2316524 (Refugee)

[2024] AATA 1216

2316524 (Refugee) [2024] AATA 1216 (12 January 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICATION FOR REVIEW:                  Application for review of a decision made by a

delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

APPLICANT’S REPRESENTATIVE:        Unrepresented

CASE NUMBER:  2316524

COUNTRY OF REFERENCE:                   Timor Leste

MEMBER:  Kate Chapple

DATE:  12 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 12 January 2024 at 7:54am

CATCHWORDS
REFUGEE – protection visa – Timor Leste – economic hardship – limited employment opportunities – unable to repay debt – insufficient credible evidence to substantiate claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

EVIDENCE BEFORE THE TRIBUNAL

Protection visa application

1. The applicant’s protection visa application lodged 30 August 2023 setting out the following claims (spelling and grammatical errors not corrected):

   1.1.[reason applicant left Timor Leste] I FOLLOW THE MADEC PROGRAM TO WORK IN AUSTRALIA. THIS IS THE ONLY WAY I HAVE TO ESCAPE MYSELF FROM THE MANY PROBLEMS IN TIMOR LESTE. MY PROBLEM IS SUCH A BAD FINANCIAL PROBLEM. I OWE A LOT TO MY NEIGHBORS AND ALSO TO MANY OF MY ACQUAINTANCES. I WAS THREATENED AND HARMED WHEN I COULDN'T RETURN THE MONEY.

   1.2.[harm experienced by applicant in Timor Leste] I AM GOING THROUGH MANY TROUBLE IN MY COUNTRY. I WAS BEATEN AND BEATEN AS A RESULT OF BEING IN DEBT. MY WIFE RUN AWAY BECAUSE OF THE DEBT I DID. NOW I DON'T WANT TO GO THROUGH IT ANYMORE.

   1.3.[reason applicant didn’t seek help in Timor Leste] I HAVE NO PLACE ELSE TO GO.

   1.4.[reason applicant did not move to another part of Timor Leste] A POOR COUNTRY LIKE TIMOR LESTE THERE IS NO REASON FOR ME TO MOVE AND THIS WILL CAUSE EVEN WORSE PROBLEMS.

   1.5.[what applicant thinks will happen to him if he returns to Timor Leste] I WILL GO THROUGH THE CONSEQUENCES FROM THE DEBT I DID AND HAVE TO ACCEPT THREATS FROM THEM. THIS CAUSES REVENGE AND MAYBE AS A RESULT OF THAT I WILL BE BEATEN WORSE.

   1.6.[reason applicant thinks he will be harmed or mistreated if he returns to Timor Leste]

   SAME AS PER ABOVE REASON.

   1.7.[reason applicant thinks the Timor Leste authorities can’t and won’t protect him] ITS NOTHING THEY CAN DO.

   1.8.[reason applicant thinks he is unable to relocate within Timor Leste] IT WILL NOT SOLVE THE ISSUE.

2. Decision record relating to the delegate’s refusal decision dated 28 September 2023.

3. Departmental case file.

4. Internal departmental records relating to the applicant.

Application for review

1. Application for review lodged 14 October 2023.

2. The Tribunal wrote to the applicant inviting him to attend a hearing on 10 January 2024 and to provide pre-hearing submissions.

3. Prior to the hearing, the applicant notified the Tribunal that he had moved interstate. The Tribunal arranged for the hearing to be conducted via video link or telephone with the assistance of a Tetum interpreter. The applicant did not provide to the Tribunal a response to the hearing invitation or any submissions or other material in support of his case.

The Hearing

1. The applicant appeared before the Tribunal at a hearing conducted via telephone on 10 January 2024, with the assistance of an interpreter (via video link) in the Tetum and English languages. The applicant was unrepresented.

2. The applicant gave evidence, summarised by the Tribunal as follows:

   9.1.The applicant was born in [year] in [Town 1] where he grew up with his parents and [number] siblings. The family had a house and plantation where they lived, and the father worked with the mother’s help. The applicant left school in 2019 because there wasn’t enough money for him to continue; after that, he helped his parents on the plantation. His father died in 2022; his mother is now aged [age].

   9.2.The applicant’s father borrowed money from neighbours who are rich relatives of the father, in particular the son of one of his uncles. The father couldn’t earn enough money from the plantation to pay for his younger children’s schooling and expenses, so he borrowed more than USD 10,000 to set up a business. The money was to be repaid in one year. It was an arrangement between family members, based on trust; there were no documents signed. Families in Timor Leste look after each other. The uncle agreed verbally to the arrangement, then the money was lent to the father on the basis that if it was not repaid in a year, the interest goes up and up.

   9.3.The applicant’s father and family were poor even though the father had rich relatives. The uncle’s son was always rich; his ancestors were kings. His name is [Mr A]. The Tribunal asked the applicant how it could be that his father did not share the same ancestry as these relatives. The applicant said they were distant relatives. The applicant didn’t have anything to do with them while growing up.

   9.4.The father’s business failed, and the applicant’s father couldn’t repay the money. Interest was calculated monthly and kept on going up. The father tried to talk to the rich relatives about repaying the money more slowly from the money he earned selling [specified produce] off the plantation. The rich relatives wouldn’t agree, and instead took over the house and plantation, to be returned only when the money has been repaid.

   9.5.When the rich relatives took over the parents’ house and plantation, the family went to live with an uncle on the mother’s side who lives in [Town 2], which is 8 hours on foot from [Town 1].

   9.6.The rich relatives increased their demands on the father to repay the money; the father argued with them, and he was beaten badly. The beating was witnessed by the applicant and some of his siblings; they were all very traumatised. The applicant alerted the police, and they helped him get his father to the hospital. The police told him to wait until his father was out of hospital before taking any action against the rich relatives to allow them all to resolve the money issue. The father left hospital after a week, and the rich relatives made more threats and demands on him. He died soon afterwards. This was sometime in 2022.

   9.7.The Tribunal asked the applicant if he had a copy of his father’s death certificate; he said it would be in Timor Leste. The Tribunal then asked the applicant if his mother had a copy, to which he said death certificates aren’t issued in Timor Leste.

   9.8.The applicant asked the police for a statement to confirm that his father had been beaten to death for not repaying the money, so that at some stage the perpetrators would be held responsible. However, the rich relatives bribed the police to ensure they didn’t take any action. The applicant and his family had nothing to offer, so they got nothing.

   9.9.Since the applicant has been in Australia, [Mr A] has visited his mother at the uncle’s house in [Town 2] eight times, including the day before the hearing, demanding the repayment of the money, telling her that she needs to pay the money quickly or she will see what happens. The Tribunal asked the applicant why he didn’t ask his mother to talk to the Tribunal as part of his review case. He said the phone network is not good where his mother lives and she would need to go to a higher point to get reception.

   9.10.The Tribunal asked the applicant why he hadn’t got statements from others in Timor Leste in support of his account. The applicant said they have nothing, and then the problem with his father happened, and he has inherited the problem; he has to earn money here to repay the loan, otherwise he’ll be killed if he returns to Timor Leste.

   9.11.When the Tribunal first asked about the amount his father had borrowed, the applicant said more than $10,000, but the rich relatives say it is ten times that now. Later, he added that it is going up every month. When asked again towards the end of the hearing, the applicant said he had tried to make small payments of interest from his earnings in Australia but they were rejected by the rich relatives who were demanding the full amount be paid, and then said they want the debt paid off in three payments: $10,000 x 10 + 2 x $10,000 x 5. These amounts are in US Dollars.

   9.12.The applicant doesn’t have a partner in Timor Leste. He needs to make money here because his family is poor, then he can look for a partner.

   9.13.The applicant wanted to come to Australia to work so he could repay the money and make the family happy. He worked on a farm in [Australian City 1] for 5 months, then moved to Darwin because he needed to pay back the money quickly. The [City 1] farm job wasn’t giving him enough money. He told a friend on the farm about his circumstances (that he can’t work in Timor Leste and repay the money, he has to work in Australia, and his family in Timor Leste has to move from place to place. The friend said he should apply for a protection visa; it’s for refugees from countries that are no good. The friend, who only speaks English, filled out the visa application form. The friend explained in English to the applicant what he wrote in the form but the applicant didn’t understand.

   9.14.The Tribunal referred to the protection visa application and noted the claims that the applicant owes a lot of money to his neighbours, that he was threatened and harmed when he couldn’t return the money, that he was beaten as a result of being in debt, and that his wife ran away because of the debt. The Tribunal noted there is no mention of the applicant’s father, and the written claims are inconsistent with the applicant’s account given at hearing. The applicant said he didn’t understand what his friend had written in the application. The Tribunal asked the applicant why his friend would say that he had been beaten when he hadn’t been, and why his wife had run away because of the debt when he doesn’t have a wife. The applicant said the friend may have misunderstood and thought he was talking about himself not his father, and his wife not his mother.

   9.15.The applicant believes that if he doesn’t pay back the money and he returns to Timor Leste, he will die. His mother and siblings are now being threatened by the rich relatives, they can’t go outside, or they will die. If the threats continue, they plan to go and live with another uncle on his mother’s side in [Town 3], which is one night and one day on foot from [Town 2] where they are currently living.

Country information

1. Timor Leste has experienced significant economic growth since its independence in 2002, with GDP per capita increasing from $453 in 2004 to $1381 in 2020. The economy is almost entirely reliant on oil and gas.1 Approximately 80 percent of state expenditure comes from a sovereign wealth fund, the Petroleum Fund, but oil and gas income into this fund is now almost negligible due to declining reserves. It is estimated that the fund could be depleted entirely within a decade.2

   Timor Leste has achieved a medium human development status, positioned 131 out of 189 countries.3 However, it appears to have experienced a decline between 2014 and 2020, with the poverty rate (based on the international poverty line of $1.90) rising from 22 percent to 27 percent in that period.4 The poverty rate is higher in rural areas.5 Forty-six per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.6 The majority of households are in the informal sector, with only about 23 percent of the working-age population in the cash economy.7 Household vulnerability is increased by the dependence of nearly 70 percent of citizens on climate-sensitive livelihoods and agricultural production, in a country which experiences frequent floods, droughts, storms, landslides and is impacted by sea-level rises and higher temperatures as a result of both natural climate variability and climate change.8

The economy continues to depend on government outlays, and state spending in recent years has fallen due to political impasses.9 Prior to 2020, Timor-Leste had experienced recession since 2017, attributed to internal political divisions.10 GDP was estimated to have expanded by 3.4 percent in 2019, recovering from the earlier recession.11

1 Al Jazeera, ‘East Timor: Between hope and unease 20 years after referendum’, 30

August 2019.

2 Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, p.4.

3 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30.
4 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30.
5 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.
6 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.

7 Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, p.21.

8 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.

9 Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, p.4.

10 Lowy Interpreter (The Interpreter), Timor-Leste: The consequences of Covid-19', 3 April 2020.

11 World Bank Group, 'April 2020 Timor-Leste Economic Report: A Nation Under Pressure', 15 May 2020, p.i.

1. A media article in 2019 referred to Timor Leste’s largest challenges at that time being illiteracy, unemployment and access to health and sanitation.12 The country was experiencing political and budgetary uncertainty in late 2019/early 2020, in the leadup to the COVID-19 pandemic. In December 2019, parliamentarians from the dominant party in the governing coalition declined to support the proposed 2020 budget, and the coalition splintered three months later, with prime minister Taur Matan Ruak offering his resignation.

   12 Al Jazeera, ‘East Timor: Between hope and unease 20 years after referendum’, 30

   August 2019.

2. The President declined to appoint a new prime minister or call elections, A new parliamentary majority was formed by a new constellation of parties, and Ruak withdrew his resignation.13 However, the Parliament still failed to approve a state budget for 2020 until late in the year, and operated under a duodecimal regime which allows for monthly budget appropriations of up to one twelfth of the previous year’s budget.14 This system, along with the pandemic, constrained public expenditure.15

   On 13 March 2020 Timor Leste was hit by severe flooding affecting over 9000 people in several parts of the country, with Dili worst hit.16 Just over a week later, on 21 March 2020, the first COVID-19 case emerged in Timor-Leste.17 A state of emergency was declared for 30 days in March 2020 in response to COVID-19, and was then renewed with various levels of stringency, and borders were closed from 28 March 2020.18 The state of emergency included closure of schools and physical distancing, with measures such as sanitary fencing, home confinements and suspension of collective passenger transport activities added during some periods.19

COVID-19 presented novel challenges for Timor Leste. Restrictions on movement and face- to-face interactions – necessary for the large informal sector – hit particularly hard given the country’s limited access to technological supports and relative geographic isolation.20 The Timor-Leste Government launched a relief package beginning in May 2020 which incorporated cash transfers, emergency food distribution, wage subsidies for those in the formal sector, a credit moratorium and utility subsidies. This package – at 13 per cent of GDP – was one of the world’s largest.21 The measures included a credit program and emergency loans.22 Approximately 300,000 households received a monthly payment of

$100.23

According to the World Bank, despite adopting strong fiscal measures to address the impact of COVID, Timor Leste’s economy contracted by 8.6 per cent in 2020.²⁴

13 Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, p.3.

14 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31; Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022 p.3.

15 World Bank Group, 'April 2020 Timor-Leste Economic Report: A Nation Under Pressure', 15 May 2020, 20201021131121, p.i.
16 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.
17 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
18 The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021.
19 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.33.
20 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
21 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
22 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.

23 United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, p.43, 47.

24 The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021.

1. The UN in Timor-Leste conducted a rapid socio-economic impact assessment in June-July 2020 of 437 households in five municipalities to gauge the impact of the pandemic.25 A larger nationwide socio-economic impact assessment was conducted in July-September 2021 in partnership with government, using a sufficient sample size to produce statistically representative results at a national level.26

   The pandemic exacerbated underlying issues within the country, including disparity in development between rural and urban settings, the effects of climate hazards, and limited access to education, health services, social protection programs and markets.27 The negative impacts have been greatest on the poorest households, households outside Dili (where wealth is concentrated), and those with high levels of social vulnerability (eg older age, disability, female headed households, larger numbers of dependent children). Even relatively well-off households also experienced losses and challenges including food insecurity.28 The United Nations report also refers to impacts on education, access to health services, in addition to large increases in the numbers of reported cases of child physical abuse, sexual abuse and rape in 2020 and 2021 compared to 2019.29

There is low labour market participation in Timor Leste, with only 45.2 per cent of the working-age population employed in the market economy as at March 2021.30 A United Nations report explains that this does not include those engaged in subsistence agriculture, which would raise the figure to 61.1 per cent. Most of those engaged in the market economy (86.3%) are self-employed or contributing family workers, and many (over 70%) are engaged in production and sale of agricultural products. Many jobs are characterised by informal work arrangements, insecure employment, unstable and inadequate earnings and low productivity. Persons living with a disability and women are employed at a lower rate. The overall unemployment rate is 11.9 percent, but this rises to 22.1 percent for young people aged 25-29 years, likely related to higher levels of job losses among this group as a result of COVID-19.31

COVID-19 and the State of Emergency impacted employment and activities, with 39.3 percent of persons working in the market economy in March 2020 reporting having lost their job for at least some time due to the pandemic, although 90.1 percent of those who lost a job due to COVID were again employment by March 2021.32

25 United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, p.7-8.
26 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.23, 24, 27.

27 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
28 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8.

29 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.14- 15.
30 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8- 10.
31 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8- 10.
32 United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.10- 1

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.

2. In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.

3. Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.

4. The Tribunal notes the country information regarding the prevailing economic conditions in Timor Leste, in particular the rise in the poverty rate, and more so in rural areas, the reliance on small-scale subsistence farming, the majority of households being in the informal employment sector, the increased dependence on climate-sensitive livelihoods and agricultural production, and the low labour market participation. The pandemic exacerbated underlying issues within the country, including disparity in development between rural and urban settings, the effect of climate hazards, and limited access to education and health services, social protection programs and markets.

5. The Tribunal accepts that:

   18.1.The applicant experienced economic hardship and limited employment opportunities in Timor Leste; and

   18.2.The applicant’s mother and siblings continue to experience economic hardship and/or limited employment opportunities in Timor Leste.

6. The Tribunal notes the applicant’s evidence that:

   19.1.His father borrowed more than USD 10,000 from his uncle’s son—who would therefore be the father’s first cousin—who has always been rich and has ancestors were kings.

   19.2.It was an arrangement based on trust verbally agreed to by the father’s uncle.

   19.3.The money would be repaid in one year, and if not, interest would increase monthly.

   19.4.The father used the money to set up a business, which was not successful, and he couldn’t repay the money.

   19.5.The rich relatives made repeated demands on the father for the repayment of the money; they took over the parents’ house and plantation as security and forced the family to live in another town with the mother’s uncle; they beat and harmed the father for his failure to pay and he ultimately died from the injuries; and they bribed police to ensure no action was taken against them in relation to the father’s death.

   19.6.The applicant tried to get a statement from police as evidence of the cause of his father’s death, but the police did not act after receiving the bribe payment.

   19.7.The applicant inherited the responsibility for the repayment of the money on his father’s death.

   19.8.The father’s cousin has visited the applicant’s mother eight times since the applicant has been in Australia, demanding the repayment of the money and making threats. The mother and siblings can’t go outside now or they will die.

   19.9.The applicant tried to make incremental repayments to the rich relatives from his earnings in Australia, but they refused to accept the repayments, insisting the amount be repaid in full, and later changed to, in three instalments.

   19.10.The amount of money to be repaid varied in through the applicant’s evidence from 10 times USD 10,000 to 10 times USD 10,000 plus two lots of 5 times USD 5,000.

   19.11.The applicant will be killed by the rich relatives if he returns to Timor Leste and the money has not been repaid.

7. The Tribunal considers the applicant’s evidence overall lacks detail, consistency, coherence, and credibility.

8. The Tribunal notes the applicant has not produced any documentary or witness evidence to support his central claims for protection that his father borrowed a significant sum of money from his rich cousin, that his father was beaten by his rich relatives for not repaying the money and died as a result, that the debt has now exponentially increased, that the rich relatives are demanding money from and threatening the applicant’s mother, and that if the money is not repaid by the applicant and he returns to Timor Leste, he will be killed by the rich relatives.

9. The Tribunal notes the applicant’s evidence that he attempted, but was unable, to get a statement from police confirming the cause of his father’s death.

10. The Tribunal considers that, given the alleged seriousness of the applicant’s claims, it would be reasonable to expect that the applicant would have made further efforts and used his best endeavours to seek and produce a witness or a witness statement or some other documentary evidence to corroborate one or more of his claims.  

11. The Tribunal considers the applicant’s evidence that the rich relatives beat his father for not repaying the money and caused his death inconsistent with his evidence, given in the same context, that families in Timor Leste look after each other.

12. The Tribunal considers the applicant’s evidence that the rich relatives refused to accept any loan repayments from the applicant inconsistent with the remainder of his evidence regarding the loan and surrounding circumstances.

13. The Tribunal accepts that another person, at the applicant’s request, prepared his protection visa application.

14. The Tribunal notes the claims set out in the applicant’s protection visa application do not accord with the applicant’s oral evidence at hearing. The Tribunal further notes the applicant concedes that he was not beaten in Timor Leste and his wife did not run away as a result of the debt, however the Tribunal considers the applicant’s explanation at hearing for the inclusion of these false claims unpersuasive.

15. The Tribunal is prepared to accept the applicant’s evidence that he didn’t know or understand what had been written in the protection visa application at the time the application was made.

16. The Tribunal notes the Department wrote to the applicant on 2 September 2023 acknowledging his application and inviting him to provide additional information relating to his claims, and that the applicant did not provide any additional information.

17. The Tribunal considers that, given the alleged seriousness of the applicant’s claims, it would be reasonable to expect that the applicant would have taken steps to provide the Department with a more detailed account of his experiences in Timor Leste. However, the applicant did not do this.

18. The Tribunal notes the applicant was notified by the Department of the visa refusal decision on 2 October 2023 and the applicant applied to the Tribunal for review on 14 October 2023.

19. The Tribunal considers that, given the alleged seriousness of the applicant’s claims, it would be reasonable to expect that the applicant would have taken steps to provide the Tribunal with a more detailed account of his experiences in Timor Leste. However, the applicant did not do this.

20. The Tribunal considers there is insufficient credible evidence before it to find that the applicant’s father borrowed a significant sum of money from his rich cousin, that his father was beaten by his rich relatives for not repaying the money and died as a result, that the debt has now exponentially increased, that the rich relatives are demanding money from and threatening the applicant’s mother, and that if the money is not repaid by the applicant and he returns to Timor Leste, he will be killed by the rich relatives.

21. The Tribunal considers there is insufficient credible evidence before it to substantiate the applicant’s claims for protection.

22. The Tribunal considers it is likely the applicant’s principal motivation for coming to and remaining in Australia is to earn sufficient money to support his family in Timor Leste.

23. The Tribunal considers it is likely the applicant would experience economic hardship and/or limited employment opportunities if he returns to Timor Leste, however such economic hardship and/or limited employment opportunities would be at a level commensurate with the broader population, and not targeted at the applicant by reason of his race, nationality, religion, membership of a particular social group, or political opinion.

24. The Tribunal considers it is not likely that, if the applicant returns to Timor Leste, he would face harm, by cause or nature, that would engage Australia’s protection obligations.

25. The Tribunal is satisfied the applicant’s evidence does not give rise to any further claims for protection requiring its consideration.

Application of law

1. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

2. The Tribunal finds that:

   40.1.The applicant is a citizen of Timor Leste and a non-citizen in Australia.

   40.2.The applicant’s claims for protection do not satisfy the refugee or complementary protection criterion set out in the applicable law.

   40.3.If the applicant is returned to Timor Leste, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.

   40.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor Leste there is a real risk the applicant will suffer significant harm.

CONCLUSIONS

1. 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.

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

3. There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.

DECISION

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

Kate Chapple Member

ATTACHMENT A

Summary of applicable law

The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).

Relevant extracts from Migration Act 1958

5 (1) Interpretation

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

5H  Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a

well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of

serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)   any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)    protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)    the person can access the protection; and

(b)   the protection is durable; and

(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36     Protection visas – criteria provided for by this Act

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)   the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.