2319620 (Refugee)

2319620 (Refugee) [2024] AATA 1261 (1 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2319620
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:David James
DATE:1 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 February 2024 at 3:32pm
CATCHWORDS
REFUGEE – protection visa – East Timor – economic conditions – mistreated and underpaid by employer in Australia – new claim of debt in home country – borrowed to repair family home and fund children’s education – fear of ridicule and abuse, but not harm – no official action taken by lender – explanation for new claim accepted and no adverse inference drawn – breach of conditions of seasonal worker program visa – confused and stressed presentation at hearing – country information – limited police, independent judiciary and community leaders – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 411, 423A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559 at 596
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 December 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of the Democratic Republic of Timor-Leste (Timor), applied for the visa on 11 September 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 1 December 2023. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 1 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) 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. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 (the Department), 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Timor, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Timor, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application lodged on 11 September 2023;
·The applicant’s application for review of 1 December 2023 and the annexed decision record of 1 December 2023; and
·The administrative and movement records of the Department relating to the applicant.
Claims for protection
The applicant, in his protection visa application, stated that he had not been harmed in Timor-Leste. However, he made the following claims for protection (as summarised), that:
·He left his country due to the economic crisis and applied to work in Australia as a seasonal worker;
·Due to his mistreatment and underpayment from his employer, he left his work placement and applied for protection; and
·If he returns to Timor-Leste, he will be imprisoned.
The applicant also made the new claim (raised at the hearing) that:
·If he returns to Timor he will be unable to repay a US $8,000.00 loan and be subjected to verbal ridicule and abuse.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 1 October 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims that he will be imprisoned if he returns to Timor because he left the seasonal work program to be inconsistent with the DFAT country information which reported that arbitrary arrest and detention was prohibited and that the law in Timor requires equal treatment and remuneration for all workers. The delegate further found that the applicant would be able to seek adequate dispute resolution with police and the courts regarding his employment dispute. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act, because the applicant could obtain, from an authority, protection such that there would not be a real risk that they will suffer significant harm.
Invitation to attend a hearing
On 15 December 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 1 February 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 18 December 2023, the applicant emailed the Tribunal his completed ‘Response to hearing invitation’ form, in which he indicated that he would be attending in person at the scheduled review hearing, that there would be no other witnesses appearing, and that he would not be providing any further documents in support of his application.
Seasonal Worker Programme (SWP)
The Australian Government’s Seasonal Worker Programme’s ‘Working and Living in Australia Pre-Departure Guidebook’[1] provides at 1.2 that:
[1] ‘Working and Living in Australia Pre-Departure Guidebook for seasonal workers’, Australian Government, Seasonal Worker Programme – Seasonal Worker Programme contributes to the economic development of Pacific Island countries and Timor-Leste by providing work opportunities in the Australian agriculture and accommodation industries. The Seasonal Worker Programme offers seasonal labour to employers in the agricultural industry and employers in selected locations in the accommodation industry who can’t meet their seasonal labour needs with local job seekers. The Programme has been designed so that you have the opportunity to benefit financially from working here. However, you must work hard and manage your money carefully. You have the opportunity to earn more money in Australia than you do back home, but living in Australia is expensive. It is easy to spend the money that you make, so budgeting is important.
At 2.3 – What Happens if I break any of My Visa Conditions:
It is important that you do not break any of your visa conditions as the Australian Government takes breaches of visa conditions seriously. If you do:
• your visa may be cancelled
• you may be asked to leave from Australia
• you may not be allowed back into Australia for some time.
If you break any of your visa conditions, it will not only harm your chances of returning to Australia in the next season, but it may also affect other seasonal workers from your country. You will also lose the opportunity to provide income for you and your family.
At 2.5 – What if I want to stay in Australia permanently?
As a seasonal worker, you cannot apply for any other type of visa while in Australia. When you get back to your home country, you may be able to apply for other types of visas that might let you stay longer or you can apply again for the Seasonal Worker Programme next year. If you are a good worker, your employer may want you to come back the next season.
And at 5.12 – Problem Solving:
If you have a problem at work, first try to solve it by talking with your team leader or the approved employer that you’re placed with, or with your approved employer (the company that pays your wages). Your approved employer should be able to handle most problems, or refer you to someone who can. If you want to talk to someone else, you should let your approved employer know that you have tried to solve the problem at the workplace but that you are still concerned. If you think your employer is breaking the rules, for example, by not providing you with safe working conditions, you can call the Seasonal Worker Programme information line on (02) 6240 5234 to get someone to help. For workplace health and safety issues, the state or territory workplace health and safety authority can investigate. For issues with your pay, you can contact the Fair Work Ombudsman, or the Seasonal Worker Programme information line, which will connect you to Fair Work Ombudsman. If you are a union member, you can also talk to the relevant union. The local representative of your country’s government will also be able to help. You will be given these details when you arrive in Australia.[2]
[2] Ibid.
Country information
The United Nations, in their 2021 Socio-Economic Impact Assessment of COVID-19 in Timor-Leste, reported that 45.2 percent of the population’s working-age group were employed in the economy as of March 2021. However, the report also identified that the participation rate in the economy did not include those persons that were otherwise engaged in subsistence agricultural production. The report stated, that when those working in the subsistence agricultural sector were taken into consideration, the figure of employment was raised to 61.1 per cent. The report also provided that many jobs are informal in their arrangements and that the overall unemployment rate is 11.9 per cent, but raises to 22.1 per cent when young people aged between 25 to 29 years are included.[3]
[3] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p8-10.
According to the United States Department of State’s (USDOS) 2022 report on human rights practices in Timor-Leste for the year of 2021, the law prohibits arbitrary arrest and detention and provides rights to individuals to challenge his or her arrest or detention in Court. The law also provides for the right to a fair, timely and public trial, and the independent judiciary generally enforces these rights in Timor-Leste.[4]
[4] ‘Country Reports on Human Rights Practices for 2021 – Timor-Leste’, Bureau of Democracy, Human Rights, and Labor, United States Department of State, 12 April 2022, p 6 Section 1.e.
In their 2022 ‘Timor-Leste Country Security Report’, the USDOS made the following assessment of the Policia Nacional de Timor-Leste (PNTL):
PNTL maintain internal security. The Military is responsible for external security but also augments some domestic security functions. PNTL reports to the Ministry of Interior, and the military reports to the ministry of Defence. The current Prime Minister serves concurrently as the Interior Minister. Civilian authorities maintain effective control over the security forces. Members of the security services have been accused of committing human rights abuses.
PNTL’s policing capability is limited but improving with the assistance from partners in the international community, including the US Government. PNTL continues developing its community policing capacity and is slowly expanding its capabilities in the areas of criminal investigations, personnel/facility protection and traffic control.[5]
[5] ‘Timor-Leste Country Security Report’, Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, US Department of State, 21 November 2022, p 3.
In the Asia Foundation’s Nationwide ‘Timor-Leste Safety, Security and Justice Perceptions Survey 2022’, it is also 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.[6]
[6] ‘Timor-Leste Safety, Security, and Justice Perceptions Survey, 2022. Summary Findings’, McLeod A & Denney L, The Asia Foundation, p 6.
Review hearing – 1 February 2024
The Tribunal hearing was conducted at the Brisbane Registry in the English and Tetum languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, asked the Tribunal to explain the criteria. The Tribunal then provided an outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria.

The applicant told the Tribunal that he had most recently arrived in Australia in August 2023 on the seasonal worker program and had commenced a work placement with [Employer 1] in Tasmania.
Under questioning, the applicant told the Tribunal, that he had previously worked in Australia on temporary working visas for periods of between six and nine months in 2017, 2018 and 2022 with [Employer 1] in Tasmania. He told the Tribunal that, when he commenced work with [Employer 1] in September 2023, he was placed in [City 1] and found that he was being paid $22.00 an hour, whilst on his previous work placements with [Employer 1] in Tasmania, he had been paid $25.00 an hour.
In this regard, the applicant told the Tribunal that, as he needed to make money for his family and repay a loan of US $8,000.00 that he had obtained from a neighbour in Timor, he needed to earn the best wage he could here in Australia. He explained that after a about a month at his SWP placement in [City 1] with [Employer 1], he left that company so he could earn a better wage with [Employer 2] at [Town 1] in Queensland.
Under further questioning, the applicant told the Tribunal on several occasions that he had borrowed this money in June 2022 and that he had been in Timor at the time of the loan being negotiated and paid to him and his family.
The applicant further explained during the hearing, that he knew he had breached his SWP placement and visa by absconding from his work placement with [Employer 1] in [City 1]. However, he explained that he did so as he needed to earn a better wage. He said that on the advice of another Timorese worker who worked for another company but was residing in the same work camp at [City 1], he sought assistance from another person who he paid $150.00 to complete his application for the protection visa. He explained that he sought to obtain further work rights in Australia through the protection visa so that he could continue to work in Australia for a further two to three years allowing him to pay off his loan and support his family.
The applicant told the Tribunal that he did not know what claims had been made in his application for the visa, but that he wished to remain in Australia so he could earn enough money to fund his children’s education and repay the loan he had obtained from a wealthy neighbour.
Under further questioning, he told the Tribunal that he had [number] children, [number] daughters and one son, aged between [age] years and [age] years of age with his eldest [child] presently attending university in Timor. He explained that he had borrowed the US $8,000.00 from a wealthy neighbour so that he could make some repairs to his family’s home and fund his children’s education. He further explained that he had borrowed this money in June 2022, prior to his most recent work placement in Australia. He told the Tribunal that he had previously worked in Timor in between his Australian work placements for a [company] in 2021 where he earned US $180.00 a month, and then later in 2022 for a [different company] as [an Occupation 1] where he earned US $250.00 a month. He told the Tribunal that he had borrowed this money on the basis if him having secured a further work placement in Australia and that he now needed a further two to three years work in Australia to allow him to repay the remainder of the loan. Under further questioning he told the Tribunal that the current balance of his loan was about US $4,000.00.
The applicant also told the Tribunal in reply to further questions, that the lender had not made any complaint to the Timorese police in relation to this loan nor did he expect that they would do so if he did not repay the loan in full. He further explained that he was not wanted in any manner by the Timorese police and/or any other Timorese state authority.
The applicant was then taken through his claims for protection, as had been outlined in his application for the visa. In reply, he told the Tribunal that he had no knowledge of what had been put in his application for the visa, and that those claims that were made in the application for the visa, were not true.
When asked what fears he held as to any future return to Timor, he told the Tribunal that he feared not being able to repay his debt and as that it is his responsibility he would likely be yelled at, and accused publicly, of not having repaid his debt and this would be embarrassing and shameful.
Under further questioning, the applicant told the Tribunal that he did not fear any physical harm as a result of any return to Timor and not being able to repay his debt. He further explained that the people who he borrowed the money from would not harm him, or his family, if he did not repay the loan in full.
In accordance with the procedure outlined in s 424AA of the Act, the Tribunal highlighted to the applicant that it had been his evidence at the hearing that he had obtained the loan of US $8,000.00 in June 2022. However, it was also highlighted to the applicant that the Department’s records indicated that he had arrived in Australia on a work placement and visa [in] March 2022 and that he did not depart Australia [until] December 2022, and, as such, could not have been in Timor at the purported time of him having secured this loan in June 2022.
The applicant in reply became noticeably confused and stressed, explaining first that he had negotiated the loan before he had most recently come to Australia, but that maybe his wife received the funds after his departure. However, he then added that he did take the money himself. Second, he then explained that he may have been confused about the timing of the loan, as months were complicated and confusing to him, and that he was confused and worried about his appearance before the Tribunal, as he had never appeared before any Tribunal and/or Court, either in Australia or Timor.
Given the Tribunal’s observations of the applicant, and the manner and general consistency in his replies to the Tribunal throughout the hearing, the Tribunal accepted the applicant’s explanation, that he was unsure of the actual timing of this loan, but for it having been transacted prior to his most recent arrival for work in Australia [in] August 2023.
As to the applicant having raised this new claim as to his debt of US $8,000.00 for the first time at the hearing. The Tribunal drew the provisions of s 423A of the Act, to the applicant’s attention. The applicant in reply, told the Tribunal that he had not been aware of the contents of his application, as it had been completed by another person, but that as he had explained to the Tribunal his concerns had always been his need to obtain a better income here in Australia to allow him to repay this debt. He further explained that he had obtained this loan for the purpose of repairing his house and funding his children’s education.
The Tribunal then reminded the applicant of the explanation as to the Refugee Criterion that had been explained to him at the commencement of the hearing. Under questioning in this regard, the applicant told the Tribunal that he did not have any fears of facing persecution involving any form of harm arising from any future return to Timor for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Under further questioning, and with reference to the explanation that had earlier been given to the applicant, as to the complimentary protection criterion. The applicant told the Tribunal, that he had no fears of being subject to the arbitrary deprivation of his life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, if he was to return to Timor in the future.
The applicant further replied to the Tribunal, that he had no fears of harm, but needed to remain working in Australia for another two to three years so he could continue to earn a better income that would allow him to repay this debt and better fund his children’s education. He said that once he had earned enough money he would return to Timor where he could then support himself and his family on a Timorese wage of around US $250.00 a month.
Under further questioning, he agreed that he would upon any future return to Timor be able to secure employment as he had previously done so in Timor.
Finally, the applicant, when asked whether he wished to make any final remarks, told the Tribunal, that before he had travelled to Australia, his children had told him to pay off his debt so that they can get their education.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Timor-Leste and provided a copy of his Timor-Leste passport. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Timor-Leste. Timor-Leste is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[7] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[8] This is consistent with the established proposition that it is for the applicant to make his or her own case.[9]
[7] Section 5AAA of the Act.
[8] Ibid (with effect from 14 April 2015).
[9] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[10] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[11]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[10] Fox v Percy (2003) 214 CLR 118
[11] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[12] A similar approach is taken in the Department’s Refugee Law Guidelines[13] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[14] which both provide useful guidance for this Tribunal.
[12] SZLVZ v MIAC [2008] FCA 1816 at [25].
[13] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[14] UNHCR, re-issued February 2019 at [203]–[204].
New claim – debt of US $8,000.00
The applicant at the hearing, informed the Tribunal that he had no knowledge of the claims that had been made by another person on his behalf and had been outlined in his application for the visa.
After being informed of those claims the applicant rejected same and explained that he had no fears of harm arising from any future return to Timor.
He explained to the Tribunal that he had applied for protection so that he could remain in Australia for a further two to three years so he could earn an income that he believed would allow him to repay a loan of US $8,000.00, which he had obtained in about 2022 or 2023. The applicant’s loan and his concerns as to his ability to repay this loan are matters that had not previously been raised by the applicant with the Department and/or the Tribunal prior to his review hearing.
Section 423A of the Act, provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.
After carful consideration, and with some hesitancy, the Tribunal has accepted the applicant’s explanation as to why his claims as to a loan were not earlier raised with the Department. In that regard, the Tribunal accepts that the applicant when he made his claims had been unduly influenced by a friend who informed him that he could remain in Australia and continue to work here and earn an income through an application for protection. This friend, who has since on the evidence of the applicant, returned to Timor, referred the applicant to a person who for a fee of $150.00 completed the applicant’s application. Such application as lodged did not include the details of the applicant’s loan, and his reasons for seeking to remain in Australia.
However, as to the applicant’s loan and his fears, it was his unambiguous evidence at the hearing that he did not fear any form of harm upon any return to Timor in the reasonably foreseeable future on account of this loan of US $,8000.00, with its current outstanding balance of US $4,000.00.
It was the applicant’s evidence that he sought to remain in Australia so he could earn a better wage and repay his loan. He explained at the hearing that due to the poor economic situation in Timor he was unable to earn the same income that he could earn in Australia and that is why he sought remain in Australia for a further two to three years. In this regard, the applicant agreed with the Tribunal’s proposition, that the economic situation in Timor and the poor employment and remuneration available is something that was faced by all the population. He further agreed, with the Tribunal during the hearing, that he could if needed obtain employment in Timor upon any future return to Timor, and that employment opportunities in Timor would not be withheld from him, for any reason.
The applicant at the hearing, clearly outlined his belief as to the consequences that he believed he would face if he returned to Timor in the reasonably foreseeable future in circumstances where he had not repaid the loan in full.
In that regard, the applicant at the hearing explained to the Tribunal, that if he returned to Timor and was unable to repay the loan, he would not be the subject of any violence or harm but rather would be subject to local social and societal ridicule and verbal abuse. He explained that in the circumstances of his loan not having been repaid, he expected that some people would yell at him, and verbally ridicule and embarrass him, by telling him and other members of his community that he had not repaid the loan. The Tribunal finds that such ridicule and/or embarrassment does not mee the threshold standard of ‘serious harm’ nor does it amount to ‘significant harm’ as described in the Act.
The Tribunal on the evidence before it, and for the reasons outlined above, finds that the applicant’s claims do not relate to any of the reasons outlined in s 5J(1)(a) of the Act, and he did not advance any other claims of fearing harm that he would be subjected to, if he was, in the reasonably foreseeable future, to return to Timor.
Although not determinative of itself, the Tribunal further notes, that the applicant when asked to consider the refugee and complimentary criterion as had been described to him at the hearing, conceded that he had no fears of persecution involving serious harm for any of the reasons outlined in s 5J(1)(a) of the Act, nor did he hold any fears of facing ‘significant harm’ as outlined in s 36(2A) of the Act.
Therefore, the Tribunal finds that the applicant’s motivation for making his application for the protection visa and his application for review at this Tribunal, was solely for the purpose of him obtaining working rights and further time to remain and work in Australia and not out of any fears of persecution involving ‘serious harm’ or fears of any ‘significant harm.
As such the Tribunal finds that the applicant’s fears in this regard are not well founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Timor.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
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 1261

1 February 2024

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