), as a person facing a real risk of significant harm if removed from Australia. This required determining if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there were substantial grounds for believing he would suffer significant harm. The court also considered the definition of a "particular social group" under section 5L of the Act.

The court affirmed the Tribunal's decision, finding that the applicant had not established a well-founded fear of persecution. While acknowledging the applicant's membership in a MAG since 2014 and the general information about such groups in Timor-Leste, the court found that the applicant had not demonstrated that his MAG membership placed him at a real risk of persecution. Specifically, the applicant had not been involved in MAG violence for approximately two years before leaving Timor-Leste, and he had not claimed to have been affected by crime in the two years prior to his departure while living on his family farm. Furthermore, the court found that the economic conditions and general crime rate in Timor-Leste did not, in themselves, constitute persecution or significant harm for the purposes of the Act, as these risks appeared to be faced by the population generally and not personally by the applicant. The court also noted the applicant's failure to raise the MAG claim earlier in the application process.

Consequently, the court concluded that the applicant did not satisfy the criteria for a protection visa under either section 36(2)(a) or 36(2)(aa) of the Migration Act 1958. The decision of the Tribunal to affirm the refusal of the protection visa was therefore upheld.