2318655 (Refugee)

[2024] AATA 730

2318655 (Refugee) [2024] AATA 730 (11 January 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318655

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Fraser Robertson

DATE OF DECISION:  11 January 2024

DATE CORRIGENDUM

SIGNED:31 January 2024

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

In relation to paragraph 95, the words that appear in the following paragraph in bold were unintentionally omitted from the transcription and should be added:

In all the circumstances I am 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 not a real risk that the applicant will suffer significant harm I find the applicant does not meet the complementary criterion in section 36(2)(aa) of the Act.

Statement made on 31 January 2024 at 12:36pm

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:   2318655

MEMBER:Fraser Robertson

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 January 2024 at 4:00 pm (WA time)

DATE OF WRITTEN RECORD:                25 January 2024

PLACE OF DECISION:  Perth

Statement made on 25 January 2024 at 11:18am

CATCHWORDS

REFUGEE – protection visa – East Timor – particular social group – threats from money lenders – loan agreement – employment – fear of torture – fear of detention – delay in seeking protection – state protection – credibility issues – member of a martial arts group – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2

CASES

GLD18 v Minister for Home Affairs [2020] FCAFC 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

APPLICATION FOR REVIEW

INTRODUCTION

1. The applicant applied 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).

2. On 11 January 2024, I affirmed the decision not to grant the applicant a protection visa and gave oral reasons for that decision.

   STATEMENT OF DECISION AND REASONS

3. Attached to this decision record is a written reduction of the decision and reasons delivered orally on that date.

   DECISION

4. The  Tribunal affirms the decision not to grant the applicant a protection visa.

   Fraser Robertson
   Member

   
   

   ATTACHMENT - STATEMENT OF DECISION AND REASONS

   GIVEN ORALLY ON 11 JANUARY 2024

   INTRODUCTION

   1.These reasons commence at 4 pm.

   2.I reserve the right to correct matters of grammar and infelicity of expression, add headings and insert relevant footnotes in the event written reasons are sought, without changing the substance of these reasons.

   BACKGROUND

   3.The applicant applied for a review of a decision made by a delegate of the Minister of Home Affairs on 14 November 2023 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (Act).

   4.The criteria for a protection visa are set out in section 36 of the Act in schedule 2 to the Migration Regulations. The issue in this application is whether the applicant meets the refugee criteria for protection and contained in section 36(2)(a) or the complementary protection criteria and contained in section 36(2)(aa) of the Act.

   5.I have taken into account the Refugee Law guidelines and complementary protection guidelines prepared by the Department of Home Affairs and country information assessments to the extent that they are available and relevant to the decision.

   PROTECTION VISA APPLICATION

   6.The applicant arrived in Australia [in] June 2023 from Timor-Leste, East Timor. The applicant applied for a protection visa on 11 October 2023.

   7.That application claimed that, in summary, that the applicant would be threatened or killed because he “borrowed a lot of money for 540.00 and every week, I had to pay 250 dollars in interest”. He claimed that he did not have enough money to pay the debt and his creditors were looking for him.

   8.The applicant claimed that he would be tortured, because he would be jobless in Timor-Leste and unable to pay the interest. The applicant claims that he did not seek assistance in Timor-Leste because the amount he borrowed was so “hug” (sic: huge), that no one will help him settle that amount. He claims that police and politicians do not want to get involved in his case. The applicant claimed that he could not relocate to avoid the harm.

   9.The delegate refused to grant the applicant a protection visa.

   APPLICATION FOR REVIEW

   10.The applicant applied for a review of the delegate’s decision on 16 November 2023. Prior to that hearing the Tribunal wrote to the applicant pursuant to section 424A of the Act. That letter provided information that the claims made by the applicant in his protection visa application were substantially identical to, and otherwise substantially similar to claims made by multiple other applicants for protection visas. In many respects the wordings of the claims are not only similar, but they are identical. The claims also contain the same errors. The letter explained that the information may lead the Tribunal to conclude that the applicant had not been truthful in his application for a protection visa, the claims made had been fabricated and/or the claims made are not genuine in the circumstance. It explained that those conclusions, or any substantially similar conclusions, could be the reason or part of the reason for affirming the decision under review.

   11.The applicant responded to that letter on 22 December 2023. His explanation was to claim that a friend helped the applicant fill in his protection visa application and that:

   "it's possible that the friend who helped me is also the same person who fills out forms online for other people and has used similar excuses".

   12.To put the response another way the applicant claimed to be the progenitor of the claims that have been identically made in a series of protection visa applications.

   13.The response also included documents which the applicant claims support his claims were evidence of money borrowed by him, and which he claims he borrowed to help his ill father. Those documents include:

   (a)various receipts from [named] Medical Centre for medication and medical services between June 2022 and July 2022 for $429;

   (b)a handwritten document dated 6 June 2023, which is not particularly legible or appears to be a request for a CT scan and other radiology services;

   (c)a document entitled ‘echocardiographic report’ dated [June] 2023 and signed by a cardiologist;

   (d)what appears to be an undated and largely illegible echocardiogram, a document containing biochemistry results dated [July] 2022;

   (e)a document containing biochemistry results dated [January] 2023;

   (f)a report dated [January] 2023 citing impression of ‘hepatomegaly’ which refers to an enlarged liver with a comment ‘suspect fatty liver’ and otherwise not noting anything of note; and

   (g)a document containing biochemistry results dated [December] 2023.

   14.The applicant also provided a document which is untranslated but appeared to be dated 11 January 2023 which he claimed is a copy of the loan agreement by himself and another person as lender.

   15.The applicant attended the hearing before the  Tribunal on 11 January 2024 to give evidence and present arguments. That hearing was conducted by Microsoft Teams. The applicant was assisted by, and had available to him, an interpreter in the Tetum language as requested by him.

   SECTION 424AA INFORMATION

   16.As the applicant claimed in his response to the section 424A letter that he is the originator of the identical protection claims it became necessary to put further information to him during the hearing, which I did pursuant to section 424AA.

   17.I put to the applicant that the  Tribunal had information that some of the other identical, or substantially identical, protection visa applications which he claimed in his response might have been copied from his claims and were lodged before his protection visa application and, indeed, in some instances before he had even arrived in Australia or before he had signed the loan agreement which he had provided.

   18.I explained to the applicant that that might lead me to conclude that:

   (a)he was not, contrary to his claims, the originator of the claims that may have appeared in numerous protection visa applications;

   (b)the evidence, including the loan agreement given by him in support of his claims to have borrowed the money was not credible, or was fabricated, or was otherwise false; or

   (c)it may lead me to conclude that he had not been truthful in his application for a protection visa, or in the proceedings before the  Tribunal, or have made claims that have been fabricated and are not genuine.

   19.I further explained that those conclusions, or similar conclusions, would be the reason or part of the reason to affirm the decision under review.

   20.The applicant did not seek additional time to comment on or respond to the information. The applicant’s response was to claim that he did not know if the other person lodged applications for others, but his evidence was true.

   21.I asked whether the applicant claimed it was a coincidence that the other applications just happened to also involve borrowings of 540.00 and 250 dollars in interest. The applicant sought to avoid that question.

   CONSIDERATION OF THE APPLICANT’S CLAIMS AND CREDIBILITY

   22.The issue in this application is whether the applicant meets the refugee criterion for protection contained in section 36(2)(a) or alternatively the complementary protection criteria and contained in section 36(2)(aa) of the Act.

   23.The applicant is responsible for specifying all particulars of his claims to be a person in respect of whom Australia has protection obligations and provide sufficient evidence to establish that claim.

   24.The  Tribunal has no responsibility or obligation to specify or assist an applicant and specify any particulars of their claims, nor does the  Tribunal have any responsibility or obligation to establish or assist in establishing those claims.

   25.I am not required to uncritically accept any or all of the allegations made by an applicant and do not require rebutting evidence before I can find a particular factual assertion is not made out.

   26.Assessing credibility is a difficult task which should be conducted fairly and reasonably. Inconsistencies in an applicant’s account may or may not be significant. When an account is given through an interpreter and I need to take that into account and further I should give the benefit of the doubt to those who are genuinely credible but unable to substantiate all of their claims.

   OBSERVATIONS ABOUT APPLICANT'S EVIDENCE / CREDIBILITY

   27.The credibility of the applicant and the evidence presented by him is critical in the context of this application and for that reason I have carefully considered both the applicant’s evidence and claims.

   28.As I have referred to above, the Tribunal put information to the applicant pursuant to s 424A of the Act. The applicant responded to that information, the applicant claimed that his protection visa application reflected his claims and that it was perhaps the person who assisted him in filling the form out that re-used his claims for others. Essentially, the applicant appears to contends that:

   (a)he was the originator of the claims that are contained in his protection visa application and

   (b)other protection visa applications which include identical or substantially identical claims to his are potentially a derivative of original claims.

   29.The claims made by other protection visa applications were to have borrowed an identical sum of money (540.00 with the units not stated) and have identical interest payments (250.00 dollars per week). Moreover, those applications also included the same typographical errors. Quite apart from the same wording being used, three examples suffice to demonstrate the level of commonality between them. The other claims:

   (a)use identically incorrect capitalisation of words: see for example, “Keep”, “Six” and “Return”.

   (b)contain the same typographical error of “hug” is used when, in context, the correct and likely intended word would be ‘huge’; and

   (c)contain the same typographical error of “fire” is used when, in context, the correct and likely intended word would be “find”.

   30.However, the applicant contends that the loan agreement provided to the Tribunal is credible evidence supporting his contention that his claim is genuine (and the claims made by others are perhaps not).

   31.That is difficult to accept when, as I put to the applicant as contemplated by s 424AA, identical or substantially identical claims, including in relation to the amount borrowed and interest, were made in protection visa applications which were lodged:

   (a)before the applicant had signed the purported loan agreement; and

   (b)before the applicant had even arrived in Australia.

   32.The applicant was not able to explain at all, let alone to my satisfaction why his claims were, in those circumstances, credible, genuine or the original claims.

   33.I consider that it is implausible that it might be a coincidence that the applicant’s claim was not only precisely what was claimed by other protection visa applicants from Timor-Leste in terms of the principal sum and interest but also that his protection visa application would come to be expressed in identical terms with identical grammatical and typographical errors to other applications. I consider that is it implausible in the extreme that many applicants would all make identical claims and that they all coincidentally happen to reflect the actual claim made by this applicant and that also coincidentally he was able to lodge a protection visa application which was identical to those that had previously been lodged that just happen to reflect his claims.

   34.In the circumstances I am concerned that the loan agreement provided by the applicant is not, in fact, a genuine document and has been created by him for the purpose of this application. When I put that concern to the applicant he claimed the document was genuine. I am not so satisfied.

   Concerns about the loan agreement provided

   35.The applicant provided a document which he claims to be a loan agreement evidences his borrowings in Timor-Leste. His evidence was that he signed the loan agreement on 13 January 2023 and received the money in cash on the same day.

   36.The applicant claimed the loan agreement provided that in essence he was required to repay $790 by 20 January 2023. He claimed that he did not pay the full amount as required and he only paid $160. He claimed he was only able to pay that amount because he did not have a job and his earnings were limited to match fees that he earned from playing [sport].

   37.The applicant’s initial evidence was that he currently owed $540 plus interest. That evidence evolved and changed during the hearing. I asked why he still owed $150 in interest in circumstances where he had paid $160. The applicant’s response was to simply repeat his evidence about it being a high interest rate.

   38.When I asked the applicant how he calculated that he still owed $150 his evidence was then the interest was actually $250 and that it was payable every month. His evidence then changed again to claim that the interest was $150 per month.

   39.After asking the applicant to calculate how much he owed the applicant claimed that he owed $650. He then claimed that he had to pay interest of $150 per month from January to June 2023. I asked the applicant what his debt with the lender as at today’s date. After claiming that he did not prepare an account for the hearing today he claimed that he owed $8000.

   40.I asked the applicant how, if he did not prepare an account, he knew that he owed $8000 and asked him how he calculated that figure. Even allowing for potential difficulties with interpretation the applicant’s evidence was confusing, at best, as to how he came to that figure of $8000. Certainly, it is not a figure that I can come to on the basis of any of the applicant’s previous evidence.

   41.I further note that the loan agreement appears to have a date of 11 January 2023, dates of 18 January, 19 January 2023 are also visible on the contract. The applicant’s evidence was that the dates of 11, 18 and 19 January were dates of invoices for his files’ expenses.

   42.When I asked the applicant what the date above his signature was his evidence was it was 11 January. He then changed his earlier evidence to say that he signed the loan agreement on 11 January. I then asked again what the dates of 18 and 19 January related to. The applicant’s evidence was then that those dates related to when he had to repay the money. He then conceded that the dates did not relate to the invoice for his files’ expenses.

   43.The applicant claims that the lender said that he had to pay the full amount and if he did not, he would take him to Court.

   44.I further observed that in response to the section 424A (indistinct) the applicant claims he used the money he borrowed to pay the cost of his father’s treatment in hospital. He said that the money he borrowed was: "to pay whatever the cost of treatment for my father at the hospital and also the nearby clinic".

   45.However, notwithstanding that statement was made when providing the purported loan agreement, the loan agreement post-dates all the invoices and medical documents produced by the applicant together with it. I put this to the applicant who responded by claiming that at the time his parents used their money to pay those and that money he borrowed was provided to them to continue to meet his father’s medical expenses. I am not prepared to accept that explanation, which I regard as entirely self-serving and implausible.

   46.Only one document is stamped the date it was paid; the invoice dated 4 June 2022 and it is stamped on being paid the same day. There is no receipts provided to demonstrate the amounts paid or have been repaid. I accept, however, that it is plausible that the applicant’s parents used their own funds to meet the father’s medical expenses.

   47.The contract itself is not translated. That, of itself, limits the weight that I can give to the document. However, in the circumstances in light of my cumulative concerns about the applicant’s credibility I am not prepared to place any weight on the contract, and would not have been prepared to place any weight on the contract even had it been translated.

   Delay in departure / seeking protection

   48.Despite the applicant claiming that the contract was entered into in January 2023 and required repayment in a week I note that he remained in Timor-Leste until June 2023. His protection visa application did not make any specific claims of harm during this period other than a bold assertion that he experienced or perhaps feared daily torture in this protection visa application. The applicant confirmed at the hearing that he did not experience torture.

   49.When I asked the applicant to tell me what happened after he signed the contract the applicant claimed that the lender had said he would take him to court. The applicant later claimed he went into hiding. I do not accept either of those things.

   50.During the hearing the applicant also did not make any specific claims that he was harmed prior to his leaving Timor-Leste, however eventually asserted that during the period following his default of the loan he was in hiding. I do not accept that the applicant was in hiding at all. The applicant’s evidence in relation to why he feared harm from the lender entirely speculative and, in my view, based in no way in fact.

   51.I further note that the applicant provided a document to the Tribunal from the department indicating that his visa to travel to Australia was granted in May 2023. The applicant did not travel to Australia until June 2023. I asked why he still waited for nearly a month to travel. He claimed that he had to travel in a group. I consider it more likely and more plausible that if the applicant genuinely feared harm, as he claims, that following the approval of his visa he would have taken steps to travel to Australia immediately. I note in this regard the approval of his visa does not carry with a particular date on which he must enter and rather provides that he can enter at any point within a 12-month period and stay for nine months from the first arrival.

   Narrative is implausible anyway

   52.I also consider that the applicant’s account of the borrowing is implausible. He claimed that he borrowed the money to pay his father’s medical bills, but all of the medical bills that have been provided pre-date the contract being entered into.

   53.Further, the applicant claims that when he working in Timor-Leste he earned $80 per month, three months of each year playing [sport], and was otherwise unemployed. I asked the applicant how it was he considered he would be able to repay the amount borrowed, particularly within a week. He claimed that he was back into work but he also claimed that he was expecting to receive bonuses from winning [sport] matches.

   New claims at the hearing

   54.It was also of concern to me that the applicant appeared to remember new claims at the hearing. I deal with these further below.

   Conclusion: credibility

   55.I do not consider the applicant is a credible, believable or reliable witness. I do not accept that his protection claims are at all credible or genuine. I do not accept that the contract, or loan agreement, which he has provided to the  Tribunal is a genuine document. I do not accept that the applicant’s claims to have borrowed money in Timor-Leste or that he is at risk of harm because he is unable to repay it are credible or made out.

   CRITERIA FOR PROTECTION

   56.I now move to consider whether the applicant meets the criteria for protection provided by s 36(2)(a) or s 36(2)(aa) of the Act.

   Country of nationality

   57.The applicant travelled to Australia on a passport issued by Timor-Leste. I find that the applicant is a national of Timor-Leste and will assess the applicant against Timor-Leste as the receiving country.

   DOES THE APPLICANT MEET THE REFUGEE CRITERION?

   58.To satisfy the criterion in s 36(2)(a), the applicant must satisfy the Tribunal that they are a refugee. Whether an applicant is a refugee is determined by s 5H(1) of the Act. To be a refugee, the applicant must have a well-founded fear of persecution.

   59.What constitutes a well-founded fear of persecution for the purposes of the Act is set out in s 5J of the Act. It requires an applicant to satisfy the Tribunal that, among other things:

   (a)they face a 'real chance' of persecution. A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%.

   (b)the persecution involves serious harm, having regard to the examples of serious harm set out in s 5J(5);

   (c)the persecution involves systematic and discriminatory conduct, which directs attention to the motivation of the persecutor and whether the persecutor's actions are intentional; and

   (d)that the essential and significant reason for the persecution is one or more of the applicant’s race, religion, nationality, membership of a particular social group or political opinion.

   60.I now turn to consider the claims made by the applicant.

   Unpaid loan

   61.The applicant has claimed he is entitled to protection because he has a well-founded fear of persecution because he borrowed and is, or would be, unable to repay the money he has borrowed. He claims that if he is returned to Timor-Leste he would be arrested and taken to jail. He also claimed that the lender could get people to harm him if he did not repay.

   62.I have not accepted that the applicant is a credible witness or that he has satisfied me that his claims are credible or genuine. I do not accept he is a credible witness in respect of his claim to have borrowed money or face harm on that account. I do not accept that he has borrowed money. I do not accept that the applicant faces any chance, let alone a real chance of harm from the lender or persons associated with the lender identified in the purported loan agreement for any reason.

   63.Given my doubts about the credibility of the applicant, the genuineness of the purported loan agreement, and the delay in both him departing Timor-Leste and applying for protection, I also do not accept that the applicant has a genuinely held subjective fear of harm on this basis.

   64.In the circumstances, I do not accept that any of the applicant’s claims in this regard are credible. I am not satisfied that he faces a real chance of serious harm on this basis. Moreover:

   (a)I do not accept that persons who borrow money from, or victims of, unregistered money lenders form a particular social group for the purposes of the Act. I do not consider having borrowed from an unregistered money lenders constitutes a characteristic that can be described as innate or immutable or that it is a characteristic that is fundamental to the applicant’s identity or conscience as required under s 5L(c) of the Act.

   (b)I am not satisfied that any fear of harm that the applicant has is for the essential and significant reason for the persecution is one or more of the applicant’s race, religion, nationality, membership of a particular social group or political opinion.

   65.In the circumstances, I am not satisfied the applicant has a well-founded fear of persecution within the meaning of section 5J of the Act on the basis of these claims. It follows he is not a refugee within the meaning of the Act on the basis of these claims.

   Economic circumstances, including removal of home

   66.The applicant has claims protection because of the economic circumstances in Timor-Leste, including his inability to obtain employment.

   67.The applicant has also claimed to fear harm because his father was evicted from his home and that he had to work to pay his father’s medical bills. Those were new claims. There was no documentary evidence to support either of them. The applicant claimed that his aunty agreed that his parents could live in her home and that under the law in Timor-Leste if you live in a home for five years it cannot be taken away from you. The applicant claims that his father expended money on the property but that when his aunty returned to the home it was taken away from the applicant’s parents.

   68.I tried to explore with the applicant how did these claims satisfy either the refugee or the complementary protection criteria. The applicant was not able to articulate why.

   69.I note that country information[1] indicates that:

   (a)poverty rates in Timor-Leste increased from 22 per cent to 27 per cent in between 2014 and 2020 and that 46 per cent of the population are poor with a significant majority relying on small-scale subsistence farming.

   (b)Timor-Leste’s economy was severely affected by the COVID 19 pandemic, however country information suggests it is recovering;

   (c)Timor-Leste is considered one of the poorest countries in the world and its standards of living continue to remain low across the country, disproportionately affecting poor and rural families who make up most of the country’s population.

   (d)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 of March 2021.

   [1] See 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.

   70.In all of the circumstances, and taking into account the view I have about the applicant’s credibility, whilst I accept that the applicant can earn more money here in Australia, perhaps even substantially more money, the applicant has not satisfied me that the economic circumstances in Timor-Leste which the applicant would experience on and after his return would involve either:

   (a)significant economic hardship that threatens the applicant’s capacity to subsist;

   (b)a denial of access to basic services, where the denial threatens the applicant's capacity to subsist; or

   (c)denial of capacity to earn a livelihood of any kind, where the denial threatens the applicant’s capacity to subsist.

   71.I am further not satisfied and do not accept that the economic circumstances in Timor-Leste, would:

   (a)result in the applicant facing a real chance of serious harm;

   (b)involve systematic and discriminatory conduct; or

   (c)apply to the applicant for the essential and significant reason for the persecution is one or more of the applicant’s race, religion, nationality, membership of a particular social group or political opinion

   72.The effect of those findings is that I am not satisfied the applicant has a well-founded fear of persecution within the meaning of section 5J of the Act.

   73.It follows the applicant is not a refugee within the meaning of the Act based on his claim as to the economic circumstances and hardship that he would face in Timor-Leste.

   Membership of [Martial arts] group

   74.The applicant claimed at the hearing he was a member of [a] Martial Arts group. He claimed that he will be harmed on that basis because he has a membership of the group. He claims that he would be potentially killed on that basis. He reported and claimed past harm, claiming that he been, ‘bashed up’ twice by a rival martial arts group. He claimed he joined that group in the year 2000 when he was [age].

   75.He claims he was bashed on two occasions in March 2020. He claims that he was bashed when he was riding his motorbike with his wife and they threw stones at him. He claims that he got cuts on his face as a result. No request was made for the applicant to take evidence from his wife in relation to this incident.

   76.I asked the applicant why he did not leave Timor-Leste after March 2020. He claimed that he had not had an opportunity to get a job and come to work here. He applied in 2020, although later in the hearing he claimed that he applied in 2019 but only got the job in 2023. I asked the applicant why this claim was not in his protection visa application. He claimed he did not remember, and it was just now in the hearing that he remembered to tell me that.

   77.I do not consider the applicant’s claims in this regard are credible. I do not accept that the applicant is or was a member of the [group] or will be imputed as such. I do not accept he was bashed as claimed. I consider this claim has been opportunistically raised in circumstances where I expressed doubt about the applicant’s credibility.

   78.I am not satisfied the applicant has a well-founded fear of persecution on this basis.

   Travel documents / failed asylum seeker

   79.The applicant’s protection visa application claims that the applicant’s travel documents are not valid for return to Timor-Leste. I asked the applicant about this and he accepted that it was.

   80.The applicant’s protection visa application indicates that in any event that his passport is valid to [2024] and I have no information available to me that the Timor-Leste Government is aware that the applicant has applied for protection or that the Timor-Leste Government cancels passports or travel documents for persons who have sought protection in Australia.

   81.While it is not expressly raised by the applicant I have also considered whether he would be entitled to protection as a failed asylum seeker. It is not clear why he would be identified as a failed asylum seeker though.

   82.The applicant arrived in Australia on a visa under a scheme which enables migration between Timor-Leste and Australia for work purposes. The period of that visa can be between nine months and four years.

   83.There is no basis to conclude that the applicant would be identified as, or imputed to be, a failed asylum seeker unless he were to volunteer that to authorities on his return. In any event I have not found any country information that supports the proposition that Timor-Leste persecutes failed asylum seekers.

   84.Even if the applicant were to self-identify as a failed asylum seeker on return I am not satisfied that failed asylum seekers face any real chance of serious harm in Timor-Leste and I am not satisfied that the applicant has a well-founded fear of persecution on this basis.

   DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

   85.Having determined that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act I have considered the alternative criteria in section 36(2)(aa). To be entitled to complementary protection there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste that there is a real risk that he will suffer significant harm.

   86.The real risk test imposes the same standard as a real chance test applicable to the assessment of well-founded fear. Significant harm is exhaustively defined in section 36(2)A of the Act.

   Summary of relevant refugee findings

   87.As I have rejected the applicant faces a real chance of serious harm in relation to his claims to have borrowed money it falls that I am not satisfied there is a real risk that the applicant will suffer significant harm on that account.

   88.As I have also not accepted the applicant’s claims about harm arising from his membership of the  [group], I am not satisfied that there is a real risk the applicant will suffer a significant harm on that account either.

   89.As I have not accepted the applicant’s claim that his travel documents are no longer valid or that he faces a real chance of persecution as a failed asylum seeker I am not satisfied there is a real risk that he would face significant harm if he was returned to Timor on this basis.

   90.I further do not accept that the economic circumstances in Timor-Leste that would apply to the applicant on his return would constitute significant harm as that term is exhaustively defined in the Act.

   91.Moreover, I am not satisfied that the economic circumstances in Timor-Leste, including the inability to obtain employment, would be inflicted on the applicant by an act or omission of a person in Timor-Leste.

   92.In GLD18 v Minister for Home Affairs [2020] FCAFC 2 Allsop CJ and Mortimer J (as her Honour then was) observed that each category of significant harm looks to the conduct of an actor or a perpetrator and identifies the visa applicant as the subject of a conduct of that actor or a perpetrator.

   93.I am not satisfied that the economic conditions in Timor-Leste, including the inability of the applicant to obtain employment, would involve the act or omission of an actor or perpetrator in Timor-Leste directed towards the applicant. I further note that the applicant appeared to have accepted this however, in any event, I find it to be the case.

   94.Even if I had been satisfied there was a real risk of significant harm to the applicant on account of the economic conditions in Timor-Leste I consider that the economic circumstances in Timor-Leste constitute a risk that is faced by the population generally. In those circumstances section 36(2B) provides us taking not to be a real risk that the non-citizen would suffer significant harm.

   Conclusion: Complementary Protection

   95.In all the circumstances I am 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 that the applicant will suffer significant harm I find the applicant does not meet the complementary criterion in section 36(2)(aa) of the Act.

   96.I have also considered the applicant’s claims cumulatively. There is no feature of any of the applicant’s claims that when considered cumulatively with one or more of the other claims, and which I consider to be credible, would lead me to conclude that:

   (a)the applicant has a well-founded fear of persecution within the meaning of section 5J such as to qualify as a refugee; or

   (b)that there would be 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 they will suffer significant harm.

   DECISION

   97.For these reasons, the  Tribunal affirms the decision to not to grant the applicant a protection visa.

   98.The time is 4.33 pm on 11 January 2024.

   This is a transcript of the decision, and reasons for decision, given by Member F Robertson on 11 January 2024 edited to add headings,\ correct matters of grammar and infelicity of expression without variation to the substance thereof.