2318754 (Refugee)

2318754 (Refugee) [2024] AATA 1564 (7 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  2318754
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Fraser Robertson
DATE:7 February 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 February 2024 at 4:03pm

CATCHWORDS
REFUGEE – protection visa – East Timor – fear of opponents to a family land dispute – members of two competing martial arts clubs – effective state protection – credibility assessment – delay in applying for protection – lack of witnesses and documents – failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5LA, 36, 65, 424A
Migration Regulations 1994 (Cth), 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 dependant.

STATEMENT OF DECISION AND REASONS

INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth).
The applicant principally claims to be entitled to protection because of his involvement in a land dispute and a martial arts group.
For these reasons, the decision under review should be affirmed.

BACKGROUND

The applicant is a [age]-year-old male from Timor-Leste (East Timor) who arrived in Australia [in] April 2023 as a holder of a [temporary] visa.
The applicant lodged a protection visa application on 5 October 2023 (PV Application). The PV application claimed, in summary, that the applicant had borrowed money and had to pay interest on that money. He claimed that he was unable to repay the money he had borrowed and that he had been threatened with death as a result. He claimed that he would be tortured, daily, if returned to Timor-Leste because he would be unable to obtain employment to repay the loan.
The applicant claimed in his PV application that he could not obtain assistance from police and that he could not relocate to the harm that he feared. The applicant was not invited to attend an interview.

DELEGATE'S DECISION

The delegate refused to grant the applicant a protection visa, considering that Timor-Leste had effective protection measures, as defined in s 5LA of the Act, such that the applicant did not have a well-founded fear of persecution under s 5J(2) of the Act.

REVIEW APPLICATION

The applicant applied to the Tribunal for review of the delegate’s decision on 18 November 2023. The applicant provided a copy of the delegate’s decision to the Tribunal. The applicant was unrepresented in respect of the review application.
The Tribunal wrote to the applicant prior to the hearing about information that the claims made in the applicant's PV Application were identical, or substantially identical, to claims made by other applicants for protection visas from Timor-Leste.[1]
[1]See Migration Act 1958 (Cth), s 424A.
The applicant was invited to comment by 17 January 2024. The applicant did not respond. As a result, the applicant lost his entitlement to a hearing before the Tribunal.[2] However, I exercised my discretion favourably to the applicant to proceed with the hearing and the applicant appeared at a hearing before the Tribunal on 23 January 2024. The hearing was conducted in the Tetum and English languages.
[2]Migration Act 1958 (Cth), s 424C(2), read with s 425; Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40.
At the conclusion of the hearing, the applicant was permitted to provide any further information, comments or submissions to the Tribunal by 6 February 2024. I told the applicant that if he required additional time that he could request additional time in writing and I would consider that request.
On 6 February 2024, the applicant provided documents to the Tribunal. The applicant did not seek any additional time to provide further documents or responses. The applicant provided the following materials:
(a)a document which is in handwriting and purports to be from the Ministry of Justice in Timor-Leste which appears to be a record of birth for the applicant's father, indicating that his father was born on [date]. The date of entry is expressed to be [date in] July 2015 and the 'collection date' is expressed to be [date in] July 2015;
(b)a document which is described as a 'notification certificate', directing the applicant '[Ms A]' to appear at Court [in July] 2009 in respect of file "[number]";
(c)a handwritten document dated [in] July 2009, which is described as a "Probation officer" in respect of case "[number] and is expressed to be for "the Inquisition of the witnesses listed" (but does not appear to list any witnesses);
(d)a letter from the Ministry of Justice addressed to "[Ms A]" and two others and described as a 'summons' to attend the "Office of Registration of Reclamation and Land Disputa";
(e)a document which appears to have been prepared by the applicant with an image of a location in Timor-Leste, with marking to indicate the disputed land and the location of the person who is 'causing the problem'; and
(f)a document which contains photographs of a person claimed to be the applicant's brother, including a photograph of a person in a casket.

RELEVANT LAW

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 extract of key provisions of the Act is set out in the attachment to this decision.
An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they are a person in respect of whom Australia has protection obligations either:
(a)under the ‘refugee’ criterion in s 36(2)(a);
(b)on other ‘complementary protection’ grounds; or
(c)because they are 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.[3]
[3]Migration Act 1958 (Cth) s 5H(1)(a).
A person has a well-founded fear of persecution if:[4]
(a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (refugee nexus);
(b)on return to the country of their nationality, there is a real chance they would be persecuted for one or more of those reasons; and
(c)the real chance of persecution relates to all areas of the relevant country.
[4]Migration Act 1958 (Cth) s 5J(1).
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%.[5]
[5]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a),[6] that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[7] Further, the persecution must involve serious harm to the person[8] and systematic and discriminatory conduct.[9]
[6]Namely, race, religion, nationality, membership of a particular social group or political opinion.
[7]Migration Act 1958 (Cth), s 5J(4)(a).
[8]Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[9]Migration Act 1958 (Cth), s 5J(4)(c).
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–5LA, 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (the ‘complementary protection criterion’).[10]
[10]Migration Act 1958 (Cth) s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]–[5] (Kiefel CJ, Nettle, Gordon JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[11]
[11]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A).[12] A person will suffer significant harm if they will:
(a)be arbitrarily deprived of their life;
(b)have the death penalty carried out on them;
(c)be subjected to torture;
(d)be subjected to cruel or inhuman treatment or punishment; or
(e)be subjected to degrading treatment or punishment.
[12]Migration Act 1958 (Cth), s 5(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are defined in s 5(1) of the Act. Those definitions are set out in full in the attachment to this decision. Sections 36(2A)(d) and (e) deal with significant harm comprised of "cruel or inhuman treatment or punishment" or "degrading treatment or punishment". In that regard "cruel or inhuman treatment or punishment" means:
(a)an act or omission by which, among other things, "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".
The remaining type of significant harm, "degrading treatment or punishment", means "an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable".
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.[13] These arise where:
(a)it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
(b)the applicant could obtain, from an authority of the country, protection such that there would not be a real risk[14] that the applicant 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 applicant personally.
[13]Migration Act 1958 (Cth), s 36(2B).
[14]The level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (Lander, Jessup and Gordon JJ).
The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[15]
[15]BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 at [32]; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J); MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478.
Section 36(2B)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.

Mandatory considerations

I must take account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[16]
[16]See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs. There is no DFAT Country Information Report in respect of Timor-Leste.[17]
[17]See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.

ANALYSIS, FINDINGS AND REASONS

The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a), or, alternatively, the complementary protection criterion contained in s 36(2)(aa) of the Act.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[18] The Tribunal does not have any responsibility or obligation to specify, or assist an applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, their claims.
[18]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
When assessing the claims made by an applicant, I am not required to uncritically accept any or all of the allegations made by an applicant.[19] I do not need rebutting evidence before I can find that a particular factual assertion is not made out.[20]
[19]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[20]CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).

CREDIBILITY

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant’s credibility. This is such a case.
Assessment of credibility is an inherently difficult task.[21] The assessment of the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.[22] Inconsistencies in an applicant’s account may or may not be significant.[23] I must assess the significance of any inconsistency found to exist, the weight to be given to it, and carefully consider whether there is an acceptable explanation for the inconsistency such that it should attract little if any weight.[24]
[21]See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
[22]See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).
[23]ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[24]AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [28] (Kenny, Griffiths and Mortimer JJ); approved in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 at [180] (Murphy, Mortimer and O’Callaghan JJ).
I must be cautious when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution.[25] I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.[26] I am not required to uncritically accept any or all of the allegations made by an applicant.[27] Any assessment of credibility I make must be legally reasonable.[28]
[25]See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[26]Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
[27]SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[28]BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] (Rangiah, Perry and Bromwich JJ); see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 (Flick J).
An applicant's delay in applying for a protection visa can support adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[29] A delay of three months has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[30] However, delay cannot, of itself, be determinative of credibility or the question of whether the applicant has a well-founded fear of harm.[31]
[29]Kavun v Minister for Immigration & Multicultural Affairs [2000] FCA 370 at [22] (Emmett J); Zhang v Refugee Review Tribunal & Anor [1997] FCA 423 (Goldberg J); SZJYM v Minister for Immigration and Citizenship [2008] FMCA 652 at [82] (Barnes J).
[30]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
[31]SZJYM v Minister for Immigration and Citizenship [2008] FMCA 652 at [82] (Barnes J).

PROTECTION CLAIMS ADVANCED AT THE HEARING

The applicant advanced two bases upon which he claimed protection before the Tribunal, albeit those claims overlapped. The applicant's claims and evidence before the Tribunal can be summarised as follows.
The applicant claims to fear harm from opponents to a family land dispute. He claims that the dispute originated in or around 2009 or 2010 and that despite his family having been successful in a Court determination that the opponents continued to harass and cause trouble for the applicant and his family. The applicant also claimed that some of the opponents in that land dispute are members of two competing martial arts clubs.
The applicant further claims that to ensure that he was protected from those groups and in response to the land dispute, he felt compelled to join a rival martial arts group and did so.
The applicant claimed that after he came to Australia someone came looking for him but could not find him. He applicant claimed that his older brother was found and wrongly identified as him. He claims that his brother was attacked and beaten with a steel pipe by these people. The applicant claimed the reason for the attack was the land dispute.
The land that is in dispute is approximately 6000m². The applicant referred to the land as their 'plantation'. The applicant has provided the following diagram to illustrate the dispute. That diagram appears as Attachment B to these reasons.
The applicant claims that the land belongs to his maternal family line and has been passed down to his mother, and now him and his siblings. The opponents in the land dispute live nearby, in a home "in front" of the land. That area is marked as "C" in the attachment.
The applicant claimed that the opponents in the land dispute originally claimed the land starting from 'around 2009 or 2010'. He claims that the land has been in dispute ever since. The applicant claims that he "stood up" to the possession of the land by the opponents which has resulted in him being targeted.
The documents provided by the applicant to the Tribunal following the hearing appear to support the proposition that there was a land dispute in or around 2009 and 2010. However, no documents have been provided to indicate that the dispute has continued for over a decade since then.
The applicant claims that the opponents have been reported to local police, but that nothing has happened. The applicant claims that they continued to carry out physical assaults and make threats.
The applicant claimed that the dispute was dealt with by the [specified] District Court in 2021. He claimed that they attended that court on 2 or 3 occasions. The applicant claims that the Court determined that the land belonged to his family, but that the opponents did not respect that decision. He claimed that they continued to assert an entitlement to the land and continued to engage in assaults, threatening and aggressive behaviour.
The applicant claimed that the opponents 'wanted to get rid of the three of us brothers'. The overall impression I got from the applicant's evidence is that things escalated in the couple of years prior to the applicant's departure from Timor-Leste.
The applicant claims that following the Court decision, they went to the Police which resulted in the opponents disappearing for 2 or 3 months before returning and recommencing their previous behaviour.
The applicant claims that the opponents made accusations and spread rumours about the applicant and his family. The applicant specifically referred to a rumour that the applicant and his family were a "militia" and that they occupied the land because his father was previously a member of the Indonesian forces.
Other than the assault of his brother, the applicant did not give evidence of any other harm that had been suffered since he arrived in Australia.
The applicant claimed that the opponents are "involved" with two martial arts groups, [Group 1] and [Group 2]. The applicant claimed that to be safe from the opponents and the members of the martial arts groups, he joined a competing group, [Group 3] which the applicant claimed is sometimes known as [Group 3 Alias].
The applicant claims that his brother was assaulted because of the land dispute in either January or March 2023, before the applicant came to Australia. The applicant claims that he did not know about the assault until after he came to Australia.

Delay in applying for protection

The applicant arrived in Australia in April 2023. He applied for a protection visa in October 2023. When I sought to explore the reasons why the applicant did not apply for a protection visa earlier, he gave evidence about having been on a 9-month contract. I considered that response evasive. The applicant applied for the visa after 6-months, so it was not clear why that evidence was relevant to that question.
The applicant has been able to satisfactorily explain his delay in applying for protection. On his evidence, the land dispute was well established and was punctuated by harassment and even physical assaults with one leading to the death of his brother.
The applicant's brother passed away [in] June 2023. In the lead up to his death, on the applicant's own case, his brother disclosed having been assaulted because he was mistaken for the applicant.
I suggested to the applicant that he could have applied for a protection visa in June. The applicant sought to avoid that question before eventually claiming that he did not know that he could apply and that the friend who was helping him did not explain the process to him very well.
Even if I assume, favourably for the applicant, that his brother did disclose his assault in the manner that was claimed and shortly prior to his death and that it was, until that time, reasonable for the applicant not to have applied for a protection visa, the applicant still waited around a further 4 months to apply. I am not satisfied that delay can be explained, adequately or at all, by a lack of understanding.
I further observe that the applicant did not take any steps to attempt to advise the Tribunal of the actual claims for protection made by him. He did not raise those claims until he appeared at the hearing, despite the letter inviting him to comment on issues related to his protection visa application.

Protection visa application

The applicant's evidence was that he had not completed his protection visa application himself. He claims that he paid a man, whom he could only identify as "[Mr B]", $300 to complete the application for him. The applicant's evidence was that he gave [Mr B] his passport, ID card, ATM card and a photograph for this purpose.
The applicant claims that the email address used in connection with the protection visa application, which is also the email address given to the Tribunal in connection with the review application, was his email address. His evidence was that he created it whilst he was in Timor-Leste.
The applicant agreed that he had created an account using that email when he applied for his [temporary] visa. He denied having given [Mr B] the password to his account. I asked the applicant how, in those circumstances, [Mr B] was able to lodge his protection visa application without the applicant's involvement and he claimed that he 'did not know for sure'.
In circumstances where the applicant's evidence was that the claims in the protection visa application were not provided to [Mr B] by him, I asked the applicant whether I should ignore the claims about why he cannot return to Timor-Leste that are contained in his protection visa application. Somewhat surprisingly, the applicant did not – at least initially – agree with this proposition and appeared apprehensive about doing so. Before eventually agreeing to the proposition.
I explored with the applicant the circumstances which lead to him discovering the content of his protection visa application. He claims that he first found out before Christmas 2023 when he finally managed to obtain it from [Mr B]. The only actions the applicant took to ascertain the content of his protection visa application was, however, attempting to contact [Mr B]. I was left with a clear impression that the applicant was somewhat blasé about the process of applying for a protection visa and, indeed, the process of seeking review in the Tribunal as I will come to.
I was also concerned about what appeared to be an apparent lack of concern on the applicant's part to ensure that his actual and genuine protection claims were presented to the Department.
I further asked the applicant why he had not responded to the s 424A letter and told the Tribunal that the claims in the Application were not his claims but had been included for him by someone else. The applicant claimed that he did not understand the s 424A letter. When I asked the applicant what he did to attempt to understand the letter, the applicant gave a lengthy answer about having watched a YouTube video about how to send an email.
I repeated the question and eventually, after a very long pause, the applicant claimed that he tried to understand using google translate. When I asked the applicant what he understood the letter to mean, his answer suggested to me that he was referring to the hearing invitation. When I clarified that I was referring to the s 424A letter, that raised concerns about his protection visa application, the applicant's evidence was that he talked with a friend about the letter.
Overall, I considered that the applicant's evidence about his protection visa application and, indeed, his interactions with the Tribunal was evasive. He was reluctant to offer much detail in any narrative form about [Mr B] or about the circumstances which lead to his application for a protection visa. Those details had to, in effect, be cross-examined out of him. That was somewhat surprising in circumstances where, on the applicant's evidence, [Mr B] had charged him $300 and done nothing of substance to advance the applicant's actual claims for protection.
I do not accept that the applicant's failure to respond to the s 424A letter was caused by a lack of understanding on the applicant's part. Any lack of understanding was caused by the applicant taking insufficient steps to understand the nature and content of correspondence from the Tribunal.
In circumstances where the applicant is claiming to face serious harm, including potentially death, if he was returned to Timor-Leste the applicant's attitude and lack of motivation to ensure that he could understand and engage with important communications from the Tribunal reflects poorly on him.
I do not accept any of the claims for protection contained in the applicant's protection visa application are truthful. I do not attribute the lack of truth in those claims, however, to the applicant. I am satisfied that [Mr B] has fabricated those claims.
I do not accept that the applicant did not provide the password to his immigration account to [Mr B] for the purposes of lodging the protection visa. The applicant was not able to explain at all how, without that password, [Mr B] would have been able to lodge his protection visa application using an account registered to an email created by the applicant in Timor-Leste which he had previously used to apply for the visa that he originally travelled to Australia on.
Logically, it appears to me that there are two possible explanations for how the applicant's protection visa application came to be lodged:
(a)first, contrary to his evidence, the applicant did give [Mr B] the password to his account so that he could lodge the protection visa; or
(b)second, [Mr B] provided the answers to the questions to the applicant, who then lodged the protection visa application using the answers provided by [Mr B];
Regardless of which explanation is accurate, they both undermine the credibility and reliability of the applicant's evidence because the first is inconsistent with the applicant's evidence about what occurred and the second is inconsistent with the applicant's evidence that he had no knowledge of the content of the protection visa application. Either conclusion undermines the credibility of the applicant's claims.

Lack of witnesses and documents

I raised with the applicant at the hearing that he had not sought the Tribunal to obtain any evidence from any witnesses. He could have sought that the Tribunal obtain evidence from his wife, brother, sisters and his mother. I sought to understand why the applicant had not requested the Tribunal obtain evidence from witnesses. The applicant avoided that question, instead claiming that he has photos of his older brother who passed away and google maps that show his address and the house of the opponents.
I am further concerned about the lack of any evidence from the applicant's mother, his wife or his siblings about what has occurred in Timor-Leste. Despite being given the opportunity to explain, the applicant could not, or perhaps would not, explain why he had not sought that the Tribunal obtain evidence from those witnesses.
At the hearing, I raised the lack of any documentary evidence to support his claims. I pointed out, in particular, the lack of court documents, police reports or documents relating to the death of his brother.
Following the hearing the applicant provided additional documents. Some of those documents appear to be from the [specified] District Court. Those documents, however, appear to relate to the period between 2009 and 2010. They do not, on their face, support the proposition that, as the applicant claims, the dispute over the land continued after 2010 and was adjudicated upon by the District Court in [City 1] in 2021.
Had the dispute continued for more than a decade as the applicant claimed I would have expected the applicant to be able to produce documentary evidence of that over a much longer period. Indeed, I find it quite surprising that whilst the applicant has been able to provide some court documents, he has not been able to provide copies of any orders made by the [specified] District Court, any reasons for decision of that court, or any document relevant to the final determination of the dispute over the land.
I further observed that no documentary evidence in relation to the death of the applicant's brother has been provided. The applicant has not sought additional time to provide any such material.

Overall observations on credibility

The applicant's evidence was, as a whole, generalised and lacking in detail. The applicant was not able to present his claimed experiences in Timor-Leste as part of a coherent narrative. Further, the applicant avoided answering direct questions which sought more detailed evidence. When pressed to answer such a question, the answers given appeared implausible.
For example, the applicant claims that his brother was assaulted and died as a result of that assault. He claims that happened in "January or March 2023". The applicant claimed that his brother "did not speak up" before the applicant came to Australia.
When I sought to understand how the applicant became aware that it was a case of mistaken identity, the applicant's evidence was that "he told my mother and my wife but people have beaten him, struck him in the head, struck him in the kidneys and on his back with a piece of steel and when he was about to die about one week before he just spoke up about it".
When it was observed that answer did not address the question of how the applicant came to know it was a case of mistaken identity, the applicant claimed to have had a direct conversation with his brother, whilst he was in Australia, where his brother told him that they had mentioned his name during the assault.
I put to the applicant that I had some difficulty accepting that if the applicant's brother was beaten in a case of mistaken identity, that he would not tell the applicant so that the applicant could protect himself. The applicant's response was to claim that he rarely spoke to his older brother. I do not consider that is plausible.
I am also troubled by the applicant's evidence about his willingness to return home to Timor-Leste. His evidence was that following being told his brother was assaulted in a case of mistaken identity, he asked "the company" (i.e. his employer) if he could return to Timor-Leste. The applicant claims that it was his brother that persuaded him not to return to Timor-Leste. The applicant later changed and contradicted his earlier evidence, claiming that he did not actually ask his employer if he could return to Timor-Leste.

Credibility conclusions

I am left with serious doubt about the credibility and reliability of the applicant as a witness. I consider that he has embellished his claims for the purposes of claiming protection. I approach his evidence with very considerable caution.

Country of nationality

The applicant claimed to be a national of Timor-Leste. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that Timor-Leste is the applicant’s country of nationality and the receiving country.

Applicant's personal background

The applicant was born in [year]. He identifies as being of Timorese ethnicity and a Catholic. He attended primary and secondary school, completing secondary school in 2016. The applicant's mother lives in Timor-Leste. His father has passed away as has his older brother.
The applicant is married with two children. Those children are [age] and [age] years old. Those children live in Timor-Leste with your wife. He was married in 2019. His wife presently lives with his mother in the home in Timor-Leste. He agreed that if returned to Timor-Leste that he would live there.
He has one older brother and [number] older sisters. One of those brothers died last year, the applicant claims that he was attacked and killed about a month after he arrived in Australia. When pressed for more specificity on the date, the applicant looked through his telephone and determined that he was killed [in] June 2023.
After completed secondary school, the applicant worked as [Occupation 1] for a [specified] company. He provided [specified services] for Australian diplomats for two-years. He would be rostered on for either a morning shift or evening. A morning shift would usually start at 7.15am. An evening shift would usually start at 7:15pm. Shifts would be for around 12 hours. He would be rostered to work either 5 or 6 days per week. He stopped working as a [Occupation 1] in 2020. The applicant claims that during the COVID19 pandemic he didn't go to work for 3 days and lost his job as a result.
The applicant claims that he did not work following losing this job. He claims that he assisted a person build a house and then came to Australia. He claims that he supported himself during this period on ad-hoc payments from the person that he assisted to build a house. The payments would be $50, $60 or $70. Those payments would be made sometimes once a month, sometimes more than once per month.
After the applicant came to Australia, he obtained employment picking fruit and conducting general maintenance. He did this for 9 months. He stopped working for that company because he did not consider the salary was good enough, so he decided to leave.
Following this, he worked for a company called [Company 1]. That company was another fruit company. The applicant was picking fruit for that company.
The applicant then moved to Perth, following which he sought information about obtaining a [temporary] visa, however that visa was not suitable for the work that he was interested in. The applicant obtained employment with a [Occupation 2], [undertaking specified work tasks].

Does the applicant have a well-founded fear on the basis of having borrowed money which he is unable to repay?

I have already found that this claim was fabricated by '[Mr B]'. I am not satisfied that there is a real chance that the applicant would face serious harm on this basis or that there is a real risk that the applicant would face significant harm on this basis. The applicant does not satisfy the criterion in either s 36(2)(a) or (aa) on the basis of his claims to have borrowed money which he is unable to repay.

Does the applicant have a well-founded fear of persecution on the basis of the economic circumstances and conditions in Timor-Leste?

Country information indicates that poverty remains a problem for the population of Timor-Leste.[32] Nearly half the population is classified as poor. Timor-Leste is one of the poorest countries in the Asia-Pacific region.
[32]See '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', Bertelsmann Stiftung, 23 February 2022, 20220310150555; The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021, 20220516084348; United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 30 September 2020, 20220902124342.
At the hearing, the applicant did not make any claim to fear harm on the basis of the economic circumstances and conditions in Timor-Leste. This claim arises from the protection visa application. I have already found that the claims contained in the protection visa application were fabricated by [Mr B]. That alone is likely a sufficient basis to dispose of this claim. However, I further observe that the applicant has previously been able to obtain employment in Timor-Leste and would be returning to Timor-Leste with the additional skills and work history that he has obtained in Australia.
In the circumstances, I am not satisfied that there is a real chance that the applicant would face a real chance of serious harm from the economic circumstances and conditions that he would experience when he returns to Timor-Leste.
Additionally, the economic circumstances and conditions in Timor-Leste would not:
(a)apply to the applicant for the essential and significant reason of one of the grounds in s 5J(1)(a) of the Act; or
(b)involve systematic and discriminatory conduct.

Does the applicant have a well-founded fear on the basis of the land dispute and/or his fear of rival martial arts groups either individually or cumulatively?

I am dealing with these claims together because the way they were expressed by the applicant was that they interrelate and overlap. That is, on the applicant's case his membership of a rival martial arts group was brought about, substantially if not entirely, on account of land dispute and his fear of those rival groups because of their involvement in the land dispute.

Country information

Country information indicates that there are a large number of disputes over land in Timor-Leste[33] and stem from its history of colonisation, invasion and occupation.[34] The widespread displacement of population and destruction of land records compounded the issue.[35] It is not possible to estimate the total number of land disputes in rural Timor-Leste.[36]
[33]'Making Land Work, Volume Two, Case Studies', Chapter 9, 'Mediating land conflict in East Timor', pg 184 (accessible at Land Work, Volume Two, Case Studies', Chapter 9, 'Mediating land conflict in East Timor', pg 179 (accessible at Land Work, Volume Two, Case Studies', Chapter 9, 'Mediating land conflict in East Timor', pg 179-180 (accessible at Land Work, Volume Two, Case Studies', Chapter 9, 'Mediating land conflict in East Timor', pg 181 (accessible at >
Country information indicates that membership of martial arts and ritual arts groups is illegal in Timor-Leste.[37] Law No.16/2013 outlawed numerous high-profile MRAGs including [Group 2] (who the applicant claims the opponents are involved with) and [Group 3] (who is the group that the applicant claims to belong to).[38] However, country information indicates that both groups remained active following the passing of this law.[39] In mid-2022, the government legalised [Group 2] and [Group 3] (and one other) group.[40] The other group referred to by the applicant, [Group 1], is the other largest group.[41]
[37]'Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy ’, Fundasaun Mahein, 27 September 2022, 20230222133207.
[38]‘Dynamics of martial arts related conflict and violence in Timor-Leste’, Belun, May 2014, p.10, 20201216153452.
[39]‘An Oath for Members of the F-FDTL and PNTL: End or Calm the Martial Arts Groups’, Fundasaun Mahein, 30 January 2015, 20230222135301.
[40]‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, Fundasaun Mahein, 27 September 2022, 20230222133207; 'Politicisation of Martial and Ritual Arts Groups: Implications for National Security, Peacebuilding and Development', Fundasaun Mahein, 11 July 2023 pg 8.
[41]'Politicisation of Martial and Ritual Arts Groups: Implications for National Security, Peacebuilding and Development', Fundasaun Mahein, 11 July 2023 pg 8.
I note that martial arts and ritual arts groups in Timor-Leste have a long history of, among other things, violence, particularly as between competing groups.[42] That is historically why those groups have been banned. However, recent country information suggests that the role of these groups in Timor-Leste is more complex than that; reporting that "these groups play a complex – and contested – social and political role, which cannot easily be reduced to violence and instability"[43] and that they are "complex social institutions which both reflect and perpetuate historical experiences and widespread social practices".[44]
[42]See generally 'Conflict Resolution on Martial Arts Organization Through Collaborative Governance: A Case Study in Timor Leste', (Manuel Ximenes, Sudarmo, Kirstina Setyowati), Advances in Social Secience, Education and Hummanites Research, volume 581.
[43]'Politicisation of Martial and Ritual Arts Groups: Implications for National Security, Peacebuilding and Development', Fundasaun Mahein, 11 July 2023 pg 10.
[44]'Politicisation of Martial and Ritual Arts Groups: Implications for National Security, Peacebuilding and Development', Fundasaun Mahein, 11 July 2023 pg 12.
Timor-Leste law criminalises conduct involving the infliction of harm and extortion of others.[45] Yet, in the Asia Foundation’s nationwide ‘Timor-Leste Safety, Security and Justice Perceptions Survey 2022’, it was reported that:
Most respondents who experienced crimes or disputes do not retaliate, but only just over half seek assistance. Overwhelmingly, general public respondents see community leaders as the most appropriate initial avenue for reporting a crime/dispute. However, they take different matters to different types of leaders, and the degree to which they perceive a role for the PNTL varies according to the nature of the issue at hand. Of those who experienced a crime/dispute and sought assistance, 43% first responded to an Aldeia Chief, followed by the PNTL (19%), a lian-na’in (10%) or Suco Chief (8%). Those who seek assistance typically have their issues resolved by the first person they report to and feel that they were fairly treated.
Community leaders report good relationships with the PNTL and see them as most appropriate initial mechanism to report crimes and disputes. Proximity plays the most decisive role in determining from whom people seek assistance.[46]

Consideration

[45]See 'Introduction to the Laws of Timor-Leste', USAID, The Asia Foundation and the Timor-Leste Education Projection (Stanford Law School), pg 35; see also Law No.19/2009, Penal Code of the Democratic Republic of Timor-Leste, Articles 138 – 161.

[46]‘Timor-Leste Safety, Security, and Justice Perceptions Survey, 2022. Summary Findings’, McLeod A & Denney L, The Asia Foundation, p 6.

The applicant's claims are dependent upon on the applicant's evidence being accepted as being credible and reliable. I considered that the applicant was an evasive witness who was reluctant to provide detail unless and until pressed. I have significant concerns about the applicant's credibility and reliability which I have already referred to.
I am satisfied that the applicant's mother has been involved in a land dispute in Timor-Leste in and around 2009 or 2010. Such a conclusion is consistent with the documents provided by the applicant following the hearing but also credible country information about land disputes not being uncommon.
I do not, however, accept that it remained ongoing. Had that been the case, I would have expected the applicant to have been in a position to provide further documents in relation to as opposed to only documents which are more than a decade old. I also do not accept that the applicant joined a martial arts group, essentially for a level of protection, because the opponents to the land dispute were involved in a martial arts group.
I am prepared to accept that the applicant's brother has passed away. However, I am not satisfied that the applicant's brother died because of an assault or that he was assaulted either because of the land dispute or because he was mistaken for the applicant. I do not consider that the photographs provided by the applicant are evidence that his brother was assaulted. The photographs may indicate that he was hospitalised at some stage and subsequently died. However, they do not demonstrate any link between the death of the applicant's brother and the land dispute.
I am not satisfied that:
(a)the land dispute was determined by the [specified] District Court in 2021 as claimed;
(b)the land dispute remains active or ongoing;
(c)the applicant faces any harm, let alone a real chance of serious harm, because of the land dispute;
(d)the applicant's older brother was assaulted, either because he was mistaken for the applicant or because of the land dispute;
(e)the applicant's older brother died because of any assault;
(f)the applicant is, or was, a member of [Group 3] or any other martial arts group or would be imputed as being such a member.
In the circumstances, I am not satisfied that the applicant faces a real chance of serious harm if he was to return to Timor-Leste because of the land dispute, involvement or perceived involvement with a martial arts group or for any other reason.

Does the applicant have a well-founded fear of persecution on the basis of being a failed asylum seeker?

The applicant's protection visa application claims that the applicant's travel documents are not valid for return to Timor-Leste because he has applied for protection in Australia.
The applicant did not make any such claim at the hearing. I need not repeat my findings in respect of [Mr B].
In any event, I note that the applicant's protection visa application indicates that his passport is valid [to] 2024. Further, I have no credible information available to me that:
(a)the Timor-Leste government is aware that the applicant has applied for protection; or
(b)that the Timor-Leste government cancels passports or travel documents for persons who have sought protection in Australia.
I do not accept that the applicant would be returning to Timor-Leste without valid travel documents or that there is a real chance that he would face serious harm on that basis.
Whilst not raised by the applicant, I have also considered whether the applicant would be entitled to protection as a failed asylum seeker. In that regard, it is not clear why the applicant would be identified as a failed asylum seeker.
The applicant arrived 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 9 months and 4 years. 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 on his return.
In any event, I have not found any credible country information that supports the proposition that Timor-Leste persecutes failed asylum seekers. Therefore, even if the applicant were to self-identify as a failed asylum seeker on return, I am not satisfied that he would face a real chance of serious harm in Timor-Leste on that basis.

DOES THE APPLICANT MEET THE REFUGEE CRITERION?

I have also considered the above claims cumulatively. To the extent that I accept the underlying factual basis of the above claims, I do not consider that there is a feature of any of the above claims that, when considered cumulatively with one or more or all the other claims would lead me to conclude that the applicant has a well-founded fear of persecution within the meaning of s 5J.
For the above reasons, I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act for any reason. In those circumstances, it is not necessary for me to determine whether s 5J(2) or (3) apply to the applicant.[47]
[47]ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [24]–[25] (Rangiah J)

The applicant does not meet the refugee criterion for protection

For the reasons set out above, I am not satisfied that the applicant is a refugee within the meaning of s 5H(1) the Act. The applicant does not meet the criterion in s 36(2)(a) of the Act.

DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

Having determined that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered the alternative criterion in s 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, there is a real risk that they will suffer significant harm.[48]
[48]Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

The applicant does not meet the complementary protection criterion

I have not accepted that there is a real chance that the applicant will face serious harm in Timor-Leste now, or in the reasonably foreseeable future for any reason.
In circumstances where the real risk test is the same as the real chance test and for the reasons that I have set out above, I conclude that there are not 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 will suffer significant harm.
The applicant does not meet the complementary protection criterion in s 36(2)(aa) of the Act.

CONCLUSION

The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

The decision not to grant the applicant a protection visa is affirmed.
Fraser Robertson
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

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

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.
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.
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.

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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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

ATTACHMENT B – DIAGRAM

[Annotated map redacted]

[2024] AATA 1564

7 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction