2319204 (Refugee)

[2024] AATA 1253

2319204 (Refugee) [2024] AATA 1253 (29 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2319204

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Genevieve Hamilton

DATE:29 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 January 2024 at 1:48pm

CATCHWORDS
REFUGEE – protection visa – East Timor – economic hardship – employment opportunities – capacity to subsist – political conflict – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 October 2023. The delegate refused to grant the visa on 24 November 2023.

3. The applicant attended a hearing of the Tribunal on 29 January 2024.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).  

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe 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.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

16. In his protection visa application the applicant said he was born in Timor-Leste in [year], travels on a Timor-Leste passport and has a Timor-Leste national ID card, and formerly lived in Dili.  He said he arrived in Australia in February 2023.  He is ethnically Timorese and his religion is Catholic.  He said he finished High School in 2009 and until February 2023 he was working [in] the farming industry for [Employer 1]. 

17. The applicant said he wanted to leave Timor-Leste because there were no jobs and there were many political conflicts.  He wanted to help his family because they don’t have a job.  He said he did not experience harm.  Only in Australia can he change his life and his future.  If he returns to Timor-Leste his future will worsen. 

18. He did not think he would be harmed or mistreated.  The authorities (community leaders and police) can protect him. 

19. At the hearing the applicant said he lived close to Dili in his sister’s house which she inherited from their parents.  He lives with his sister, her husband and children.  His sister [works].  Her husband is unemployed.

20. The applicant claimed he never worked in Timor-Leste except for small jobs.  He would never take money from his sister.  The Tribunal put to the applicant that in his application he had said that he worked on a farm.  The applicant claimed this was a mistake.

21. Asked why he applied for protection the applicant said he could get work here.  In Timor-Leste it was almost impossible to get work.  Here he can have a future.  He really needs to live in Australia for his future.  The Tribunal asked the applicant if he was referring to his economic circumstances.  The applicant confirmed this.  The Tribunal asked him why he could not get work in Timor-Leste.  The applicant said only highly educated people can get work, and that only people in political parties can get work, but he does not have the ability for this. 

22. The Tribunal put to the applicant that his delay in applying for protection may indicate that he did not fear harm in Timor-Leste.  The applicant agreed with this.  He said when his six months was up he decided he could not go back to Timor-Leste because his life there is too hard.  His employer said people could return to Australia if they went back but he had not seen people return. 

23. The Tribunal said it was not aware of people only being able to get work in Timor-Leste if they were in a political party.  The applicant agreed but he said it was practically impossible to get a job.  His sister was able to get one because she was university educated. 

24. The applicant confirmed that he had never been harmed in Timor-Leste.

25. The Tribunal put to the applicant that any difficulties he was having with employment did not appear to be for a refugee reason nor was he being prevented from subsisting, nor was he at risk of the significant forms of harm in the complementary protection provisions.  The applicant maintained that he could not subsist and requested that he be able to stay in Australia. 

    FINDINGS AND REASONS

26. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Timor-Leste.

27. The applicant did not claim to fear harm for reasons of his race, religion, nationality, or membership of a particular social group. 

28. The applicant referred to political conflicts in his protection application, but he did not pursue a claim that he was at risk due to any active political involvement or allegiance.  Country information indicates that politics in Timor-Leste is disputatious, but it holds competitive, free and fair elections with universal suffrage.  (US State Department 2022 Country Reports on Human Rights Practices: Timor-Leste).

29. The applicant claimed that political patronage was necessary to get a job but there is no supporting evidence for this.  Political and other elite connections may help, but those without them are not positively discriminated against.   

30. Moreover, the Tribunal is satisfied that the applicant was working on a farm in Timor-Leste.  His protection application was quite specific in this regard and the Tribunal does not accept the contention that it was a mistake.  He is able to live with his sister and his subsistence is not threatened nor his access to basic services denied. 

31. The Tribunal is not satisfied the applicant faces a real chance of a threat to his life or liberty or significant physical harassment or ill treatment, or significant economic hardship that threatens his capacity to subsist, or denial of access to basic services or capacity to earn a livelihood threatening his capacity to subsist, due to his political opinion or for any other reason.

32. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm as defined in ss 5J(4) and (5) for any of the reasons specified in s 5J(1).  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

33. Regarding complementary protection, it is hard to get a formal job in Timor-Leste.  The Timor-Leste Labor Force Survey 2021 indicates that while nominal unemployment is around 5.1%, “The share of informal employment – defined in the LFS 2021 as comprising own-account workers, owner of informal sector enterprises, all contributing family workers, as well as employees without access to basic social security benefits or without both paid and sick leave benefits – is a key indicator of the quality of employment. In Timor-Leste, informal employment in 2021 accounted for 77.3 per cent of all employment”  (wcms_863063.pdf (ilo.org)).

34. The Tribunal therefore accepts that the applicant experiences economic hardship in Timor-Leste, but this not reach the level of harm envisaged by the complementary protection provisions.  The Tribunal is not satisfied that the applicant faces a real risk of significant harm as defined in s 36(2A), i.e. arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.

35. Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that the applicant will suffer significant harm on return to Timor-Leste warranting complementary protection. 

    CONCLUSION

36. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

37. 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.

38. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member