2317310 (Refugee)

2317310 (Refugee) [2024] AATA 2154 (13 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2317310

COUNTRY OF REFERENCE: East Timor
MEMBER:Mark O'Loughlin
DATE:13 March 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 March 2024 at 1:54pm

CATCHWORDS
REFUGEE – protection visa – Timor-Leste – no Convention nexus – threats from a money lender – economic conditions – employment – reduced earning capacity – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v Minister for Home Affairs, [2020] FCAFC 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 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 (Cth) (the Act).
The applicant who claims to be a citizen of East Timor, applied for the visa on 10 September 2023. The delegate refused to grant the visa on the basis that effective state protection is available to him in East Timor.
The applicant appeared before the Tribunal on 8 February 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 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).
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 he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed the applicant must satisfy either:
a.s36(2)(a)- the “refugee criterion”, or
b.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 Protection Visa Application (PVA) lodged online on 11 August 2023 included claims on pages 11 and 12. The claims may be summarised as being that the applicant borrowed money and will be harmed by the moneylender if he does not repay it, to do which he will have to stay in Australia and work.
Those claims were abandoned by the applicant in his evidence to the Tribunal and the Tribunal disregards them.
Evidence before the Tribunal
The applicant told the Tribunal that he did not fill out the PVA. He said it was filled out on his behalf by another person from Timor. He said he paid that person $200.00.
He said he spoke to the person over the phone but did not meet them. He said he was given the person’s number by someone from the employment agency, [Agency 1], which had brought him over and arranged his job.
The applicant said he has not had the delegate’s decision explained to him and does not know why his visa application was refused.
The Tribunal advised the applicant that it may make its decision for different reasons than those relied on by the delegate.
The Tribunal asked the applicant why he applied for the Protection visa. He said so he can improve his economic situation and earn money to improve his life and support his parents, children, and siblings.
He said he would not suffer harm in East Timor if he had to return there, nor has he faced persecution in the past. He does not think he will be harmed if he returns.
He says his family have always been subsistence farmers growing crops on land allocated to them by the village chief.
He said he has never had a formal job and that it is difficult for people like him who have only been educated to junior high school level to find work other than on farms.
The applicant said that his father and uncles no longer have the energy to work as farmers and he found himself trying to support a family group of [number] people which was difficult.
He said since he has come to Australia father and 2 uncles have stopped working because the land they farm is 2 ½ km from their home and they have to cross a river to get there. He sends USD$250.00 home every month and that is enough to support his family.
The applicant said it is difficult for him to find work other than as a farm labourer because of his lack of education.
Claims from the Applicant’s Testimony
The applicant claims it is very difficult for him to support his family on the income he can earn in East Timor.
The applicant does not claim he has been persecuted or harmed in the past in East Timor.
The applicant does not claim he will be persecuted or harmed by anyone if he returns to East Timor.
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 is satisfied that the applicant is of East Timorese nationality and is outside his country of nationality.
The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in East Timor, 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 all be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
a.The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
b.There is a real chance that, if the applicant returned to East Timor, he 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 East Timor.
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 applicant does not claim to fear being persecuted for a refugee reason.
There is no evidence the applicant fears being persecuted for a refugee reason.
The Tribunal is not satisfied the applicant fears being persecuted for a refugee reason. The applicant does not, therefore, satisfy S5J(1)(a).
The Tribunal is therefore not satisfied the applicant has a ‘well-founded fear of persecution’ if he is removed to East Timor.
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), he may nevertheless be entitled to the grant of the visa if he 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 him being removed to East Timor there is a real risk that he 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 evidence that any part of the definition of ‘significant harm’ applies to the applicant.
The Tribunal notes the finding in GLD18 v MHA as follows:
‘The immediate observation to make… is that each category of harm looks to the conduct of an actor or perpetrator, and identifies the visa applicant as the subject of the conduct of that actor or perpetrator.’[1]
[1] GLD18 v Minister for Home Affairs, [2020] FCAFC 2 at par. 31
The applicant’s claims relate to the general economic conditions in East Timor. He does not say he will be the subject or the conduct of an actor or perpetrator.
The Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will face significant harm as contemplated by S36(2A) of the Act if he is removed from Australia to East Timor.
Therefore the applicant does not come within s36(2)(aa) and does not meet the complementary protection criterion.
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 2154

13 March 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

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