2402220 (Refugee)

Case [2024] AATA 2602

2402220 (Refugee) [2024] AATA 2602 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402220

COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:David James

DATE:8 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 08 April 2024 at 9:00am

CATCHWORDS

REFUGEE – Protection Visa – Timor-Leste – did not experience harm in his country – will not be harmed if he returns to Timor – election by the applicant not to attend a hearing – a victim of illegal money lenders threatened with violence and demands for repayment of a loan – applicant can obtain protection from the authorities – not satisfied the applicant has a real chance of suffering serious or significant harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 411, 499

Migration Regulations 1994, Schedule 2

CASES

Anadaraj Subramaniam v MIMA (1998) VG310
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZRQA v MIBP [2013] FCA 962

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 dependant.

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 9 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of the Democratic Republic of Timor-Leste (Timor) applied for the visa on 20 October 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

  3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 10 February 2024. The applicant provided a copy of the delegate’s decision to the Tribunal.

  4. As noted above, the applicant provided a copy of the delegate’s decision. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa…

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AGLC
2402220 (Refugee) [2024] AATA 2602
Case
[2024] AATA 2602
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a protection visa. The applicant, who arrived in Australia under the Seasonal Worker Programme from Timor-Leste, claimed he had borrowed a significant sum of money in Timor-Leste to support his family and that he would face torture, imprisonment, and the loss of his family home if he could not repay the loan upon return. The applicant elected not to attend a hearing and consented to the Tribunal making a decision based on the documentary evidence.

The Administrative Appeals Tribunal was required to determine whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under s 5J(1) of the Migration Act 1958 (Cth), or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Timor-Leste, there was a real risk of significant harm as defined in s 36(2A) of the Act. The Tribunal considered documentary evidence, including the applicant's visa application and the Department's records, as well as country information regarding the socio-economic situation in Timor-Leste.

The Tribunal reasoned that the applicant had not experienced harm in Timor-Leste and did not claim he would be harmed if he returned, other than in relation to the consequences of his unpaid loan. The Tribunal found that Timor-Leste had laws protecting citizens from intimidation and physical assault, and that the applicant could obtain protection from the Timorese authorities. Applying the "real risk" test, which is equivalent to the "real chance" test for well-founded fear, the Tribunal was not satisfied that there was a real chance of the applicant suffering persecution or significant harm. The Tribunal noted that the applicant's claims regarding the potential loss of his family home and his brothers' studies were not grounds for protection under the Act.

The Tribunal affirmed the decision under review, finding that the applicant had not established that he met the criteria for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Timor, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Timor, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 20 October 2023;·The applicant’s application for review of 10 February 2024 and the Decision Record of 9 February 2024; and·The administrative and movement records of the Department relating to the applicant.Claims for protection In his protection visa application, the applicant made the following claims for protection (as summarised), that:·He came to Australia on the Seasonal Worker Programme (SWP) because of the economic situation in Timor and the financial hardship he had experienced in Timor which caused him to borrow US $50,000.00 from [name], the owner of the [a business] in Dili;·He borrowed this money to support his brothers and pay for their university studies at [a] [University];·He planned to repay the loan by working in Australia but was delayed in coming to Australia for work because of the Covid-19 pandemic and he has since been unable to repay the loan;·He claims that he did not experience any harm in Timor and that he will not be harmed if he returns to Timor, but further claims that as he has not repaid the loan and cannot repay the loan if he was to return to Timor; his family will lose their home; he will be tortured; sent to jail, and his brothers will not be able to continue with their studies; and·He claims it is impossible for him and his family to safely relocate in Timor. Department interview The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 9 February 2024 to refuse the protection visa was made on the information before the delegate. The delegate found that there were laws in Timor that protected citizens from intimidation and physical assaults and as such there were effective protection measures as defined in s 5LA of the Act available to the applicant in Timor. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found that there was no information before them to indicate that the applicant would be denied or purposefully excluded from accessing state protection for any reason and that they could obtain protection from the Timorese authorities. Therefore, the delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Visa history

Decision

Reasons for decision

The applicant arrived in Australia on [date] June 2023 from Timor on a Temporary Work (International Relations) Visa for work in Australia through the Australian Government’s SWP. This visa was granted on 26 May 2023 and ceased on [date] March 2024. The applicant made an application for a protection visa on 20 October 2023. The Department refused the applicant’s application for a protection visa on 9 February 2024, and, that decision is the subject of this review.Election by the applicant not to attend a hearing and consenting to the Tribunal making a decision on the papers On 19 March 2024, the Tribunal emailed the applicant informing him (in part) that:I am writing in relation to your application for review by the Migration and Refugee Division of the Administrative Appeals Tribunal in respect of the decision made by the Department of Home Affairs.Your file is now being prepared for allocation to a tribunal member. As this may result in a hearing being scheduled:• If you have any additional evidence that is relevant to your application, please send this to us as soon as possible.• If the details of your representative have changed, you should provide the tribunal with the details of your current representative as soon as possible.Please also complete and submit a pre-hearing information form within 7 days of receiving this email. We use this form to collect information about your availability to attend a hearing, the likely number of attendees, and any other information which will help us determine the most appropriate way to conduct your hearing if one is required. On 22 March 2024, the applicant emailed his completed ‘Pre-hearing information’ form to the Tribunal, in which he indicated that he did not want to participate in a hearing and that he consented to the Tribunal making a decision on the papers without taking any further steps to allow him to appear. The Tribunal in a reply to the applicant on 4 April 2024, informed the applicant that the presiding Senior Member had accepted his request and would proceed to make a decision on the papers.Country information The United Nations, in their 2021 Socio-Economic Impact Assessment of COVID-19 in Timor-Leste, reported that 45.2 percent of the population’s working-age group were employed in the economy as of March 2021. However, the report also identified that the participation rate in the economy did not include those persons that were otherwise engaged in subsistence agricultural production. The report stated, that when those working in the subsistence agricultural sector were taken into consideration, the figure of employment was raised to 61.1 per cent. The report also provided that many jobs are informal in their arrangements and that the overall unemployment rate is 11.9 per cent but, raises to 22.1 per cent when young people aged between 25 to 29 years are included.[1][1] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p8-10.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (the Department), 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 EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Timor, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Timor, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 20 October 2023;·The applicant’s application for review of 10 February 2024 and the Decision Record of 9 February 2024; and·The administrative and movement records of the Department relating to the applicant.Claims for protection In his protection visa application, the applicant made the following claims for protection (as summarised), that:·He came to Australia on the Seasonal Worker Programme (SWP) because of the economic situation in Timor and the financial hardship he had experienced in Timor which caused him to borrow US $50,000.00 from [name], the owner of the [a business] in Dili;·He borrowed this money to support his brothers and pay for their university studies at [a] [University];·He planned to repay the loan by working in Australia but was delayed in coming to Australia for work because of the Covid-19 pandemic and he has since been unable to repay the loan;·He claims that he did not experience any harm in Timor and that he will not be harmed if he returns to Timor, but further claims that as he has not repaid the loan and cannot repay the loan if he was to return to Timor; his family will lose their home; he will be tortured; sent to jail, and his brothers will not be able to continue with their studies; and·He claims it is impossible for him and his family to safely relocate in Timor. Department interview