2320678 (Refugee)

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
CATCHWORDS
REFUGEE – Protection Visa – Timor-Leste – did not experience any harm in Timor – a debt – his fears related to a commercial arrangement that he had voluntarily entered into with his neighbour – poor economic situation and lack of employment opportunities in Timor – decision under review affirmed

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
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 (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 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
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.
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 in Timor-Leste 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.[2]
[2] ‘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.[3]
[3] ‘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.[4]
[4] ‘Timor-Leste Safety, Security, and Justice Perceptions Survey, 2022. Summary Findings’, McLeod A & Denney L, The Asia Foundation, p 6.
Review hearing – 5 March 2024 – (summary of relevant evidence)
The Tribunal hearing was conducted at the Brisbane Registry in the English and Tetum languages with the applicant appearing via video conference from regional Victoria.
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, told the Tribunal that he did not have an understanding of the criteria as it had not been explained to him.
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 then told the Tribunal that he had applied for the visa so that he could stay and continue working in Australia and earn more money. He said that he had been advised by other Timorese workers in Australia that by applying for the visa (protection) he would be able to remain in and continue to work in Australia, for several more years.
In reply to the Tribunal posing to the applicant, that he did not hold any fears of harm as to any return to Timor and that he had applied for the protection visa so that he could remain in Australia for several more years and earn a better wage than he could obtain in Timor; the applicant agreed and said ‘Yes’.
The applicant told the Tribunal that he had first arrived in Australia on [date] March 2022 on the SWP and worked for an agency [in] Tasmania where he picked [fruit] for several months before he returned home to Timor on [date] October 2022. He said he later returned to Australia on [date] August 2023 through the SWP and worked [at] [City 1] where he was employed picking [fruits].
The applicant further explained that there was not enough consistent work at [City 1] and his fortnightly wages ranged from $400.00 to $800.00 and even up to $1,000.00 a fortnight at some times. He told the Tribunal that after discussing his wages with his wife he decided to leave the [agency] so he could take a job in [Town 1] that he thought would provide him better and more consistent wages. He said that he left [City 1] operations in October 2023 and applied for the visa so he could obtain working rights that would allow him to [work] at [Town 1]. He told the Tribunal that he had worked in [Town 1] for about 5 weeks but since then he had been unemployed until now. He said he left [Town 1] after being unable to secure any further work and moved to Melbourne to pick [fruit] but there had been no [fruits] available for picking, so he relocated to [City 2] where he now was working.
Under questioning, the applicant told the Tribunal that he understood he had breached the SWP and his visa by leaving his job [at] [City 1]. However, he explained that as he needed to obtain better and more consistent wages so he could provide financial support to his wife and their family in Timor and repay a loan that they had obtained from a neighbour, he left the [agency].
The applicant then told the Tribunal that he had not completed his application for the visa but rather, he had explained his situation to another Timorese friend who then had another third person complete the application form for him. He understood that one of these people was known as [name]. He further explained that he was not familiar with the contents of his application, notwithstanding having provided his information and claims to the person who then had another person complete the form on his behalf.
The applicant was then taken to the claims made in his application. In reply the applicant told the Tribunal that he did have a debt but that it was not to a bank but to a neighbour and in the amount of US $6,000.00. He explained that he borrowed this money from his neighbour in December 2022 and on the basis that it would be repaid before he next returned to Timor from working in Australia. He said that he and his wife had also offered their home and land as security on the loan.
The applicant told the Tribunal that he had been sending money back to Timor to his wife for the support of his family and to repay their loan. He said he was, when able to do so, sending AUS $500.00 per month to his wife in Timor. He further told the Tribunal that in January or February of this year, 2024, his wife had called him and told him that their neighbour had come and seen her and demanded that loan repayments be made as they had stopped recently while the applicant was unemployed in Australia.
The applicant told the Tribunal that he had sent AUS $600.00 to his wife yesterday and had told her to tell their neighbour that further payments would be made as he had now secured farm work in [City 2].
Under questioning, the applicant told the Tribunal that if he was to return to Timor, he would be unable to make any further repayments on the loan. He explained that prior to obtaining work in Australia he and his wife, their two surviving daughters [together] with his parents and siblings supported themselves through their farm produce but that they did not ever have any money. He said that he [did some work] as a way of making a small income to supplement his family’s needs.

Under further questioning, the applicant told the Tribunal that he had to date only repaid US $1,300.00 towards his debt of US $6,000.00. He further explained that if he did not make any further payments towards the loan and returned to Timor, he and his family would face their possessions including their home and land being seized by their neighbour.
In reply to the Tribunal asking whether he had entered into to this loan voluntarily and on the basis that he had understood that his home, land and possessions were the security offered against the loan; he told the Tribunal that he had understood at the time of securing the loan that he could lose his property if he failed to repay the loan.
In reply to the Tribunal highlighting that his fears related to a commercial arrangement that he had voluntarily entered into with his neighbour; he told the Tribunal that he also feared being harmed as his neighbour might still be angry after seizing his property and that might mean that his life will be in danger.
When asked whether he could seek protection from the police, PNTL, the applicant confirmed that he could do so, but that they would likely tell him to settle the dispute between themselves by way of the forfeiture of his property. He told the Tribunal that the police would likely view this matter to be a private commercial matter. However, the applicant repeated his concerns that his neighbour may still be angry and that could put his life in danger.
The Tribunal then discussed the country information as outlined above at paragraphs 22 to 25 as to the PNTL and the Judiciary. The applicant in reply, agreed that he would not be harmed over any failure to repay his loan, but that if his property was seized he will likely feel that he has no life anymore and he may still face some physical harm from his neighbour. He further told the Tribunal that such financial strain and the loss of his house may also result in his family having to separate.
Under further questioning, the applicant agreed that he could report any threats of harm to the police but that he might have to look over his shoulder for the rest of his life.
In conclusion, the applicant told the Tribunal that he respects the Australian law and apologises for breaching the law in relation to his visa. He told the Tribunal that there is no work for him in Timor and his intention in coming to Australia was to make money for his family including his parents. He said that none of his family had been able to earn a proper amount of money In Timor, and that they have been working the land to support themselves and this is the reason why he had come to Australia to work.
He further told the Tribunal that as the oldest child of his parents it was his responsibility to assist all of his family. He further explained that he needed to remain in Australia for work so that he can financially support his extended family and repay the family debt.
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 and provided a copy of his Timorese passport. Based on this material, the Tribunal finds that the applicant is who he says he is and is a national of Timor. Timor 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.[5] 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.[6] This is consistent with the established proposition that it is for the applicant to make his or her own case.[7]
[5] Section 5AAA of the Act.
[6] Ibid (with effect from 14 April 2015).
[7] 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.[8] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[9] 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.
[8] Fox v Percy (2003) 214 CLR 118
[9] 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.[10] A similar approach is taken in the Department’s Refugee Law Guidelines[11] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[12] which both provide useful guidance for this Tribunal.
[10] SZLVZ v MIAC [2008] FCA 1816 at [25].
[11] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[12] UNHCR, re-issued February 2019 at [203]–[204].
Debt to neighbour – refugee claims
The applicant claims as outlined in his application for the visa were that he left Timor due to a debt he has with a bank, and that he fears returning to Timor because he will be put into jail.
However, at the hearing the applicant explained that he had not completed his visa application form but rather had told a friend about his claims who then conveyed those claims to another third party who completed the application form on behalf of the applicant. Further at the hearing, the applicant outlined his claims as being that he had obtained a loan of US $6,000.00 from a neighbour in Timor in December 2022, and on the basis that this loan would be repaid by the applicant from his Australian wages before he returned to Timor.
The applicant at the hearing claimed that if he was to return to Timor in the near future, he would be unable to secure employment and repay his loan. He told the Tribunal that to date from his Australian wages he had repaid US $1,300.00 but does not believe he would be able to make any further repayments if he was to return to Timor. He explained that if he does not repay this loan his neighbour, the lender, will seize his home and land and all of his possessions which were offered as security by him. He further fears that his neighbour might still be angry after seizing his property and that might mean that his life will be in danger.
The Tribunal has considered whether the claims made by the applicant at the hearing are new claims and subject to the provisions of s 423A of the Act. 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.
However, in the present matter, the Tribunal notes the general similarity of the applicant’s claims as to a loan that he made in his application for the visa, and as he outlined to the Tribunal at the hearing. The Tribunal after careful consideration, has accepted the applicant’s explanation for not raising the details of the loan from his neighbour prior to the primary decision having been made. Given he was not familiar with the contents of his application, and that he relied upon a third party to express his claims after same had been conveyed to them by his friend, and the general similarity of his claims at the hearing to those made in the application, the Tribunal has accepted this explanation for not having raised these claims earlier as being reasonable.
Therefore, the Tribunal has not drawn an adverse inference as to the credibility of these claims.
However, the Tribunal finds that the applicant’s claims as to this loan from his neighbour and his fears of being unable to repay this loan if he was to return to Timor and/or that his failure to repay the loan could result in the seizure of his property and his life being in danger are not related to any of the reasons outlined in s 5J(1)(a) of the Act.
Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to Timor in the reasonably foreseeable future on account of his race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Debt to neighbour – complementary protection claims
As outlined above, at paragraphs 56 and 57, the applicant fears returning to Timor on the basis that if he does so, he would be unable to secure employment and obtain an income that would allow him to support his family and repay his US $6,000.00 debt to his neighbour. The applicant fears that if he defaults on his loan his property and possessions will be seized by his neighbour in accordance with their agreed loan arrangements. He further claims to fear harm from his neighbour because he claims his neighbour may still be angry with him after he seizes his property and possessions and as such his life might be in danger.
However, at the hearing the applicant told the Tribunal that his wife had earlier this year been the subject of demands by the neighbour for the repayment of the loan, but the applicant did not raise with the Tribunal that any threats of harm had been made against him or his family by his neighbour at this time.
Additionally, the applicant agreed at the hearing that although his property and possessions might be seized by his neighbour if he retuned to Timor and could not repay his loan, he would not be harmed. Notwithstanding, that he had earlier told the Tribunal that his neighbour may be angry with him and as such his life could be in danger, he further explained his fears as being that if his property was seized, he would have no life and his family might separate.
At the hearing, the applicant agreed that the poor economic situation and lack of employment opportunities in Timor were factors faced by the population of Timor at large, and that he had not been targeted in any way by having had opportunities withheld from him. He also agreed under questioning at the hearing that the PNTL was a competent police service and that he could report any threats to his safety and any fears of harm to the police.
In that regard, and with reference to the country information outlined above at paragraphs 23 to 25, the Tribunal is satisfied that the applicant can obtain from an authority of Timor, that being the PNTL and the Judiciary, protection such that there would not be a real risk that the applicant will suffer ‘significant harm’ if he was to return to Timor in the reasonably foreseeable future on account of him being unable to secure paid employment and/or being unable to repay his debt to his neighbour.
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, and given the economic situation in Timor is something faced by all of the Timorese community and that the applicant can if he so needs to do so, obtain protection from authority of Timor, 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 2153

5 March 2024

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Immigration

Statutory Interpretation

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Jurisdiction

Procedural Fairness

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