2401716 (Refugee)

[2024] AATA 2753

2401716 (Refugee) [2024] AATA 2753 (30 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401716

COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:Amy Faram

DATE:30 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2024 at 5:51pm

CATCHWORDS

REFUGEE – protection visa – Timor-Leste – fear of criminal gangs – martial arts groups – economic conditions – employment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2, cl 866.221

CASES

Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 January 2024 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The Applicant, a citizen of Timor-Leste, applied for the visa on 27 October 2023. The delegate refused to grant the visa on the basis that the Applicant did not fear harm for a refugee reason (per s 5J(1)(a)) and they were not satisfied that they would experience significant harm, as defined under s 36(2A) of the complementary protection provisions.  

3. The Applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his friend, [Friend A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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

5. Section 36(2)(a) (‘the refugee criterion’) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

   Complementary protection criteria

8. 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’).

9. 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.

10. ‘Significant harm’ 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.

11. 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

12. 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 (the Department), to the extent that they are relevant to the decision under consideration. The Tribunal’s mandatory considerations would also ordinarily also include country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, however there is no such report on Timor-Leste. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Tribunal records that having reviewed the Applicant’s identity documents and heard his oral evidence, it is satisfied as to his identity as a citizen of Timor-Leste (also known as East Timor). For the purposes of this protection eligibility assessment Timor-Leste is the ‘receiving country’, and the Applicant’s protection claims are assessed with regard to circumstances in Timor-Leste as these relate to him.

14. The issue in this case is whether, on account of economic conditions in Timor-Leste and / or the activities of youth gangs, 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 Regulations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

15. The Applicant arrived in Australia in February 2023. He applied for protection on 27 October 2023. The protection visa application form set out the following information:

    -He came to Australia under the Seasonal Worker Programme and decided to apply for a protection visa because of what he faced in Timor-Leste before coming to Australia.

    -His father passed away last year. He is [birth order in family] and takes care of his [siblings].

    -The economy is a problem for them, especially for their studies. He wants to be able to stay in Australia longer so that he can support their study.

    -He qualified to come to Australia before his father died, but it was a long process to get here. It is all about education, not a crime. There is a problem for his siblings who are still studying, and he does not know how to support them, and this is the reason he applied for this visa.

    -There is a government program called Bolsa da Mae, which supports students with 150.00 a year, but it is very difficult to survive without a father, and it is also not easy for those in rural areas, such as him and his family.

16. In response to questions on the application form about whether he had been previously harmed, or feared mistreatment or harm in the future, the Applicant said no. He also said he did not think the authorities would protect him.

17. At the hearing, the Applicant gave evidence that he is [different birth order in family]. He and his [age]-year-old brother, who is still in high school, remain at home with his mother, and she also has the care of [specified relatives]. Of his [siblings], [one specified] is married and lives in [a named district]. [Details of other siblings deleted.] Before coming to Australia, he lived with his mother and [family members] in the town of [Town 1].

18. The Applicant gave evidence that he lived in a [home] made from the stalks of palm leaves, with his mother and the [specified family members]. The kitchen is outside. [Schooling details deleted.] He stopped high school after [number] years, and then stayed home and assisted his parents in their work.

19. His father had some land about 25 minutes’ walk from the family home, and he would farm that, growing [crops]. He would help his father on the farm. They wouldn’t take the produce to market, but people would sometimes buy the produce directly from them from the farm. They struggled to get by.  

20. His mother would make [food 1] to sell at the market. The Applicant gave evidence that his father died at the start of 2023, and had been unwell with a heart condition for the preceding two years. During that time, his father could not farm the land. After his father became unwell and then died, the Applicant would help his mother collect firewood, that they then sold to others.

21. The Applicant did not farm the land after his father died, because he did not want to leave his mother alone and because it was necessary for him to help her with the larger pieces of wood that needed to be collected and cut down to size. They survived by selling firewood, and also through his mother selling [food 1] that she would make. With the money they made from this, she would purchase rice and other necessities.

22. The Applicant explained that it was very difficult to get paid work unless one knew someone ‘on the inside’. He did not know any such person. His brother worked on his wife’s family’s plantation and the Applicant could not work there as well. Of his brothers-in-law, one of them works as [an occupation 1] and the other one does not work. The Applicant said that he came to Australia to work, and that he has been doing this, first around Darwin and more recently in [Town 2] where he farms [fruit].

23. The Applicant gave evidence that if he returned to Timor-Leste he would live with his mother in [Town 1] and he would not have a job. The family still own the plantation that his father worked, but since he has died, they have not planted crops there though before he came to Australia the Applicant repaired the fence around the plantation so that animals would not get in. The Applicant said that he would not work the plantation if he returned, but he would help his mother selling [food 1].    

24. The Applicant said that in Timor-Leste, you can live and get food and drink: you can find a way to do it, but it is hard. If you want a job, you need a person on the inside.

25. The Applicant’s friend, [Friend A], gave evidence that they are from the same area, and that he knew the Applicant’s father and attended the same school as the Applicant, a few years ahead of him. He said that he knew about the Applicant’s life in Timor-Leste, and that his father had passed away and that the Applicant had stayed with his family and was now, with the grace of God, able to support his family.

26. [Friend A] became quite emotional giving his evidence. He explained that the situation in Timor-Leste is not normal, and there are problems all the time: organisations dislike each other, and if they have a problem with someone in your family, it is not safe for you to go out, and it is difficult for you to get work. The Tribunal asked the witness whether he knew of such problems affecting the Applicant’s family and he said that he knew his father had passed away, and that his mother was a widow with [young] children still to educate. He is very grateful for Australia for enabling them to work in Australia.

27. After receiving the witness’s evidence, the Tribunal discussed the issue of inter-community disputes with the Applicant and he confirmed that there had been a problem in his village, with people assaulting each other. He added that groups assault each other, and some damage homes. He explained also that if they find you out in a different village, they check whether you have been involved in any of the problems and they beat you. He said that this makes it difficult to go out to look for a job, or to take goods for sale.

28. The Tribunal asked the Applicant if he had ever personally experienced these issues, and he said that it had happened twice. In one instance, a neighbour (who he called uncle) was uncomfortable travelling by himself and asked the Applicant to come with him to collect goods from a person in the neighbourhood of [Village 1] and to take the goods to market in another town, [Town 3]. They arrived in [Village 1] at 5am and a group of people threw stones at their car. He and his uncle managed to collect the goods and went to the market in the other town. The Tribunal asked the Applicant if they spoke with them before they threw the rocks at them, and the Applicant said that they had not. He said there was a problem between young people in his neighbourhood and young people in their neighbourhood, which they didn’t realise at the time. The young people didn’t care if they were involved or not, they just targeted them because they knew the car was from their neighbourhood.     

29. The Applicant said he was traumatised by the incident and didn’t want to go out afterwards. This happened in 2021. Asked about whether there were any other neighbourhood issues, and the Applicant said that there had been another incident [at an event in November 2017]. Many people had been out, [details deleted]. Two groups came across each other and attacked each other. He was not involved but was traumatised by what he saw. He does not know why they fought each other.

30. In addition to these two incidents, the Applicant said that sometimes groups ‘check you’: they check any young people from his village, and they will hit them. He is afraid to go out looking for a job because of this. He said this happens in [Town 1], but there are also groups in Dili.

31. Asked what he meant when he said, ‘they check you’, the Applicant explained that they check to see if the young person has been involved in any problems. The Applicant said that he does not go anywhere haphazardly, and that he hadn’t been ‘checked’ though his friends had been. He also said that he had been stopped once and asked if he had been involved in an incident, which he denied, and they let him go on his way. He has to be careful because of this and it prevents him from trying to make a living. He could not remember when that incident, where he was personally checked, occurred. Asked if he knew whether there were still points of friction between groups, the Applicant said he was not sure and it would depend on the individual.

32. The Tribunal asked the Applicant further questions to try to better understand what he was describing. He was not sure if it was a gang, but said they are like a group. He did not know them by a name. He emphasised that they made life difficult because he was afraid to move around. Asked if the family still took things to market, the Applicant said yes: he would help his mother to sell [food 1] at the market.

33. The Tribunal raised with the Applicant that it might have difficulty accepting that the economic conditions that he would face in Timor-Leste, though difficult, would cause him to experience serious or significant harm in circumstances where on his evidence he had a home to live in, and food to eat, and the family plantation still to farm should he so wish.

34. The Tribunal also raised with the Applicant that it was necessary for the Tribunal to consider why the Applicant would face the economic difficulties. For example, would it be difficult because conditions in Timor-Leste are generally difficult for the whole community there, or was there a reason that meant it would be particularly difficult for the Applicant, or was someone intentionally trying to hurt the Applicant. The Applicant said that some people want to hurt him, and it is difficult to find a job.    

35. With respect to the Applicant’s concerns about the gangs there, the Tribunal raised with the Applicant that even if it accepted that the past incidents occurred it would need to consider if there was a real chance or a real risk of these things happening again. And if, for example, they ‘checked’ him in the future, would they, as they previously did, just let him go on his way. The Applicant responded that he did not know and could not predict the future.

36. The Tribunal raised with the Applicant that what he had described sounded somewhat like what country information described as Martial and Ritual Arts Groups (MRAGs). The Tribunal asked if that was the type of group he had been referring to and he said, yes, but that he himself was not involved in them. The Tribunal explained that country information confirms that they are a problem in Timor-Leste, and that the authorities want them to stop, but that there continue to be problems associated with them throughout the country.

37. The Tribunal asked the Applicant about which markets the family went to, and he said the market in [Town 1]. Asked if he ever travelled to see siblings, he said that he did not and that this was because he does not have any money and could not get there.

38. The Tribunal reiterated that as it understood his claims, the issues it would need to consider most closely, were whether it thought there was a real risk or real chance that he would experience harm at the hands of gangs/MRAGs in Timor-Leste, and whether it thought the economic difficulties he would face there, would meet the harm thresholds. The Applicant said that in terms of the family’s economic circumstances, it is very difficult to get a job, and some young people there make it worse. He confirmed that the gangs make it harder to go out and look for work. He thanked Australia for the opportunity to come to Australia and to change the lives of his family members.

    COUNTRY INFORMATION

    Economic conditions

39. 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.  

1. 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% 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.

2. 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.

3. 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 exhausted within a decade.[9]

   [9] BTI 2024 Timor-Leste Report.

4. 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.

5. The BTI Report notes that about ‘a quarter of the working-age population works in the formal economy, while a larger portion are subsistence farmers and fishers. The public and private sectors each employ approximately 10% of the working-age population.[12] A contributory social security regime for retired public and private employees was established in 2017, but it does not cover subsistence and informal workers.[13] According to the BTI Report, ‘religious institutions, communities and extended families also provide informal support for those most in need’. In response to COVID-19, the government introduced ‘a monthly basket containing food and necessities to all individuals, prioritizing the use of domestically sourced materials whenever feasible’. This program continued into 2023. They also made cash payments of $200 to households that did not include a member earning $500 or more a month.[14]

   [12] BTI 2024 Timor-Leste Report p. 26.

   [13] BTI 2024 Timor-Leste Report p. 24.

   [14] BTI 2024 Timor-Leste Report p. 24.

6. Remittances from Timorese workers overseas – including those in Australia under the Pacific Australia Labour Mobility (PALM) scheme - are the largest non-petroleum contributors to the economy. Between July 2018 and August 2023, PALM scheme workers from Timor-Leste sent home around $118 million in remittances.

   [Town 1]

7. [Details deleted.][15] [Deleted.][16] [Deleted.][17] [Deleted.][18]   

   Martial and Ritual Arts Groups (MRAGs)

   [15] [Source deleted.]

   [16] [Source deleted.]  

   [17] [Source deleted.]   

   [18] [Source deleted.]

8. Country information indicates that young people in Timor-Leste have joined MRAGs in large numbers since Timor-Leste’s independence. MRAGs are reported to have roots in the Indonesian occupation, resistance struggle and Timorese society and factors driving membership include the exclusion of young people from the development process, poor educational and employment opportunities and lack of facilities and events for youth engagement.[19] MRAGs have nationwide reach with branches at the district and village level and membership of MRAGs has reportedly increased in recent years.[20]

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

   [20] Fundasaun Mahein, ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, 27 September 2022; Small Arms Survey, ‘Groups, gangs, and armed violence in Timor-Leste’, Number 2, April 2009.

9. While MRAGs have influence in every district, and there are reports of communal violence at the village level and in rural areas, Dili has been described as the main area of focus, and in 2009 the fighting was described as being ‘public and frequent’.[21] There are examples of such conflict in Dili as recently as in 2022 and 2023.[22]  

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

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

10. With respect to [a specified event], country information reflects the Applicant’s experience of witnessing violence that day:

    [Details deleted.].[23]

    [23] [Source deleted.]. 

11. DFAT’s current Smart Traveller Travel Advice warns travellers that local unrest happens in Timor-Leste, including street gang fighting and political demonstrations, and that minor disputes can escalate into violence without warning.[24] DFAT notes there is a history of gang-related violence, robbery, arson and vandalism in major towns, especially Dili, and refers specifically to violence between rival martial arts groups:

    Martial Arts Groups (MAGs) and Ritual Arts Groups (RAGs) are mass membership organisations with a complex history in Timorese society and political culture. On 10 November 2023, the Timorese government announced a six-month ban on all MAG and RAG activities. Rival groups are frequently involved in violence against each other, which increases the potential for local disputes between individuals or families to escalate into communal violence.

    [24] Australian Department of Foreign Affairs and Trade, ‘Smart Traveller: Timor-Leste’, accessed on 15 April 2024

12. On the issue of MRAGs and security, the BTI Report notes as follows:

    The national police and military are the only Timorese armed entities in the country, which is entirely under their control. Nonetheless, with the exception of a small number of unaccounted-for police weapons, citizens do not possess firearms; infrequent, violent interpersonal or gang (“martial arts groups”) conflicts are conducted with weapons like rocks, knives, arrows and machetes, and the targets are almost always members of their own or another martial arts group.[25]

    [25] BTI 2024 Timor-Leste Report p. 7.

13. An outbreak of violence in 2013 prompted a ban on the practice of martial arts that was later lifted. In 2023, Prime Minister Xanana Gusmao introduced a 6-month ban, and he has recently extended the ban until October of this year. The ban is reported to have the support of many in the community.[26]

    [26] ABC News, ‘Timor-Leste bans martial arts, citing an increase in violence – but trainers and advocates are fighting back’, 10 May 2024.

    FINDINGS AND REASONS

    Findings of fact

14. The Tribunal accepts that the Applicant, now aged [age], feels a strong responsibility for his family, and is concerned for their welfare and wellbeing back in Timor-Leste. The Tribunal accepts, also, that the family are poor, and that they live in [Town 1] in the south of Timor-Leste. The Tribunal accepts that the Applicant, as the [unmarried] son of his widowed mother, feels responsible for his mother and the [other family members] and that if he were to return to Timor-Leste, he would continue to live in [Town 1] with his mother.

15. The Tribunal asked the Applicant about the support program, Bolsa Da Mae, mentioned in his protection application. He did not know about this. The Tribunal accepts that the application form was completed by someone other than the Applicant and that it set out only his principal concern for his mother and the education of his [family members] following the passing of his father.

16. The Tribunal found the Applicant’s evidence about life in and around [Town 1] to be credible and accepts the incidents experienced by the Applicant occurred.

17. The Tribunal finds that:  

    a.In 2017, the Applicant witnessed intercommunal violence between groups of young people [at an event];   

    b.In 2021, the Applicant was in a car driven by another person that travelled to another neighbourhood, and that rocks were thrown at the car by a group of young people who identified the car as coming from the Applicant’s area;  

    c.The Applicant was ‘checked’ on one occasion by young people/members of a gang who questioned him about his involvement in an incident and allowed him to go on his way; and

    d.On account of these incidents, the Applicant was careful about his movements and sometimes limited his movements around the area and that he felt anxious about moving about the region in order to, for example, look for work.    

18. The Tribunal also accepts that the Applicant experienced economic hardship in Timor-Leste and that he found it difficult to find a formal sector job.

19. The Tribunal does not accept that people in Timor-Leste want to hurt the Applicant. The Applicant gave this evidence in response to a discussion about intentionality and why he might experience economic hardship, saying, words to the effect that in Timor-Leste ‘people want to hurt him, and it is difficult to find a job’.

20. Aside from the above experiences, however, the Applicant did not provide evidence to the Tribunal of people specifically and directly wanting to hurt him. The Applicant was not targeted or harmed in first incident. Once his identity and lack of connectedness to matters concerning youth gangs was ascertained he was allowed to go on his way and was not harmed in the third incident. With respect to the second incident, the Applicant gave evidence that the youths who targeted the car did not speak to its occupants beforehand; they threw rocks because they assumed the car was driven by people from outside of their area and possibly from the Applicant’s area. In this sense, the Applicant was targeted because he was identified as a likely ‘outsider’ or as someone from an area of [Town 1] where young people were in dispute with those in [Village 1], but not because the youths wanted to harm him specifically. As such and having had consideration to all of the Applicant’s evidence, the Tribunal does not accept that in Timor-Leste there are people who have a personal vendetta against the Applicant and who wish to seek him out specifically in order to hurt him.

    Refugee criteria  

    Economic hardship

21. The Tribunal accepts the Applicant’s evidence about the economic hardship that he has experienced in the past and that he fears he would experience again on return. The Tribunal sympathises with the conditions faced by the Applicant and his family and accepts life in [Town 1] can be difficult. The Tribunal accepts that in [Town 1], there is a real chance the Applicant will experience economic hardship.

22. In order to satisfy the refugee criteria, an applicant must have a well-founded fear of persecution: s 5H. A well-founded fear of persecution is taken to exist where, among other things, there is a real chance the applicant will experience serious harm: s 5J(4)(b). At s 5J(5), examples of serious harm, for the purposes of s 5J(4)(b), are set out as follows:   

    (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; and

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist.

23. These are examples and do not provide an exhaustive definition of types of serious harm.

24. In circumstances where the Applicant’s family has land to farm, and he can assist his mother to sell goods such as firewood and [food 1] at the local market, the Tribunal is not satisfied the economic hardship he will face in [Town 1] will amount to serious harm. The Tribunal makes this finding having considered the Applicant’s evidence that the presence of youth gangs causes him to restrict his movements around the region and makes it more difficult for him to find paid employment or take goods to markets in other towns.

25. The Tribunal has also considered the Applicant’s evidence that it is difficult to find employment in the formal sector without contacts. The Tribunal accepts this may be so, and appreciates this is not necessarily fair, though it is perhaps unsurprising in places of high unemployment and competition for jobs. Having considered the Applicant’s evidence about the way he and his family support themselves, and country information about government supports provided to subsistence households when conditions are particularly poor, such as they were during COVID-19, the Tribunal does not accept that without formal employment there is a real chance the Applicant will be unable to subsist.

26. The Tribunal is not satisfied that the Applicant faces a real chance of experiencing serious harm on account of economic conditions in Timor-Leste in the reasonably foreseeable future. 

    Harm on account of youth gangs 

27. The Tribunal accepts that youth gangs or MRAGs exist throughout Timor-Leste and that they can be a cause of concern for members of the community. Country information indicates, however, that ‘targets are almost always members of their own or another martial arts group.’ This is consistent with the Applicant’s evidence that he witnessed gang violence [at an event in] 2017, and that he was once ‘checked’ by youth in the community he was subsequently allowed to go on his way as the were satisfied he was not of interest to them.

28. The Applicant gave evidence that he was not and had not been involved with MRAGs or youth gangs, and that he did not know whether any gangs or groups in his area had a name. This last point suggests the groups do not necessarily loom large in the day to day lives of people in and around [Town 1]. The Applicant has no actual or imputed association with any groups in his home area and there is no evidence before the Tribunal to indicate he would develop one in the future.

29. Given the Applicant’s evidence, and country information regarding the fact that people targeted for harm are almost always members of gangs, the Tribunal is not satisfied there is a real chance the Applicant would experiencing serious harm in Timor-Leste at the hands of young people involved in gangs or MRAGs in the reasonably foreseeable future.  

30. The Tribunal accepts that the Applicant was cautious about his movements around the region in light of things he had experienced and witnessed in the past. Also, and as country information sets out and the Tribunal accepts, the relatively recent history of Timor-Leste has been violent. Individual and collective memories of those times would understandably prime people to be alive to and anxious about safety risks. However, the Applicant is now [age] years of age and has attended school and worked his father’s land and collected firewood and sold [food 1] with his mother at the local market in [Town 1] overwhelmingly without incident. The Tribunal finds that he would continue to exercise caution when moving around his town and the country, but that he would be able to do so without facing a real chance of experiencing serious harm.

31. The Tribunal has accepted that the Applicant was in a car targeted by youths from a neighbouring area who threw rocks at it. The Tribunal also accepts the explanation offered by the Applicant that he thought this had occurred because the youths recognised the car as coming from the Applicant’s area and that, at that time, there was a problem between young people from the different areas. The youths did not know the Applicant was in the car and the Tribunal is not satisfied they intended to physically harm the car’s occupants. The Applicant and his uncle were able to collect the goods they had come for and to leave the area and to drive to the market in [Town 3 variant]. The Tribunal considers the incident was the result of the confluence of rocks and bored youths who at that point in time had a grudge against young people from the Applicant’s area and considers the chance of the Applicant experiencing a similar event or of being targeted simply for being an ‘outsider’ or for being from his particular area of [Town 1], in the reasonably foreseeable future, to be remote or insubstantial.

32. Considering the Applicant’s claims of fearing economic hardship and harm from youth gangs/MRAGs individually and cumulatively, the Tribunal finds that there is not a real chance the Applicant will suffer persecution now or in the reasonably foreseeable future in Timor-Leste.

33. 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).

    Complementary protection criteria  

34. 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).

    Economic hardship

35. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).

36. As set out, the Tribunal accepts there is a real chance the Applicant will experience economic hardship in Timor-Leste. It follows that the Tribunal accepts there is a real risk that he will experience economic hardship.

37. The Tribunal is not, however, satisfied that the hardship the Applicant will face amounts to significant harm. Under the complementary protection provisions, an applicant must satisfy a decision maker that the harm feared would amount to significant harm under s 36(2A) of the Act. This section provides that 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.

38. The Applicant has not claimed to fear death or torture in Timor-Leste on account of economic hardship and country information does not support a conclusion that adults face a real risk of experiencing such outcomes because of economic conditions there.

39. The Tribunal has considered whether the conditions the Applicant would experience in Timor-Leste amount to cruel or inhuman treatment or punishment or degrading treatment or punishment.

1. As defined at s 5(1), cruel or inhuman treatment or punishment relevantly involves:

   -an act or omission by which severe pain or suffering (mental or physical) is intentionally inflicted on another person; or

   -an act or omission by which pain or suffering (mental or physical) is intentionally inflicted … so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature.

2. Degrading treatment or punishment is defined as meaning ‘an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable’.  

3. The Tribunal does not accept that living in rural Timor-Leste and experiencing economic difficulties that would see the Applicant reliant on localised subsistence farming or informal work and/or being passed over for other formal job applicants that might have connections, would involve the Applicant experiencing extreme humiliation or severe pain or suffering. Nor does the Tribunal accept that such outcomes would be intended by the authorities or by members of the Applicant’s community. As such, the Applicant does not satisfy the definition of ‘degrading treatment or punishment’, or the first part of the definition of ‘cruel or inhuman treatment or punishment’.

4. Considering the second part of the definition of cruel or inhuman treatment or punishment, the Tribunal also does not accept that if the Applicant experienced pain or suffering because of the difficult economic conditions in Timor-Leste, including being unable to get a formal sector job because he does not have connections, it would amount to cruel or inhuman treatment or punishment. This is because, on the information before it, the Tribunal is not satisfied that any acts or omissions the Applicant may experience would be intended to cause the Applicant pain and suffering and because those acts or omissions, such as an employer passing the Applicant over for someone known to them, could not reasonably be regarded as cruel or inhuman in nature. Rather, and with respect to someone preferring a known over an unknown job applicant, the Tribunal considers that this would occur because that person, also in a difficult economic environment, is choosing not to take what they might regard as a risk on someone that they do not know, and to provide a benefit to someone that they do know.

5. Economic conditions are a product many macroeconomic factors (inflation, gross domestic product, national income, unemployment levels) and microeconomic factors (supply and demand, costs of production, taxes and regulations).[27] Economic conditions will impact people differently based on their circumstances and in some instances harm arising from economic deprivation may amount to significant harm, such as where deliberate action is taken against a particular person or group to cause such deprivation. However, the Tribunal does not accept that the economic difficulties the Applicant might experience in Timor-Leste would be experienced because someone (entity or individual) intended to cause him pain and suffering through their act or omission, or that any act or omission that does cause him hardship would be cruel or inhuman in nature.

   [27] Corporate Finance Institute, Macroeconomic Factor, Chen, J., ‘Economic conditions: definition and indicators’, 7 June 2024, ‘Microeconomics vs. macroeconomics: what’s the difference?, 25 December 2023,

6. As such, the Tribunal is not satisfied the Applicant would meet the second part of the definition of ‘cruel or inhuman treatment or punishment’.   

7. The Tribunal appreciates that hardships experienced on account of economic conditions in Timor-Leste would be frustrating and difficult for the Applicant, but they would not amount to significant harm. The Tribunal notes, also, that the Applicant has a home and other means of supporting himself and his family, and that the impacts of economic hardship would be further ameliorated by the Applicant living with his family members, and within a community that on the Applicant’s evidence, and consistent with country information, provides support to one another.

8. For these reasons, the Tribunal does not accept that the economic hardship that the Applicant may experience in Timor-Leste would meet the definition of ‘significant harm’, as exhaustively defined in s 36(2A).

9. The Tribunal notes, also, its assessment that the risk of economic hardship to the Applicant arising out of the state of Timor-Leste’s economy, including of not obtaining a job because he does not have connections, is one faced by the population of Timor-Leste generally, rather than by the Applicant personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the Applicant will suffer significant harm.

10. In summary, the Tribunal is not satisfied that 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 in Timor-Leste. Accordingly, the Tribunal finds that the Applicant does not meet s 36(2)(aa).

    Harm on account of youth gangs

11. As set out above, section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. A ‘real risk’ has been held to impose the same standard as a ‘real chance’.[28] The Tribunal does not accept that there is a real chance the Applicant will be seriously harmed by youth gangs/MRAGs in Timor-Leste in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that 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 at the hands of youth gang members in Timor-Leste.

    [28] MIAC v SZQRB (2013) 210 FCR 505.

12. Considering the Applicant’s claims individually and cumulatively, the Tribunal is not satisfied that 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 in Timor-Leste.

13. Accordingly, the Tribunal finds that the Applicant does not meet s 36(2)(aa).

    CONCLUSION

14. 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).

15. 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).

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

    DECISION

17. The Tribunal affirms the decision not to grant the Applicant a protection visa.

    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.

    …