2320678 (Refugee) - [2024] AATA 2153

2320678 (Refugee) [2024] AATA 2153 (5 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2320678
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:David James
DATE:5 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 March 2024 at 4:04pm

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 12 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 14 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 17 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 via a video conference on 5 March 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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 2153
Decision Date: 5 March 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an applicant from Timor-Leste. The applicant claimed he left Timor-Leste due to a debt and feared imprisonment upon return, asserting he had not experienced harm in Timor-Leste and believed Timorese authorities would not protect him, nor could he relocate within the country. The Administrative Appeals Tribunal (the Tribunal) reviewed the delegate's decision to refuse the protection visa.

The core legal issues before the Tribunal were whether the applicant possessed a well-founded fear of persecution for one of the five prescribed reasons under section 5J(1) of the Migration Act 1958 (Cth), and if so, whether there was a real chance of such persecution upon return to Timor-Leste. Alternatively, the Tribunal considered whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal to Timor-Leste, the applicant faced a real risk of suffering significant harm as defined in section 36(2A) of the Act.

The Tribunal considered documentary evidence, including the applicant's visa application and departmental records. It noted the applicant's claims related to a debt arising from a voluntary commercial arrangement with his neighbour and a poor economic situation in Timor-Leste, rather than persecution based on the grounds specified in section 5J(1)(a). The Tribunal found no information suggesting the applicant would be denied state protection or could not obtain it from Timorese authorities. The Tribunal also noted that the "real risk" test for significant harm is equivalent to the "real chance" test for well-founded fear.

The Tribunal affirmed the delegate's decision, finding that the applicant's fears were primarily linked to a debt and economic circumstances, not persecution for a Convention reason. Consequently, the Tribunal was not satisfied that the applicant met the criteria for being a refugee or that there was a real risk of significant harm upon return to Timor-Leste. The application for review was therefore affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 from the Department and those 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 14 September 2023;·The applicant’s application for review of 17 December 2023 and the annexed decision record of 12 December 2023; and·The administrative and movement records of the Department relating to the applicant.Claims for protection In his protection visa application, the applicant stated that he was employed in Australia as [fruit] picker. His claims for protection are (as summarised) that:·He left Timor due to a debt he has with a bank;·He fears returning to Timor because he will be put into jail;·He did not experience any harm in Timor; and·He does not believe the Timor authorities will protect him and he cannot relocate within Timor.Department interview The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 12 December 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims did not relate to any of the reasons in s 5J(1)(a) of the Act. 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 also found that there was no information before them to indicate that the applicant would be denied or purposefully excluded from accessing state protection for any reason and that they could obtain protection from the Timorese authorities. Therefore, 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.Invitation to attend a hearing On 30 January 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 5 March 2024 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. Visa history

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 12 December 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims did not relate to any of the reasons in s 5J(1)(a) of the Act. 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 also found that there was no information before them to indicate that the applicant would be denied or purposefully excluded from accessing state protection for any reason and that they could obtain protection from the Timorese authorities. Therefore, 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.Invitation to attend a hearing On 30 January 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 5 March 2024 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. Visa history The applicant first arrived in Australia on[date] March 2022 from Timor on a Temporary Work (International Relations) - Pacific Australian Labour Mobility Stream Visa through the Australian Seasonal Work Program (SWP) to work as a fruit picker. This visa was granted on 2 March 2022 and in place until 23 May 2024. After departing Australia on [date] October 2022, the applicant returned to Australia on this visa on [date] August 2023, and later on 14 September 2023 made application for a protection visa. That protection visa application is the subject of this review.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.[1][1] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p8-10.

Ratio Decidendi

Legal Principle Established

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 (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 EVIDENCEIssues 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 from the Department and those 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 14 September 2023;·The applicant’s application for review of 17 December 2023 and the annexed decision record of 12 December 2023; and·The administrative and movement records of the Department relating to the applicant.Claims for protection In his protection visa application, the applicant stated that he was employed in Australia as [fruit] picker. His claims for protection are (as summarised) that:·He left Timor due to a debt he has with a bank;·He fears returning to Timor because he will be put into jail;·He did not experience any harm in Timor; and·He does not believe the Timor authorities will protect him and he cannot relocate within Timor.Department interview The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 12 December 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims did not relate to any of the reasons in s 5J(1)(a) of the Act. 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 also found that there was no information before them to indicate that the applicant would be denied or purposefully excluded from accessing state protection for any reason and that they could obtain protection from the Timorese authorities. Therefore, 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.Invitation to attend a hearing