2401473 (Refugee)

2401473 (Refugee) [2024] AATA 2673 (18 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2401473

COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Ben Goulding
DATE:18 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 June 2024 at 2:32pm
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – criminal activity – family violence – economic conditions – employment – curse on the family – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 29 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Timor-Leste, applied for the visa on 2 November 2023. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 10 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [Brother A]. 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). 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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. As per s 5AAA of the Act, the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
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 issues in this review are whether there is a real chance that, if he returns to Timor-Leste, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s personal background
The applicant is [an age]-year-old male from [Town 1], Timor-Leste. The applicant travelled to Australia on an apparently genuine Timorese passport. A copy of the biodata page of the applicant’s passport is contained on the Departmental file. He has at all times stated that he is a citizen of Timor-Leste and has been assessed on that basis by the Department. The Tribunal finds he is a citizen of Timor-Leste and has assessed his claims against Timor-Leste as the country of nationality and the receiving country.
At hearing, the applicant gave evidence that he is one of [number family members]. The applicant’s [sister] died in 2022. The applicant speaks to his mother daily but has no contact with his father.
The applicant completed high school in Timor-Leste but has not undertaken any study since then. Prior to arriving in Australia, the applicant worked on a farm belonging to his uncles, where he would grow crops to help support his mother. The applicant explained that he is very lucky that he was able to come to Australia to work so that he could provide financial support to his family in Timor-Leste.
The applicant’s claims for protection
Before the Department
The applicant lodged a protection visa application with the Department on 2 November 2023. In summary, the applicant provided the following claims:
a.The applicant wanted a new life in an environment which is safe and with a good economy.
b.The economic situation is very bad in Timor-Leste. The rising cost of living means that basic goods become very expensive while his income remains the same.
c.There is a lot of crime in Timor-Leste, including thefts and bag snatches.
d.The applicant has to provide financial support to his parents and for his siblings’ education.
e.There are a lot of complaints about the government.
The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of his claims. The delegate refused the applicant’s protection visa application on 29 January 2024 on the basis of not being satisfied that the applicant is a refugee as defined in s 5H of the Act. The delegate also considered the applicant’s claims under the complementary protection criterion and determined that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Timor-Leste, there is a real risk that the applicant will suffer significant harm. As such, the Department was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
Before the Tribunal
The applicant appealed the Department’s decision to the Tribunal on 30 January 2024. Following this, the applicant was invited to a hearing on 10 April 2024.
In his response to the hearing invitation sent to the Tribunal on 6 March 2024, the applicant indicated that he wanted the Tribunal to take evidence from his two brothers, [Brother A] (the first witness) and [Brother B] (the second witness). The hearing response indicated that the evidence from both witnesses would cover (unedited):
The strong evidence of the criminal that occurred in the was the case of fight with the father.
In this case, our [sister] became the victim and she commit suicide.
[The applicant], claimed in our country is Timor Leste there is much crime domestic violence and a bad economy.
Due to the rising costs crime has risen – thefts and snatch crimes are rampant in the country.
He fears returning as he fears being harmed or mistreated due to crime levels and he does not think authorities can offer protection.
He needs to financially support his family.
The applicant sent two further emails to the Tribunal on 6 March 2024. These emails contained the same information and evidence which included two photographs of the applicant’s deceased sister. The subject line of the first email explained that his sister had been a victim and died by suicide. This information was repeated in the body of the second email.
At the commencement of the hearing, the Tribunal provided the applicant with a summary of the claims outlined in his protection visa application. The applicant confirmed those claims and stated that he is afraid to go back to Timor-Leste as he committed a crime because he fought with his father, and he cannot return there safely.
During the hearing, the Tribunal also took evidence by telephone from the applicant’s [brother], the first witness.
The applicant’s evidence and claims are considered in more detail below.
Evidence from the applicant
Claim relating to crime and the applicant’s father
The Tribunal initially questioned the applicant regarding his claim in his protection visa application that there are high rates of crime in Timor-Leste. The applicant responded in generalised terms, suggesting that the situation caused him problems and he was thought of as a criminal. When asked whether Timor-Leste was a dangerous place to live, the applicant responded that this was his reality and it weighed heavily on him. When asked about the rates of crime referred to in his protection visa application, the applicant’s response was similarly vague and indirect.
Following this, the Tribunal asked the applicant if he had prepared his own protection application. The applicant confirmed that he had assistance with the application. This is addressed further below.
The Tribunal then asked the applicant about his claim that he had been involved in a crime. It was at this point that the applicant’s evidence became more clear and it was apparent that he was speaking from his own experience. The applicant stated that he had been involved in a fight with his father. This fight happened because of the stress that resulted when the applicant’s father divorced his mother. The applicant described how their economic situation suffered greatly and there was no place for his mother to live, and no one to look after his siblings. The applicant claimed that he fought with his father but also with other people. When asked about the other people he fought with, the applicant stated he channelled his stress in an arbitrary fashion – sometimes against members of his father’s family but also against other people.
When questioned about his family’s circumstances, the applicant gave evidence that his mother and [brother] were currently living near to his uncle and that his uncle had given them some land to live on. The applicant’s other siblings are currently living with another family member.
When asked if he had been charged with any crimes, the applicant stated that he had been summonsed and he went to the police. The police directed the applicant to resolve the problem with his father amongst their family. When asked to explain the problem with his father in more detail, the applicant said that there is no love from his father and the lack of work makes his situation worse.
Following this, the Tribunal explained to the applicant that it needed to consider the chance or risk that the applicant might be harmed in the future. The applicant responded that his father had said bad things about ‘our sacred house’ and this created problems. When asked to elaborate, the applicant explained that after his father left his mother and abandoned their family, he put a curse on his clan and on his [sister].
The Tribunal then questioned the applicant as to whether his father had committed any violent acts against the applicant’s mother or other family members. The applicant said that his father was violent and, on one occasion, he chased his mother and was going to hit her, but the applicant and a brother stepped in and saved their mother. Following this, the applicant’s father placed a curse on them.
The Tribunal questioned the applicant twice as to whether his father had been physically violent towards him. On both occasions, the applicant spoke of his father’s violence towards his mother. In relation to harm directed at the applicant, he referred only to his father not being good to him, and the placing of the curse on their family.
When asked to explain the curse further, the applicant claimed that his sister took her own life because of the curse. He went on to explain that the curse will cause them to become ill or die.
When asked what would happen if he returned to Timor-Leste, the applicant said that his father will continue to cause problems for him and his family and that there is no amicable resolution to his situation. The Tribunal confirmed that he has not spoken to his father since he arrived in Australia and his father likely does not know that he is here. The applicant also said it is not possible for him to speak to his father due to his bad intentions.
Following this, the Tribunal questioned the applicant further about the curse and whether it was connected to a belief in magic. The applicant responded that his father had cursed his family’s sacred house. When asked to elaborate, the applicant explained that this is part of his culture and the sacred house includes all of his ancestors.
The Tribunal again questioned the applicant as to whether the curse was related to a belief in magic or witchcraft in Timor-Leste. The applicant responded that his father had used the names of their ancestors who had passed away and he had invoked them to wish bad things about the applicant and his immediate family.
The Tribunal then questioned the applicant again about threats of physical harm. The applicant said his father would carry a machete and that he would chase his mother with it. The applicant also claimed that he had threatened to use it against other family members; however, his uncles were present and he was afraid, so he left and placed a curse on their family. The applicant later confirmed that his father placed the curse on their family in 2022.
In relation to his sister who had passed away, the applicant said it followed a fight he and his brother had with their father. The applicant claimed that during the fight, blood was shed, and the case was reported to the police. The applicant claimed that his sister witnessed the fight and she had a lot on her mind, so she hanged herself.
When asked about the blood that had been spilt, the applicant said his father had hit his brother and he lost blood. The applicant claimed that he was also injured and that similar problems happened frequently.
When questioned about the current situation for his family, the applicant said his mother and [brother] live with their uncle on a piece of land in [Village 1]. Occasionally when his father sees his mother, he will insult her as they live close together, but he has not hit her as she lives in a village with the applicant’s uncle.
When asked if the applicant could reside somewhere else to avoid harm from his father, the applicant said he would still have problems as he has been cursed. When questioned as to whether he was safe from the curse in Australia, the applicant replied that he is far away and he has been able to make money so he can look after his mother and siblings. If he returned to Timor-Leste and tried to live somewhere else, he would have economic problems.
Towards the end of the hearing, the Tribunal took evidence from the first witness. The Tribunal asked the witness to describe the situation with their father. The first witness confirmed that the applicant had committed a crime when he hit his father. He also confirmed that their father abandoned their mother and children. Additionally, as there is no work available in Timor-Leste, the applicant has had to come to Australia to work.
When questioned about the last time he had contact with his father, the witness indicated that he had not spoken to his father since 2022. He also said that his mother had not been in contact with his father since 2022 and they are no longer close.
When asked whether his father or father’s family would want to harm the applicant in the future, the first witness said that they would and that his father does not want him anymore. The witness went on to claim that if the applicant returned, there would be confusion as he took his father’s money.
Following this, the Tribunal asked the applicant if he had any further questions he wanted the witness to address. The applicant responded that he had not mentioned that he had taken money from his father, but he had done so and not returned it.
After letting the witness leave, the Tribunal questioned the applicant further about the money. The applicant confirmed he had taken about USD[amount] from his father in about 2021. His father then divorced his mother in about 2022 and cursed their family.
The Tribunal also questioned the applicant in relation to the witnesses’ evidence that the witness and mother had not seen each other since 2022, whereas the applicant had claimed they had seen each other. The applicant responded that his father cursed their family in 2022 and there had been no contact since then.
When asked if his father would try to harm him if he returned, the applicant said it would be difficult to be near him and resolve the issues given his [sister] had passed away.

The Tribunal also discussed with the applicant whether he faced any criminal or court proceedings due to his claimed crimes relating to his fights with his father. The applicant said he will have problems because he has fought with the family of his father and they will create problems for him if he returns, including stress.
The Tribunal also discussed with the applicant whether it was necessary to take evidence from the second witness. In this regard, the Tribunal notes that in the hearing response, the applicant indicated that both witnesses were intending to provide the same evidence. The Tribunal expressly accepts the description of evidence as outlined for the second witness in the hearing response, namely:
a.That the applicant and other members of his family were involved in a fight with their father, that the applicant believes he committed a crime because he hit his father, and that the family believe the father has placed a curse on them.
b.That their [sister] died by suicide and the family blame the issues with their father for this.
c.That the rates of crime and domestic violence are high in Timor-Leste and the economy is relatively weak (refer to the country information provided below). That the authorities in Timor-Leste face difficulties in responding to these issues.
d.That the family are currently reliant on the applicant for financial support.
The Tribunal then explained that its task is to consider whether the applicant faces a real chance of serious harm or real risk of significant harm if he returned to Timor-Leste. The Tribunal also explained to the applicant that it accepts his evidence and the evidence of the first witness, and had no concerns in this regard given their evidence was largely consistent. Given this, the Tribunal noted that it had further questions for the applicant, but asked the applicant if he thought it was important that the Tribunal take evidence from the second witness. Following this, the applicant agreed that it was not necessary and indicated he consented to the Tribunal not calling the second witness. The Tribunal then sought to double-check the applicant’s consent to this, and the applicant responded that if the Tribunal does not call the second witness and wants to ask questions of the applicant, then that is ok.
Given that the Tribunal accepts the evidence of the applicant and first witness, and the outline of evidence provided by the second witness, the Tribunal considers it reasonable to not take evidence from the second witness.
Economic claims
In addition to the claims outlined above, the applicant advanced a claim based on the economic situation in Timor-Leste. In this regard, the applicant said his siblings were grateful that he was in Australia as he was able to support them financially.
The Tribunal accepts that the economy in Timor-Leste is weak, with about 42% of Timor-Leste’s population living below the poverty line, high rates of unemployment and most of the population having no consistent earnings and reliant on subsistence farming.[2] However, the situation has improved somewhat since independence, with significant economic growth since 2002.[3] This situation was discussed with the applicant at hearing and the applicant responded that the economic situation is very difficult and it is very difficult for him to meet the basic necessities. He also claimed that it would be very difficult for him to gain employment if he were to return to Timor-Leste.
[2] United Nations Development Programme, Timor-Leste - Economic transformation, 2024, < Peter Novak, Timor-Leste’s uncertain future, The Lowy Institute, 29 November 2023, <>
When questioned about the crops that his family grows, the applicant responded that they are not for sale and are only for consumption. The Tribunal then asked the applicant if his mother has any income and he responded that he sends her money, and she also gets some money from [making products]. Others in the applicant’s village grow crops, but they have their own land. The applicant claimed that due to the situation with his father, he does not have any land other than what they can access from his uncle. The applicant said that any land owned by his father will pass to his father’s siblings when he passes away.
The Tribunal then put to the applicant that it must consider whether any economic harm he faced would be directed at him for reasons of his race, religion, nationality, particular social group or political opinion. In response, the applicant said that the economic situation makes it very difficult to live in Timor-Leste. The Tribunal then questioned the applicant further as to whether he would face any discrimination within the economy, and whether such discrimination would be so great as to threaten his capacity to subsist. The applicant responded that there is no guarantee he could live because of the lack of work and high unemployment. As such, it would be difficult for him to have the finances to survive.
Assessment of the applicant’s claims
Consideration pursuant to s 423A and general credibility
As outlined above, the applicant did not initially raise a claim regarding harm directed at him or his family from his father. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
At hearing, the Tribunal questioned the applicant about the differences between the claims in his protection visa application and the evidence led by the applicant at hearing. In particular, the Tribunal questioned the applicant as to whether he had prepared the protection visa application himself. The applicant responded that he had assistance from a friend to prepare the application and he had given details of his reasons for fearing harm to his friend.
Given the applicant’s lack of English language skills and his reliance on his friend, the Tribunal accepts the applicant’s explanation as to why his correct claims were not included as reasonable and does not draw any unfavourable inferences regarding the new claims or evidence, or the applicant’s credibility more broadly.
Claim relating to the applicant’s father and his father’s family
The Tribunal has considered the applicant’s evidence and the evidence of the witness regarding the claimed dispute with the applicant’s father and his father’s extended family. The Tribunal accepts that the applicant’s father has separated from the applicant’s mother and they are no longer residing together as husband and wife. The Tribunal also accepts that the applicant’s father was violent towards his mother and, at various times, the applicant has intervened and fought with his father. As a consequence, the Tribunal accepts that the applicant’s relationship with his father and his father’s extended family has broken down. Whilst the applicant’s evidence in relation to the claimed debt owing to his father was somewhat limited, the Tribunal accepts that it is entirely reasonable that the applicant may have borrowed money from his father prior to the breakdown of their relationship.
In relation to the claimed curse placed on the applicant and his family, country information indicates that there is a belief in the supernatural in Timor-Leste. For instance, the East Timor Law and Justice Bulletin reported that:
Land is the most common cause of conflict, and while the belief in witches is real, and the cause of death and illness is attributed to witchcraft (or speaking the words of the lianain without the ritual authority), often the accusation is cast to give solemnity to the situation and exacerbate the blame attributable to antagonists involved in the dispute.[4]
[4] ‘Witchcraft, Conflict and Resolution in Timor-Leste’, East Timor Law and Justice Bulletin (online 24 December 2012), <>
Whilst the Tribunal accepts that there is a belief in curses and the supernatural, the available country information tends to indicate that it is those who partake in such practices (or are accused of doing so) that are likely to be subjected to harm. For instance, it was reported in 2007 that three women were killed and their house burned after being accused of being witches.[5]
[5] ‘Three burned for being witches in East Timor’, The Sydney Morning Herald (online, 9 January 2007), <>
The Tribunal does not accept that the applicant’s father has the ability to harm the applicant directly through a curse. Rather, any harm directed at the applicant would be due to actions undertaken by the applicant’s father or his father’s family.
The High Court has held that past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.[6] In this regard, the Tribunal has considered the applicant’s evidence relating to the previous incidents involving his father, and the more recent lack of contact between the applicant’s father and mother.
[6] MIEA v Guo (1997) 191 CLR 559 at 574.
The Tribunal has considered the applicant’s claim that his father or his father’s family would seek to harm the applicant because he has committed a crime by harming his father.
On the applicant’s evidence, the Tribunal finds that the applicant’s father was motivated to harm his mother in the past and the applicant was only harmed when he stepped in to protect his mother. Additionally, the applicant claimed that his brother also was involved in protecting his mother, and he does not claim that his brother has been the victim of any further attacks from his father as a consequence of this intervention. In this regard, the Tribunal notes that a reasonable period of time has elapsed since the applicant claims his father separated from his mother and placed a curse on their family in 2022. The applicant did not claim that he, his mother, his siblings or his uncles have been harmed since then.
Given the passage of time and the apparent lack of effort to harm the applicant’s brother or other family members, or to act on any threat, the Tribunal does not accept that the applicant’s father or his family would seek to harm the applicant if he were to return to Timor-Leste. As a consequence, the Tribunal does not accept that the applicant faces a real chance of serious harm at the hands of his father or his father’s family, now or in the reasonably foreseeable future.
The Tribunal has also considered whether the applicant might be harmed in the future if his father were to attack his mother again. The applicant initially claimed that his mother still sees his father every week to every month as they live close, however, the witness said that his mother had not had contact with their father since 2022 and the applicant confirmed that this was the case. As such, the Tribunal accepts that the applicant’s father has not harmed his mother or other family members since 2022 despite the fact that, according to the applicant’s evidence, they live in close proximity to one another. As such, the Tribunal finds that there is only a remote chance that the applicant would be harmed in the future in the process of protecting his mother if he were to return to Timor-Leste, now or in the foreseeable future.
Finally, the Tribunal has considered the applicant’s claim that he owes money to his father. This claim was initially raised by the witness and was not initially expressed by the applicant as a reason that he feared harm on return to Timor-Leste. Notwithstanding this, as noted above, the Tribunal accepts that it is reasonable that the applicant might have borrowed money from his father. However, the Tribunal does not accept that the applicant’s father would seek to harm the applicant to enforce repayment. In this regard, the amount was borrowed in 2021 – some time before the breakdown of the applicant’s relationship with his father. The applicant did not claim that his father attempted to enforce payment after the breakdown of their relationship and prior to his departure from Timor-Leste. As such, the Tribunal does not accept that the applicant’s father would now seek to enforce repayment given the additional time that has elapsed.
Given the above, the Tribunal does not accept that on return to Timor-Leste the applicant’s father or his father’s extended family would seek to harm the applicant, now or in the reasonably foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee definition.[7] For the reasons given above, the Tribunal has not accepted that the applicant’s claims reach the level of a real chance. It follows that the Tribunal is not satisfied there are 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 that he will suffer significant harm on the same basis.
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
Claim relating to the economic situation
As noted above, the Tribunal accepts that the economy in Timor-Leste is relatively weak and that the applicant may be able to earn more money in Australia than he is able to in Timor-Leste. The Tribunal also acknowledges that the applicant would have various expenses if he were to return to Timor-Leste, including providing ongoing support to his mother.
However, the Tribunal does not accept that the essential and significant reason for the economic harm faced by the applicant arises from his race, religion, nationality, political opinion or membership of a particular social group. For this reason, the economic harm feared by the applicant on return to Timor-Leste does not meet the criteria set out in s 5J(1)(a) of the Act. It follows that the applicant does not meet the definition of a refugee set out in the Act and therefore he cannot meet the criteria set out in s 36(2)(a) of the Act.
In considering whether economic harm described by the applicant would amount to significant harm in the complementary protection criterion under s 36(2)(aa), the Tribunal has had regard to the definition of ‘significant harm’ as exhaustively defined in s 36(2A), as follows:
(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.
The applicant does not suggest that he will be tortured or subject to the death penalty if returned to Timor-Leste. The definitions of arbitrary deprivation of life; cruel or inhuman treatment or punishment and degrading treatment or punishment each require the harm or punishment be intentionally inflicted on a person. In this regard, the applicant does not claim that any person or group is intentionally seeking to harm him. As such, the Tribunal is not satisfied that the economic harm feared by the applicant would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, or degrading treatment or punishment as those terms are defined in the Act.
For these reasons the Tribunal does not accept the economic harm described by the applicant comes within the definition of ‘significant harm’, as that term is defined in s 36(2A). It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste.
Claim relating to crime in Timor-Leste
In the applicant’s protection visa application, the applicant referred to there being a lot of crime in Timor-Leste. The summary of evidence to be provided by the witnesses also referred to the high levels of crime in Timor-Leste. Whilst his evidence at hearing primarily focused on the ‘crime’ the applicant claimed to have committed by fighting with his family or his father’s family, the Tribunal has also considered the applicant’s claim that he may be at risk of harm as a consequence of generalised violence and crime in Timor-Leste.
In this regard, available country information indicates that crime is common throughout Timor-Leste. DFAT also reports that ‘[g]ang-related violence, robbery, arson and vandalism occur in major towns, including Dili’.[8] As such, the Tribunal accepts that there remains a possibility that the applicant may be the victim of crime in the future.
[8] Department of Foreign Affairs and Trade, Smartraveller - Timor Leste, 03 April 2024, <>
However, the evidence before the Tribunal, including that raised by the applicant at hearing, does not indicate that the applicant would be targeted by criminals for any of the reasons set out in s 5J(1) of the Act. Additionally, the Tribunal is not satisfied that there would be systematic and discriminatory conduct, that is, conduct targeted at the applicant for any of the reasons set out in s 5J(4)(c) of the Act; rather, such crime would be random and generalised.
The Tribunal has also considered the applicant’s fears of being subjected to harm for the above reasons against the complementary protection provisions. However, on the evidence before it, the harm feared by the applicant, being generalised crime, is a risk faced by the population of Timor-Leste generally and not a risk faced by the applicant personally.
Section 36(2B)(c) of the Act states that in such circumstances, a real risk that the applicant will suffer significant harm is taken not to exist. Accordingly, the Tribunal does not accept that the applicant faces a real risk of significant harm due to generalised crime in Timor-Leste.
Other claims raised by the applicant
In his protection visa application, the applicant also claimed that there are a lot of complaints about the government. The applicant did not raise any specific claims related to the government other than expressing a concern that he would not be able to access state protection and difficulties with the economy, as addressed above. As such, the Tribunal has not considered this claim further.
Additionally, as noted above, the Tribunal questioned the applicant whether he had been charged with any crime. The applicant responded that he had been directed by the police to resolve the problem with his father amongst his family. As such, the Tribunal finds that the applicant has not been charged or convicted of any crime in Timor-Leste.
Even if he were charged with such an offence, there is no evidence before the Tribunal that would suggest that Timor-Leste’s criminal laws relating to any purported crime committed by the applicant would be in any way inconsistent with Australia’s international obligations. Rather, the Tribunal finds that any sanction that might be applied to the applicant for having committed a crime against his father would arise under a law of general application and would not have a discriminatory intent or impact that would give rise to persecution. Accordingly, the Tribunal does not accept that such action would constitute persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

For the purposes of complementary protection, it is not suggested that the applicant will be arbitrarily deprived of his life, be subjected to the death penalty or tortured for any purported criminal activity. The Tribunal also notes the following:
a. Cruel or inhuman treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or 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.
b. Degrading treatment or punishment is also exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
There is no evidence before the Tribunal that would suggest that Timor-Leste’s criminal laws relating to the purported offence outlined above are not lawful or that they are otherwise inconsistent with Australia’s international obligations. As such, the Tribunal does not consider that in the particular circumstances of the applicant, that any sanction for the purported criminal offence would rise to the level of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as those terms are defined.
For these reasons, the Tribunal does not accept that the harm described by the applicant constitutes serious or significant harm for the purposes of s 36(2)(a) or s 36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ben Goulding
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 2673

18 June 2024

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