2319182 (Refugee)

2319182 (Refugee) [2024] AATA 1400 (24 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2319182
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:Wayne Pennell
DATE:24 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 January 2024 at 7:32pm
CATCHWORDS
REFUGEE – Protection Visa – Timor-Leste – being in debt and not being able to repay the money – economic reasons – applicant has the family responsibility to financially support the other members of her family – fear of persecution is not well-founded – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 438, 499
Migration Regulations 1994, Schedule 2
CASES
BEG15 v MIBP [2019] HCA 3
MIAC v SZQRB [2013] FCAFC 33
SZTGM v MIBP (2017) 262 CLR 362
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 16 November 2023.
The applicant, who claims to be a citizen of Timor-Leste, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[3] and therefore she was not a person in respect of whom Australia has protection obligations.[4]
[2]The applicant’s application was received by the Department of Home Affairs on 10 October 2023.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision (‘review application’).[5] At a subsequent time, the Tribunal dispatched an email to her enclosing a letter advising that it had considered all the material relating to her application but was unable to make a favourable decision on that information alone. The letter also invited her to attend an in-person review hearing scheduled for 19 January 2024.
[5]The applicant’s review application was filed with the Tribunal on 24 November 2023.
The applicant accepted the invitation and attended the scheduled hearing. She was not represented throughout the review process and the review hearing was undertaken with the assistance of an interpreter in both the English and Tetum languages.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[6]Migration Act 1958 (Cth), s 36.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
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.[9] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[11]
[11]Migration Act 1958 (Cth), s 5J(1).
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 the Act, which are extracted in the attachment to this decision.[12]
[12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[13] that person 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’).[14]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]
[16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]
[17]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Timor-Leste and she provided to the Department a copy of her passport to authenticate this claim.[18] The Tribunal accepts the applicant’s identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Timor-Leste is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[19]
[18]applicant’s passport was issued in Timor-Leste on 9 March 2022.
[19]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[20]
[20]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[21] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S BACKGROUND AND CLAIMS
[21]Migration Act 1958 (Cth), s 499.
Background and events leading up to the review hearing
The applicant was granted a Temporary Work (International Relations) (subclass 403)visa on 28 August 2022 which expired on 8 May 2023. Subject to the conditions of that visa, she arrived in Australia on [date] August 2022 and stayed for almost four months before departing on [date] December 2022.
On 8 May 2023, which was the same day her initial work visa was due to expire, she was again granted another work visa (‘second work visa’). This visa was a three year visa and was due to expire on 12 May 2026. Subject to the conditions of that second work visa, she arrived in Australia on [date] May 2023.
After being in Australia for approximately five months, the applicant lodged an application for a protection visa with the Department on 10 October 2023. In making that application, she claimed that she travelled to Australia to work within the Pacific Australia Labour Mobility (PALM) scheme. The PALM scheme allows eligible Australian businesses to recruit workers from nine Pacific islands and Timor-Leste when there are not enough local workers available. The recruitment of workers can be for short-term jobs for up to nine months or long-term roles for between one and four years in unskilled, low-skilled and semi-skilled positions. The PALM scheme helps to fill labour gaps in rural and regional Australia and nationally for agriculture and select agriculture-related food product manufacturing sectors by offering employers access to a pool of reliable, productive workers. It also allows Pacific and Timor-Leste workers to take up jobs in Australia, develop their skills and send income home.[22]
[22]Pacific Australia Labour Mobility (PALM), accessed 22 January 2024.
The applicant claimed that prior to travelling to Australia, she borrowed what she described as ‘a lot of money’ from neighbours and acquaintances in Timor-Leste and is now unable to repay the debts. Prior to appearing at the review hearing, she has never provided any information or evidence to the Department or the Tribunal about how much money she borrowed.
She also claims that she has been beaten as a result of being in debt and not being able to repay the money she owes in Timor-Leste, and she has been threatened with further harm by those people she owes money to. She had not sought help from the authorities when she was in Timor-Leste and claims that she cannot relocate within Timor-Leste as she has nowhere else to go, and relocating elsewhere will make her problems worse.
The applicant went on to claim in her application that if she returned to Timor-Leste, she would experience harm including threats and revenge by those people she owes money to because her debts have not been repaid. She also claimed that she may be beaten as a result. She does not think the authorities in Timor-Leste will protect her as she believes there is nothing the authorities can do.
The Tribunal notes that the applicant has been given the opportunity by both the Department and the Tribunal to provide all of the details of her protection claims. Within her application, it is outlined that she should provide particulars and information regarding all of her claims for protection, as well as all documentation or other evidence to support her claims.
After receiving her application, the Department wrote to her on 19 October 2023 and acknowledged receiving her application (‘acknowledgement letter’). In that acknowledgment letter she was advised that she could provide additional information relating to her claims, and it was explained to her how she could do that. She did not provide any additional material or evidence to the Department.
Subsequently, on 16 November 2023 the delegate refused the applicant’s decision. On 24 November 2023, she lodged with the Tribunal an application to review the delegate’s decision (‘review application’). In acknowledging the receipt of the review application, the Tribunal wrote to the applicant on 29 November 2023 and advised her that if she wished to provide material or written arguments for the Tribunal’s consideration, she should do that as soon as possible. She has never provided the Tribunal with any material, information or evidence to support her claims.
On 2 January 2024, the Tribunal dispatched to the applicant an email enclosing an invitation for her to attend an in-person review hearing scheduled for 19 January 2024 (‘hearing invitation’). On 4 January 2024, the Tribunal received her response to that hearing invitation advising that she would attend the in-person hearing. She did not nominate that she would be relying upon any witnesses, and nor has she provided any material, information or evidence to support her case.
REVIEW HEARING
The applicant described that her elderly parents live in Timor-Leste, as do her [younger] [siblings]. Her two youngest siblings are still at school. She said that it is customary in Timor-Leste that because she is the oldest of the siblings, she is responsible for the financial support for the family.
When discussing her education, she said that she attained a [degree] from [a school]. She told the Tribunal that she has never been employed in Timor-Leste.
When asked about her application for a protection visa and why she came to the Tribunal, the applicant said that when she applied for a protection visa, she got assistance from a friend who typed the application for her. When asked if she was present when her application was typed, or if she had read the application, she said that she had never seen the application, nor does she know what was in the application so far as her claims. All she did was tell her friend that she had a problem and because she does not know the English language very well she relied upon her friend to do all of that.
When asked why she was seeking a protection visa, she told the Tribunal that if she went back to Timor-Leste, there would be no work for her. She went on to explain that she is the oldest of the siblings in her family and she has responsibility to financially assist her family and educate her siblings. She said that by returning back to Timor-Leste, she would not be able to sustain her younger siblings; her parents are quite old and they do not work either. This has been made worse when her father was injured in a motor-cycle accident. Another complication for her is the support and care of her own child. She said that her child was very young, and is only aged [age]. Her ex-partner, and father of their child, does not contribute to the care of her child because he (the applicant’s ex-partner) is now in another relationship.
The applicant’s first trip to Australia was under the conditions of a work visa. She stayed for about four months where she worked in the agriculture industry. She arrived for the second time in May 2023 and she worked for a company and she described it as labouring type work [on a] farm. The work was seasonal and the season was coming to an end when she made her application for a protection visa.
The applicant’s application discusses that she cannot return to Timor-Leste because she owes money and is in debt. When asked about that claim at the review hearing, the applicant said that on each occasion she applied to come to Australia for work as part of the PALM scheme she had to undergo a medical examination, and that examination cost money. She did not have any money so she borrowed the money from her auntie to pay for the examinations. Her auntie is her father’s sister. She said that she has borrowed USD750. She used some of the money to pay for the medical examinations, and she spent some money on repairs to her parents’ house.
She went on to say that there was an interest component attached to the loan at a rate 10 per cent per month. She told the Tribunal that she had been making the interest payments but she still owes the principal amount of USD750. When asked how often she was making the repayments, and to whom, she said that she made monthly repayments and sent the money to her mother. She then relied upon her mother to pay her auntie. Her last payment was in November 2023.
Notwithstanding her application suggesting that she had been harmed in Timor-Leste by being beaten, and it was claimed that if she returned to Timor-Leste she would be again beaten by the person she leant money to, the applicant told the Tribunal at the review hearing that she has not experienced harm in Timor-Leste, and nor has she a well-founded fear of being harmed by her auntie if she returned. Notwithstanding those concessions, her claims for protection at the review hearing were focused on economical reasons. She repeatedly told the Tribunal that if she was not allowed to stay in Australia, she would not be able to provide for her family in Timor-Leste. She explained that there was no employment in Timor-Leste and she was worried about how she would be able to pay for the education of her two youngest siblings who were still at school.
The Tribunal is satisfied (and so finds) that from her testimony at the review hearing, her explanation and claims for seeking a protection visa, and her explanation why she feared returning to Timor-Leste were because of economic reasons, and not because she had a well-founded fear of being harmed.
DELAY
The Tribunal notes that the applicant first travelled to Australia on a work visa on [date] August 2022 and stayed for almost four months before departing on [date] December 2022. She later returned to Australia on [date] May 2023 and had been in Australia for approximately five months before she lodged her application for a protection visa with the Department on 10 October 2023. The Tribunal finds that this period is a significant delay.
When the Tribunal is considering the significant delay of approximately five months between the applicant’s last arrival in Australia to when she made her application for a protection visa, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution. Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.
A significant delay is not behaviour indicative of someone who fears for their physical safety,[23] and the Tribunal particularly notes that the only explanation the applicant had for the delay in making her application was her evidence at the review hearing where she said that she lodged the application because the seasonal work under the PALM scheme had concluded, meaning that she would have to return to Timor-Leste.
[23] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

When carefully assessing all of the circumstances surrounding the delay in the applicant making her application, the Tribunal is satisfied that the noteworthy delay and the explanation she gave for making the application casts significant doubt on the genuineness of her claims that she has a well-founded fear of persecution if she were to return to Timor-Leste. Therefore, the Tribunal finds that the delay in lodging her protection visa application adds weight to the finding that the claims expressed in her application do not appear to reflect the reality of her circumstances.
COUNTRY INFORMATION
Under section 5J(2) of the Act, a person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Section 5LA(1) of the Act provides circumstances where effective protection measures are taken to be available to a person, including where the relevant state, or a party or organisation is willing and able to offer protection, and the protection is durable and accessible to the person. If protection is provided by the relevant state, the protection should consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
The applicant told the Tribunal that she was not harmed by anyone in Timor-Leste, including her auntie about the debt she owed, and nor does she think that she will be harmed if she returned. That evidence is inconsistent with the claims she made in her application where she claimed that because she had not repaid her debt, she was at risk of being harmed if she returned and the Timor-Leste authorities would not be able to protect her.
Available to the Tribunal is reliable and credible country information relating to the issues subject to the claims made by the applicant that she would be able to be protected in Timor-Leste. Notwithstanding that her claims at the review hearing differ to those which are expressed in her application, the nature of the claims in her application are focused on a suggestion that she fears harm from her neighbours and acquaintances in Timor-Leste because she borrowed money from those people and now she has an outstanding debt, which she cannot repay. She claims that because she cannot pay, those people she borrowed money from have harmed her and she has a well-founded fear that if she returned to Timor-Leste, she will be further harmed by them.
In the assessment of the applicant’s claims, the Tribunal has carefully considered the following country information and recognises that there are several sources of information which indicate that most of Timor-Leste’s population is unable to obtain loans from the formal banking sector and, with restricted access to finance, these people rely on the informal economy for subsistence by obtaining informal loans.[24] It is unknown how often those loans are obtained, and despite there being reports of forced labour of adults and children to repay debts, this was not considered to be widespread.[25]
[24]Country Partnership Framework for the Democratic Republic of Timor-Leste for the financial years of 2020 – 2024, World Bank Group, 27 November 2019, page 7 – 8; Mutual Evaluation Report on Timor-Leste, Asia Pacific Group (APG), 30 July 2012, page 25.
[25]United States of America Department of State 2022 Country Reports on Human Rights Practices for Timor-Leste, 20 March 2023, page 18, accessed 19 January 2024.
The country information provides that the law in Timor-Leste penalises unlawful commercial or financial activities, and also criminalises actions that involve inflicting harm against others for the purposes of intimidation, such as extortion and physical assault. Other than serious financial crimes, for example, incidents involving money laundering and terrorism financing, the Timor-Leste Penal Code does not provide for crimes related to informal lending practices. Notwithstanding that information, there are other laws within Timor-Leste which specify that administrative penalties apply to persons who provide loans without being qualified to do so, and this is a consideration that may subsequently lead to either criminal or civil penalties depending on the nature and severity of the offence.[26]
[26]National Parliament Law No.5/2011; Organic Law of the Central Bank of East Timor, BNCTL; available Timor-Leste Ministry of Justice official webpage, Regulations, accessed 19 January 2024.
The country information contained in the 2022 Country Report on Human Rights Practices for Timor-Leste provided by the United States of America Department of State provides that the Policia Nacional de Timor-Leste (PNTL) maintains domestic security, and the military is responsible for external security with some limited domestic security responsibilities. Timor-Leste law provides for the right to a fair, timely, and public trial, and an independent judiciary generally enforced this right, although trials were subject to long delays, however there is a perception that officials engage is corruption with widespread impunity.[27] In 2023, Freedom House provided a Country Report for Timor-Leste which outlines that police officers and soldiers are regularly accused of excessive force and abuse of power though it also states the public perception of the police has improved in recent years, and so too has the general feelings about security.[28]
[27]United States of America Department of State 2022 Country Reports on Human Rights Practices for Timor-Leste, 20 March 2023, accessed 19 January 2024.
[28]Freedom in the World 2023, Timor-Leste, Freedom House, accessed 19 January 2024.
The country information available to the Tribunal described that security, law enforcement and the military in Timor-Leste are continuing, with international assistance, to develop their capacity. It has been identified that there are ongoing challenges around high youth unemployment, community violence related to Martial Arts Groups and gender based violence, and crimes of opportunity are frequent because of the high poverty rates. Community policing strategies have been developed by the PNTL, and the police are slowly building its capabilities in the areas of criminal investigations, personnel/facility protection, and traffic control. The country information further provides that the police are reportedly slow to respond to calls for emergency assistance or initiate investigations into crimes against individuals.[29]
[29]Timor-Leste Country Security Report', Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, United States Department of State, 21 November 2022.
The Tribunal notes the applicant’s claims that she was reluctant to report to the police the harm she experienced in Timor-Leste from the people she owed money to. In a 2019 article by Tiago Rodrigues da Costa in the United State student magazine Ethos, he reported on comments made by the Timor-Leste’s Ombudsman for Human Rights and Justice where the Ombudsman said that Timor-Leste police officers have the obligation to accept cases coming from anyone, and if the officers do not take an immediate action, the Ombudsman will take action against the officers.[30]
[30]This is Me. Identities of Timor-Leste', Tiago Rodrigues da Costa, Ethos, 21 November 2019, accessed 19 January 2024.
In furtherance to that, it is reported in the 2023 report from the United States Department of State that the Ombudsman’s Office for Human Rights and Justice (‘PDHJ’) is responsible for the promotion of human rights and good governance and has its own budget and dedicated staff. It has the power to investigate and monitor human rights abuses and governance standards as well as make recommendations, including for prosecution, to relevant authorities. The PDHJ has satellite offices in Manufahi, Bobonaro, Oecusse, and Baucau municipalities and during the year the office received complaints and investigated 65 human rights violations allegedly committed by the military, police, teachers, or public servants.[31]
[31]United States of America Department of State 2022 Country Reports on Human Rights Practices for Timor-Leste, 20 March 2023, page 9, accessed 19 January 2024.
The country information available to the Tribunal also provides that countries including Australia and America have assisted Timor-Leste in developing its police force through funding and development programs aimed at improving rule of law, justice and the credibility of the police force.[32]
[32]Accountability Strengthening in the Timor-Leste National Police (PNTL)', United States Agency for International Development, 1 April 2019
When an overall balanced and careful assessment is undertaken of the country information, and that assessment is applied to the applicant’s claims, the Tribunal is satisfied (and so finds) that the Timor-Leste police and government authorities are well placed and capable of providing state protection to the applicant in respect to protecting her from being harmed by those people she claims she owes money to.
CONCLUSION AND REFUGEE FINDINGS
The definition of a refugee is provided within section 5H(1) of the Act and it explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect to whom Australia has protection obligations as defined in the Act.[33]
[33]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
Importantly, the Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[34] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[35]
[34]Migration Act 1958 (Cth), s 5AAA.
[35]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Although the applicant said that she borrowed USD750 from her auntie, her claims focus on economic reasons and she claimed that if she had to return to Timor-Leste she would have no employment and income. She said that because she is the eldest child, she has the family responsibility to financially support the other members of her family, including paying for the educational expenses of her younger siblings. She said that therefore without any work or salary in Timor-Leste, there would be no way to financially support herself, her child, her parents and her siblings. Nor could she repay her auntie the money that was loaned to her.
The Tribunal has to its disposal reliable and credible country information quoted above which shows that the Timor-Leste government and the government authorities are equipped with the ability to protect individuals from societal harassment and harm from those members of society involved in private loans. The Tribunal particularly notes that the applicant claims that the authorities in Timor-Leste cannot provide her with protection. The Tribunal has carefully assessed the country information and prefers that information over and above the uncorroborated information provided by the applicant.
Therefore, the Tribunal is satisfied (and so finds) that in general, a person within Timor-Leste is likely to be able to obtain effective state protection against people who engage in activities to recover monies owed, or effectively practices commonly known as loan sharking. When carefully considering the credible and reliable country information, the Tribunal finds that the authorities in Timor-Leste are willing and able to provide effective protection to persons within the jurisdiction.
A further complicating feature of the applicant’s application which hampers any credibility that her claims may have is the extraordinary delay between her arrival in Australia to when she made her application, which was approximately five months. The Tribunal finds that the delay casts significant doubt on the genuineness of her claims that she has a well-founded fear of persecution if she were to return to Timor-Leste, and finds that the delay in lodging her protection visa application adds weight to the finding that her claims do not appear to reflect the reality of her circumstances.
Having regard to, and carefully considering all the facts, features and circumstances as outlined above, the Tribunal finds that the applicant is not a person in respect to whom Australia has protection obligations as defined in the Act.[36]
[36]Migration Act 1958 (Cth), s 36(2).
Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has she satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to her.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[37] the Tribunal has considered the alternative criterion.[38] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Timor-Leste, there is a real risk that she will suffer significant harm as it is defined in the Act.[39]
[37]Migration Act 1958 (Cth), s 36(2)(a).
[38]Migration Act 1958 (Cth), s 36(2)(aa).
[39]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons she claims if she returned to Timor-Leste. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[40]
[40]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Timor-Leste now or in the reasonably foreseeable future she will be arbitrarily deprived of her life, the death penalty will be carried out on her, she will be subjected to torture or to cruel or inhuman treatment or punishment, nor will she be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Timor-Leste, she will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy any of the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1400

24 January 2024

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