2317127 (Refugee)

2317127 (Refugee) [2024] AATA 603 (4 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317127
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:Samira Kamandi
DATE:4 January 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 January 2024 at 12:49pm
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – threats from money lenders – employment – economic conditions – fear of torture – fear of killing – family land dispute – state protection – martial arts group – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 23 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Timor-Leste, of Timorese ethnicity and of the Catholic faith. The applicant was granted a [temporary] visa on 5 April 2023 and arrived in Australia [later in] April 2023.
On 23 September 2023, the applicant applied for a protection visa, which was refused on 23 October 2023. He applied for a review of that decision on 24 October 2023.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant’s claims in his protection visa application are reproduced below:
·In relation to the reason he left Timor-Leste (or East Timor), the applicant stated: “I chose not to go back to East Timor and apply for a protection visa because I had been threatened or killed, because I borrowed a lot of money for [amount] and every week, I had to pay 250 dollars in interest, but I did not have the money to pay that much money because I had no work if I went back to east Timor, so I was threatened with death if I could not pay their debts. and currently they are looking up to me”.
·If returned to Timor-Leste, “[t]hey will daily be torturing me, whenever I go back to Timor-Leste, because I will be jobless and unable to the interest every month as the interest and capital will keep increase every month.”
·The applicant did not seek help in Timor-Leste “because the amount which I borrowed, was so hug, and no one will help me to settle this amount, when I started pay them monthly interest, I also Sign some documents with them, and no one can help me even Police or local Politician Keep avoiding from me, as they do not want to get involved in this case.”
·The applicant did not move to another part of the country because “I do not have relatives in other part beside my country, and I also cannot run or move from them since my relatives know about this matter, and all of them trying to avoid from me including my families.”
·If returned, “They are totally looking up to and wants to kill me even if I manage to pay the interest every Six months while working in Australia but once I return to East Timor, I will be jobless while I am in Timor-Leste, so could not make payment to them, and the interest keep increasing every month, and make them keep torturing me in my daily life so I feel insecure when I Return to East Timor.”
·The applicant “will be harmed or mistreated if I returned because they want me to pay their money back, but I do not have money to pay that much money.”
·The authorities will not protect the applicant because “they do not want to get involved in this problem”.
·The applicant is unable to relocate because “it is extremely easy for them to fire me when I try to relocate to another place or area because Timor-Leste is a small country.”
Review application
The applicant’s protection visa was refused by the Department. The applicant lodged an application for review of that decision on 24 October 2023.
On 1 December 2023, the applicant was invited to attend a hearing before the Tribunal, scheduled for 21 December 2023.
On 4 December 2023, the Tribunal sent the applicant an invitation pursuant to s 424A of the Act to comment on or respond to information. The invitation particularised the information in the applicant’s protection visa application as set out above and indicated that claims set out in the applicant’s protection visa application are substantially identical to claims made by multiple other applicants before the Tribunal. The applicant was advised that, subject to his comments, this may lead the Tribunal to conclude that he had not been truthful in his application for a protection visa, the claims made have been fabricated and/or the claims made are not genuine, and that these conclusions may form the reason or part of the reason for affirming the decision under review. The applicant was given until 18 December 2023 to provide a response.
The applicant sent the Tribunal multiple blank emails. On 6 December 2023, the Tribunal contacted the applicant informing him that he had not included any information in the emails to the Tribunal. He was advised to obtain assistance in responding to the Tribunal’s invitation.
On 7 December 2023, the applicant responded to the hearing invitation scheduled for 21 December 2023.
On 13 December 2023, the Tribunal sent the applicant an email referring him to the s 424A invitation sent on 4 December 2023, reiterating that his response to the invitation was due on 18 December 2023. The applicant was informed that failure to respond to the invitation may result in him losing his entitlement to the hearing scheduled on 21 December 2023, and that the hearing may be cancelled with the Tribunal proceeding to make a decision without taking any further action to obtain the applicant’s views on the information.
The applicant telephoned the Tribunal expressing concern about the email informing him that his hearing may be cancelled and stating that he did not understand what he was supposed to do to prevent the cancellation of the hearing. The Tribunal explained to the applicant that the s 424A invitation was separate to the hearing invitation and that he was to respond to that invitation. The applicant confirmed that he would provide a response.
On 14 December 2023, the applicant emailed the Tribunal stating that “According to all the reasons that I have given to my visa application that, I myself decide to apply for this protection visa because I want to stay in Australia bit longer so that I can get more money to pay back money that I have borrowed from other people and O can build my house and also to help my family, Support my youngest to look for education. when I get back to my own country, I can do my own business.”
In his response to the hearing invitation, the applicant stated that he required an interpreter in the Tetum language.
The hearing was held in person at the Tribunal’s Perth Registry. The applicant was not represented. The hearing was conducted with the assistance of an interpreter fluent in the Tetum and English languages, who participated via video link. The applicant and the interpreter confirmed that they understood each other. The applicant gave some evidence in English and was assisted by the interpreter when directed to ensure that he understood information communicated to him and that I understood the full extent of his evidence. No issues were raised about the interpretation services provided by the interpreter. The applicant’s evidence given at the hearing is discussed below.
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Timor-Leste for reasons of his race, religion, nationality, membership of a particular social group or political opinion. Alternatively, the Tribunal must consider 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 he will suffer significant harm.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
FINDINGS AND REASONS
Applicant’s identity and country of reference
The applicant has provided a certified copy of the bio-data page of his Timor-Leste passport. I find that the applicant is a national of Timor-Leste, and that Timor-Leste is the receiving country for the purposes of this review.
Background information
At the hearing the applicant confirmed that he was born in [specified year] in [Town 1], in Timor-Leste. He also confirmed that he is of Timorese ethnicity and a practising Catholic.
The applicant’s protection visa application does not include any information about the applicant’s family and indicates that the applicant has never worked or studied in Timor-Leste. At the hearing, the applicant stated that his father passed away in 1999, his mother lives in their family home in their village in [Town 1], and that he has [siblings]. He said that [some] of his brothers work on their family farm, which is located about [distance] from the applicant’s family home, and that [other siblings are] living with his mother. [Details deleted].
Regarding his education, the applicant stated that he finished high school in Dili in [specified year]. He said that [one sibling] resides in Dili, and that he did his high school years in Dili and stayed with [them]. After finishing high school, he got into an [education] program in Dili, where he learnt English, farming, and cooking. He confirmed that the program was free, and that he was provided with accommodation during the week and travelled to his [sibling’s] house on the weekend. The applicant confirmed that he was not in any paid employment in Timor-Leste.
I accept the applicant’s evidence regarding his family, education, and employment history in Timor-Leste.
Credibility assessment
In determining whether the applicant is entitled to protection in Australia, it is necessary for the Tribunal to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[1] The Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions.
[1] Minister for Immigration and Ethnic 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, Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (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.
Further, in assessing the credibility of an applicant’s claims, the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019.
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, the fact 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 is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims, or to establish, or assist the applicant in establishing, his or her claims. Nor is the Tribunal required to accept uncritically any or all the allegations made by the applicant.[5]
[5] MIEA v Guo (1997) 191 CLR 559; Prasad v MIEA (1985) 6 FCR 155; s 5AAA of the Act.
For the reasons set out below, while I accept that the applicant was granted a nine-month visa to work in Australia and that in order to extend his stay and work in Australia he applied for a protection visa, I found that aspects of the applicant’s evidence given at the hearing lacked credibility.
Application for a protection visa
The applicant arrived in Australia [in] April 2023. At the hearing the applicant explained that as part of his visa to travel to Australia, the government paid for his travel to Australia with the expectation that he would work and repay the amount. He stated that the travel to Australia was about AUD [amount] and that he repaid that amount by September 2023. The applicant’s evidence was that he originally went to Queensland to work at a farm, where he worked until September 2023. He stated that after he repaid the travel costs, he was not earning enough money and decided to come to Perth. He obtained a factory job, which pays him about AUD 500 per week, and he can send his family about AUD 150-200 per month depending on how much they need. I accept the applicant’s evidence in this regard.
When asked about his reasons for applying for a protection visa in September 2023, the applicant stated that he realised that he was not able to make enough money in nine months to return to Timor-Leste and heard that he could prolong his stay by applying for a protection visa. He stated that he heard this from his friends who are also from Timor-Leste and are in Australia. When asked if he was assisted in lodging his protection visa application, the applicant responded in the positive and indicated that he was given a number to call, and that person arranged to lodge the application. The applicant confirmed that he never spoke to the person about his claims nor was he aware of what was included in his application. When referred to the s 424A invitation from the Tribunal, the applicant confirmed that he recalled getting the letter and that it included information about his claims in the protection visa application. When asked who assisted him to respond to that letter, the applicant stated that it was a friend, not the person who lodged the application. The applicant also stated that when he tried to call the number of the person who lodged his protection visa application, that person did not answer the applicant’s calls.
At the hearing, the applicant was asked if any of the information, including the claims that he had borrowed money at a very high interest rate, was unable to repay the loan, and that he was at risk of being harmed by those he borrowed money from, was true. The applicant confirmed that the information included in his protection visa was not true and that the person who lodged the application had fabricated the claims. He confirmed that the reason he came to Australia was not because he had borrowed money, but to work.

While I accept that the applicant was advised that there was someone who could lodge a protection visa application for him to prolong his stay in Australia and that the information in his protection visa has been fabricated, the fact that the applicant had taken this course of action just to prolong his stay in Australia so he could earn more money, in my view, detracts from the credibility of his claims that he fears returning to Timor-Leste for the reasons claimed at the hearing.
Economy – inability to support his family
When asked if, apart from wanting to work in Australia, he had any other reasons for not wanting to return to Timor-Leste, the applicant stated that because of the problems regarding the economy and providing for his family, he decided to apply for a protection visa. The applicant stated that his father passed away, his mother is by herself, and that the applicant cannot make her happy. He referred to talking to his mother and advising her that he would apply for a visa and that maybe one day he could make her happy. The applicant referred to challenges in his life, and that he could not go back and support his family.
Country information[6] indicates that poverty rates in Timor-Leste increased from 22 percent to 27 percent in the period between 2014 and 2020. Forty-six percent of the population are poor, and a significant majority rely on small-scale subsistence farming. The majority of households rely on the informal sector, with 70 percent of the population relying on climate-sensitive livelihoods and agriculture production, in a country which experiences frequent floods, droughts, storms and other natural disasters due to climate change. It is reported that Timor-Leste’s economy was recovering in 2019 from a 2017-2018 recession when the economy was severely affected by the COVID-19 pandemic. Timor-Leste is considered one of the poorest countries in the world and standards of living continue to remain low across the country, disproportionately affecting poor and rural families, who make up most of the country’s total population.
It is also reported that there is low labour market participation in Timor-Leste, with only 45.2 percent of the working-age population employed in the market economy as at March 2021.[7] The overall unemployment rate is 11.9 percent, but this rises to 22.1 percent for young people aged 25-29 years, which is likely related to higher levels of job losses among this group as a result of COVID-19.[8]
[6] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 30 September 2020, 20220902124342; The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021, 20220516084348.
[7] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[8] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
Given the country information about Timor-Leste’s economy, high unemployment rate, and the challenges faced by the population who, by and large, are engaged in the informal economy and agriculture, an industry impacted by natural disasters and the recent impact of the COVID-19 pandemic on the economy, I accept that the applicant prefers to remain in Australia where he can earn money to support his family and that he has a desire to look after his mother and support his family.
As discussed with the applicant at the hearing, while I understand that the applicant wants to remain in Australia to work and support his family, and that he is concerned that given the current economy of Timor-Leste, he may not be able to give his family the level of financial support that he can from Australia, his concerns stems from circumstances that impact the whole of the population and there is no indication that he would not be able to engage in employment or face financial hardship because of any systematic or discriminatory conduct or for reasons outlined in s 5J(1)(a) of the Act. I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future due to the country’s economic situation.
As discussed with the applicant, there is no indication that he would face the death penalty or be arbitrarily deprived of his liberty. The risk of economic hardship is a risk that is faced by the population of Timor-Leste generally and is not a matter that is faced by the applicant personally. Any economic hardship that the applicant may face will not be as a result of any conduct with an intention to inflict pain or suffering that can reasonably be regarded as cruel and inhuman in nature, or result in severe pain or suffering, or an intention to cause extreme humiliation such as to meet the definitions of torture or cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied that the applicant faces a real risk of significant harm as defined in the Act.
Land dispute
When asked if, apart from economic reasons, the applicant had any other reason for not wanting to return to Timor-Leste, he referred to a land dispute between himself and his paternal cousins. The applicant stated that his father left him a piece of land to build his house, but after his father passed away in 1999, his cousins claimed the land and prevented the applicant from accessing the land. He stated that his cousins had bad intentions and that he talked to his mother and told her that he would apply for a protection visa. When asked about the location of the land, the applicant stated that it was near their village. When asked who owned the land, the applicant stated that the land was in his father’s brother’s name, which was passed on to his father, and was to be passed on to the applicant after his father passed away. Regarding whether the applicant tried to obtain the land or sought assistance from his brothers or the authorities, the applicant stated that he did not try to claim the land because people in Timor-Leste get violent and he did not want any trouble. He also did not go to the authorities because they do not get involved in these matters, and in their culture, people do not go to the police in relation to these matters. The applicant also stated that if returned, he would not go after the land and would have to find land elsewhere to build a house. The applicant confirmed that the land was not in his or his father’s name and that he had no evidence to substantiate his claims in this regard.
As discussed with the applicant at the hearing, it appears that the applicant has no legal entitlement to the land, which is in his cousins’ father’s name. The applicant did not dispute this. While I have some concerns about the credibility of the applicant’s evidence in this regard, I am willing to accept that the applicant may have been under the impression that the piece of land that was passed on to his father from his uncle was going to be passed on to him after his father passed away in 1999, and that his uncle’s children have prevented this from happening. The applicant’s evidence is that he has not in the past, nor would he in the future, challenge his cousins’ decision to prevent him from accessing the land. I accept that the applicant would not pursue claiming the land if returned to Timor-Leste. He has not taken any action since his father’s death in 1999, nor has any members of family taken any action to claim the land. I am of the view that the applicant would not claim the land the subject of the dispute because he does not have any legal entitlement to it, rather than because he does not want to cause any issues with his family.
As explained to the applicant at the hearing, even if there is a dispute between his cousins and him because of the land, any issues that he may face as result of this dispute would not be directed at him for any reasons outlined in s 5J(1) of the Act, and this appeared to be a dispute over a piece of land that is not in the applicant’s name. It was also explained that he had not been to the police seeking assistance and apart from his evidence that the police do not get involved in these matters, there is no indication that he would not be offered assistance by the police in this regard due to any reasons outlined in s 5J(1) of the Act. The applicant agreed and did not provide any further information. On the applicant’s evidence, I am not satisfied that the applicant faces a real chance of persecution in the foreseeable future in this regard.
As discussed with the applicant, even if the applicant chose to take any action to claim the land and faced any issues over this dispute with his cousins, the risk of any harm that he would face would be as a result of taking action to claim the land, not as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste. The applicant confirmed that he understood this and provided no further information. On the applicant’s evidence, I am not satisfied that the applicant faces a real risk of significant harm for this reason as a foreseeable consequence of his removal to Timor-Leste.
Member of martial arts group
After a 15-minute break during the hearing, the applicant returned and made a claim that he also feared returning to Timor-Leste because he was a member of a martial arts club in 2014. The applicant was asked why he did not raise this issue before the break when he was questioned about whether he had any further claims. The applicant stated that he forgot to mention it. I expressed concerns about the credibility of this claim given that he did not mention it earlier during the hearing and that he only raised it after my explanations that it appeared that he did not engage Australia’s protection obligations because of the economy in Timor-Leste or his claimed land dispute. Apart from indicating that he forgot to mention this earlier in the hearing, the applicant did not offer any further explanation.
When asked about the group, the applicant stated that the group was called “[Group 1]”, and that he joined the group in 2014 for a period of one year and then left because he did not want any issues. When asked about what he did with the group, the applicant vaguely referred to training and exercises. He also referred to problems in the neighbourhood, and that the groups were fighting each other, and that there was a [sport] competition where one group did not accept the result and that things were not good for him, and he had had to be careful at all times.
I referred to information[9] that martial arts groups, including [Group 1], were banned by the government in 2013, and that there was zero tolerance of the practice of martial arts after the ban in 2013, and queried how the applicant managed to join the group. The applicant said that the groups were banned in the cities, but he engaged with them in his village, where groups were able to train at night. When referred to his earlier evidence that he left his village in 2011 and was residing in Dili and going to school, the applicant said that he visited his village during the holidays.
[9] Asia Journal of Peacebuilding, ‘Security, Violence and Outlawed Martial Arts Groups in Timor Leste’, Vol 3 No. 1, 2015; Associated Press, ‘East Timor bans martial arts clubs as gangs wreak havoc on island’, 23 September 2013.
When asked why the group would harm him now, given that it had been almost a decade since he had engaged with the group, the applicant referred vaguely to the issue during the [sport] competition in his village. When I observed that this happened almost a decade ago and asked whether the group searched for him in the years that he remained in the country, the applicant stated that they went to his parents’ house at night and asked about him and that this occurred for a period of almost a decade. I expressed to the applicant that I had a great deal of difficulty accepting his claim in this regard. The applicant indicated that he understood and did not offer any further information. When asked if he had any supporting evidence, such as statements from his family members to support his claim, the applicant stated that he told his mother and that she cried.
On the applicant’s evidence, I am not satisfied that the applicant was a member of the [Group 1] martial arts group in 2014, that he trained with them at night in his village, or that he engaged in any conduct during a [sport] match that caused him to be fearful for his safety. I consider that the applicant presented this claim at the conclusion of the hearing to bolster his claims for protection and I reject this claim in its entirety. I am not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in this regard.
Refugee assessment
Considering the applicant’s circumstances as a whole and in light of what I have accepted of his claims, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet s 36(2)(a).
Complementary protection assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether there are 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 that he would suffer significant harm.
Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’, are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
In light of my findings and reasons outlined above, I am not satisfied that the applicant faces a real risk of significant harm as defined in ss 36(2)(aa) or 5(1) of the Act.
I am not satisfied that there are 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 that he would suffer significant harm for any reason. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Family membership criteria
Under s 36(2)(b) or s 36(2)(c) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who: (i) is mentioned in s 36(2)(a) or (aa); and (ii) holds a protection visa of the same class as that applied for by the applicant.
The applicant has not claimed and there is no suggestion that the applicant satisfies s 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. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Samira Kamandi
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 603

4 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice