2317378 (Refugee)
[2024] AATA 394
•23 January 2024
2317378 (Refugee) [2024] AATA 394 (23 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2317378
COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Peter Haag
DATE:23 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 23 January 2024 at 11:16am
CATCHWORDS
REFUGEE – protection visa – East Timor – political and economic conditions – intention to work to provide for family – vague and inconsistent claims and evidence – country information – no systematic and discriminatory conduct against applicant – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASE
MIAC v SZQRB (2013) 210 FCR 505Any 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 24 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 Timor-Leste applied for the visa on 24 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 17 January 2024 to give evidence and present arguments. The applicant and Tribunal were assisted by an interpreter in the Tetum language of Timor-Leste.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when assessing the applicant’s claims and evidence.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant provided the Tribunal with a copy of the record of the decision of the delegate of the Minister dated 24 October 2023, whereby the applicant was refused a protection visa.[1]
[1] Tribunal record, Doc ID 11700807
Applicant’s identity
The applicant submitted a copy of the biometric page of his Timor-Leste passport issued [in] 2019. The applicant claims and the Tribunal accepts the applicant was born in, and he is a citizen of Timor-Leste. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of Timor-Leste, and as such his protection claims will be assessed against Timor-Leste as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant arrived in Darwin, Australia from Timor-Leste [in] March 2023 as part of the Australian Pacific Labour Scheme. He applied for a protection visa on 24 September 2023.
In oral evidence at the hearing the applicant raised claims and presented evidence that were consistent with the claims raised and evidence presented in his written application for a protection visa.
At hearing the applicant said he entered Australia under Australia’s Seasonal Worker programme for the purpose of working to improve his financial position in Timor-Leste.
The applicant claimed in his written application and evidence that he needed a protection visa because the economic and political situation in Timor-Leste is ‘crazy’. He also said he must provide for his family, and he wants a protection visa so that he can live in Australia and work to get money to send home to his family. When the situation improves, he will return to Timor-Leste.
In response to the Tribunal the applicant said his family is comprised of his wife and two children, his mother and father. His eldest child is [Age], and his youngest child is [Age]. The applicant said his wife and children live in Dili in rented accommodation.
Inconsistently with this evidence the applicant stated in his written visa application that his relationship status is ‘Never Married’. Furthermore, the applicant answered ‘No’ to the question: ‘Does the applicant have any partner (spouse or de facto), parents, siblings or children including those that are deceased who are in Australia or overseas, and whose details have not yet been provided on this application’?
The inconsistency between the applicant’s oral evidence and his written application about whether he has a ‘spouse or de facto’, parents or children in Timor-Leste casts doubt on the accuracy and reliability of the applicant as a witness.
The applicant said it is difficult to get work in his home country, and the political situation is dangerous. He explained what he meant by the political situation being dangerous by saying: depending on which political party you belong to you don’t get a job if you don’t belong to a certain party. In this respect the applicant’s evidence is general in nature, vague, and unsupported by concrete evidence.
In response to questions from the Tribunal about the political situation, the applicant said he had never demonstrated against political decisions, but he had heard of difficulties if you oppose policies. This evidence is vague and lacking in cogent specificity.
The applicant did not assert in his written visa application, or oral evidence that he was politically active, a member of a political party, that he would become politically active or join a political party if he returned to Timor-Leste, or that he had been prejudiced in finding employment for reasons of his political opinions, otherwise harmed or threatened for reasons of his political opinions, or that he feared he would be harmed for the reason of his political opinion if he returned to Timor-Leste.
In his visa application the applicant answered ‘No’ to a question as to whether he has ever been employed. Additionally, under the heading in the visa application ‘Activities and financial support’ the applicant was asked: ‘Give details of how the applicant occupied their time and financially supported themselves during unemployment’. In that context the applicant was asked to state the activities he undertook, he responded ‘My Self.’ In the same context he was then asked to give details about ‘Financial support’ to which he again responded, ‘My Self’. The responses ‘My Self’ suggest the applicant supported himself financially in his home country.
According to the visa application the applicant successfully completed his high school education programme in [Year].
The Tribunal asked the applicant if there was any reason he could not return to Timor-Leste and live safely without risk of serious harm. In essence the applicant said he did not want to return to Timor-Leste because he wanted to work to provide for his family. He stated there are ‘hardly any jobs’ and because of the general economic and political situation, he must stay in Australia to work and send money home to support his family.
Country information available to the Tribunal indicates that Timor-Leste is one of the poorest countries in the world and that standards of living are low across the country, disproportionately affecting poor and rural families who make up most of the County’s total population. The government’s spending is substantially reliant on overseas aid.[2]
[2] United Nations Development Assistance Framework (UNDAF) in Timor-Leste: Evaluation Report, United Nations Development Program (UNDP) May 2019, 20201021133052
The country information considered by to the Tribunal is consistent with the applicant’s evidence but considered in conjunction with his evidence, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of systematic and discriminatory conduct from state actors or non-state actors against the applicant, that would engender a real chance of significant economic hardship that threatens his capacity to subsist; or a denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist, if the applicant is removed to Timor-Leste now or in the reasonably foreseeable future.
Findings
On balance, the evidence considered as whole, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would experience significant economic hardship that threatens his capacity to subsist, or a denial of capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist, if he is removed to Timor-Leste now or in the reasonably foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for the reason of political opinion, his membership of a particular social group, namely the poor, or for any other reason specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to Timor-Leste now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Statutory Construction
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Natural Justice
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