2317284 (Refugee)

2317284 (Refugee) [2024] AATA 1355 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317284
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Mark O'Loughlin
DATE:12 March 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2024 at 2:30pm

CATCHWORDS
REFUGEE – Protection Visa – Timor-Leste – did not experience any harm in Timor – a debt – applicant does not fear harm of any sort if she returns to Timor-Leste – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 20 October 2023, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.
The applicant applied for the visa on 8 September 2023. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was unable to seek effective protection from harm from the government in Timor-Leste and is not therefore owed protection obligations by Australia.
The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 6 February 2024 via video link to give evidence and present arguments.
The Tribunal was assisted by an interpreter in the Tetum language.
CRITERIA FOR A PROTECTION VISA
The relevant 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). To be eligible for a Protection Visa an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that she is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed the applicant must satisfy either:
·s36(2)(a)- the “refugee criterion”, or
·s36(2)(aa)- the “complementary protection” criterion.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
Claims
The PVA lodged on 8 September 2023 set out claims in the answers to questions on pages 11 and 12.
Broadly those claims are that she had been threatened with death because she had made a large loan and was liable for interest of $250.00 per week.
The moneylenders are looking for her and want to kill her.
The applicant told the Tribunal that the form had been filled in by someone else and that she had not discussed her claims with that person.
The applicant was asked to tell the Tribunal what she fears will happen to her if she returns to Timor-Leste. The Tribunal summarises her new claims as follow:
·The applicant had borrowed USD$4,500.00 from someone in Timor-Leste and she needs to repay it.
·She is unable to repay the money unless she stays in Australia and works.
·The money was borrowed to fund her husband’s move to [Country 1] for work.
·Interest is being levied at the rate of 10% per month or 120% a year.
·The applicant has been able to pay the interest of $450.00 USD per month and she has also been paying about $100.00 for the support of her son in Timor-Leste.
·She does not suggest anything will happen to her if she does not repay the loan but considers it an obligation.
·She does not know what the lender would do if she returned without repaying the loan.
·They have never made any threats against her.
·She expects to be able to repay the loan in about June or July 2024.
The Tribunal asked the applicant if she had read the delegate’s decision or had it explained to her. She said she had not.
The Tribunal advised the applicant that the delegate had refused the visa because they did not accept that the Applicant could not get proper protection in Timor-Leste.
The Tribunal advised the applicant that the Tribunal might make a decision on a different basis such as whether it was satisfied she had borrowed any money or whether it was satisfied she would face any harm if she returned to Timor-Leste without repaying it.
Evidence before the Tribunal
The applicant told the Tribunal that she came to Australia to earn money because of a loan she had made in Timor-Leste in mid-December 2020.
She said she and her husband borrowed money to cover the costs of him going to work in [Country 1], where he could earn more than he could in Timor-Leste.
She said they had to cover the costs of the ticket and of some time spent in isolation due to COVID regulations.
After he got to [Country 1], her husband changed his contact details and she has lost contact with him.
She told the Tribunal they borrowed the money from members of her family.
She told the Tribunal she was paying 10% per month in interest.
She agreed it is a very high interest rate but said she did not expect to be separating from her husband and was not concerned. She thought his earnings would cover it.
She said she pays USD$450.00 each month in interest.
The Tribunal asked her who she was paying. She said it is a family member, a close family member.
She said the money belonged to her family.
The Tribunal asked whether the money belonged to her whole family or to a particular family member?
She then said it was not her actual family at all but some people who lived nearby. The person to whom she makes payments is called [name].
The applicant said she feels like she should stay here in Australia and work so she can repay the debt.
The Tribunal asked whether there are any documents relating to the loan. The applicant said there are not and that they live in a rural area and do not use documents.
The Tribunal asked the applicant why her husband is not responsible for repaying the loan given that he took the money?
The applicant said from the lender’s point of view, she has to repay. The agreement was with her and the lender has not tried to contact her husband.
The Tribunal asked whether she had been threatened with death or torture by the lenders, as stated in the PVA. She said she has not.
She said she has not been threatened by the lender at all.
The Tribunal asked what would happen to her if she does not repay the loan.
She says she does not know what they will do if she does not pay them back.
The applicant does not suggest the lender is a criminal or a violent person.
She told the Tribunal that it is not a matter of threats or violence, but that she feels responsible for the debt and feels obliged to repay it.
Findings
The Tribunal is satisfied that the PVA was completed by someone other than the applicant and does not reflect her position accurately.
The Tribunal is satisfied the applicant feels obliged to repay a loan of USD$4,500.00 and in the interim to pay interest at the rate of 120% per annum.
The Tribunal is not satisfied that the lender will harm the applicant in any way if she does not repay the loan.
The Tribunal is not satisfied the applicant believes the lender will harm her in any way if she is unable to pay the loan.
S36(2)(a) - REFUGEE CRITERION
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. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is a national of Timor-Leste. Further, the Tribunal is satisfied that the applicant is outside Timor-Leste.
The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Timor-Leste, which is the next part of the definition of “refugee” at 5H(1)(a).
S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
·The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
·There is a real chance that, if the applicant returned to Timor-Leste, she would be persecuted for one or more of the reasons mentioned in paragraph (a), and
·The real chance of persecution relates to all areas of Timor-Leste.
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The Tribunal will first consider what is meant by “persecution”.
The term is not defined in the Act, but s5J(4)(b) specifies that persecution must involve serious harm to the person and s5J(4)(c) specifies that persecution must involve systematic and discriminatory conduct.
“Serious harm” is not defined, but some examples are given at in paragraph (5). Those examples involve threats to life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person’s capacity to subsist, and denial of capacity to earn a livelihood of any kind where the denial threatens the person’s capacity to subsist.
The Tribunal has found the applicant does not fear harm of any sort if she returns to Timor-Leste. It follows that the applicant does not fear ‘serious harm’ as defined if she is returned to Timor-Leste.
She may be unable to repay the debt she believes she incurred, but her evidence was that she is not motivated to try to repay that debt because of any fear of harm, but because she feels an obligation to repay it.
Therefore, the Tribunal is not satisfied the applicant fears being persecuted as contemplated by S5J(1)(a).
It follows that the Tribunal is not satisfied the applicant has a “well founded fear of persecution” as defined in S5J. That being the case she does not satisfy the definition of ‘refugee’ in S5H(1)(a).
Conclusion re Refugee Criterion
The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION
Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), she may nevertheless be entitled to the grant of the visa if she meets s 36(2)(aa) (‘the complementary protection criterion’).
To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of her being removed to Timor-Leste there is a real risk that she will suffer significant harm.
The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
S36(2A) provides as follows:
(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.
There is no suggestion that the applicant will be arbitrarily deprived of her life, that the death penalty will be carried out on her or that she will be subjected to torture. The applicant does not come within s36(2A) (a), (b) or (c).
S5(1) defines “cruel or inhuman treatment or punishment” as follows:
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 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
S5(1) defines “degrading treatment or punishment as follows:
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.
The Tribunal does not accept the applicant will be harmed in any way if she is unable to repay the debt she claims to owe in Timor-Leste.
The applicant does not claim, and the Tribunal does not accept, that the applicant will be subjected to any acts or omissions of the types contemplated in S36(2A)(d) or (e).
Conclusion re Complementary Protection Criterion
The Tribunal does not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of her being removed to Timor-Leste.
The Tribunal therefore finds that the applicant does not come within S36(2)(aa).
Final Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O’Loughlin
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 1355

12 March 2024

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Immigration

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Statutory Interpretation

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