2401353 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of a citizen of Timor-Leste. The applicant initially claimed a fear of harm from an ex-boyfriend and an uncle due to the boyfriend's debt. However, at the hearing, the applicant recanted this claim and instead testified that she feared harm from her husband due to domestic violence and physical assault. The central dispute was whether Australia owed protection obligations to the applicant under section 36 of the *Migration Act 1958* (Cth) and clause 866.221 of Schedule 2 to the *Migration Regulations 1994* (Cth) on account of her experiences of family violence in Timor-Leste.

The Tribunal was required to determine if the applicant was a refugee within the meaning of section 5H of the Act, specifically whether she had a well-founded fear of persecution for reasons of membership of a particular social group, and if effective protection measures were available to her in Timor-Leste. The Tribunal also considered whether the applicant had taken all possible steps to avail herself of a right to enter and reside in a third country, as per section 36(3) of the Act.

The Tribunal accepted the applicant's evidence of her citizenship and her revised claim of fear of harm from her husband, noting that she had been culturally married and had a young child. It was satisfied that the applicant had not been able to access police protection due to trauma and fear, and that Timor-Leste's traditional gender roles, prevalence of violence against women, and lack of effective state protection meant that she could not reasonably relocate or obtain state protection. The Tribunal found that section 36(3) of the Act did not apply as there was no evidence of any right to enter another country.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*, meaning Australia has protection obligations towards her because she is a refugee.