2402220 (Refugee)

[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 having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.

5. The applicant was not represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

6. 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, 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.

7. 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.

8. 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).

9. 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.

10. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. 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.

12. 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

13. 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 EVIDENCE

    Issues

14. 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

15. 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

16. 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 

17. The applicant was not offered an interview by the Department.

    Delegate’s decision

18. 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

19. 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

20. 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.

21. 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.

22. 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

23. 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.

24. According to the United States Department of State’s (USDOS) 2022 report on human rights practices in Timor-Leste for the year of 2021, the law in Timor-Leste prohibits arbitrary arrest and detention, and provides rights to individuals to challenge his or her arrest or detention in Court. The law also provides for the right to a fair, timely and public trial, and the independent judiciary generally enforces these rights in Timor-Leste.[2]

    [2] ‘Country Reports on Human Rights Practices for 2021 – Timor-Leste’, Bureau of Democracy, Human Rights, and Labor, United States Department of State, 12 April 2022, p 6 Section 1.e.

25. The Tribunal also notes that the law in Timor criminalises acts that involve inflicting harm against others for the purposes of intimidation including extortion and physical assaults and provides for both criminal and civil penalties to be imposed on unqualified persons who provide loans.[3]

    [3] National Parliament Law No. 5/2011 of 15 June 2011: ‘Organic Law of the Central Bank of East Timor’, BNCTL, 20201030150528; and ‘Regulation No. 2000/8 on Banking Licensing and Supervision’ (Banking Law), UNTAET, 25 February 2020, at Timor-Leste Ministry of Justice webpage.

26. In their 2022 ‘Timor-Leste Country Security Report’, the USDOS made the following assessment of the Policia Nacional de Timor-Leste (PNTL):

    PNTL maintain internal security. The Military is responsible for external security but also augments some domestic security functions. PNTL reports to the Ministry of Interior, and the military reports to the ministry of Defence. The current Prime Minister serves concurrently as the Interior Minister. Civilian authorities maintain effective control over the security forces. Members of the security services have been accused of committing human rights abuses.

    PNTL’s policing capability is limited but improving with the assistance from partners in the international community, including the US Government. PNTL continues developing its community policing capacity and is slowly expanding its capabilities in the areas of criminal investigations, personnel/facility protection and traffic control.[4]

    [4] ‘Timor-Leste Country Security Report’, Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, US Department of State, 21 November 2022, p 3.

27. In the Asia Foundation’s nationwide ‘Timor-Leste Safety, Security and Justice Perceptions Survey 2022’, it is also reported that:

    Most respondents who experienced crimes or disputes do not retaliate, but only just over half seek assistance. Overwhelmingly, general public respondents see community leaders as the most appropriate initial avenue for reporting a crime/dispute. However, they take different matters to different types of leaders, and the degree to which they perceive a role for the PNTL varies according to the nature of the issue at hand. Of those who experienced a crime/dispute and sought assistance, 43% first responded to an Aldeia Chief, followed by the PNTL (19%), a lian-na’in (10%) or Suco Chief (8%). Those who seek assistance typically have their issues resolved by the first person they report to and feel that they were fairly treated.

    Community leaders report good relationships with the PNTL and see them as most appropriate initial mechanism to report crimes and disputes. Proximity plays the most decisive role in determining from whom people seek assistance.[5]

    [5] ‘Timor-Leste Safety, Security, and Justice Perceptions Survey, 2022. Summary Findings’, McLeod A & Denney L, The Asia Foundation, p 6.

    FINDINGS AND REASONS

28. The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.

    Country of reference

29. According to the protection visa application, the applicant claims to be a citizen of Timor and provided a copy of his Timorese passport and National identity Card. Based on this material, the Tribunal finds that the applicant is who he says he is and is a national of Timor. Timor is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

    Analysis

30. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

31. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[6] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[7] This is consistent with the established proposition that it is for the applicant to make his or her own case.[8]

    [6] Section 5AAA of the Act.

    [7] Ibid (with effect from 14 April 2015).

    [8] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

32. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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 or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

33. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[9] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[10] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.

    [9] Fox v Percy (2003) 214 CLR 118

    [10] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

1. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11] A similar approach is taken in the Department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which both provide useful guidance for this Tribunal.

   [11] SZLVZ v MIAC [2008] FCA 1816 at [25].

   [12] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

   [13] UNHCR, re-issued February 2019 at [203]–[204].

2. The Tribunal notes that the applicant has provided only limited details and no documentary information and/or evidence in support of the facts he relies upon in support of his claims.

3. In that regard, the Tribunal finds that the applicant’s claims are general in nature and lack any detailed description of the information provided by the applicant so as to allow the Tribunal to satisfactorily establish the facts relied upon by the applicant in support of his claims.

4. Additionally, the Tribunal notes that notwithstanding the applicant having had his application for the visa refused by the Department, chose not to attend a hearing where he could have given evidence and made arguments. In that regard, the Tribunal notes that if the applicant had attended a hearing, the Tribunal would have been able to ask the applicant questions and that he would have been given an opportunity to provide further information and/or evidence as to the facts of his matter.

   Economic situation & Loan of US $50,000.00 – Membership of a particular social group (PSG), being: ‘a victim of illegal money lenders threatened with violence and demands for repayment of a loan’

5. The applicant claims that he came to Australia to work because of the economic situation in Timor which had caused him to borrow US $50,000.00 from a business owner (unlicensed lender) in Timor. He claims to have not experienced any harm in Timor or that he will be harmed. However, he further claims that as he has not repaid the loan and could not do so if he returns 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 university studies.

6. Notwithstanding the Tribunal’s observations as to the limited details that the applicant has provided as to the facts of his matter, the Tribunal has accepted that the applicant did borrow a sum of money as claimed, US $50,000.00 from a Timorese business owner who on the facts before the Tribunal is not an authorised lender.

7. Additionally, the Tribunal accepts that the applicant holds subjective fears as to being subjected to harm if he was to return to Timor in circumstances of either having not repaid the loan or upon his return to Timor not being able to make repayments on the loan. However, the nature of the harm that the applicant fears is somewhat uncertain given his inconsistent claims; that he will not be harmed, as opposed to fearing; losing his family home; being tortured; being sent to jail together, and his brother’s university studies being terminated.

8. As to the applicant’s economic claims as to the poor economic situation in Timor and his apparent inability to obtain employment, that would allow him to repay the loan. The Tribunal finds that these claims are not for reasons of race, religion, nationality, membership of a particular social group or political opinion, s 5(J(1)(a) of the Act.

9. However, as to the applicant’s claims of fearing; losing his family’s home; being tortured; sent to jail; and his brothers being prevented from continuing their university studies, the Tribunal having accepted the applicant’s claims of having obtained an informal loan has considered the provisions of s 5L of the Act. S 5L of the Act, provides that a person is to be treated as a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic; and that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.

10. In its consideration of the information and evidence before it, together with s 5L of the Act, the Tribunal finds that the applicant is a member of a PSG being ‘a victim of illegal money lenders threatened with violence and demands for repayment of a loan’.

11. In this regard, the Tribunal notes that the country information, as outlined above at paragraphs 23 to 27, provides that the law in Timor prohibits acts of extortion and physical assaults together with providing for penalties for the unauthorised lending of money and prohibits arbitrary arrest and detention, and that there is a police presence (PNTL) that is expanding its capabilities with the assistance of international partners.

12. The Tribunal preferring the Country information, to the claims of the applicant, is satisfied that the applicant can obtain protection from the authorities of Timor who have a readiness and willingness to investigate the applicant’s complaints as to unauthorised money lenders and any threats and/or harm to himself and/or his family.

13. Therefore, the Tribunal is satisfied on the evidence before it, and for the reasons outlined above, that there are effective protection measures available to the applicant in Timor, as is outlined in s 5LA of the Act.

    Delay

14. Additionally, the Tribunal notes that the applicant arrived in Australia on [date] June 2023, but did not make his application for the protection visa until over four months later, 20 October 2023.

15. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and, SZRQA v MIBP [2013] FCA 962, where at [17], the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution, he would not have delayed applying for a protection visa.

16. Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was in the reasonably foreseeable future to return to Timor on account of not having repaid and/or being unable to repay his informal loan.

17. The Tribunal finds that the applicant’s fears in this regard are not well-founded.

    Complementary protection considerations

18. The Tribunal has also considered whether the applicant will face a real risk of suffering significant harm as defined by s 36(2A) of the Act if he returns to Timor from the informal money lender because he has not and/or cannot repay his debt.

19. The Tribunal finds for the same reasons, that have been outlined above at paragraphs 44 and 45, that the applicant can obtain from an authority of Timor, protection such that there would not be a real risk that the applicant will suffer significant harm, s 36 (2B)(b) of the Act.

20. Additionally, as to the applicant’s apparent claims as to the poor economic situation in Timor and his apparent inability to obtain employment, that such matters are risks faced by the population of Timor generally and not matters faced by the applicant personally, s 36(2B)(c) of the Act.

21. Therefore, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

    Refugee criterion

22. Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore the applicant is not a refugee within the definition of s 5H of the Act.

23. 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) of the Act.

    Complementary protection

24. Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.

25. As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant 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.

26. The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

    Additional findings

27. Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.

28. As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Timor.

    DECISION

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

    David James
    Senior 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.

    …