2401353 (Refugee)

2401353 (Refugee) [2024] AATA 2227 (3 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2401353
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:Amy Faram
DATE:3 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 03 June 2024 at 12:59pm

CATCHWORDS
REFUGEE – protection visa – East Timor – written claim of fear of harm from ex-boyfriend and uncle because of boyfriend’s debt to uncle – at hearing, claim acknowledged as incorrect at hearing and new claim of fear of harm from husband – application completed by acquaintance and no adverse inference drawn – customary marriage and young child – assaulted and isolated from family – husband’s senior occupation and ongoing interest in applicant’s return – country information – traditional gender roles, violence against women and no reasonably effective state protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 5L(d), 5LA(1), 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221
CASE
Chan Yee Kin v MIEA (1989) 169 CLR 279
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 January 2024 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, a citizen of Timor-Leste (also known as East Timor), applied for the visa on 24 October 2023. The delegate did not interview the Applicant and refused to grant the visa on the basis that the Applicant would have effective protection from the harm feared (on account of a debt) and that there was, therefore, neither a real chance, nor a real risk that she would suffer harm in Timor-Leste.
The Applicant appeared before the Tribunal on 14 May 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
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[1]
[1] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Sections 5(1) and 36(2A) and (2B) are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal records that having reviewed the Applicant’s identity documents and heard her oral evidence, it is satisfied she is a citizen of Timor-Leste. For the purposes of this protection eligibility assessment Timor-Leste is the ‘receiving country’, and the Applicant’s protection claims are assessed in light of circumstances in Timor-Leste as these relate to her claims.
The issue in this case is whether, on account of her experiences of family violence in Timor-Leste, the Applicant is a person to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Migration Regulations.
Claims and evidence
The Applicant was born in [Year], in [Municipality] in Timor-Leste. She arrived in Australia [in] March 2023, and on 24 October 2023, made an application for a protection visa.
The claims included on the Applicant’s protection visa application form were that an ex-boyfriend was indebted to her uncle (for $60,000USD) and there was a risk of harm to her from her uncle and her ex-boyfriend, if she returned to Timor-Leste.
At the hearing of this matter, the Applicant gave evidence that she was the [birth order] child of [number], and she was born and had lived most of her life in [Village], in [Municipality]. She is now [Age], [details deleted]. Her mother is alive, but her father passed away when she was in her last year of high school. Her siblings do not work in the formal sector and the family supports themselves by farming vegetables on land that they own, situated more than an hour from the family home.
She has one daughter, [Age]-year-old [name]. Her full name is [deleted]. [Name] is a nick-name. She was born on [Date]. She is currently living in [Village] with the Applicant’s mother. The Applicant explained that she had been with her child’s father for three years. They were culturally married, after he saw her at a party in her local area. Her husband’s name is [Mr B] and he lives in Dili.
The Applicant explained that she came to Australia in order to help her family, and because there is no work available to her in Timor-Leste.
The Tribunal asked the Applicant whether she still had contact with [Mr B]. The Applicant said that she did not. The Tribunal asked the Applicant why the relationship had ended and she explained that she left him because he committed domestic violence and physical assault against her. The Tribunal asked the Applicant whether she considered going to the police. She seemed confused by the question and the Tribunal asked that if she had been the victim of a crime, which on her evidence she had been, whether she had considered going to the police. She said that she had not. She was traumatised and afraid and did not ask them for help. She does not know if they would have helped her, because she never asked them.
The Tribunal asked the Applicant about the violence she experienced and she said that it was throughout the three years of their relationship. He would hit her around three times a week. She told her family about what was happening and they encouraged her to leave him. He had been her first relationship. She is afraid that if he saw her again, he would beat her.
The Applicant explained that they had lived in Dili throughout their relationship, which is three hours from her home village. The worst incident left her body swollen all over, after he hit and kicked her.
He wanted them to always be in Dili and to not go back to [Village] and he did not want her to have contact with her [siblings]. Once he smashed her phone. The Applicant said that he did not force himself on her sexually. He would not let her handle money, and if she asked him for any, he would hit her, so she kept quiet.
After she finally left him, in December 2022, he did not call her, but she heard from mutual friends who had wanted to warn her that he was asking about her and she was afraid he would come to [Village]. She was initially at her mother’s home, but she then left [her daughter] there and went to stay with one of her [brothers], around 50 minutes away. Her mother encouraged her to leave [her daughter] with her because her brother already had many children in his home to care for. She was, and still is, afraid that [Mr B] will take their child from her mother. The Applicant stayed with her brother until she came to Australia in March 2023.
Asked about the claims made in the protection application form, the Applicant said the information was not correct. She apologised and said she was naïve, had not known what to do and had let a friend who she had met here complete the form. She said that the real problems are what she has explained. She was shocked when she later reviewed the form and saw what was on it, and she wanted to come to the Tribunal and tell the truth. She confirmed she has no uncle that she is afraid of, and there was no ex-boyfriend that had acquired a problematic debt or that was called [name].
The Tribunal asked the Applicant whether she had a birth certificate for her child. She said that she did not. She said that the child had been baptised in Dili and she had not gone to collect the certificate. Asked if someone could do this, and she said that only the parents could get this from the church. She showed the Tribunal a series of photographs and videos of a young child that she explained had been taken and sent to her by her neighbour who has a smart phone. Her mother does not have a smart phone and is not good with technology.
Asked whether she could live elsewhere in Timor-Leste, the Applicant said that she just goes to her mother’s house, and her [siblings’] houses: there are no others. She said that she had not heard from [Mr B] since she had been to Australia, but she is still afraid that if she were to return he would harm her, even kill her.
The Tribunal asked the Applicant what [Mr B] did for work and she explained that he was [an occupation]. His full name is [Mr B – full name] and he was born on [Date]. [Information redacted.]
The Applicant did not know what position [Mr B] held in the [employer]. In the course of the hearing, the Tribunal searched for a reference online of a [Mr B] of the Timor-Leste [employer] and appeared to have come across an image of [an occupation] by that name. The Applicant viewed the image and confirmed that that was a photo of her husband.
Country information
Economic and cultural overview
Timor-Leste has a population of approximately 1.34 million people,[2] and has been self-governing for only 21 years. The most recent Bertelsmann Transformation Index[3] (BTI Report), provides a useful overview of recent history and conditions:
Much of the over 30-population still suffers from PTSD and other damage from 24 years of Indonesian occupation and resistance, which was preceded by 400 years of Portuguese colonial rule: neither did much to develop human or economic resources. When the Indonesians withdrew in 1999, they destroyed all the electricity and communications infrastructure and burned down about 75% of the buildings.
Given this background, the new nation, including its political leaders, has done remarkably well in building a democratic stated governed under the rule of law. However, they are still in an adolescent phase…
Although progress has been made and people are much freer than they were before 1999, household economies are less improved, especially for the majority who live in rural areas, largely through subsistence agriculture. Although most can access electricity and mobile phones (including expensive internet), water and rural roads are still lacking in many places.
[2] Timor-Leste, Population and Housing Census 2022, Main Report, p.23.
[3] BertelsmannStiftung Transformation Index self-reports as providing in-depth country reports that provide the basis for assessing the state of transformation and persistent challenges for developing and transitioning countries.
Country information indicates that Timor-Leste was the poorest country in Southeast Asia at the time of independence and that much of government spending is reliant upon overseas aid.[4] Child malnutrition continues to rank among the highest globally and over 40 per cent of the population currently lives in poverty:[5]
Levels of poverty constrain domestic markets for locally produced goods, which limits opportunities for market-based competition. Since most consumers are in rural areas and have little money and few choices about where to obtain goods, market principles often do not apply. Subsistence agriculture is significant, especially in rural areas.[6]
[4] ‘United Nations Development Assistance Framework (UNDAF) 2015-2020 in Timor-Leste: Evaluation Report’,
United Nations Development Program (UNDP), May 2019, p.11.
[5] Bertelsmann Stiftung, Bertelsmann Stiftung’s Transformation Index (BTI), 'BTI 2024 Country Report - Timor-Leste', 19 March 2024, (BTI 2024 Timor-Leste Report) pp. 4 & 6.
[6] BTI 2024 Timor-Leste Report p. 18.
The BTI Report sets out that ‘[a]lthough the state has spent $15 billion of its limited petroleum wealth, the results are rarely visible in the rural areas where two-thirds of the population lives.’[7] Most households operate in the informal sector and are dependent on climate sensitive livelihoods and agricultural production in a country that is impacted by sea-level rises and higher temperatures due to both natural climate variability and climate change.[8]
[7] BTI 2024 Timor-Leste Report p. 8
[8] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30; BTI 2024 Timor-Leste Report.
The economy is almost entirely reliant on oil and gas and 80% of government spending comes from the Petroleum Fund. However, income into this fund is now negligible as Timor-Leste has already collected 99% of the revenues payable from current fields of production and it is estimated the Petroleum Fund could be entirely completed within a decade.[9]
[9] BTI 2024 Timor-Leste Report.
In 2021 the United Nations reported that the overall unemployment rate in Timor-Leste was 11.9%, but among young people it rose to 22.1%. Only 45% of the working age population were employed in the market economy as at March 2021.[10] The unemployment rate for women was double the rate for men.[11]
[10] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.30; BTI 2024 Timor-Leste Report.
[11] US Department of State, 2022 Country Reports on Human Rights Practices: Timor-Leste.
The Catholic Church has a substantial influence on the agenda of government, with 97% of the population adhering to the faith.[12]
[12] BTI 2024 Timor-Leste Report, p. 40.
In the BTI Report, the following general observation about the society was made:
Timor-Leste is, to some extent, a dual society. The quarter of the population who live in the capital have greater access to education, employment and health care, as well as access to other opportunities compared to the rest of society, although even there women have fewer opportunities than men. Conversely, in rural areas, “customary” principles that discriminate based on gender, disability and age are still influential. The most affluent or well-connected individuals go overseas for health care and education.[13]
Family violence
[13] BTI 2024 Timor-Leste Report, p. 24.
No laws limit the participation of women in political processes, and at least one-third of candidates on party lists are required to be women. However, ‘[t]raditional attitudes towards gender roles, limited political networks among women, high rates of domestic violence, extensive child-care responsibilities and other barriers constrained greater participation of women at the local and national levels.’[14]
[14] US Department of State, 2022 Country Reports on Human Rights Practices: Timor-Leste.
In 2023, there were 26 women in the 65-member parliament, though only seven of the top 45 executive positions were held by women.[15] Representation is worse at local levels, where they occupy only 4% of elected village (suco) chief positions in local government, and the ‘disparity is even more pronounced outside of the capital’.[16]
[15] BTI 2024 Timor-Leste Report, p. 25.
[16] BTI 2024 Timor-Leste Report, p. 25; Tatoli.tl – Tmor-Leste News Agency, ‘Eighteen women elected as village heads’, 14 November 2023.
Government responses to family violence have been described as piecemeal[17] and rates of gendered violence remain extremely high. In 2013, the problem was described as endemic. That year marked the end of a three-year campaign to reduce rates of violence, but NGOs said perpetrators still often went unpunished:
[17] BTI 2024 Timor-Leste Report, p. 31.
Patricia de Araujo Fatima, an officer with not-for-profit legal aid organisation Asisténsia Legál ba Feto no Labarik (ALFeLA), says she sees many cases of domestic violence in her job.
"In the Oecusse district there is a woman whose husband cut off both her hands with a machete," Ms Fatima said.
She says the man then slashed his wife across the face, knocking out multiple teeth and causing permanent damage to her eye.
"This is a very sad case," Ms Fatima said.
In another case, a man stabbed his wife in the back of the head and struck her repeatedly with a block of wood, after an argument about feeding their children. The man received a suspended sentenced of seven months in jail.
… Ms Fatima says violence against women remains alarmingly common and is under-reported. "The situation hasn't improved," she said. Ms Fatima says women who experience domestic violence in East Timor face a number of challenges.
"Women are economically dependent on their husbands and that is why they are scared to report their case," she said.
"They are scared their husband will divorce them and they will be unable to care for their children."
Furthermore, she says many communities still view domestic violence as a private issue that should not be dealt with in public.
"Some women do not know that domestic violence is a crime," said Ms Fatima.
"Then, when police get reports of domestic violence they keep quiet about it."
Lisa, a victim of domestic violence whose name has been changed for this report, says police did nothing when she went to them for help.
"I had a problem with my husband at home, he hit me and my face swelled up," she said.
"I reported it to police but they sent me back home."
East Timor's peak judicial-system-monitoring NGO, Justice System Monitoring Programme (JSMP), says there is confusion about the role of police, prosecutors, lawyers and the courts.
The Australian Federal Police (AFP), which provides training and support for East Timorese police, says remoteness is another major problem.
"It might take hours or days to get to the police station," said Melita Zielonko from the AFP's Timor-Leste Police Development Program, Gender Equality and Vulnerable Persons Unit.[18]
[18] Boulet, S., ‘Domestic violence laws in East Timor failing to protect women, perpetrators often go unpunished, NGOs say, ABC News, 8 November 2013.

In 2016 it was reported that almost 60% of females aged between 15 and 49 had experienced sexual or physical violence at the hands of an intimate partner, while 14% ‘had been raped by someone other than a partner’.[19]
[19] US Department of State, 2022 Country Reports on Human Rights Practices: Timor-Leste.
A number of resources also indicate that few in the community are in fact aware that family violence is an offence:[20]
Domestic violence is accepted as a normal part of daily life in Timor-Leste. This view is grounded not only in traditional views of marriage and gender roles but also in the general normalisation of violence due to the country’s turbulent history.[21]
[20] IDWA.org.au, Timor-Leste; Boulet, S., ‘Domestic violence laws in East Timor failing to protect women, perpetrators often go unpunished, NGOs say, ABC News, 8 November 2013.
[21] Women and girls empowered, (WAGE Report 2021), Preliminary Gender and Inclusion Analysis for Timor-Leste, December 2021, p. 19.
Rape and domestic violence are crimes punishable by time in prison, but prosecutors were reported as frequently using a charge that attracted a lower penalty for family violence.[22] The US Department of State Report in their most recent report on human rights practices in Timor-Leste, stated the following:
The government did not enforce laws on rape and domestic violence effectively. Failures to investigate or prosecute cases of alleged rape and sexual abuse were common. The PNTL’s vulnerable persons units were generally responsible for handling of domestic violence and sexual crimes but did not have enough staff to provide a significant presence in all areas.
According to the Office of the Prosecutor General, domestic violence offenses were the second-most charged crimes in the criminal justice system, after simple assault. Prosecutors, however, routinely charged cases involving aggravated injury and use of deadly weapons as low-level simple assaults. Judicial observers also noted judges were lenient in sentencing in domestic violence cases. Several NGOs criticized the failure to issue protection orders and overreliance on suspended sentences, even in cases involving significant bodily harm.
Police, prosecutors, and judges routinely ignored many parts of the law that protect victims. NGOs noted that fines paid to the court in domestic violence cases often came from shared family resources, hurting the survivor economically.[23]
[22] US Department of State, 2022 Country Reports on Human Rights Practices: Timor-Leste.
[23] US Department of State, 2022 Country Reports on Human Rights Practices: Timor-Leste.
A January 2023 article in Southeast Asia Globe, noted the country was yet to heal from its recent and highly violent history, and that religion has hindered progress being made when it came to issues around family and child abuse:
Despite being referred to as the ‘most democratic’ country in Southeast Asia, violence remains a constant factor in the lives of Timorese survivors and their families. Strikingly high rates of sexual and domestic violence as well as child sexual abuse remain one of the most pressing issues facing the country today.
However, due to stigma and strong conservative Catholic beliefs, open discussion about such topics is often out of the question, especially if it involves a members of the church’.[24]
[24] Siviero, B., ‘Violence is everywhere’: child abuse remains a primary concern in Timor-Leste, 3 January 2023, Globe, Lines of Though Across Southeast Asia.
The Australia based International Women’s Development Agency, states that ‘the country’s strong patriarchal culture and customary laws reinforce strict gender roles, denying women their voice in decision making and making them more vulnerable to alarming rates of violence’.[25] The role of gender norms in the society was also recently reviewed by Women and Girls Empowered (WAGE), which provided the following analysis:[26]
The highly patriarchal system in Timor-Leste predefines gender roles and power dynamics within households and communities and in the market economy. Men are generally viewed as the heads of households, main providers, and decision-makers, while women are in charge of child-rearing and household chores, which limits their capacity to engage in their own economic activities… Timorese women also face a high level of gender-based violence (GBV), rooted in unequal gender norms, poverty, and the country’s history of violence connected to its emergence from Indonesian rule. Physical, sexual, emotional, and economic violence are often frequent and severe.
[25] Iwda.org.au, Life for women in Timor-Leste.
[26] Women and Girls Empowered (WAGE) self-reports as a global consortium to advance the status of women and girls, led by the American Bar Association Rule of Law Initiative in close partnership with the Center for International Private Enterprise, Grameen Foundation and Search for Common Ground.
On the influence of customary and religious laws on the experiences of women in the country, the writers noted that ‘[s]tudies indicate that customary laws and justice institutions often embrace sexist norms and practices, such as forced marriage, marriage of minors, dowry-related practices and discrimination with respect to property rights.’[27] They noted that while women had at law the same rights as men when it came to property and inheritance laws, in practice customary laws dictate outcomes and women are discriminated against.[28]
[27] WAGE Report 2021, p. 6.
[28] WAGE Report 2021, p. 6.
Gender roles are rigid and unequal power relations between men and women are widespread.[29] Under customary law, particularly prominent in rural areas, ‘men control family resources and decide how money is spent and how land is used. Women do not inherit land and do not participate in traditional decision-making institutions… Men are also given greater access to education and employment, while women are expected to be “good”, responsible wives and mothers who focus on child-rearing and household chores’.[30]
[29] WAGE Report 2021, p. 7.
[30] WAGE Report 2021, pp. 8-9.
Protection findings
Refuge criteria
For the following reasons, the Tribunal has concluded the matter should be remitted for reconsideration.
The Tribunal finds that the Applicant has experienced serious harm in Timor-Leste at the hands of her customary husband (her husband) who is [an occupation]. The Applicant’s evidence was compelling and understated. Consistent with the above country information, she did not seem to entirely appreciate that she had been the victim of crimes, her experiences of family violence being part of her everyday life with her husband in Timor-Leste. Her evidence was also spontaneously corroborated by digital information contained on her personal device and the internet.
As is required under s 423A of the Act, the Tribunal has given consideration to the reasons why claims and evidence were provided by the Applicant to the Tribunal but not the delegate and considers the explanation to be reasonable. The Tribunal does not draw an adverse inference with respect to the new information. The Applicant fled a violent home and sought shelter in a third country where she hoped she could also provide her family with much needed financial support, as many of her fellow countrymen are also doing. The protection application form is a long document in a language that is not her own. It was completed by someone she met in Australia and who was not, as the Tribunal understands it, a registered migration agent or lawyer and who may not have taken the interest and/or care necessary to understand and set out the difficult and personal matters that motivated her departure from Timor-Leste. The Tribunal accepts, also, that the Applicant was anxious when she realised the form was not accurate, and that she hoped to have an opportunity to explain matters directly. Having not been interviewed by the delegate and not having a representative, the next opportunity she had to do this was at the hearing with the Tribunal.
The Tribunal is satisfied that the Applicant would face a real chance of harm at the hands of her husband if she was returned to Timor-Leste. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a subjective fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. As noted above, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 279.
The Applicant experienced serious harm at the hands of her husband, who also isolated her from her family members. Once apprised of the situation, the Tribunal accepts that her family encouraged her to leave him and assisted her to remain out of harm’s way for the few short months between her doing so and her departing Timor-Leste for Australia. The Tribunal finds that the couple have a young child together, and that while her husband did not immediately seek her out after she returned with the child to her home village, he remained interested in her whereabouts. The Tribunal is satisfied there is a real chance she would be targeted by him and would experience serious harm at his hands in Timor-Leste.
The harm feared includes threats to her life and significant physical, financial and emotional ill-treatment amounting to serious harm under s 5J(5) of the Act.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
The Tribunal considers that the harm feared by the Applicant from her husband is for the reason of her gender. Domestic and family violence is widely acknowledged to disproportionately affect women and girls.[31] High rates of gender-based violence are found where women are accorded less value and access to power than men. Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independence in public and private life and social attitudes condoning violence against women.[32]
[31] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[32] Our Watch, Change the Story; A Shared Framework for the Primary Prevention of Violence against Women in Australia (2^nd ed. 2021) 36.
Domestic and family violence is rooted in beliefs that men are entitled to use violence to enforce gender roles and to prevent or punish behaviour which does not conform to societal gender norms.[33] The social norms and the context of gender inequality in the relevant society as well as the dynamics of violence are relevant to assessments of both the forward-looking risk of suffering domestic and family violence in the future, as noted above, and the reasons for that violence.
[33] CEDAW Committee, General Recommendation No 35 on Gender-based Violence against Women, Updating General Recommendation No. 19, UN Doc CEDAW/C/GC/35 (26 July 2017) 7 [19].
Country information including that set out above evidences that violence against women, particularly in the domestic setting, remains a significant problem in Timor-Leste. Customary and traditional gender roles are a major reason for this. While laws protecting women exist, in practice, at both formal (judicial and policing levels of enforcement) and informal levels (through customary leaders or the church), patriarchal attitudes continue to see women disadvantaged, discriminated against, and denied protection on the basis that their gender and traditional role within the home dictates they are subordinate to the male family head.
For these reasons, the Tribunal accepts that the essential and significant reason for the harm the Applicant fears from her husband is her gender and membership of the particular social group ‘women’. This group is defined by a shared innate or immutable characteristic[34] – gender – which is not a shared fear of persecution.[35] As such, the Tribunal finds that the Applicant fears harm for a s 5J(1)(a) reason.
[34] Section 5L(c)(i) of the Act. Gender has long been recognised as an innate characteristic, see UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2022) [30]. For recent acknowledgement in Australia, see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 178 at [1220].
[35] Section 5L(d) of the Act.
In assessing whether the Applicant’s real chance of being persecuted extends to all areas of Timor-Leste, per s 5J(1)(c), the Tribunal has considered evidence that the Applicant and her husband have a young child together, that he is a senior [occupation] with an ongoing interest in her return, and that Timor-Leste is a small nation in terms of size and population. The Tribunal accepts the evidence of the Applicant that her husband knows where her family village is, and finds that as [an occupation], he could locate her whether she was to return to her family home or attempted to evade him elsewhere in Timor-Leste. The Tribunal notes also, however, that as a young woman in Timor-Leste, she would be at a heightened risk of gendered violence from others in the community if she away from her family. The Tribunal accepts that her husband would be able to locate her were she to return to another area of Timor-Leste and is satisfied that the risk of persecution to the Applicant relates to all areas of Timor-Leste.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The Tribunal finds that the Applicant would not be able to access protection from the harm she fears in Timor-Leste because of her husband’s role within the [employer] in Dili and because the authorities in Timor-Leste do not provide a reasonably effective force in the context of family violence matters, especially where the violence occurs in rural and remote areas. While the leaders of the country are alive to the issue and on paper seek to address it, it will be some time before meaningful change is seen. The Tribunal finds that effective protection from the harm feared by the Applicant in Timor-Leste is neither accessible nor available.
For these reasons, the Tribunal is satisfied that the Applicant faces a real chance of persecution in the reasonably foreseeable future, if she returns to Timor-Leste. Therefore, she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the Applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of these cases.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Amy Faram
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2227

3 June 2024

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