2318644 (Refugee)

2318644 (Refugee) [2024] AATA 2627 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2318644
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Peter Vlahos
DATE:13 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 13^th February 2024 at 7.30AM.
CATCHWORDS
REFUGEE – protection visa – East Timor – economic hardship – access to employment opportunities – capacity to subsist – fear of unemployed youth gangs – complementary protection – significant harm – third country protection – Portugal – Indonesia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of East Timor, applied for the visa on 5 October 2023. The delegate refused to grant the visa on the basis that the requirements of subsection 36(2) were not met.
The applicant appeared before the Tribunal on 7 February 2024 at 10.00AM to give evidence and present arguments. There was delay of thirty minutes because there were difficulties with the audio/visual that connected the Tribunal with the interpreter appointed to assist with translation in this matter.
The Tribunal did not received any evidence from other persons.
The Tribunal hearing was conducted with the assistance of an interpreter (via the telephone) 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirm.
Background
The applicant was born on [date] in Dili in Timor-Leste’s Dili Province and claimed to be a citizen of Timor-Leste.
A copy of the bio-page of the applicant’s Timor-Leste passport is on the Departmental file ([number]). The passport was issued [in] 2022.
The applicant was granted an International Relations (Class GD) (Subclass 403) visa on 6 December 2022 and arrived in Australia holding that that visa on [date] December 2022.
The applicant’s Subclass 403 visa was granted as part of the Pacific Australia Labour 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 Protection (Class XA) (Subclass 866) visa on 5 October 2023 and was granted an associated bridging visa.
The applicant’s claims for protection are contained in the applicant’s online protection visa application form. Below is a summary:
·The applicant borrowed a lot of money in Timor-Leste and is unable to repay the debts.
·The applicant has been threatened with death by the people they owe money to in Timor-Leste.
·The applicant is unable to get help as the debt is large and the police, local politicians and the applicant’s family in Timor-Leste avoid the applicant and do not want to get involved.
·If the applicant returns to Timor-Leste, she will experience daily torture from the money lenders due to an inability to repay their debts because of unemployment.
·The applicant cannot re-locate in Timor-Leste as it is a small country and they will easily be found by the money lenders and the applicant does not have relatives in any other part of the country.
The applicant further claimed (in the same application form) that she speaks, reads and writes in the Tetum language (one of the official languages of Timor-Leste), Portuguese, Indonesian and English and that she belongs to the Roman Catholic religion. The applicant also states in the form that she was previously employed as part of a seasonal worker program but at the time of her application she was unemployed.
The delegate acting on behalf of the Minister refused to grant the visa to the applicant on 14 November 2023.
On 16 November 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 to this application for review.
At the beginning of the hearing, the applicant told the Tribunal that her original claims as submitted to the Department as part of her Protection visa application were not her proper claims, she wished the Tribunal to consider. The applicant told the Tribunal that her country was a ‘poor country’ and there was ‘difficulty to find work.’ The applicant said she preferred to remain in Australia and to continue to work as a ‘seasonal worker’ because it provided her with a stable and ‘good income’. The applicant said that she wanted to make Australia her permanent home. The applicant confirmed for the Tribunal that her real claims were that she could not find well-paying and long-term employment in Timor-Leste, this was only possible in Australia and for that reason she wished to remain here indefinitely.
At the end of the hearing, no post-hearing submissions were required.
There are no non-disclosure certificates attached to the applicant’s Departmental of 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. The western half of the island is administered by Indonesia, and the country also consists of 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, and despite its small area, the country has a diverse mix of cultures and languages, reflecting its links to Southeast Asia and Melanesia . 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 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 the 21st century. That same year, relations with Indonesia were established and normalised, with Indonesia also supporting East Timor's accession into ASEAN.
There is no DFAT country information report pertaining to Timor-Leste.
The United States of America’s Department of State did, however, publish 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 domestic 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 labor.
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 its 2021 Socio-Economic Impact Assessment of COVID-19 in Timor-Leste, reported that 45.2 percent of the population’s 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 level agricultural production. The report stated that when those working in the subsistence agriculture sector were taken into consideration, the employment figure rose to 61.1 per cent. The report also provided that many jobs are informal in their arrangements and that the overall unemployment rate is 11.9 per cent but rises 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, p8-1
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 citizen of Timor-Leste and provided a copy of her 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, 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] Jerónimo, Patrícia (March 2017). "Report on Citizenship Law: East Timor (Timor-Leste)" (PDF). cadmus.eui.eu.
When Timor-Leste regained its independence in May 2002, a national act of the same year determined that 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 wanted 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 provinces, and the applicant was a citizen of the Republic of Indonesia. The country information outlined above and the submitted identity documents indicate 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 this material, Timor-Leste is the receiving country for the purpose of assessing the applicant’s claims for protection under ss 36(2)(a) and 36(2)(aa).
Third country protection
Section 36(3) applies in relation 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 any other 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
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] Section 36(6). Subsection (7) provides that subsection (6) does not, by implication, affect the interpretation of
Under the terms of the 2002 Constitution, dual nationality is allowed and thus East Timorese nationals are 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 or domiciled in Portugal's overseas possessions immediately lost their Portuguese nationality upon independence, regardless of whether new nationality rules had been established.7 Nationals of East Timor, who were Portuguese prior to 25 April 1976, were able to retain their Portuguese nationality.[6]
[6] Op cit, Jerónimo, p.18
As the applicant was not born prior to 25 April 1976, she 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 status, most prominently their Portuguese and Indonesian citizenship. The coexistence in the same individual of Portuguese and Timorese citizenship 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 those East Timorese who opted for Indonesian citizenship are deemed by Indonesian authorities to have renounced their Timorese citizenship.[7]
[7] Ibid, p.20.
As the applicant is a citizen of Timor-Leste, for all intents and purposes, Indonesia ceased considering the applicant to be a citizen of its Republic when 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 visa to enter any part of Indonesia, the Tribunal accordingly does not accept Indonesia is an available third country for the purposes of s 36(3).
Findings
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish such a claim.[8] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish, or assist in establishing, the claim.[9] This is consistent with the established proposition that it is for the applicant to make his or her own case.[10]
[8] Ibid, p.19.
[9] Section 5AAA of the Act
[10] Abede v Commonwealth (1999) 197 CLR 510 at [187]
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70
Overall, the Tribunal found the applicant to have elaborated on her new claims at the scheduled hearing in a consistent and reliable manner with her otherwise limited written claims.
Accepted personal circumstances
Having noted the applicant’s admission that her original claims submitted to the Department had been contrived and written by third person and were totally inaccurate, the Tribunal has relied on her oral evidence to be more reliable, and it makes the following findings about the applicant’s personal circumstances:
§The applicant was born in [year] in Dili, Dili province as claimed, and she was raised in that area of Timor-Leste, specifically Dili;
§The applicant is ethnically Timorese, and speaks, reads, and writes Tetum, Portuguese and Bahasa Indonesia;
§The applicant belongs to the Roman Catholic faith tradition;
§The applicant has family living in Timor-Leste currently living which consists of her parents and brother who she assists financially;
§The applicant has completed her primary and secondary high school education;
§Since arriving in Australia, the applicant has been working in the horticultural sectors at various locations within the State of Victoria but at the time of her application she is not employed;
§The applicant has not been married and does not have children or dependents of her own;
Economic hardship

At the hearing the applicant was invited to elaborate on her reasons for applying for a protection visa. Reflecting upon her claims made at the hearing (in-person) the applicant stated that she held a well-founded fear of returning to Timor-Leste arising from the foreseeable economic hardship which she would experience because of the lack of available employment opportunities and this made it difficult for her to subsist on daily basis.
During the hearing, the applicant said that for most of her life she had completed her school education and that she had been reliant on her family for her living assisting them to grow crops for family consumption and sale in order to maintain a living. She further elaborated that finding work is very difficult in Timor-Leste. By remaining in Australia to work she would be able to ‘assist her brother’ and her family but also provide her with the necessary funds to ‘one day’ ‘buy her own home’ here, in Australia, which she preferred to remain.
The applicant continued to explain that since working in Australia through the PALM programme, she had been able to provide a satisfactory living for herself (meeting all her costs and expenses of living) and also providing necessary financial assistance to her brother in Timor-Leste.
The Tribunal discussed with the applicant whether her economic hardship was attributable to one of the five nexus reasons required by the refugee criterion. The Tribunal outlined to the applicant during proceedings that to have a well-founded fear of persecution, it must be because of her race, her religion, her nationality, her membership of a particular social group or her political opinion. The applicant stated that it was clear in this regard that she was not a refugee.
The Tribunal discussed the refugee criterion’s definition of serious harm as significant economic hardship that threatens a person’s capacity to subsist and the denial of the capacity to earn any kind of livelihood, where the denial threatens a person’s capacity to subsist. Subsistent livelihoods, such as that largely relied on by the applicant’s family in the past, do not meet the definition of serious harm under the refugee criterion. That being the case, the applicant told the Tribunal that working on the family’s plantation barely provided enough for the family to live on let alone, provide products for the local markets to return a profit. According to the applicant, life in Timor-Leste is very difficult economically and provides no real opportunities for young persons like her.
The Tribunal also invited the applicant to comment on whether the degree of economic hardship she would face would amount to one of the specific kinds of significant harm required by the Act’s complementary protection provisions. (‘Significant harm’s definition, as outlined in s 36(2A)). The applicant response was that young people like her, with a particular level of education in Timor-Leste are struggling to find employment, and that she wanted to remain in Australia to help her brother, and to save enough money to build herself a home in Australia.
In considering the applicant’s fears about economic hardship, the Tribunal has considered sources about the Timorese economy. Timor-Leste has experienced significant economic growth since its independence in 2002, with GDP per capita increasing from $453 in 2004 to $1,381 in 2020. The economy is almost entirely reliant on oil and gas.[11] Approximately 80 percent of state expenditure comes from a sovereign wealth fund, the Petroleum Fund, but oil and gas income into this fund is almost negligible due to declining reserves. It is estimated that the fund could be depleted within a decade.[12]
[11] Al Jazeera, ‘East Timor: Between hope and unseen 20 years after referendum’ 30 August 2019.
[12] Bertelsmann Stiftung, ‘[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. ‘Timor-Leste’, 23 February 2022, 20220310150555, p.4
Timor-Leste has achieved medium level human development status, positioned at 131 out of 189 countries.[13] However, it appears to have experienced a decline between 2014 and 2020, with the poverty rate (based on the then international poverty line of US$1.90 per day) rising from 22 percent to 27 percent in that period.[14] The poverty rate is higher in rural areas.[15] Forty-six per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.[16] The majority of households operate in the informal sector, with only about 23 percent of the working-age population employed in the cash economy.[17]
[13] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30
[14] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30
[15] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31
[16] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021
[17] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste',
23 February 2022, 20220310150555, p.21
Household vulnerability is increased by the dependence of nearly 70 percent of citizens on climate-sensitive livelihoods and agricultural production, in a country which experiences frequent floods, droughts, storms, landslides and is impacted by sea-level rises and higher temperatures as a result of both natural climate variability and climate change.[18]
[18] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31
The economy continues to depend on government outlays, and state spending in recent years has fallen due to political impasses.[19] Prior to 2020, Timor-Leste had experienced recession since 2017, attributed to internal political divisions.[20] GDP was estimated to have expanded by 3.4 percent in 2019, recovering from the earlier recession.[21]
[19] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste',
23 February 2022, 20220310150555, p.4
[20] Lowy Interpreter (The Interpreter), Timor-Leste: The consequences of Covid-19', 3 April 2020,
20200406074724
[21] World Bank Group, 'April 2020 Timor-Leste Economic Report: A Nation Under Pressure', 15 May 2020,
20201021131121, p.i
The Tribunal accepts Timor-Leste is one of the poorest countries in the Asia-Pacific region. Formal employment opportunities are concentrated in Timor-Leste’s public sector and in businesses that supply the government, and the nation relies heavily on funding from petroleum wealth. The Tribunal accepts the applicant does not have a real chance of accessing such well-paid and secure employment despite her experience and education.
Given the country information above, the Tribunal accepts that if the applicant should return to Timor-Leste in the reasonably foreseeable future, there is a real chance she will experience economic hardship as a result of being unable to secure employment that pays as well as that in Australia. Should the applicant return to her country of nationality, the Tribunal accepts that in not being able to remit sufficient earnings from Australia, this will have an adverse impact on her brother, family and herself. This will result in a real chance of a notable reduction in income for her family and create greater dependency on subsistence and those family members in the Timorese labour market.
Refugee criterion
As discussed in the hearing, the applicant accepted that her economic problems did not relate to her race, her religion, her nationality, any memberships of a particular social group or her political opinion. As the economic harm feared by the applicant does not arise for reasons of her 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.
Furthermore, as discussed in the hearing, the Tribunal has considered whether the applicant will face a real chance of economic hardship that amounts to serious harm. Should the applicant return to Timor-Leste, the Tribunal accepts she will face challenges in finding low paid employment. Nonetheless she is a motivated and 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. While the applicant does not have dependents of her own, it is accepted she has familial responsibilities towards providing, at least in part, for brother and other in her family. Also, should the applicant encounter prolonged joblessness – as many Timorese do – the applicant will be able to contribute to and rely on her family’s subsistence farming on their private holding, as the applicant and her family have done in the past. In this regard, the Tribunal notes the abovementioned UN report that subsistence agricultural sector is a significant source of livelihood for the Timorese. Taking all these circumstances into cumulative account, the Tribunal is satisfied the applicant can return to her 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 her and her family’s capacity to subsist, or any other serious harm non-exhaustively listed in s 5J(1)(a) or as required by s 5J(4)(b).
Based on these accepted circumstances in relation to the applicant facing a real chance of economic hardship, the Tribunal accordingly finds that the applicant does not face a real chance of serious harm for any of the reasons mentioned in s 5J(1)(a) if she were to return to Timor-Leste.
In this regard, the applicant does not have a well-founded fear of persecution as required by s 36(2)(a).
Complementary protection provisions considered
With regards to the complementary protection provisions, the Tribunal similarly accepts there is a real risk of harm arising from economic hardship if the applicant were to return to Timor-Leste. The question is whether this hardship amounts to significant ham.
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).[22] With this in mind and based on the same personal and familial circumstances outlined above, the Tribunal does not accept the applicant’s degree of economic hardship as outlined in her evidence and having considered it 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).
[22] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g., risk of being killed is sufficient to fulfil both: see, 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 reduced earning capacity, financial hardship due to familial responsibilities and relying on subsistence farming, would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. The applicant does not suggest that she 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 exclusively 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 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).
Residual claim: fear of youth gangs in Timor
During the hearing, the applicant raised a fear that she would be targeted by unemployed youth gangs should she find work in Timor-Leste as they were motivated by jealously.
While the Tribunal accepts that high youth unemployment and poverty may lead to some level of fighting between groups of youths in Timor-Leste[23], the evidence available to the Tribunal does not suggest this fighting is so frequent or prevalent as to create a real chance that the applicant will face harm by any group of persons if returned to Timor-Leste. In making that assessment, the Tribunal notes that the applicant gave evidence that she had no problems except economic problems while living in Timor-Leste and that there was no conflict or discrimination in Timor-Leste, rather the problem was the very high levels of joblessness and low wages compared to the pay (and conditions) she has been earning in Australia. Related to this, the Tribunal notes that the applicant did not assert that any concerns had been experienced by any member or members of the applicant’s family who had been recipients of her assistance (in money) while she has been in Australia earning money, suggesting the applicant’s fear of opportunistic crimes may have been genuine but otherwise speculative.
[23] ‘Timor-Leste Country Security Report’, Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, United States Department of State, 21 November 2022, 20221123073652
It follows that the Tribunal finds the chances of such harm by unemployed youth gangs and/or other criminal outfits to be remote and insubstantial and that it does not accept there to be a chance that is equal to or greater than a real chance of serious harm by any martial arts group or criminals motivated by greed and jealousy of the applicant’s actual or perceived wealth. Furthermore, the applicant will not be targeted for such opportunistic crimes by martial arts gangs or other criminals for any of the reasons mentioned under s 5J(1)(a), should she return to Timor-Leste.
In MIAC v SZQRB,[24] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. For the same reasons, the Tribunal does not accept there to be a real risk the applicant will face significant harm as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste based on the applicant’s fears of unemployed youth gangs and other opportunistic criminals.
[24] MIAC v SZQRB [2013] FCAFC 33 at [246], [297] & [342].
Conclusion
There are no other residual claims to consider in this application.
Having assessed all of the applicant’s claims individually and cumulatively, the Tribunal finds that she 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 she is returned to the Democratic Republic of Timor-Leste, and she does not satisfy the criterion in s 36(2)(a)
Having assessed 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 her life, the death penalty will be carried out on her, she will be subject to torture, she will be subject to cruel or inhuman treatment or punishment, or she will be subject to degrading treating 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 criteria 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.
…

Badia Fiesolana: European University Institute. Archived (PDF) from the original on 4 April 2018. Retrieved 26

April 2021, p.10

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], [210], with the
High Court not disturbing this aspect of the Full Court’s reasons: see NBGM v MIMA (2006) 231 CLR 52, to be

read with MIMIA v QAAH of 2004 (2006) 231 CLR 1

any other provision of the Act. Note that the state and effect of foreign law are questions of fact and as such, are
susceptible of proof by expert evidence from a witness suitably qualified to express an opinion about the laws of
the relevant foreign state. However, ‘it is not necessary for a court or tribunal to resort to expert evidence of that

kind in order to make a finding as to the effect of a relevant law of a foreign country’

[2024] AATA 2627

13 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal