2317644 (Refugee)

2317644 (Refugee) [2024] AATA 426 (10 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2317644

COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Samira Kamandi
DATE:10 January 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 January 2024 at 2:13pm
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – attacks by martial arts groups – physical assault – gang recruitment – economic conditions – state protection – return visit to Timor-Leste – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 10 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Timor-Leste, of Timorese ethnicity and of the Catholic faith. The applicant was granted a visitor visa and initially arrived in Australia [in] June 2023 and returned to Timor-Leste a week later [in] June 2023. The applicant returned to Australia [in] July 2023 and applied for a protection visa on 29 August 2023, which was refused on 10 October 2023. He applied for review of that decision on 1 November 2023.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant’s claims for protection as set out in his protection visa application can be summarised as follows:
·The applicant was attacked by martial arts groups in 2020 and 2022, which made him feel unsafe in his village and the city.
·The applicant called the police, reported the issues, but there is no solution. It happened everywhere and can happen to anyone in Timor-Leste.
·If returned to Timor-Leste the applicant will face the same issues. He will be killed. It is not an issue that can be resolved, as it involves some political leaders and members of the police and army. There is no option but to leave the country.
·The government has decided to prohibit these groups but when it comes to elections the government decides to reactivate them. Most young people become “racist and fanaticism of each other”.
Delegate’s decision
The applicant’s protection visa was refused by the Department. The applicant provided the Tribunal with a copy of the delegate’s decision.
Based on country information cited in the delegate’s decision, the delegate found that the applicant would be able to avail himself of effective state protection if he needed to do so. The delegate was not satisfied that the applicant had a well-founded fear of persecution or that he faced a real risk of significant harm as defined in the Act.
Review application
The applicant lodged an application for review of the delegate’s decision on 1 November 2023. On 1 December 2023, the applicant was invited to attend a hearing before the Tribunal, scheduled for 5 January 2024.
On 1 January 2024, the applicant provided the Tribunal with a one-page written statement which restates his claims in his protection visa application and sets out the following further details:
·The applicant was attacked by martial arts groups in September 2020, June 2022, and May 2023. In September 2020, while on university campus, there was a problem between the [Group 1] and [Group 2] members and the applicant was randomly attacked by a member of the [Group 1] martial arts group. The applicant was almost stabbed with a knife. He ran away to [Location 1] and hid. The police were called but there was no solution. The applicant felt unsafe and did not return to campus for a week. In June 2022, the applicant was hit, while he was passing two groups throwing stones at each other. In May 2023, the applicant was attacked by three people from his village, while out to ‘buy electricity’. He was punched and had his shirt pulled.
·It is hard to get a job in Timor-Leste as a fresh graduate of [course 1]. He came to Australia in June 2023 as a recipient of a scholarship to visit [Industry 1] in Perth. After his return to Timor-Leste, he came back to Perth to apply for a bridging visa and work in Australia to earn and save money to help his family and to continue his [advanced course 1], as it is his dream to be a qualified student in Australia before going back to Timor-Leste.
·The applicant needs a safe place to live his life and wants to work peacefully in Australia.
On 3 January 2024, the applicant returned a completed hearing response form to the Tribunal indicating that he would be attending the hearing and requested for the Tribunal to take oral evidence from his friend, [Friend A]. It is indicated that ‘this person will define about the Martial Arts problem in Timor-Leste’.
The hearing was held in person at the Tribunal’s Perth Registry. The applicant was not represented. The hearing was conducted with the assistance of an interpreter fluent in the Tetum and English languages, who participated via video link. The preliminary matters, including information about the purpose of the hearing, the explanation of the law, and manner that the hearing was to be conducted was interpreted to the applicant. The applicant and the interpreter confirmed that they understood each other. While the applicant initially indicated that he wished to engage the services of the interpreter, during the hearing he gave evidence in English. He was able to communicate in English and on occasions when asked if he preferred for the information put to him to be interpreted, the applicant responded in the negative and confirmed that he understood the information discussed. The applicant’s evidence given at the hearing is discussed below.
At the hearing, the applicant was asked about the witness he wished for the Tribunal to take evidence from. The applicant stated that the witness was a friend of a friend who assisted him in lodging his protection visa application. He stated that the witness was at work in Melbourne and that the applicant has informed him about the hearing and that he might get a call. The applicant stated that while he had spoken to the witness over the phone, he has never met the witness. The applicant also said that the witness charged him AUD[amount] to lodge his protection visa application and he was not charging him to appear as a witness before the Tribunal. The applicant indicated that the witness had been residing in Australia for about three years and had a visa and that the applicant believed that he worked at a farm in Melbourne.
It was explained to the applicant that after he gave his evidence, the Tribunal officer will contact his witness by telephone as requested. After taking evidence from the applicant, the applicant was given a break to think about any further issues that he wished to raise or any further information that he wished to provide and be considered. He was advised that after the break the Tribunal will contact his witness. On his return from the break, the applicant stated that he no longer wished for the witness to be contacted.
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Timor-Leste for reasons of his race, religion, nationality, membership of a particular social group or political opinion. Alternatively, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste there is a real risk he will suffer significant harm.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
FINDINGS AND REASONS
Applicant’s identity and country of reference
The applicant has provided a copy of the bio-data page of his Timor-Leste passport. The delegate’s decision does not refer to any issues regarding the applicant’s identity or nationality. The applicant presented his passport to the Tribunal on the day of the hearing. I find that the applicant is a national of Timor-Leste, and that Timor-Leste is the receiving country for the purposes of this review.
Background information
At the hearing the applicant presented evidence regarding his background, family, and education in Timor-Leste in a credible manner. I accept the applicant’s evidence in this regard.
At the hearing, the applicant confirmed that he was born in [a specified year] in Dili, where he resided with his parents from birth until his departure for Australia. The applicant’s parents and siblings remain in that house, which is owned by the applicant’s parents. [Details of family members deleted]. The applicant’s father is [an occupation 1] with an [Employer 1] in Dili and his mother works as [an occupation 2] at [Employer 2]. The applicant is in contact with his family in Dili.
The applicant attended a public primary school. He attended a private high school, and [then a] university. His parents paid for his education. The applicant commenced school in [year] and completed high school in [year], following which he enrolled at university studying a [earlier course 1], from which he graduated in [year]. While at high school and university, the applicant volunteered to assist teachers and students as a member of the Student Council.
At the hearing, the applicant confirmed that he first came to Australia [in] June 2023, when he was awarded a scholarship to visit [Industry 1] in Perth. The scholarship included his travel expenses to Australia, including his accommodation and a laptop. The applicant returned to Timor-Leste [in] June 2023 as the visit was only for that specified period.
Lodgement of protection visa application
As indicated above, the applicant’s statement to the Tribunal indicates that he returned to Perth, after his initial visit as a scholarship recipient, to apply for a bridging visa and to work in Australia. He states that he wanted to earn and save money to help his family and to continue his [advanced course 1], as it is his dream to be a qualified student in Australia before going back to Timor-Leste.
At the hearing, when asked about what he did when he arrived in Perth in July 2023, the applicant stated that he stayed in Perth city for two weeks and did nothing. He met with his friend and talked to his friend about finding a way to get a job as he was running out of money. His friend introduced him to the person, who the applicant initially wanted the Tribunal to take evidence from, and this person assisted him in lodging his protection visa application, following which he was granted a bridging visa with work rights.
Given the applicant’s evidence, I asked if he returned to Perth in July 2023 to work. The applicant said ‘not really’. When asked, given that he claims to fear for his safety in Timor-Leste, why did he return to Timor-Leste, after his first visit in June 2023, the applicant stated that he was told that he had to leave Australia because of his ticket back to Timor-Leste. When asked why he waited for a period of a month after he returned to Perth to make his protection visa application, the applicant stated that he did not know of anyone who could help him.
In relation to his evidence that he wishes to remain in Australia to further his studies and become a qualified student in Australia before returning to Timor-Leste, the applicant was asked how his willingness to return to his country related to his fear for his safety. The applicant stated that once he is qualified, it will be easy for him to get a job allowing him to live away from his village. When referred to his evidence in his protection visa application and statement to the Tribunal that the issues he feared related to the whole of the country, the applicant stated that he hoped for the situation to get better in the next few years.
As put to the applicant at the hearing, I am of the view that the applicant returned to Perth after his initial visit, to work, rather than because he feared for his safety as claimed. I consider the applicant’s willingness to return to Timor-Leste, after having the opportunity to earn and save money to be able to support his family and engage in further studies, to detract from the credibility of his claim that he came to Australia due to fears for his safety.
Applicant’s claims for protection
Martial arts groups
At the hearing the applicant confirmed his claim that he feared returning to Timor-Leste because he was attacked by martial arts groups and that he did not feel safe. The applicant stated that in September 2020, the two martial arts groups known as [Group 1] and [Group 2] had some problems and that [a Group 1] member came up to the applicant with a knife while he was sitting at the canteen doing his homework. The applicant stated that he was not involved in any martial arts groups but believed that the [Group 1] member who approached him with a knife assumed that the applicant was a member of the [Group 2]. When asked if the person said anything to him, the applicant responded in the negative and said that they just came to him and that they did this to other people as well. The applicant’s evidence is that he escaped and went into [location 1] where the university staff contacted the police. The police came but they were too late and the martial arts group members had already left the university. The applicant stated that he became fearful for his safety and after he went home, he did not return to the campus for a week. When asked if anything happened during that week, the applicant stated that the issues with the groups continued. When asked how he became aware of this, the applicant said that he got information from his department, as his department was located close to the street which separated the campus from the village where [Group 1] were operating. The applicant stated that after a week all issues were resolved and that he returned to campus. The applicant continued his studies at the university until his graduation in [year] and confirmed that he did not face any further issues or incidents with martial arts groups at the university.
Regarding the second incident in June 2022, the applicant explained that the rival martial arts groups were throwing stones at each other. The applicant was just passing by on his motorbike when he was hit by stones. When asked if he was injured, the applicant responded in the negative and explained that the stones hit his motorbike and helmet. The applicant did not raise any further issues with martial arts groups after this incident.
Regarding the third incident, the applicant stated that [in May 2023], a group of boys who he knew from primary school attacked him while he was on his way to [Location 2] in his village. He said that these boys did not go to university and got involved with martial arts groups. They attacked him, punched him and grabbed him by the collar. When asked why they attacked him, the applicant said that they wanted the applicant to get involved with the martial arts groups and that he refused to engage in these activities. The applicant explained that after they punched him, they let him go and that he walked to [Location 2] and then returned home taking a different way to avoid the group. When asked about what the group of boys said to him, the applicant stated that they threatened him and wanted him to join their group.
In noting that the applicant remained in the country for another two months, during which he came to Australia for a week and returned home, he was asked if anything happened to him during that period. The applicant said that he usually would see the group of boys at the football field and that as he was on his motorbike, they didn’t approach him. When asked if they came to his house, the applicant responded in the negative. When asked if they harassed any of his family members, the applicant stated that his brother was also subjected to harassment and beatings at the hands of this group. When asked if the group of boys had approached his family, harassed them, or asked about him after his departure from the country, the applicant said that they harassed his brother. When asked when was the last time this occurred, the applicant referred to December 2023.
When asked if he was aware of any actions taken by the government of Timor-Leste to curb the activities of martial arts groups, the applicant stated that the government was also involved with martial arts groups and that although they banned their activities, they were active during elections and that some members of police were also involved with martial arts groups. When referred to his statement that most young people become racist and fanatical and asked to explain what he meant, the applicant stated that he meant that the rival groups attack each other and those who are not involved in the groups and confirmed that people were not attacked because of their race. The applicant also confirmed that he was not involved in any political groups or activities and that he was not the subject of these incidents because of his involvement in politics. The applicant has also not claimed to have faced any issues with the authorities in relation to these incidents or otherwise and there is no suggestion that he has ever been perceived to have engaged in any criminal activities involving martial arts groups by the authorities.

Country information[1] indicates that crime is a continuing issue in Timor-Leste. It includes gang-related violence and assault, and is due to a large youth unemployment population, community violence involving martial arts groups and gender-based violence. Violence among martial arts groups flare up occasionally and occurs primarily between rival groups and may involve stone throwing and occasionally the use of machetes and knives and mostly happen at night.
[1] Department of Home Affairs, “Timor-Leste – Crime – Law enforcement”, Standard Q&A Report, 25 November 2022, 20221110115234; US Department of State, “Country Reports on Human Rights Practices for 2022 – Timor-Leste”, 20 March 2023, 20230322103352; Associated Press, “East Timor band Martial Arts clubs as gangs havoc on island”, 23 September 2013; Department of Foreign Affairs and Trade, “smarttraveller – Timor-Leste Travel Advice and safety” 5 December 2023.
The information also indicates that crime prevention is an ongoing challenge for the security forces. Law enforcement has been described as maybe having limited ability to respond to serious crimes. Regarding curbing martial arts activities and fighting between rival groups, it is reported that in September 2013 the government banned all martial arts clubs following gang violence and initiated a zero tolerance against those practising martial arts due to violence and fighting between rival groups. It is reported that more recently, on 10 November 2023, the government again suspended activities of martial arts groups for six months following incidents of violence.
Country information[2] also indicates that links between martial arts groups and politicians or political parties are often denied and remain flued, informal, and tied to personal alliances. Nonetheless, it is said that martial arts groups are a major source of political mobilisation, especially during election periods when the threat of political violence arises. It is also reported that political leaders do switch from one party to another and change their political identities according to their needs. Leaders who change political parties ask the youth to make problems with the party they just left. Youth and martial arts groups are influenced by political parties and some groups provide security for the leaders associated or affiliated with them.
[2] Asia Journal of Peacebuilding, ‘Security, Violence and Outlawed Martial Arts Groups in Timor Leste’, Vol 3 No. 1, 2015; Associated Press, ‘East Timor bans martial arts clubs as gangs wreak havoc on island’, 23 September 2013.
Given the crime rate in Timor-Leste and the occasional fighting between rival martial arts groups which is reported to flare up on occasions across the country, I am willing to accept the applicant’s evidence that in September 2020 he was at his university campus when fighting broke out between two rival martial arts groups, and that a member of one of the groups came to the applicant with a knife. The applicant’s evidence is that he escaped the scene and went into hiding at [location 1] where he remained until the police came. The applicant’s evidence is that the group member may have assumed that the applicant was a member of the rival group and that this also happened to others at the scene. The applicant did not sustain any injuries and returned to campus after a week and did not face any further issues in relation to this incident nor witness any further such events at university, which he continued to attend until [specified year].
Given the country information that rival martial arts groups engage in stone throwing when they fight, I am also willing to accept that the applicant witnessed such an event in 2022, and that stones hit his motorbike and helmet. He did not sustain any injuries nor faced any further issues for having witnessed the event. The applicant’s evidence is that he continued with his studies and resided in his parents’ home and there is no indication that he faced any further issues or ongoing incidents involving martial arts groups.
The applicant’s evidence, which I accept, is that he was not involved in any of the martial arts groups. At the hearing, it was put to the applicant that country information supports his claim that rival martial arts groups engaged in fighting on occasions. It was observed given that the applicant was not a member of any martial arts groups, not involved in any of the fighting incidents, nor was he involved in any political activities or political groups, it appeared that he was not targeted during these events but just happened to have been at the university when fighting between the rival groups broke out and happened to have passed the area that the rival groups were throwing stones at each other. The applicant agreed that these were random incidents and that he was not personally targeted or attacked for any reason. I also note that the applicant did not sustain any injuries and did not face any further repercussions or issues because of being present during these incidents.
Given the country information that martial arts groups remain active in Timor-Leste, in that rival groups engage in fights and violence, while I consider it possible that the applicant may face similar incidents to what he has faced in the past, such as witnessing fighting between rival martial arts groups, I am not satisfied that the applicant faces a real chance of any harm beyond what he has experienced in the past or any treatment that would amount to serious harm, nor am I satisfied that he would be targeted by martial arts groups for the essential or significant reason of the grounds specified in s 5J(1) of the Act.
While I note that the applicant’s protection visa does not refer to the claimed incident in May 2023, given the applicant’s evidence at the hearing and the country information which indicates that high youth unemployment has contributed to increased crime and youth engagement with martial arts groups, I am willing to give the applicant the benefit of the doubt and consider it plausible that he was a victim of an attack while he was out at night in May 2023. I accept that the applicant knew the group of boys while he attended his local public primary school, that the group of boys did not pursue further education like the applicant who attended private high school and university, and that the group of boys got involved in criminal activities and may have associated with martial arts groups as claimed by the applicant.
The applicant’s evidence is that the group of boys asked him to join the group and that he refused to get involved in such activities and that after being punched, he was allowed to continue with his journey to [Location 2] and returned home, taking a different way to avoid the group. I accept the applicant’s evidence in this regard. At the hearing, while the applicant stated that because he knew these people and was targeted by them while he was out that night, he conceded that he was not targeted because of any reasons under s 5J(1) of the Act , but simply because he knew the boys and they wanted him to join their group and get involved in their activities.
While I accept that the applicant was attacked in May 2023, I am not convinced and do not accept that he remained of ongoing interest to the group or that the group beat or harassed his brother because of the applicant and asked about the applicant’s whereabouts after his departure from the country. First, the applicant claims that he had known the group of boys since primary school, and he has not indicated that he was ever approached or harassed by the boys prior to May 2023. This suggests that the applicant was not of any interest to the group of boys prior to the May 2023 incident. Second, while the applicant claims that the group made threats that they would harm him if they saw him around, as put to the applicant at the hearing, the applicant remained in the country, residing in his family home, for a further two months and did not face further issues with the group of boys who knew him and were present in his area. I find it difficult to accept that apart from an opportunistic incident to attack the applicant while he was out at night, that the group of boys had any further or ongoing interest in the applicant or his brother. I consider that if the group wanted to harm the applicant or wanted to persuade the applicant to join their group, that they would have taken further action. I do not accept that apart from the one incident during the night in May 2023, that the applicant was of ongoing interest to the group of boys or that his brother has been harassed or beaten because of the applicant. I note the applicant’s evidence that his family remain in their village and his siblings continue to attend school and university. I consider the chances of the applicant facing any further harassment or incidents involving the group of boys, in the foreseeable future, to be no more than remote. In addition, I am also not satisfied that the applicant was targeted or faces a real chance of serious harm for reasons specified in s 5J(1) of the Act.
Overall, while I accept that the applicant faced the three incidents over a period of three years, I am not satisfied that there is a real chance that the applicant will face serious harm if returned to Timor-Leste, or that he will be targeted by martial arts groups or any other groups for any of the reasons in s 5J(1) of the Act. I am not satisfied that the applicant faces a real chance of persecution in the foreseeable future due to martial arts group activities or general criminal activities in Timor-Leste.
Economic hardship
In the submission to the Tribunal, and at the hearing, the applicant stated that it is very difficult to find a job in Timor-Leste in his preferred industry. At the hearing, when asked if he searched for any job opportunities after he [graduated], the applicant stated that he did but because he does not have any family members engaged in the industry, he will not be able to obtain a job. He explained that in Timor-Leste, family members usually assist in securing jobs for other family members, and he does not have this avenue available to him.
Country information[3] indicates that poverty rates in Timor-Leste increased from 22 per cent to 27 per cent in the period between 2014 and 2020. Forty-six per cent of the population are poor, and a significant majority rely on small-scale subsistence farming. The majority of households rely on the informal sector, with 70 per cent of the population relying on climate-sensitive livelihoods and agriculture production, in a country which experiences frequent floods, droughts, storms and other natural disasters due to climate change. It is reported that Timor-Leste’s economy was recovering in 2019 from a 2017−18 recession when the economy was severely affected by the COVID-19 pandemic. Timor-Leste is considered one of the poorest countries in the world and standards of living continue to remain low across the country, disproportionately affecting poor and rural families, who make up most of the country’s total population.
[3] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 30 September 2020, 20220902124342; The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021, 20220516084348.
It is also reported that there is low labour market participation in Timor-Leste, with only 45.2 per cent of the working-age population employed in the market economy as at March 2021.[4] The overall unemployment rate is 11.9 per cent, but this rises to 22.1 per cent for young people aged 25-29 years, which is likely related to higher levels of job losses among this group as a result of COVID-19.[5]
[4] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[5] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
While I accept that the applicant may not be able to obtain a position in his preferred industry and wishes to remain in Australia to save money to further his studies and enhance his prospects of obtaining a job in his preferred industry, given his educational background, I am not satisfied that he would not be able to obtain any jobs in Timor-Leste and would face serious harm, in that he would be denied the capacity to earn a livelihood of any kind, such that his capacity to subsist would be threatened or otherwise experience harm. I note that the applicant only remained in Timor-Leste for a period of a couple of months after he graduated from [university], and that his parents are both professionals and have been engaged in employment.
As discussed with the applicant at the hearing, while I understand that he wants to remain in Australia and pursue further study and that he is concerned about the current economic situation in his country, his concerns stem from circumstances that impact the whole of the population and there is no indication that he would not be able to engage in employment or face financial hardship because of any systematic or discriminatory conduct or for reasons outlined in s 5J(1)(a) of the Act. I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future due to the country’s economic situation.
Refugee assessment
Considering the applicant’s circumstances as a whole and in light of what I have accepted of his claims, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet s 36(2)(a).
Complementary protection assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste, there is a real risk that he would suffer significant harm.
Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’, are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
I accept that it is possible that the applicant may witness violence and fighting between rival martial arts groups in the future, as he claims to have encountered in the past, however, I am not satisfied that this would amount to a level of pain, suffering or humiliation required by the definition of torture in s 5(1) of the Act, nor cruel or inhuman or degrading treatment or punishment, such as to amount to significant harm as defined in s 36(2A) of the Act. As put to the applicant at the hearing, given the country information about crime and martial arts groups in Timor-Leste, this is a risk that is faced by the population of the country generally and not faced by him personally.
I accept that the economic situation in Timor-Leste is less than ideal and that there is high youth unemployment. As discussed with the applicant, the risk of economic hardship is a risk that is faced by the population of Timor-Leste generally and is not a matter that is faced by the applicant personally. In addition, any economic hardship that the applicant may face will not be as a result of any conduct with an intention to inflict pain or suffering that can reasonably be regarded as cruel and inhuman in nature, or result in severe pain or suffering, or an intention to cause extreme humiliation such as to meet the definitions of torture or cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied that the applicant faces a real risk of significant harm as defined in the Act.
Family membership criteria
Under s 36(2)(b) or s 36(2)(c) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who: (i) is mentioned in s 36(2)(a) or (aa); and (ii) holds a protection visa of the same class as that applied for by the applicant.
The applicant has not claimed and there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Samira Kamandi
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 426

10 January 2024

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Immigration

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