2316948 (Refugee)

2316948 (Refugee) [2024] AATA 1019 (23 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2316948
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Peter Haag
DATE:23 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 January 2024 at 3:28pm
CATCHWORDS
REFUGEE – Protection Visa – East Timor – fears harm from former husband – moneylending – intentionally advanced claims without regard to their truthfulness and accuracy – misuse the Australian protection visa system for the purpose of extending her stay in Australia –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 October 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 East Timor, applied for the visa on 19 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 12 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
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.
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 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist the applicant in specifying any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s background and migration history
The applicant was born in Timor-Leste on [date]. She departed Timor-Leste on [date] May 2023 to work in Australia’s Seasonal Worker Program. The applicant entered Australia lawfully on [date] May 2023, and she applied for a protection visa on 19 September 2023.
The applicant stated in her application that from [date] May 2023 she was employed as a [occupation]. At the time of application, she was residing in [city], Victoria, and her previous address was [a city], Queensland.
The applicant also stated in the application that she speaks, reads and writes English and Indonesian, and she speaks and reads Tetum. Her relationship status was ‘never married,’ and she does not have any partner (spouse or de facto), parents, siblings or children including those that are deceased who are in Australia or overseas, and whose details have not yet been provided in the application. Details of relatives provided in the visa application are that her father and mother are citizens of Timor-Leste.
Applicant’s identity
The applicant evidenced her identity, nationality and citizenship by a copy of the biodata page of a Timor-Leste passport. The Department accepted the document to be an accurate copy of a genuine passport; that the applicant is a citizen of Timor-Leste; and her identity is reliably established by the passport document. The Department is better placed than the Tribunal to determine whether the applicant’s proof of identity document is genuine or bogus.
Considering the documentary evidence, and the applicant’s oral evidence, the Tribunal is satisfied as to the applicant’s identity; that she is a citizen of Timor-Leste, and as such her protection claims will be assessed against Timor-Leste as the country of reference and ‘receiving county’ respectively.
The applicant claimed in her visa application to be owed protection for these reasons:
·in Timor-Lest the applicant borrowed money from a friend;
·she was unable to repay the debt; consequently,
·she fled to Australia;
·she fears she would be harmed or killed by the friend if she returns to Timor-Leste;
·the authorities in Timor-Leste will not protect her;
·she did not try to relocate to another part of the country to seek safety because she moved to Australia.
At the beginning of the hearing, the applicant said she did not know what claims were made in her visa application. The applicant asserted she paid money to an unnamed person[1] to do the visa application for her. He refused to tell her the reasons he wrote in the application unless she paid him more money. Consequently, she does not know the reasons [for protection] in her application or what to talk about in the hearing. The applicant then told the Tribunal she gave the person her reasons for claiming protection, but he did not ‘stick to them.’
[1] Later in evidence the applicant told the Tribunal the person who wrote her visa application used the name [name], and his phone number is [number].
The Tribunal then asked the applicant to explain how she knew the person did not ‘stick to’ the reasons she gave him if she did not know the reasons the person put into the application. The applicant avoided answering the question.
Instead of answering the Tribunal’s question, the applicant said she gave the person these reasons: She had an opportunity to come to Australia. At the time she had a lot of problems in Timor-Leste caused by her husband and his family. Her husband was a drinker, and he would beat her and her children. She hid at a friend’s house and then came to Australia. The applicant also said her husband telephones her in Australia, first on her phone number, but after she blocked his number, he telephones her on a friend’s telephone. According to the applicant, in the phone calls he said he is ready to be imprisoned for what he will do if she returns to Timor-Leste. He will burn to the ground anything she builds there, and he will kill her. He is harassing her parents and threatened to kill them.
The applicant said at hearing she divorced her husband because of his drunkenness and violence. She reported his violence to police. The matter went to court and the court told them to resolve the matter in the family; after that nothing changed.
The applicant emphasised in her oral evidence that the real reasons she gave the person to put into the application are that her husband is a drunk, he is violent, and he beat her and their child, and he threatened to harm and kill her. She had the opportunity to come to Australia, so she decided to relocate to Australia permanently, and to work to support her three younger siblings to complete their education in Timor-Leste, and to buy land and complete a house for her parents and family to live in. Once she has achieved these objectives, she will return to Timor-Leste even though her husband said he would kill her and burn down anything she builds there, and he is willing to go to jail for his actions.
The Tribunal again asked the applicant how she knew the person who wrote her application did not write the reasons she gave him into the application. The applicant said she asked him, and he didn’t tell her. He said the reasons are simple and she will get the visa.
The applicant accepted that her visa application correctly stated that she speaks, reads and writes Indonesian, and she speaks and reads Tetum, but, in contradiction of information in the application, the applicant denied that she speaks, reads and writes English.
In response to the Tribunal, the applicant said she did not read the visa application before it was submitted, and she did not ask the man who wrote the application to read the information in the application to her.
Towards the completion of her evidence, the applicant accepted that she paid money to a person to write into her visa application whatever he thought would be sufficient to get her the visa. This evidence is consistent with earlier evidence in which the applicant informed the Tribunal that she paid money to the person who wrote her application, and she knew he was going to write down whatever he wanted so she could get the visa. When the applicant gave her evidence, the Tribunal put to her that she paid a man to do the application for her knowing he was going to write whatever he thought was necessary for her to get the visa. This was accepted by the applicant to be correct.
At hearing, the applicant abandoned the protection claim stated in her visa application. In response to the Tribunal, the applicant accepted that the claim, stated in her visa application, that she borrowed money from a friend to support her family; she could not repay the money; and for those reasons she came to Australia, is not true.
Based on the whole of the evidence, the Tribunal finds the applicant to be an unreliable witness; that she intentionally advanced claims in her application for a protection visa without regard to their truthfulness and accuracy, for the purpose of obtaining a protection visa; and that she is willing to misuse the Australian protection visa system for the purpose of extending her stay in Australia. For these reasons, the Tribunal finds the applicant is not a credible witness in this proceeding.
Consequently, the Tribunal is not satisfied the applicant’s evidence that she was married to a drunken, violent man who often beat her and her child; and that he threatened to kill her and burn to the ground anything she builds in Timor-Leste, if she returns to Timor-Leste, and that he harasses her parents and threatens to kill them is accurate, reliable and credible evidence.
Findings
Upon considering all the evidence, the Tribunal finds that the applicant is an unreliable witness who is willing to misuse the protection visa system for the purpose of extending her stay in Australia.
Additionally, the Tribunal finds the evidence is insufficient to satisfy the Tribunal of the existence of a real chance the applicant would be seriously harmed by her former husband, either directly, through the agency of his family or others, if she is removed to Timor‑Leste now or in the reasonably foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if she is removed to Timor-Leste now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Timor‑Leste now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
In view of the Tribunal’s findings about the credibility, accuracy and reliability of the applicant as a witness; that she abandoned the protection claims in her visa application; that she is willing to misuse the Australian protection visa system for the purpose of extending her stay in Australia; and the Tribunal’s overall findings in respect of the applicants claims, evidence and credibility, the Tribunal does not consider country information, including the DFAT country information concerning moneylending and family violence in Timor-Leste, or generally to be relevant and material in this case.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag

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.
…

[2024] AATA 1019

23 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice