2317572 (Refugee)

2317572 (Refugee) [2024] AATA 1555 (23 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2317572

COUNTRY OF REFERENCE: East Timor
MEMBER:Peter Vlahos
DATE:23 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 23^rd February 2024 at 10.00AM.

CATCHWORDS
REFUGEE – protection visa – Timor-Leste – no Convention nexus – threats from a money lender – threats to seize family home – state protection – employment – reduced earning capacity – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
MIMA v QAAH of (2006) 231 CLR 1
MZZIA v MIBP [2014] FCCA 717
NBGM v MIMIA (2006) 150 FCR 522
NGBM v MIMA (2006) 231 CLR 52
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.
_________________________________________________________________________________
In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
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 31 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 the Democratic Republic of Timor-Leste (also known as East Timor), applied for the visa on 28 September 2023. The delegate refused to grant the visa on the basis that there was sufficient effective protection measures available.
The applicant appeared before the Tribunal on 14 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 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.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant was born on [date] (and is [age]-years-of-age), in the town of [Village 1], [District 1], Timor-Leste and claims to be a citizen of Timor-Leste.
A copy of the applicant’s Timor-Leste passport’s bio-page is on the Departmental file ([number]). The passport was issued [in] 2021.
The applicant arrived in Australia on Class GD-403 visa [in] February 2023.
The applicant was granted a Class GD Subclass 403 International Relations visa and arrived in Australia holding that visa [in] February 2023. The applicant’s Subclass 403 was granted as part of the Pacific Australia Mobility (PALM) scheme, which gives Pacific Islander and Timor-Leste workers opportunities to access a range of short-term and long-term jobs in Australia.
The applicant applied for a Class XA Subclass Protection visa on 28 September 2023 and was granted an associated bridging visa.
The applicant’s claims for protection are contained in the applicant’s on-line Protection visa application form. Below is a summary of his claims:
§The applicant experienced economic hardship in Timor-Leste while working as a farmer.
§The applicant borrowed money in Timor-Leste and is unable to repay the debt and has received threats because of this.
§The applicant experienced harm in Timor-Leste by being threatened and charged with payment fines because of the unpaid debt.
§The applicant did not seek help within Timor-Leste because they are poor and there is no help available from the Government.
§The applicant cannot move to another area of Timor-Leste because there are no employment opportunities in other areas and it will create more barriers to pay the debt, will not solve the issue and the applicant will be made a slave to pay the debt.
§If the applicant returns to Timor-Leste [the money lenders] will confiscate assets belonging to the applicant and their family such as motorcycles and ploughing machines and the applicant will be hurt by the money lenders if they return before paying-off the debt.
§The applicant does not think the police in Timor-:Leste will protect them if they return because one can guarantee protection or ensure their safety.
A delegate acting on behalf of the Minister refused to grant the visa on 31 October 2023.
On 31 October 2023, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. A copy of the delegate’s decision record was attached.
As mentioned above, the applicant appeared before the Tribunal to give evidence and provide arguments as to the reasons a Protection visa should be granted to him. He was assisted by an interpreter in the Tetum and English languages.
The applicant did not submit any documents for the Tribunal to consider concerning the claims he had submitted to the Tribunal.
There are no non-disclosure certificates attached to the Department or Tribunal files.
Country Information _ Timor-Leste
Timor-Leste, officially the Democratic Republic of Timor-Leste, is a country in Southeast Asia. It comprises the eastern half of the Island of Timor, of which the western half is administered by Indonesia, the exclave of Oecusse on the Island’s north-western half, and the minor islands of Atauro and Jaco. Australia is the country’s southern neighbour, separated by the Timor Sea. The country’s size is 14,874 square kilometres (5,743 sq mi). Dili is its capital and largest city.
East Timor was settled by waves of Austronesian and Papuan peoples, which are reflected in the country’s diverse mix of cultures and languages reflecting its links to Southeast Asia and Melanesia, despite its small area. East Timor came under Portuguese influence in the sixteenth century, remaining a Portuguese colony until 1975. Internal conflict preceded a unilateral declaration of independence and an Indonesian invasion and annexation. Resistance continued throughout the Indonesian rule, and in 1999, a United Nations-sponsored act of self-determination led to Indonesia relinquishing control of the territory. On 20 May 2002, as Timor-Leste, it became the first new sovereign state of 21^st century. That same year, relations with Indonesia were established and normalised, with Indonesia also supporting East Timor’s accession to ASEAN.
There is no DFAT country information report pertaining to Timor-Leste.
The United States of America’s Department of State does, however, published a 2022 country report on Timor-Leste’s human rights practices. That report stated:
Timor-Leste is a multiparty, parliamentary republic. After the presidential run-off election on        April 19, which was free, fair, and peaceful, Jose Ramos-Horta became president of the    Republic. After free, fair, and peaceful 2018 parliamentary elections, in which Taur Matan        Ruak led a three-party coalition to a parliamentary majority, Ruak became prime minister.
The national police maintain domestic security. The military is responsible for national     defense with limited security responsibilities. The national police report to the Ministry    of Interior, forensic police report to the Ministry of Justice, and the military reports to      the Ministry of Defense. The prime minister served concurrently as the minister of interior.    Civilian authorities maintained effective control over the security forces. There were credible    reports that members of the security forces committed some abuses.
Significant human rights issues included credible reports of: arbitrary killings; government           corruption; lack of investigation and accountability for gender-based violence; violence        against persons with disabilities; and the worst forms of child labour.
The government took steps to prosecute members and officials of the security services who       used excessive force or engaged in corruption; however, public perceptions of impunity          persisted.
The United Nations, in their 2021 Socio-Economic Impact Assessment of COVID-19 in Timor-Leste, reported that 45.2 percent of the populations working-age group were employed in the economy as of March 2021. However, the report also identified that the participation rate in the economy did not include those persons that were otherwise engaged in subsistence agricultural production. The report stated that when those working in the subsistence agricultural sector production. The report stated that when those working in the subsistence agricultural sector were taken into consideration the figure of employment was raised to 61.1 per cent. The report also provided that many jobs are informal in their arrangements and that the overall unemployment rate was 11.9 per cent but raises to 22.1 per cent when young people aged between 25 to 29 years are included.[1]
[1]United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’ (2021), p.8-1.
ASSESSMENT OF CLAIMS AND FINDINGS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a Protection visa.
Country of reference
According to the Protection visa application, the applicant claims to be a citizen of Timor-Leste and provided a copy of his Timor-Leste passport.
Between December 1975 and October 1999, Timor-Leste was occupied by the Republic of Indonesia (Indonesia) after it declared its independence from its former colonial rulers in the Portuguese Republic (Portugal) on 28 November 1975.
Accompanying the formal annexation in July 1976, Indonesia extended nationality to the East Timorese, but allowed those who wished to retain their Portuguese nationality to do so.[2]
[2] Jeronimo, Patricia (March 2017). “Report on Citizenship Law: East Timor (Timor-Leste)” (PDF). Cadmus.eui.eu. Badia Fiesolana: European University Institute. Archived (PDF) from the original on 4 April 2018. Retrieved 26 April 2021, p.10
When Timor-Leste regained its independence in May 2002, a national act of the same year determined all persons born, regardless of the place of their birth, to East Timorese parents, or in the territory to parents whose nationality was unknown, parents who were stateless, or to unknown parents, became nationals of East Timor. Children of foreigners born in East Timor were allowed to declare that they desired to have East Timorese nationality upon reaching the age of majority (17 years).[3]
[3] Ibid, p.14
At the time of the applicant’s birth in [year], Indonesia recognised Timor-Leste as one of its twenty-seven provinces and the applicant had been a citizen of the Republic of Indonesia. The country information outlined above and the submitted identity documents indicates that the applicant acquired citizenship of Timor-Leste in 2002 and is recognised as a citizen of that internationally recognised independent and sovereign country.
Based on the material, Timor-Leste is therefore the receiving country for purposes of assessing the applicant’s claims for protection under ss 36(2)(a) and 36(2)(aa).
Third country protection
Section 36(3) applies to any country apart from Australia, including countries of which the non-citizen is a national.[4]In short, under these provisions, Australia is taken not to have protection obligations in respect of a person who: has a right to enter and reside in another country – whether permanently or temporarily; and has not taken all possible steps to avail him/herself of that right.
[4] Although the provisions of s.36(3)-(7) have usually been considered in relation to ‘safe third countries’, the prevailing view is that they are not limited to third countries but can apply to a country of which the non-citizen is a national, including the country of flight: see NBGM v MIMIA (2006) 150 FCR 522 at [12], [54], [240], with the High Court not disturbing this aspect of the Full Court’s reasons: see, NGBM v MIMA (2006) 231 CLR 52, to be read with MIMA v QAAH of (2006) 231 CLR 1.
The Tribunal has considered whether the applicant has a right to enter and reside in Portugal or in Indonesia as a third country for the purposes of s 36(3).
The question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.[5]
[5] Op Cit, Jeronimo, p.18.
Under the terms of the 2002 Constitution, dual nationality was allowed and thus East Timorese nationals were allowed to retain their Indonesian and/or Portuguese nationalities.
Because Portugal did not recognise East Timor’s declaration of independence or the legitimacy of the Indonesian annexation, Law 308-A/75 passed in 1975 did not apply to East Timor. The law established that persons born domiciled in Portugal’s overseas possessions immediately lost their Portuguese nationality upon independence, regardless of whether new nationality rules had been established.[6]
[6] Ibid, p.20
As the applicant was not born prior to 25 April 1976, the applicant would not be eligible to obtain Portuguese citizenship and there is no evidence of any existing right to enter and reside in Portugal.
With regards to Indonesia, Timor-Leste’s constitution did not include a provision barring dual citizenship, so the new Timorese citizens were not deprived of their previous citizenship statuses, most prominently their Portuguese and Indonesian citizenships. The coexistence in the same individual of Portuguese and Timorese citizenships is not problematic since both Portugal and Timor-Leste allow dual citizenship. The same cannot be said of Indonesia. Indonesian law does not allow dual citizenship and therefore the East Timorese who opted for Indonesian citizenship are deemed by Indonesian authorities to have renounced their Timorese citizenship.[7]
[7] Ibid, p.19
The applicant is a citizen of Timor-Leste. For all intends and purposes, Indonesia ceased considering the applicant to be a citizen of its Republic after the Indonesian People’s Consultative Assembly recognised East Timor’s separation from the rest of the Republic on 19 October 1999. With no other evidence of any existing citizenship or other rights to enter and reside in any part of Indonesia, the Tribunal accordingly does not accept Indonesia is an available third country to the applicant for the purposes of s 36(3).
FINDINGS ABOUT INDEBTEDNESS
During the scheduled hearing, the applicant elaborated on his personal background. He said he was born in [Village 1] where he was brought up. His family composed of his mother and father who remain in Timor-Leste are subsistence farmers. He said that he was not married and was unemployed at the time he submitted his Protection visa application. Also, he told the Tribunal that while in Timor-Leste he worked as farmer from 2011 to February 2023 and while here in Australia, had worked on a number of rural properties. The applicant’s education level is the completion of primary and high school in Timor-Leste in [year].
The Tribunal accepts these aspects of the applicant’s personal circumstances as credible.
The applicant’s limited written claims at the time of application vaguely outlined that the applicant (with his family’s consent) borrowed money from a family relative to enable the applicant to come to Australia to work to provide some financial assistance to the family and at the same time repay the debt.
At the hearing, the applicant described the debt as being in the amount of AUD$[amount] which was provided to his family in order to arrange for the applicant’s departure and visa expenses allowing him to depart for Australia.
The applicant told the Tribunal that the person that provided the money was a ‘individual’ and later told the Tribunal that it was a ‘distant relative’ (not a moneylender or financial institution) who he described as “[Person A]”.
No further details were provided.
The Tribunal asked the applicant whether any threats were directed towards him or his family in his absence because a substantial part of the ‘debt’ claimed to be still outstanding and accruing ‘penalty interest’. The Tribunal was told that the only threat that had been expressed by the relative in question was that, if the debt was ‘not paid’ the relative would ‘take the family’s house’ and other ‘possessions’.
The Tribunal asked whether there was a formal agreement stating the rights and obligations of the parties who had negotiated the debt agreement. The applicant told the Tribunal that the ‘agreement’ was verbal between his parents and the relative and that he was obligated to come to Australia and work and provide money to ‘pay-off’ the family debt.

The Tribunal asked the applicant to quantify – how much had been paid towards the debt? He told the Tribunal that a payment of AUD$[smaller amount] had been made but no details were provided to the Tribunal as to how that money had been provided to the (relative) creditor except to say, that the applicant ‘sent the money’ to ‘his parents’ who provided it to the relative. No further details were forthcoming despite the Tribunal again requesting from the applicant specific details concerning the debt’s origins, the creditor’s details and amounts still outstanding.
The Tribunal asked the applicant – whether any timelines applied to the loan’s complete repayment? The applicant provided no details except to say that the loan had to be paid in full and that included accumulated interest or else the relative would seize the family home, agricultural land, and other possessions. The Tribunal noted that the applicant provided no details of how much interest on the existing loan was owed.
The Tribunal accepted the applicant’s admission that ‘no threats had been made’ towards him and any of his family members, but only that if the debt was not paid the applicant’s family would have to forfeit the family home, agricultural land, and other possessions.
The Tribunal referred the applicant to the country information available which indicated that despite the many difficulties in East Timor economically and politically, it indicated that there was a reasonably functioning judicial system and police force capable of providing resolution to disputes and protective support if harm was threatened.
The applicant acknowledged the correctness of the country information and admitted that protection could be provided by the police and legal system in Timor if harm was the issue but there was no harm in his circumstances only a threat from a relative/creditor that the family’s possessions would be forfeited to them if the debt and interest that had accrued was not fully paid as expected. Again, the applicant provided no details as to when the debt was expected the be paid in full.
In the course of the hearing, the Tribunal made it clear to the applicant that should he return to Timor-Leste, he has to have a well-founded fear of persecution for one of the five nexus reasons: religion, race, nationality, political opinion or membership of a particular social group. The Tribunal made it known to the applicant that his problems with debt did not appear to be associated with one of those five reasons. The applicant said it was his understanding to remain in Australia and to continue to work – earning enough money to assist his family in Timor-Leste and at the same time making contributions towards the family debt obligation which was owed to the relative/creditor. The Tribunal enquired with the applicant if that was the case, why not return to Timor-Leste and reapply for a further Subclass 143 visa.
The applicant provided no response except to repeat that his intention was to remain here (in Australia) and work in order to provide for his family and to contribute to the settlement of the family’s financial obligations.
The Tribunal at the hearing, provided the applicant with a number of opportunities to submit translated documents relating to the claimed debt and to properly quantify the outstanding debt owed by his family but the applicant said that there were no documents except a verbal ‘understanding’ between his parents and the relative/creditor which obligated him to also work and contribute to the debt’s payment.
Generally, the Tribunal considers the applicant to be a credible and reliable person, the Tribunal accepts this account, although some of his testimony – such as, the applicant’s account of the amount owing, what had been paid and how the agreement which created the debt arose – was vague. Credibility concerns were also raised concerning the applicant’s claim of a debt, by the applicant’s lack of any third-party testimonies as evidence of the debt’s existence and current force For example – surely a witness statement or statements from the applicant’s parents concerning the origins of the debt obligation claimed should have been provided – but they were not.
Furthermore, and to point, the applicant in his evidence, told the Tribunal that he had transferred AUD$[smaller amount] to his parents which was a part-payment of the family’s debt obligations, but had no evidence of this and provided no assurances of having that evidence provided in order for the Tribunal to understand the existence actual of the claimed debt.
That, a debt was created in order to send the applicant to Australia to earn money for himself and his family, the Tribunal accepts this. That the family borrowed some money from a relative or group of relatives, this too, is a common occurrence in Timor-Leste and there is no doubt this could be the case. However, as the applicant said in his testimony there has been no harm and no threats made to the family even though the debt was outstanding still except to say that if it was not settled certain possessions may be transferred as settlement of the debt. Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm arising from this outstanding amount owed to a relative or relatives in Timor-Leste, should the applicant return to his country of nationality and reference, either now or into the foreseeable future. In this regard, the applicant does not satisfy ss 36(2)(a) and (aa).
Also, the Tribunal noted the applicant’s concerns if the debt was not paid. Having said that, the debt was described without any time line for its ultimate redemption. Nevertheless, this does raise the possibility that the use of force and intimidation to recover debts owed by the applicant’s family would not happen if such a demand was made and met with an inability to pay. That is a possibility which cannot be dispelled if the applicant was to return to Timor-Leste in the reasonably foreseeable future.
Notwithstanding the operation of section 5J(2), the Tribunal would ordinarily accept that the applicant does have a real chance of serious harm arising from the violent behaviour of debt collectors on behalf of debtors seeking repayments for a family debt owed to a relative by the applicant’s family, if he was to return to Timor-Leste.
However, the Tribunal does not accept that the applicant had been targeted in the past by his relative or by others based on any of the five nexus reasons mentioned in s.5J(1)(a) or that he will be in the foreseeable future. To this extent, the Tribunal finds that the applicant does not satisfy s.5J(1) and that his fear of persecution, accordingly, is not well-founded.
In any event, if a person does have a well-founded fear if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person either by the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is will and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, reasonably effective police force and an impartial judicial system: s.5LA(2).
The applicant claimed that if he returned to his hometown of [Village 1], [District 1] or anywhere else within Timor-Leste, he would not have effective protection available to him if a harm arose because the authorities will not investigate the serious threats of harm or acts of harm towards him because the authorities are indifferent. The country information (provided in the appendix to this decision suggests differently).
The country information indicates the authorities in Timor-Leste are effective at maintaining the good order and peace within the country, that there are criminal laws against persons and property and that the judiciary is largely independent from political interference or corruption. It indicates the policing while far from perfect is effective and accountable. The security, law enforcement and military in Timor-Leste are continuing, with international assistance, to develop their capacity but those gaps in capacity do not amount to the applicant and his family being unable to obtain the protection of the authorities when debt collectors or creditors use any means other than lawful methods for the recovery of otherwise lawfully obtain outstanding debts. In this respect, the Tribunal does not accept that that the applicant will be denied effective protection for any reason or reasons outlined in s.5J(1)(a) as claimed. While the Tribunal accepts there is corruption and arbitrary practices in Timor-Leste, even among high officeholders, the Tribunal does not assess that these problems are so rampant that the applicant will be denied effective protection (if needed and required) measures based on the available country information.
When considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant in his receiving country. The Tribunal finds that that the effective protection measures are available for the relevant State to the applicant anywhere in Timor-Leste and therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution. Neither does the Tribunal accept the applicant will not have, if he returns to Timor-Leste, available effective protection measures based on his ethnicity or any other reasons mentioned in s.5J(1)(a). Having considered both ss.5J(1)(a) and 5J(2), alongside the available country information as well as the applicant’s accepted circumstances, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and that the Tribunal is satisfied that effective protection measures are available to the applicant throughout Timor-Leste.
As the applicant does not satisfy s.5J(1)(a) and by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a).
Complementary protection criterion considered
The Tribunal accepts there are reasons for it to believe, that as a necessary and foreseeable consequence of the applicant being removed from Australia to his country of reference, that there is a risk of significant harm to him. This is based on the Tribunal’s findings that the applicant has presented credible, albeit embellished, claims arising from possible threats of harm by relatives (and debt collectors) to whom his parents owe some, albeit not a well-defined, amount of debt. It also finds that the significant harm will include severe physical violence and ill-treatment and that his harm will amount to significant harm as outlined in s.36(2A)(c) and (d).
Under s.36(2B), there is taken not to be a real risk of significant harm if 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’: s.36(2B)(b). Section 36(2B)(b) refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm. In MIAC v MZYYL, the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[8] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[9] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection.
[8] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under-s.36(2)(a) of the Act.
[9] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).
In considering the country information in the applicant’s accepted circumstances discussed under effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state authorities to the applicant if removed from Australia to anywhere within the applicant’s country of reference, will reduce the risk of significant harm to below that of a real one. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Timor-Leste, protection such that here would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Timor-Leste.
Based on these ‘real risk’ findings arising from the applicant’s accepted circumstances, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk the applicant will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy s.36(2)(aa).
Residual claims regarding financial hardship
There is a thread of evidence in the applicant’s claims that he fears returning to Timor-Leste because of financial hardship he will face due to his personal and familial responsibilities to his parents. While they have not been the explicit essential and significant reasons for pursuing this protection visa application, the Tribunal acknowledges these features of the applicant’s refugee criteria and complementary protection provisions.
The Tribunal accepts that Timor-Leste is a relatively poor country and that his family would be financially better off if he remain in Australia, working and remitting money to his family to meet the costs of living and debts and saving sufficient money for the applicant to afford his own independent living. While the Tribunal accepts that there are, or there is a debt which remains owing to a family relative, that amount is not clear, and its payment has not (from the evidence) caused the applicant and his family immediate concerns as far as it concerned its repayment in-full.
As discussed in the hearing, the applicant accepted that his financial problems did not relate to his race, his religion, his nationality, any memberships of a particular social group or his political opinion. As the economic harm feared by the applicant does not arise for reasons of race, religion, nationality, membership of a particular social group or political opinion, it does not constitute a well-founded fear of persecution as that term is defined in s.5J.
Should the applicant return to Timor-Leste, the Tribunal accepts he will face challenges in finding employment and meeting the costs of living for himself and his family as well as some debts. Nonetheless, he is a motivated a hardworking individual. The applicant has not claimed to have any disabilities. Indeed, the applicant passed a physical test for the grant of a subclass 403 visa. The applicant also has the support of his family.
Taking all these circumstances into cumulative account, the Tribunal is satisfied the applicant can return to his country of nationality without being subjected to a real chance of serious harm, including significant economic hardship or the denial of the capacity to earn any livelihood where the denial threatens the him and his family’s capacity to subsist, or any other serious harm non-exhaustively listed in s.5J(1)(a) if he were to return to Timor-Leste.
In this regard, the applicant does not have a well-founded fear of persecution as required by to s.32(2)(a).
Significant harm is different from the concept of serious harm as required by s.91R(1)(b)/s.5J(4)(b) in the context of s.36(2)(a).[10] With this in mind and based on the same personal and familial circumstances outline above, the Tribunal does not accept the applicant’s degree of economic hardship and accepted level of debt owed in the context of the available country information about the Timorese economy amounts to any significant harm, including being subjected to torture, being subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment as required by s.36(2A).
[10] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 14.04.2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g., a risk of being killed is sufficient to fulfill both: at [34].
Furthermore, the Tribunal does not accept that any economic harm that the applicant has a real chance of encountering on being removed from Australia to Timor-Leste by way of reducing earning capacity and financial hardship due to familial responsibilities, would arise from the intentional or deliberate act or omission of a third person or persons such as would constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. The applicant has not suggested that he will be subjected to the death penalty in Timor-Leste for any reason. For these reasons, the Tribunal does not accept that the economic harm feared by the applicant would meet the definition of ‘significant harm’, as that term is exhaustively defined in s.36(2A).
The Tribunal accordingly does not have substantial reasons for believing that, as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste, the applicant’s accepted and foreseeable economic hardship, will amount to significant harm of any kind as defined in s.36(2A), as required by the Act’s complementary protection provisions.
In this regard, the applicant does not meet the requirements set out under s.36(2)(aa).
Conclusion
At no stage during the hearing did the applicant advance any of the reasons he could not return to Timor-Leste related to his race, religion, nationality, political opinion or any membership of a particular social group, or that any of these reasons related to him not availing to the authorities for protection.
There are no more residual claims to consider in this application.
Having considered all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a), (b) or (c) or s.5H if he is returned to the Democratic Republic of Timor-Leste, and does not satisfy the criterion of s.36(2)(a).
Having considered all of the applicant’s claims both individually and cumulatively, the Tribunal is 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 of significant harm, including that the applicant will suffer harm by way of being arbitrarily deprived of his life, the death penalty will be carried out on him, he will be subject to torture, he will be subject to cruel or inhuman treatment or punishment, or he will be subject to degrading treatment or punishment, pursuant to s.36(2)(aa) of the Act.

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).
There is no suggestion that the applicant satisfies s 36(2) 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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…
APPENDIX – Further Country Information – Timor Leste
Appropriate criminal law
Overall, the criminal law specifically criminalises manslaughter, homicide, aggravated homicide, enslavement, human trafficking, sale of person, kidnapping, coercion, serious coercion, threats, torture, and cruel, degrading, or inhuman treatment or punishment. Title VIII of the Penal Code exhaustively identifies and categorises ‘crimes against the economy’ as money laundering, tax fraud, illegal import or export of goods or merchandise, smuggling, avoidance of customs duties, exemption from punishment, mismanagement of public funds, failure to comply with requisition of goods, destroying assets of use to the economy, illegal gambling, and disruption of a public act.[11]
[11] ‘Decree Law no 19/2009 – Penal Code’, IV Constitutional Government, Republica Democracia de Timor-Leste, 20201030145136
The law penalises unlawful commercial or financial activities, and also criminalises actions that involve inflicting harm against others for the purposes of intimidation - such as extortion and physical assault. Other than serious financial crimes, such as money laundering and terrorism financing, the Penal Code remains silent on crimes related to informal lending practices. However, other laws specify that administrative penalties apply to persons who provide loans without being qualified to do so – which may subsequently lead to either criminal or civil penalties depending on the nature and severity of the offence.[12]
[12] ‘National Parliament Law No.5/2011 of 15 June 2011: Organic Law of the Central Bank of East Timor’, BNCTL, 20201030150528; and ‘Regulation no. 2000/8 on Banking Licencing and Supervision’ (Banking law), UNTAET, 25 February 2020, available Timor-Leste Ministry of Justice official webpage, Regulations, accessed 29 October 2020, 20201030150016
A reasonably effective police
Discussing the human rights situation during 2018, the 2019 US Department of State (USDOS) country report on Timor-Leste notes that the national police (PNTL) ‘is legally responsible for law enforcement and maintenance of order within the country’ and has ‘several specialized units’ for this.[13] The report says that during the year civilian oversight of the PNTL ‘improved’ in comparison with previous years. Furthermore, ‘various bilateral and multilateral partners continued efforts to strengthen the development of the police, especially through community policing programs and technical assistance efforts, including work to improve disciplinary and accountability mechanisms within the PNTL’. Moreover, during the year the Provedoria dos Direitos Humanos e Justiça or Ombudsman’s Office for Human Rights and Justice (PDHJ) along with the UN Human Rights Adviser’s Unit provided the PNTL with human rights training.[14]
[13] ‘Country Reports on Human Rights Practices for 2018 - Timor-Leste’, US Department of State, 13 March 2019, section 1d, p.4, 20190314103419
[14] Country Reports on Human Rights Practices for 2018 - Timor-Leste’, US Department of State, 13 March 2019, section 1d, p.4, 20190314103419
Surveys conducted by The Asia Society and The Lowy Institute in 2015 and 2018 on safety and security revealed ‘strong trust in local security actors’ as well as ‘obstacles to maintaining peace’.[15] The Lowy Institute’s analysis of these surveys, and of reported findings, revealed the following:
[15] ‘On the Anniversary of Independence, How Secure Is Timor-Leste?', The Asia Foundation, 25 September 2019, 20201022093304; and 'How the People of Timor-Leste feel about Security', The Lowy Institute, 5 September 2019, 20201022095912
[…][…]
In 2018 the majority of the public (65%), community leaders (70%) and PNTL (83%) say that PNTL are playing a role in the resolution of disputes by local community leaders. Well over half (64%) of cases reported initially to the PNTL are resolved through mediation involving both PNTL and community leaders. There has been a significant increase in the number of people saying that PNTL are involved in active mediation, from 36% in 2015 to 58% in 2018. It is very rare, however, for cases to be referred on for prosecution and investigation, much less go to trial. Overall, these findings are barely the tip of a deep iceberg of nuanced, interesting findings about how the people of Timor-Leste feel about security in 2018, and will raise as many questions as answers. To further explore those questions and answers, the CPP Survey data can be accessed via TAF’s Data Portal.[16]
[16] 'How the People of Timor-Leste feel about Security', The Lowy Institute, 5 September 2019, 202010220959
Impartial judiciary
The 2019 USDOS country report on Timor-Leste states that ‘the law provides that judges shall perform their duties “independently and impartially without improper influence” and requires public prosecutors to discharge their duties impartially’. Despites some concerns, ‘observers noted citizens generally enjoyed a fair, although not always expeditious, trial and that the judiciary was largely independent’.[17]
[17] ‘Country Reports on Human Rights Practices for 2018 - Timor-Leste’, US Department of State, 13 March 2019, section 1e, p.6, 20190314103419

[2024] AATA 1555

23 February 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing