2400829 (Refugee)

[2024] AATA 2421

2400829 (Refugee) [2024] AATA 2421 (11 March 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICATION FOR REVIEW:                  Application for review of a decision made by a

delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

APPLICANT’S REPRESENTATIVE:        Unrepresented

CASE NUMBER:  2400829

COUNTRY OF REFERENCE:                   Timor Leste

MEMBER:  Kate Chapple

DATE:  11 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 11 March 2024 at 9:09am

CATCHWORDS
REFUGEE – protection visa – East Timor – member of martial arts group – fear of harm from this group or others – education, work opportunities and economic conditions – two returns before most recent entry – undetailed and implausible evidence – country information – subsistence farming and economic hardship – groups outlawed but active – general risk not targeted – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1), 36(2)(a), (aa)

Migration Regulations 1994 (Cth),

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.

EVIDENCE BEFORE THE TRIBUNAL

Protection visa application

1. The applicant’s protection visa application lodged 17 October 2023 setting out the following claims (spelling and grammatical errors not corrected):

   1.1.[reason applicant left Timor Leste] Leaving Timor-Leste has been a difficult decision because I don't feel safe in my own country. Many things contribute to this feeling of being unsafe. One big problem is the violence happening all around Timor-Leste. This violence comes from fights over land, power, and disagreements between traditional martial arts or silat groups. I was a member of perguruan [Group name]; innocent people like me can easily get hurt because of this. These perguruan silat are mainly looking for power and money. They scare people, hurt them physically, and sometimes even kill them. The political situation in the country also makes things unsafe. People have different opinions, and this sometimes leads to fights. Even peaceful protests can become violent, and people who are not involved can get hurt. Sometimes, when people have problems like fights over land, jealousy, or other issues, they physically fight each other. Some people use martial arts groups to shield themselves. If two people from different martial arts groups fight, the police find it hard to stop them.

1.2.[was harm experienced by applicant in Timor Leste?] No.

1.3.[did applicant seek help in Timor Leste?] No.

1.4.[reason applicant did not move to another part of Timor Leste] Moving to another place in Timor-Leste doesn't always make you safe. Violence and crime happen everywhere in the country, so moving to a different area might only keep you safe for a short time. The big problems like political issues, not enough police control, and the power of organized crime are still big issues all over the country. So, moving within Timor-Leste might not solve these problems.

1.5.[what applicant thinks will happen to him if he returns to Timor Leste] Regarding returning to Timor-Leste, I am deeply concerned about the potential risks I might face. Returning to the country could pose severe risks to my family. The threat of violence, especially if related to my background as

a former active member of the [Group name] martial art group, is a significant concern. Additionally, the potential for larger-scale conflicts raises worries about safety and stability. Therefore, my safety and well-being are primary considerations when deciding whether to return to Timor-Leste.

1.6.[reason applicant thinks he will be harmed or mistreated if he returns to Timor Leste]

Retaliation from former martial art group members. Members of the [Group name] martial arts group I once joined might seek revenge or harm me for leaving the group and choosing a different path. Retaliation can manifest in physical violence, threats, or intimidation. People with problems with me can attack my house and bring members from other martial arts groups like [name]. The police will see this as a fight between martial arts groups and never see the fight as a crime.

1.7.[reason applicant thinks the Timor Leste authorities can’t and won’t protect him] Because this martial arts group has many members in the government and even in the police. Their member in the police will help them every time an attack happens.

1.8.[reason applicant thinks he is unable to relocate within Timor Leste] Martial arts groups have a nationwide reach with branches down to the district and village levels. Wherever you try to move it's all the same.

1. Research note: ‘Security, Violence, and Outlawed Martial Arts Groups in Timor-Leste’ by Janina Pawelz published in Asian Journal of Peacebuilding Vol. 3 No. 1 (2015): 121 – 136.

2. Decision record dated 12 January 2024 relating to the delegate’s refusal decision.

3. Departmental case file relating to the applicant.

Application for review

1. Application for review lodged 20 January 2024.

2. The Tribunal wrote to the applicant inviting him to attend a hearing on 8 March 2024 and to provide pre-hearing submissions.

3. Prior to the hearing, the applicant notified the Tribunal that he had moved interstate. The Tribunal agreed to the applicant’s request that the hearing be conducted via video link with the assistance of a Tetum interpreter. The applicant did not provide to the Tribunal any submissions or other material in support of his case.

The Hearing

1. The applicant appeared before the Tribunal at a hearing conducted via video link on 8 March 2024, with the assistance of an interpreter (also via video link) in the Tetum and English languages. The applicant was unrepresented.

2. The applicant gave evidence, summarised by the Tribunal as follows:

   9.1.The applicant was born in [Year] in [Town 1], [District] where he grew up with his parents, [older brothers] and [older sisters]. His parents, now deceased, were illiterate farmers; they owned a small farm plot on which was also a house where the family lived. One of the brothers, also illiterate, still lives in the parents’ house and farms the land. Another brother was able to finish school; he’s [an Occupation]. The other siblings either didn’t go to school or didn’t reach a high enough grade, so they are also working the land elsewhere with their families. The applicant is single.

   9.2.The applicant is the youngest; his parents and older siblings saved up enough money over time through farming to enable him to finish school and complete university studies in [Subject] in Dili. The applicant graduated in [Year]. The plan was to start a business to support his family, but he didn’t have the capital so he couldn’t go ahead with the plan. Instead, he returned to his parents’ farm plot and helped his siblings. He also completed some free courses with the intention of getting work in [Country], however he failed the test, so that didn’t eventuate.

   9.3.The applicant’s life in Timor-Leste was very simple, his parents could not afford luxuries.

   9.4.The situation is not grave in Timor Leste, however there are groups in Dili and throughout the country that cause violence. You can go outside and be shot by an arrow.

   9.5.The applicant joined the [Group name] group in 2005. He was younger then and not thinking clearly. He thought it was about training and doing exercises, but as time went on, they asked for contributions so they could lift the morale of members. The good things about being part of the group were that he had plenty of friends, they helped one another out, and the physical training and fitness. The bad things were the conflicts between groups, and the prospect of being harmed by rival group members wherever you might be in Timor Leste. The bad outweighed the good. The applicant was never involved in the conflict because when the group made plans to foment hatred, he didn’t participate, and over time he distanced himself from them. When he left the group in 2018, up until when he left Timor Leste, group members would tell him often to be careful. He took this as a threat that they would harm him for leaving the group. There was no point in going to the police because the without evidence the police won’t act. Since he's been in Australia, his brothers have told him that group members are still threatening to harm him if he returns.

   9.6.The Tribunal referred to a statement issued by the Government of Timor Leste in November 2023 ordering a suspension of teaching, learning and practising of martial arts and also ordering a special police crime prevention operation to prevent and control illegal acts related to the practice of martial arts. The Tribunal invited the applicant to comment. He responded that he had heard this is the policy of the new government, and that when Gusmao came to power he told all members of the police and military to make an oath to leave the martial arts groups. They made the oath but didn’t leave the groups. That’s why he needs to stay in Australia for two or three more years until the police follow the regulations and are neutral, and do not continue to support the violence.

   9.7.The applicant came to Australia on work visas secured through an agency in 2019 and 2022. He returned to Timor Leste twice before last coming to Australia in October 2022. He had to go back to Timor Leste because his visas expired. He was scared about going back because he’d heard the group members were going to get him, so he had a friend collect him and take him direct to his parents’ house in the rural area so he wouldn’t be seen.

   9.8.The applicant didn’t apply for a protection visa when he first came to Australia because he didn’t have the information. He was working in [Town] when he read about it in a workers’ union and decided to apply. He understood that a protection visa was to protect someone who is facing a difficult situation. He prepared the application himself without assistance.

   9.9.The Tribunal put to the applicant that prior to the delegate making the decision to refuse the protection visa, the Department wrote to him inviting him to provide further details about his protection claims, noting that he did not respond to the Department’s letter. The Tribunal asked the applicant why he did not respond. He said that he didn’t really understand. The Tribunal pointed out to the applicant that it is his responsibility to make his own case, and the expectation is that if his claims are true, he would ensure that his claims are explained and supported.

   9.10.The applicant doesn’t really know what would happen to him if he returned to Timor Leste, but it weighs him down thinking about returning. He’s been threatened and he’s scared he’ll lose his life.

   9.11.The Tribunal put to the applicant that earlier in the hearing he had said that he came to Australia because there were no jobs in Timor Leste. He responded that he’s here to earn money, save capital and to send money back to support his family and pay for the younger children’s schooling through to university. He needs two to three years to get enough capital to allow him to renovate his parents’ house. He is also here because he’s afraid for his life in Timor Leste.

   9.12.The applicant wants to return to Timor Leste as he a citizen and all citizens want to return to their home country. However, he wants to return when his country is peaceful like Australia, the police are neutral and not taking sides.

Country information

1. Timor Leste has experienced significant economic growth since its independence in 2002, with GDP per capita increasing from $453 in 2004 to $1381 in 2020. The economy is almost entirely reliant on oil and gas.[1] Approximately 80 percent of state expenditure comes from a sovereign wealth fund, the Petroleum Fund, but oil and gas income into this fund is now almost negligible due to declining reserves. It is estimated that the fund could be depleted entirely within a decade.[2]

   Timor Leste has achieved a medium human development status, positioned 131 out of 189 countries.[3] However, it appears to have experienced a decline between 2014 and 2020, with the poverty rate (based on the international poverty line of $1.90) rising from 22 percent to 27 percent in that period.[4] The poverty rate is higher in rural areas.[5] Forty-six per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.[6] The majority of households are in the informal sector, with only about 23 percent of the working-age population in the cash economy.[7] Household vulnerability is increased by the dependence of nearly 70 percent of citizens on climate-sensitive livelihoods and agricultural production, in a country which experiences frequent floods, droughts, storms, landslides and is impacted by sea-level rises and higher temperatures as a result of both natural climate variability and climate change.[8]

The economy continues to depend on government outlays, and state spending in recent years has fallen due to political impasses.[9] Prior to 2020, Timor-Leste had experienced recession since 2017, attributed to internal political divisions.[10] GDP was estimated to have expanded by 3.4 percent in 2019, recovering from the earlier recession.[11]

[1] Al Jazeera, ‘East Timor: Between hope and unease 20 years after referendum’, 30 August 2019.

[2] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, p.4.

[3] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30.

[4] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30.

[5] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.

[6] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.

[7] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, p.21.

[8] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.

[9] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, p.4.

[10] Lowy Interpreter (The Interpreter), Timor-Leste: The consequences of Covid-19', 3 April 2020.

[11] World Bank Group, 'April 2020 Timor-Leste Economic Report: A Nation Under Pressure', 15 May 2020, p.i.

1. A media article in 2019 referred to Timor Leste’s largest challenges at that time being illiteracy, unemployment and access to health and sanitation.[12] The country was experiencing political and budgetary uncertainty in late 2019/early 2020, in the leadup to the COVID-19 pandemic. In December 2019, parliamentarians from the dominant party in the governing coalition declined to support the proposed 2020 budget, and the coalition splintered three months later, with prime minister Taur Matan Ruak offering his resignation.

   [12] Al Jazeera, ‘East Timor: Between hope and unease 20 years after referendum’, 30 August 2019.

2. The President declined to appoint a new prime minister or call elections, A new parliamentary majority was formed by a new constellation of parties, and Ruak withdrew his resignation.[13] However, the Parliament still failed to approve a state budget for 2020 until late in the year, and operated under a duodecimal regime which allows for monthly budget appropriations of up to one twelfth of the previous year’s budget.[14] This system, along with the pandemic, constrained public expenditure.[15]

   On 13 March 2020 Timor Leste was hit by severe flooding affecting over 9000 people in several parts of the country, with Dili worst hit.[16] Just over a week later, on 21 March 2020, the first COVID-19 case emerged in Timor-Leste.[17] A state of emergency was declared for 30 days in March 2020 in response to COVID-19, and was then renewed with various levels of stringency, and borders were closed from 28 March 2020.[18] The state of emergency included closure of schools and physical distancing, with measures such as sanitary fencing, home confinements and suspension of collective passenger transport activities added during some periods.[19]

COVID-19 presented novel challenges for Timor Leste. Restrictions on movement and face- to-face interactions – necessary for the large informal sector – hit particularly hard given the country’s limited access to technological supports and relative geographic isolation.[20] The Timor-Leste Government launched a relief package beginning in May 2020 which incorporated cash transfers, emergency food distribution, wage subsidies for those in the formal sector, a credit moratorium and utility subsidies. This package – at 13 per cent of GDP – was one of the world’s largest.[21] The measures included a credit program and emergency loans.[22] Approximately 300,000 households received a monthly payment of

$100.[23]

According to the World Bank, despite adopting strong fiscal measures to address the impact of COVID, Timor Leste’s economy contracted by 8.6 per cent in 2020.[24]

[13] Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022, p.3.

[14] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31; Bertelsmann Stiftung, '[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste', 23 February 2022 p.3.

[15] World Bank Group, 'April 2020 Timor-Leste Economic Report: A Nation Under Pressure', 15 May 2020, 20201021131121, p.i.

[16] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.31.

[17] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.

[18] The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021.

[19] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.33.

[20] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.

[21] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.

[22] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.

[23] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, p.43, 47.

[24] The World Bank, ‘Timor-Leste Economic Report: Steadying the Ship’, December 2021.

1. The UN in Timor-Leste conducted a rapid socio-economic impact assessment in June-July 2020 of 437 households in five municipalities to gauge the impact of the pandemic.[25] A larger nationwide socio-economic impact assessment was conducted in July-September 2021 in partnership with government, using a sufficient sample size to produce statistically representative results at a national level.[26]

   The pandemic exacerbated underlying issues within the country, including disparity in development between rural and urban settings, the effects of climate hazards, and limited access to education, health services, social protection programs and markets.[27] The negative impacts have been greatest on the poorest households, households outside Dili (where wealth is concentrated), and those with high levels of social vulnerability (eg older age, disability, female headed households, larger numbers of dependent children). Even relatively well-off households also experienced losses and challenges including food insecurity.[28] The United Nations report also refers to impacts on education, access to health services, in addition to large increases in the numbers of reported cases of child physical abuse, sexual abuse and rape in 2020 and 2021 compared to 2019.[29]

There is low labour market participation in Timor Leste, with only 45.2 per cent of the working-age population employed in the market economy as at March 2021.[30] A United Nations report explains that this does not include those engaged in subsistence agriculture, which would raise the figure to 61.1 per cent. Most of those engaged in the market economy (86.3%) are self-employed or contributing family workers, and many (over 70%) are engaged in production and sale of agricultural products. Many jobs are characterised by informal work arrangements, insecure employment, unstable and inadequate earnings and low productivity. Persons living with a disability and women are employed at a lower rate. The overall unemployment rate is 11.9 percent, but this rises to 22.1 percent for young people aged 25-29 years, likely related to higher levels of job losses among this group as a result of COVID-19.[31]

COVID-19 and the State of Emergency impacted employment and activities, with 39.3 percent of persons working in the market economy in March 2020 reporting having lost their job for at least some time due to the pandemic, although 90.1 percent of those who lost a job due to COVID were again employment by March 2021.[32]

[25] United Nations Timor-Leste, with United Nations Development Program] 'Socio-Economic Impact Assessment of COVID-19 in Timor-Leste', 30 September 2020, p.7-8

[26] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.23, 24, 27.

[27] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.

[28] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8.

[29] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.14- 15.

[30] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8- 10.

[31] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.8- 10.

[32] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.10- 1.

1. Timor-Leste assessed Dili as being a high-threat location for crime directed at or affecting official US government interests, noted that the Department ‘has not included a Kidnapping “K” Indicator on the Travel Advisory for Timor-Leste’,[33] and stated:

   [33] ‘Timor-Leste Country Security Report', Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, U.S. Department of State, 21 November 2022, pp.[1]-[2] ‘Crime Environment’ at [1]-[2]. Its previous report was ‘Timor-Leste Country Security Report', OSAC [Overseas Security Advisory Council], Bureau of Diplomatic Security, United States Department of State, 8 October 2021, pp. [1]-[2] ‘Crime Environment’ at [1]-[2].

   The U.S. Department of State has included a Crime “C” Indicator on the Travel Advisory for Timor-Leste,[[34]] indicating that there may be widespread violent crime and/or organized crime present in the country, and/or that local law enforcement may have limited ability to respond to serious crimes. …

   Crime: General Threat

   ... Ongoing challenges for the security sector include crime prevention in the context of a large unemployed youth population, community violence involving Martial and Ritual Arts Groups (MRAGs), and high rates of gender-based violence. High rates of poverty and unemployment drive frequent crimes of opportunity. Reported data shows most violent crime involves Timorese perpetrators and victims. Despite significant socio-economic disparity within the country, violence targeting expatriates is relatively infrequent.

   Pickpocketing, purse-snatching, residential and automobile break-ins, and petty theft occur in recreational areas and facilities that foreigners frequent, especially in Dili.

   Victims of crime who resist may encounter a violent response. Most crimes take place at night. Exercise increased vigilance after dark.

   Women walking or exercising alone in Dili have reported harassment, indecent exposure, and groping. Incidents have occurred during both day and night, in rural areas and in busy urban centers. Authorities and communities appear to have made minimal progress in discouraging this type of harassment and assault. Women should avoid traveling alone and taking taxis alone, especially at night.

   Violence among MRAGs flares up occasionally and occurs primarily between rival groups. MRAG violence rarely targets expatriates or businesses, but expatriates should take care to avoid MRAG disputes. ...

   According to reporting from the General Directorate of Statistics, total recorded crimes decreased roughly 4.6% in 2021 from 2020 totals.

   The Global Organized Crime Index is a tool designed to measure levels of organized crime in a given country and assess its resilience to organized criminal activity. The most recent index ranks Timor-Leste 147 out of 193 worldwide for criminality, with 1 being the worst possible ranking; and 148 out of 193 worldwide for resilience, with 1 being the best possible ranking. Crime: Areas of Concern There are no specific areas of concern in Timor-Leste, though crimes targeting foreigners tend to occur more often in population centers and commercial areas.[35]

   [34] The current (September 2022) ‘Timor-Leste Travel Advisory’ for US citizens advises ‘Level 2: Exercise Increased Caution)’: ‘Timor-Leste Travel Advisory. October 5, 2022’, Travel.State.Gov, Bureau of Consular Affairs, U.S. Department of State, 5 October 2022.

   [35] ‘Timor-Leste Country Security Report', OSAC [Overseas Security Advisory Council], Bureau of Diplomatic Security, United States Department of State, 8 October 2021, pp.1-2 ‘Crime Environment’ at 1; the hyperlink at ‘Index’ is to ‘Global Organized Crime Index’, >

   Fundasaun Mahein (‘FM’) is a non-partisan organisation seeking to support the legitimacy and capacity of democratic processes and the security sector in Timor Leste. A paper titled, ‘Politicisation of Martial and Ritual Arts Groups: Implications for National Security, Peacebuilding & Development’ and published by the organisation on its website in July 2023, states in the executive summary (inter alia) that:

   The key finding of this research is that while there are valid concerns regarding the activities of MAGs and their contribution to violence, disorder and instability, many of the risks associated with MAGs are neither isolated to, nor primarily driven by, MAGs themselves. For example, communal violence is a frequent occurrence in Timor- Leste, and often does not involve MAGs. At the same time, many incidences of so- called “MAG violence” stem from localised disputes between individuals, which can escalate when other MAG members join in to defend their comrades. Similarly, during periods of political instability and crisis, MAGs have participated in violence and contributed to unrest, but have been neither primary instigators nor sole participants in these conflicts. Political instability in post-independence Timor-Leste, rather, has been driven by a complex set of factors, particularly histories of armed conflict, elite competition, weak institutions and failures in the state-building process.

2. Law No.16/2013 outlawed numerous high-profile MRAGs including Persaudaraan Setia Hati Terate (PSHT), Kmanek Oan Rai Klaran (KORK) and Ikatan Kera Sakti (IKS).[36] However, these groups remain active in Timor-Leste.[37] These laws have been ineffective in reducing the number of conflicts involving MRAGs.[38] The Diplomat reports that when Law No.16/2013 was passed, then Prime Minister Xanana Gusmao warned police and members of the military who belong to MRAGs that they must leave or ‘risk being fired’.[39]

   [36] ‘Dynamics of martial arts related conflict and violence in Timor-Leste’, Belun, May 2014, p.10.

   [37] ‘An Oath for Members of the F-FDTL and PNTL: End or Calm the Martial Arts Groups’, Fundasaun Mahein, 30 January 2015.

   [38] ‘Conflict resolution on martial arts organization through collaborative governance: a case study in Timor Leste’ Ximenes, M et al, Advances in Social Science, Education and Humanities Research, Volume 581, 2021, p.239

   [39] ‘Pencak Silat: Violence Prompts East Timor to Ban Local Form of Martial Arts’, The Diplomat, 25 September 2013

3. Sources consistently state that there are members of MRAGs in Timorese state institutions including the police force.[40] According to FM, there is a close relationship between some MARGs and political parties in Timor-Leste:

   [40] ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, Fundasaun Mahein, 27 September 2022; ‘Martial and ritual arts groups in the formation of political parties in Timor-Leste’, Alves, J, Dialogos, Volume 7, 17 November 2022, p.52; ‘Security, Violence, and outlaw ed martial arts groups in Timor-Leste’, Paw elz, J, May 2015, p.124; ‘Groups, gangs, and armed violence in Timor-Leste’, Small Arms Survey, Number 2, April 2009, p.1, 20230222133948

   During political campaigns in 2018, there was increased discussion about legalising MRAGs, including among major political parties. The new party KHUNTO [Kmanek Haburas Unidade Nasional Timor Oan] has also gained much support since then, even though its sister martial arts organisation remained illegal. In mid-2022, the Government held a ceremony to legalise three major groups, including KORK, which is affiliated with KHUNTO. Meanwhile, other political parties are also recruiting MRAG leaders and members to assist in mobilising support, illustrating that Timorese politicians increasingly recognise the importance of these groups as political actors.[41]

   [41] ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, Fundasaun Mahein, 27 September 2022.

   In September 2022, FM reported that some members of Timor-Leste’s security forces belong to MRAGs. According to the report:

   There is also evidence which suggests that many members of Timor-Leste’s state security forces are also members of MRAGs, while some people suspect that certain MRAGs may be coordinating with former Timorese militia members living in West Timor to provoke social and political instability inside Timor-Leste.[42]

   A November 2022 article published in the journal Dialogos[43] similarly notes that MRAGs infiltrate many aspects of Timor-Leste’s society, including the security forces:

   There are official and informal affiliation among martial arts groups, political parties, politicians, and security forces. In the majority of cases, the links are based on personal, clandestine and kinship alliances, as well as on family ties.[44] A 2015 article by Janina Pawelz of the Institute for Peace Research and Security Policy at the University of Hamburg similarly states that there are MRAG members across state institutions, including the police force: There are official and informal affiliations among martial arts groups, political parties, politicians, and the security forces. In the majority of cases the links are based on personal, clandestine, and kinship alliances, as well as on family ties. The large percentage of martial arts group members in the police force has led to various problems, such as informing fellow martial arts members about a scheduled raid, taking sides during street fights leading to arbitrary arrests, and hence ineffectively solving community problems. When then Prime Minister Xanana Gusmão ordered the members of the police (PNTL) to quit their martial arts groups in January 2014, 993 members (more specifically, 654 from PSHT, 243 from KORK, and 96 from Kera Sakti) declared their loyalty to the police force by officially surrendering their martial arts uniforms. These numbers are evidence of massive infiltration of martial arts members into the police.

   Although the bulk of group members consists of ordinary young men, high-ranking leaders are often well educated and hold high positions in the government.[45]

   A 2014 article by Timorese non-government organisation (NGO) Belun[46] states that ‘there are numerous senior members’ of MRAGs who ‘allegedly hold key positions within the Timor-Leste Government.’[47]

   In 2009, the Small Arms Survey similarly stated:

   While the bulk of these groups may be composed of disenfranchised youths, their membership is drawn from all sectors of society, with members in the police force, the army, and among the political and economic elite.[48]

   A 2022 survey by The Asian Foundation indicates that many Timorese believe that MRAGs assist the police to fight crimes. In 2022, 31 per cent of respondents from the general public believed that MRAGs are active or very active in assisting the police to fight crimes, an increase from 10 per cent of respondents in 2018 and 4 per cent in 2013.[49]

   [42] ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, Fundasaun Mahein, 27 September 2022.

   [43] Dialogos is a biannual journal published by the Center for Historical Research in Central America at the University of Costa Rica. 

   [44] ‘Martial and ritual arts groups in the formation of political parties in Timor-Leste’, Alves, J, Dialogos, Volume 7, 17 November 2022, p.52.

   [45] ‘Security, Violence, and outlaw ed martial arts groups in Timor-Leste’, Paw elz, J, May 2015, p.124.

   [46] According to its website, Belun is Timor-Leste’s largest non-government organisation (NGO) and runs the country’s largest community outreach program.

   [47] ‘Dynamics of martial arts related conflict and violence in Timor-Leste’, Belun, May 2014, p.15.

   [48] ‘Groups, gangs, and armed violence in Timor-Leste’, Small Arms Survey, Number 2, April 2009, p.1.

   [49] ‘Timor-Leste Safety, Security and Justice Perceptions Survey’, The Asia Foundation, 10 June 2022, p.43.

4. Conflicts between MRAGs usually occur at the community level, where groups from opposing communities clash in an effort to defend their territory or resolve disputes. FM explains:

   Furthermore, based on FM’s discussions and observations, another key factor driving MRAG recruitment and violence relates to concerns about self-defence and protection of clan and village. This is reflected in the fact that the composition of MRAGs is usually aligned with kinship networks, while each bairro in Dili and other urban areas is made up of aldeias, and each aldeia usually incorporates one extended family or clan within its territory. Often, all the youth in one aldeia belongs to a single MRAG. Communal conflict occurs when one community mobilises its youth to defend its territory from attacks – real or perceived – by members of another community. This indicates that most violent conflict in Timor-Leste occurs between one aldeia and another, rather than within one aldeia.[50]

   [50] ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, Fundasaun Mahein, 27 September 2022.

   In 2021, the Asia Foundation noted that what may appear as MRAG-related violence may actually be related to disputes between villages which involve young Timorese men:

   What sometimes appears to be a clash between gangs or MAGs in Dili is often a communal dispute between villages, as each community mobilizes its youth to defend its territory. Communal conflicts between families in rural districts sometimes spread to Dili, as one family uses a gang or MAG to attack another family over a property or land dispute. Gang violence often escalates, as members from other gangs or MAGs get involved, leading to cycles of retaliation.[51]

   [51] ‘The State of Conflict and Violence in Asia 2021: Identity-Based Conflict and Extremism’, The Asia Foundation, September 2021, p.166.

   The Asia Foundation notes that ‘though they have subsided, gang-related fights are still common.’[52] Reporting on the security situation in Timor-Leste, the United Kingdom Home Office states:

   [52] ‘The State of Conflict and Violence in Asia 2021: Identity-Based Conflict and Extremism’, The Asia Foundation, September 2021, p.166.

   There are occasional incidents of fighting between groups in various districts around Timor-Leste, often but not always related to martial arts groups. These incidents often involve stone throwing and occasionally machetes and knives. Most happen at night.[53]

   [53] ‘Foreign travel advice: Timor-Leste’, UK Home Office, undated, accessed 21 February 2023.

   According to FM, MRAGs fill the security vacuum that has been left by an absence of police at the local community level. The report notes:

   Another key factor driving MRAG activity is the lack of state security presence and responsiveness, which results in a failure of the state to provide basic security in many areas. There are many reasons for this, including limitations in transport, human resources and basic equipment. Another major issue is that due to a lack of police dormitories, many PNTL officers are assigned to work in their home areas, as there are no places for them to live if posted outside their home area. As a result, criminal cases are often resolved through traditional cultural methods, rather than formal justice procedures. This undermines the state policing system and the rule of law within both communities and the policing institution itself. Further, it may increase perception among youth that in order to guarantee security, they must join informal community self-defence organisations…

   As a result of this security and policing gap, many Timorese youth today thus face a dilemma: either they can refuse to join any group, which means that they face potential violence from all MRAGs; or, they can choose to join one group – usually the one to which other extended family members in their aldeia already belong – where they will continue to face the threat of violent attacks, but they will be protected by other members of their own group.[54]

   Reporting on MRAGs in 2014, Belun noted that the group dynamics of these organisations may drive conflict. According to the report:

   Residents in conflict-vulnerable areas – such as Beto (Dili) and Caibada (Baucau) – stated that risk of violence can increase when youth get together. They considered that when groups of youth with the same identities get together in streets, it can easily lead to incidents such as rock-throwing, provocation and threats, fighting, and other violent acts.[55]

   The last widely reported incident involving MRAGs occurred in August 2022. According to FM and the Timorese newspaper Tatoli, violent clashes broke out between two MRAGs in Dili, resulting in multiple deaths and the death of a MRAG member in police custody.[56] According to FM:

   The Government then ordered a joint police-military operation as a “show of force” against MRAGs. Just a few days ago, PNTL arrested twenty-six (26) members of the PSHT organisation for allegedly violating the terms of their agreement with the Government, which included agreeing not to perform their activities in public spaces.⁵⁶

   [54] ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy ’, Fundasaun Mahein, 27 September 2022.

   [55] ‘Dynamics of martial arts related conflict and violence in Timor-Leste’, Belun, May 2014, p.12.

   [56] ‘Prime Minister Ruak urges young people to avoid conflict’, Tatoli, 24 January 2023; ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, Fundasaun Mahein, 27 September 2022.

5. The Government of Timor-Leste issued the following press release dated 10 November 2023 under the authority of the Presidency of the Council of Ministers:

   Government orders suspension of teaching, learning and practicing of martial arts and adopts measures to ensure public order.

   Given the serious incidents that have taken place in recent days in different parts of the country involving members of martial arts groups, resulting in 4 fatalities, 26 injuries and material damage to 21 homes and 10 vehicles, the Government decided, through Government Resolution 45/2023 of November 10^th, to suspend the teaching, learning and practice of martial arts and the practice of ritual arts throughout the country for six months. It also ordered the suspension of the operating authorisation of centres, clubs and schools for the practice of martial arts, as well as the closure of all premises and facilities for the teaching, learning and practice of martial arts for six months.

   With this Resolution, the Government directs the Martial Arts Regulatory Commission to carry out an inspection within 90 days, identifying all the centres, clubs or schools that teach, learn and practice martial arts, the individuals responsible for organising and teaching martial arts, and the owners of places or facilities where those activities take place, whether authorised or not, throughout the national territory, to present a report to the Government with the results of the survey carried out, and to inform the Timor-Leste National Police and the other competent authorities.

   The National Police of Timor-Leste (PNTL) should carry out a special crime prevention operation in the geographical areas where the violence associated with martial arts was recorded, under Article 33 of Law No. 5/2017, of April 19^th. The PNTL should also carry out other special crime prevention operations necessary to prevent and control illegal acts related to the practice of martial arts, namely in Dili and in areas of the country where there is a higher risk of incidents.

   With this Government Resolution, the Minister of the Interior and the Minister of Defence are instructed to take the necessary steps to identify police and military officers involved in the organisation or practice of martial arts. They should also promote actions to raise awareness and train police and military officers in the Government's zero-tolerance policy towards their involvement in martial arts organisations.

   The Government instructs civil servants, public administration agents and contracted personnel to fully comply with the Code of Ethics, namely regarding involvement in illicit practices related to martial arts, and calls on all citizens and community leaders to collaborate with the security forces to identify the illicit practice of martial arts.

   The Minister for Youth, Sport, Arts and Culture is hereby instructed to promote the necessary initiatives to raise awareness among the population, especially young people, of the importance of practising sport in a healthy way and to adopt the acts required to implement and fully comply with this Resolution concerning the suspension of activity and closure of centres, clubs and schools for the practice of martial arts.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.

2. In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.

3. Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.

4. The Tribunal notes the country information regarding the prevailing economic conditions in Timor Leste, in particular the rise in the poverty rate, and more so in rural areas, the reliance on small-scale subsistence farming, the majority of households being in the informal employment sector, the increased dependence on climate-sensitive livelihoods and agricultural production, and the low labour market participation. The pandemic exacerbated underlying issues within the country, including disparity in development between rural and urban settings, the effect of climate hazards, and limited access to education and health services, social protection programs and markets.

5. The Tribunal accepts that the applicant experienced economic hardship and limited employment opportunities in Timor Leste.

6. The Tribunal considers the applicant’s economic hardship as a member of a poor subsistence farming family and limited employment opportunities, despite being university educated, accord with the experiences of many Timorese due to the prevailing economic conditions in Timor Leste.

7. The Tribunal accepts that the applicant’s family members in Timor Leste continue to experience economic hardship and rely substantially on the applicant’s regular contributions from his earnings in Australia for their financial support.

8. The Tribunal considers that if the applicant returns to Timor Leste, it is likely he would experience economic hardship and/or limited employment opportunities and it is likely he would have difficulty financially supporting his family as he currently does, however such economic hardship and/or limited employment opportunities and capacity to financially support family would be at a level commensurate with the broader population, and not targeted at the applicant by reason of his race, nationality, religion, membership of a particular social group, or political opinion.

9. The Tribunal notes the country information regarding the crime threat in Timor Leste, in particular in the context of a large unemployed youth population and community violence involving Martial and Ritual Arts groups (MRAGs). High rates of poverty and unemployment drive frequent crimes of opportunity. Reported data shows most violent crime involves Timorese perpetrators and victims. Violence among MRAGs flares up occasionally and occurs primarily between rival groups.

10. The Tribunal notes again the statement issued by the Government of Timor Leste in November 2023 ordering a suspension of teaching, learning and practising of martial arts and also ordering a special police crime prevention operation to prevent and control illegal acts related to the practice of martial arts.

11. The Tribunal notes the country information reports that, despite Government efforts, members of Timorese state institutions including police and security forces are members of MRAGs, and that there are official and informal affiliation among MRAGs, political parties, politicians and security forces, mostly based on personal, clandestine and kinship alliances, as well as family ties.

12. The Tribunal notes the country information reports that a key factor driving MRAG activity is the lack of state security presence and responsiveness, which results in a failure of the state to provide basic security in many areas. As a result, many Timorese youth face a dilemma: either they can refuse to join any group, which means that they face potential violence from all MRAGs; or they can choose to join one group – usually that of extended family members – where they will continue to face the threat of violent attacks, but they will be protected by other members of their own group.

13. The Tribunal notes the country information reports that the [Group name] and other high-profile MRAGs were outlawed in 2013, but that these groups remain active in Timor Leste.

14. The Tribunal notes the applicant’s evidence that he was a member of the [Group name] group from 2005 to 2018, that he enjoyed being involved in the friendship and physical fitness aspects of the group, but he was never involved in conflict because when the group made plans to foment hatred, he didn’t participate. The Tribunal accepts this evidence.

15. The Tribunal notes the applicant’s evidence that after he left the group in 2018, group members would tell him often to “be careful”, and he took that as a threat that they would harm him for leaving the group. The Tribunal further notes the applicant’s evidence that since he’s been in Australia his brothers have told him that group members are still threatening to harm him if he returns to Timor Leste.

16. The Tribunal notes the applicant’s evidence that he was never harmed by group members or otherwise while in Timor Leste.

17. The Tribunal considers the applicant’s evidence of threats of harm by group members lacks detail and plausibility. The applicant was a member of the group for 13 years and was able to avoid any adverse repercussions for choosing not to be involved in conflict. If group members told the applicant on leaving the group to “be careful”, the Tribunal considers that these words fall well short of substantiating a threat of harm.

18. The Tribunal considers that if the applicant genuinely feared being harmed by group members, he would not have returned to Timor Leste on two occasions after he left the group, in May 2019 and July 2022.

19. Based on the country information, the Tribunal considers that MRAG activity and associated actual and potential violence are issues faced by many Timorese youth, whether or not they are members of a particular group.

20. The Tribunal notes the applicant is now aged [Age] and considers it is unlikely he would be regarded as a youth in Timor Leste.

21. The Tribunal considers the applicant’s risk of exposure to violence and crime by MRAGs and other perpetrators in Timor Leste is at a level commensurate with the broader population and not targeted at the applicant by reason of his former membership of the [Group name] group or any other reason.

22. The Tribunal notes the applicant’s evidence that he is in Australia to earn money, save capital and send money back to Timor Leste to support his family and pay for the younger children’s schooling through to university. The Tribunal further notes that the applicant intends to return to Timor Leste in two to three years once he has saved enough money to allow him to renovate his parents’ house. The Tribunal considers this the applicant’s primary motivation for coming to and currently wishing to remain in Australia.

23. The Tribunal considers it is not likely that, if the applicant returns to Timor Leste, he would face harm, by cause or nature, that would engage Australia’s protection obligations.

24. The Tribunal is satisfied the applicant’s evidence does not give rise to any further claims for protection requiring its consideration.

Application of law

1. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

2. The Tribunal finds that:

   45.1.The applicant is a citizen of Timor Leste and a non-citizen in Australia.

   45.2.The applicant’s claims for protection do not satisfy the refugee or complementary protection criterion set out in the applicable law.

   45.3.If the applicant is returned to Timor Leste, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.

   45.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor Leste there is a real risk the applicant will suffer significant harm.

CONCLUSIONS

1. 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.

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

3. There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) 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. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.

DECISION

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

Kate Chapple Member

ATTACHMENT A

Summary of applicable law

The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.

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).

Relevant extracts 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.