2400782 (Refugee)

[2024] AATA 1257

2400782 (Refugee) [2024] AATA 1257 (23 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2400782

COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:Alicia Bills

DATE:23 April 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 23 April 2024 at 3:16pm

CATCHWORDS
REFUGEE – protection visa – East Timor – crime, economic conditions and cost of living – working to support parents and siblings, and to invest in small business – applied for protection visa to get full-time job – application completed by another person without applicant’s knowledge of claims – open and credible evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Timor-Leste, applied for the visa on 16 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. The applicant appeared before the Tribunal on 19 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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.

   Mandatory considerations

9. 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

10. The issue in this case is whether the applicant is 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. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment to this decision. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Timor-Leste passport, a copy of which is contained in the material before the Tribunal. The applicant has at all times maintained that he is a citizen of Timor-Leste. The Tribunal is satisfied that the applicant is a national of Timor-Leste and has assessed his claims against Timor-Leste as his country of nationality and the receiving country.

    The applicant’s background and travel to Australia

12. The applicant is currently [Age] years of age. He was born in [Location], Dili, the capital city of Timor-Leste.

    The applicant’s claims for protection

13. In his protection visa application form lodged September 2023 the applicant stated the following as his reasons for leaving Timor-Leste and claiming protection in Australia.

    Trying to get some new life environment which is more safe country with very good economic amongst the best in the world.

    Nowadays, there is much criminal cases and very bad economy. My life is somewhat affected because of the rising cost of living and the basic stuff becomes very expensive while my earning every month is still the same.

    Will hard to get a life with all living cost is terrible high and much criminal issues incurred. Thefts and snatch cases are so rampant and common in Timor Leste nowadays. I have to support in financial to my parents and also to support my siblings education too.

    So many complaining about The Government Bodies nowadays.

14. The applicant gave the following evidence at the Tribunal hearing on 19 April 2024:

    a.The applicant grew up in [Location], Dili, Timor-Leste. He has [siblings] and his parents are still alive. His younger brother lives at home with his parents looking after them. His other siblings live independently because they are married. The applicant speaks to his family once every week or fortnight.

    b.The applicant completed primary and secondary school in Timor-Leste but did not attend university due to financial reasons.

    c.After the applicant completed secondary school, he continued living at home and helped his parents with their farming and the care of their animals. His parents farm [specified crops]. At times, if there was a construction project in the area the applicant would help with labour.

    d.The applicant came to Australia in May 2023 to help his parents financially. He wanted to work in Australia, to earn money, and send money back to his parents so they could fix their house. The applicant has been able to do this and his parents have fixed their house.

    e.The applicant arrived in Australia on a working visa. He initially worked in Darwin on a [workplace] [doing a job task]. This was arranged through an agency. The applicant was only getting two shifts a week with this job and wanted a full time job. The applicant found out about a protection visa which would enable him to get a full time job so he applied for a protection visa. Since he applied for the protection visa the applicant has been able to work full time. The work is seasonal though as it is [workplace] based work.

    f.The applicant did not complete his protection visa application form himself because he does not understand English. The applicant spoke to someone over the telephone and sent them pictures of documents and they filled out the application form without asking him any questions.

    g.The applicant wanted to come to Australia for the opportunity to earn income to send to his parents to fix their house. The applicant can earn more money in Australia than he can earn in Timor-Leste. The applicant also wanted to learn about farming.

    h.The applicant does not want to return to Timor-Leste at the moment because he wants to earn more money to invest in a small business in Timor-Leste. He is not yet sure what type of business, he is still planning this.

15. In light of the applicant’s evidence about his protection visa application form being completed by another person, the Tribunal read the entirety of the written claims in the protection visa application form to the applicant. The applicant declined to comment on the written claims.

16. The applicant confirmed that his fear of returning to Timor-Leste is that he can not earn as much money in Timor-Leste as he can earn in Australia. The applicant confirmed that he came to Australia to save money to send back home to his parents so they could fix his house, also to help his brother’s education expenses and to start a small business. The applicant stated that the economy in Timor-Leste was not as good as in Australia.

17. The applicant agreed with the Tribunal’s observations that the economic harm he feared upon return to Timor-Leste appeared to be as a result of the state of the economy in Timor-Leste, rather than as a result of harm directed at him personally for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

18. The Tribunal discussed with the applicant the definition of significant harm. The applicant agreed with the Tribunal that there was no risk of the death penalty being carried out on him if he returned to Timor-Leste. The applicant agreed with the Tribunal that he did not face any risk of arbitrary deprivation of life if he returned to Timor-Leste. The applicant also agreed that the economic harm he feared would not be an act or omission intentionally inflicted on him to cause harm, such that could amount to torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.

    Tribunal consideration

19. I found the oral evidence of the applicant to be credible. The applicant provided a convincing narrative of his experiences in Timor-Leste and in Australia, and spoke openly about his reasons for travelling to Australia.

20. I accept that the applicant did not complete his protection visa application form himself and that he was unaware of the contents of the form. I do not accept that the applicant fears returning to Timor-Leste for all of the reasons stated claims in the application form. When given the opportunity, the applicant declined to comment on the stated reasons. Furthermore, the Tribunal afforded the applicant multiple opportunities to explain why he feared returning to Timor-Leste, and, on each occasion, the applicant’s evidence was consistent that he came to Australia to earn money in Australia to send back to Timor-Leste.

21. I accept that the applicant came to Australia because he hoped to earn more money in Australia than he had been able to earn in Timor-Leste. I accept that the applicant has been able to work in Australia and has already applied some of his savings towards fixing his parents house in Timor-Leste. I accept that the applicant fears returning to Timor-Leste as he fears not being able to earn a sufficient level of income to achieve his other financial goals including starting a small business and supporting his brother’s education expenses.

    Fear of criminal activity

22. In his visa application form the applicant stated that he left Timor-Leste due to criminal cases and noted that theft was common. For the reasons outlined above, I do not accept that the written claims in the applicant’s protection visa application form relating to fear of criminal activity reflected the applicant’s true circumstances.

23. I am not satisfied that the applicant left Timor-Leste due to fear of criminal activity. I do not accept there to be a real chance that if the applicant returned to Timor-Leste, now or in the reasonably foreseeable future, he would face harm from criminal activity. For the same reasons I do not accept there to be a real risk that the applicant will be subject to significant harm by way of criminal activity as a necessary and foreseeable consequence of being removed from Australia and returned to Timor-Leste.

    Fear of economic harm

24. In his protection visa application form the applicant stated that he left Timor-Leste due to the economy and costs of living and wanting to financially support his family. For the reasons outlined above, I am satisfied that the applicant did not complete his protection visa application form. The applicant was clear in his oral evidence that he left Timor-Leste for the chance to earn money in Australia to send back to his family in Timor-Leste. I consider that the applicant’s oral evidence is consistent in part, by coincidence, with his written claims in respect of fearing economic harm in Timor-Leste and seeking protection in Australia to financially provide for his family.

25. At the hearing I put to the applicant that the economic harm he fears would not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion and the applicant agreed.

26. The Tribunal finds that the economic harm feared by the applicant is not for the reasons of his race, religion, nationality, membership of a particular social group or political opinion. Therefore, for the purposes of the refugee assessment, the applicant does not have a well-founded fear of persecution.

27. The applicant did not suggest, and the Tribunal is not satisfied, that the economic harm he fears upon return to Timor-Leste would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor did the applicant suggest, and the Tribunal is not satisfied, that the death penalty will be carried out upon him.

28. Accordingly the Tribunal is not satisfied that the economic harm feared by the applicant would amount to significant harm. The Tribunal is therefore not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste, there is a real risk he will suffer significant harm.

    Conclusion

29. 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).

30. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

31. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Alicia Bills
    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.

    …