2402246 (Refugee)

[2024] AATA 2304

2402246 (Refugee) [2024] AATA 2304 (7 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402246

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Jessica McLeod

DATE:7 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 7 June 2024 at 11.55am

CATCHWORDS
REFUGEE – protection visa – East Timor – financial or economic problems – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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 31 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 who claims to be a citizen of Timor-Leste, applied for the visa on 19 November 2023, claiming that there are no job opportunities in his country and only in Australia can he change his fate and future.

3. At the primary stage, the delegate decided the application on the papers. The delegate refused to grant the visa, finding that the applicant did not meet the refugee or complementary protection criterion. 

4. The applicant lodged an application for the Tribunal’s review of that decision on 12 February 2024 and he appeared before the Tribunal on 24 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Tetum languages.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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.

   Mandatory considerations

10. 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, to the extent that they are relevant to the decision under consideration. This ordinarily would include country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, however there is no such report on Timor-Leste.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant, a claimed national of Timor-Leste, is a refugee, meaning he has a well-founded fear of being persecuted in Timor-Leste for one or more of the five reasons mentioned in s.5J(1)(a) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Timor-Leste, there is a real risk he will suffer significant harm.

    Information before the departmental delegate

    Protection visa application

12. In his protection visa application lodged in November 2023, the applicant said that he moved to Australia to change his fate and future and help his family. His family are poor people who do not have anything – material or housing. They just want to buy food to eat every day. In Timor-Leste there are no job opportunities. That is why they have high rates of poverty and malnutrition. He seeks a visa so he can live and work in Australia.

13. He indicated that he had not experienced harm in his country, but he said if he returns to Timor-Leste where there are no jobs, he won’t be able to change his life and future. His life will get worse. He wants to be able to help his family economically and better his future.

    Delegate’s decision

14. The delegate refused the grant of visa. The delegate found that the applicant had not claimed, and there was no information to suggest, that he would be harmed on return to Timor-Leste for a refugee reason set out in section 5J(1)(a) of the Act; and that there was no indication that anyone would perpetrate harm against the applicant, or that he would face any intentionally inflicted significant harm.

    Information before the Tribunal

15. At the Tribunal hearing on 24 April 2024, the applicant provided what the Tribunal accepts was a truthful and unembellished account of his background and circumstances, the reasons he came to Australia and why he needs to stay. The Tribunal finds the applicant’s written evidence from his application, and his oral evidence given at hearing to be credible in all respects.

16. The Tribunal accepts the applicant is a [age] year old citizen of Timor-Leste who originates from the capital city, Dili. He has provided copies of his Timor-Leste passport and identity card, and the Tribunal sighted his passport at the Tribunal hearing. There are no apparent concerns. The Tribunal accepts the applicant’s nationality and identity is as claimed. The Tribunal finds that for the purpose of this review, Timor-Leste is the applicant’s receiving country.

17. The Tribunal accepts the applicant attended school and then studied [Discipline 1] in [Location 1]. His father supported him during this time. Since graduating, the applicant has worked in the [Discipline 1] field for around one year, for an agency that handled import-export documentation, and he has also worked as a [Occupation 1] in Dili. However, the Covid-19 pandemic impacted the work. There was no more work available, so, he decided to come to Australia. He arrived in March 2023. The Tribunal notes a reference in his protection visa application to an arrival date of November 2022, however, it accepts this reference to be erroneous. He arrived in Australia [in] March 2023.

18. The Tribunal accepts that within Timor-Leste, Dili is the only place he has ever lived. This is where his family reside. He has two children aged [age] years and [age] years. He and his wife are separated. She had a relationship with another man after he came to Australia. This has been very painful for him. His children are currently residing at his place in Dili, with his sister, but they come and go between there and his wife’s place (also in Dili). However, he feels that she has abandoned them. The applicant is committed to supporting his children and bringing them up, and to enable him to do that, he is trying to work as hard as he can to save money for that purpose. However, in he has received very few shifts doing farm work in Australia and if he were to go back to Timor-Leste, he feels he would be minus where he started. He has been scammed and these circumstances forced his hand, to apply for the protection visa. He is now doing intermittent construction/labouring work, but it is not reliable. 

19. The Tribunal accepts the applicant’s evidence regarding his family. The applicant’s mother has passed away. His father resides in Dili. He is [age] years old and retired; the applicant supports him. The applicant has 1 sister and three brothers. One of his brothers married a woman from [City 1] (around [number] hours drive from Dili) and lives with her there. The other brothers live in Dili. One brother is unwell and supported by his own children, one brother works as a driver, delivering [goods] and his youngest brother is still studying at high school and plans to attend university in Dili. The applicant is financially supporting him and he helps look after the applicant’s children.

20. Consistent with his written claims, the applicant confirmed in the hearing that he came here for economic reasons, to earn an income to support his family in Timor-Leste. He said there is no threat or danger to his life, he is just here out of financial necessity. He said he knows this does not fall into the refugee reasons (which the Tribunal had explained to him at the beginning of the hearing), but he is very hard working, law abiding and very happy to work and pay tax in Australia. He just wants to stay here long enough to earn some more money to prepare to give his children a better future in Timor-Leste.

21. It is clear to the Tribunal that the applicant is devastated about the breakdown of his marriage and feels his wife abandoned them. He is pained by the separation from his children and family. The Tribunal told the applicant that it accepted he was telling the truth, and that it was clear to the Tribunal that he cares deeply for his family and that he is in Australia to try and do the best he can to support his children and his family. It is also apparent that he has faced hardships in Australia, with promise for consistent work which has not eventuated.  

22. The Tribunal shared with the applicant its understanding that Timor-Leste it is a poor country with little work available, and that a lot of people are finding it very tough and living in poverty. It acknowledged that the applicant may experience financial or economic hardship on return. However, it explained that, as he himself had already identified, these hardships do not come about because of his race, religion, nationality, political opinion or his membership of a particular social group. It discussed with him that the economic conditions in Timor-Leste are affecting everyone, and that his economic problems appeared to arise not from anyone’s intention to harm him but from conditions that are faced by the population generally. It explained that for these reasons, even though his hardship is real and he is in a very difficult situation, his circumstances may not meet the criteria for the protection visa. He responded by reiterating that his situation was real, and he has been telling the Tribunal his real circumstances. The Tribunal advised that it believed everything he said. When asked if there was anything more he wished to tell the Tribunal, the applicant said he just needs two or three years and has promised his children he will return in 2026. He said he is trying to build a better future for his children but needs more time to achieve it. He said he will be happy to return in two to three years.

23. The Tribunal offered the applicant two more weeks to provide any further information, however that timeframe has now passed, and the applicant has not provided any more information either during that time, nor afterwards.

    Findings

24. The Tribunal has found the applicant’s claims and background, as given through his written and oral evidence, to be credible. The Tribunal has sympathy for the applicant and accepts he is trying to support his children and family, who he misses and worries about. However, for the reasons that follow,  the Tribunal finds he does not meet the refugee or complementary protection criteria:

25. On the applicant’s own evidence, he came to Australia purely for economic reasons and he wants to stay for the same reasons. He confirmed at the hearing that he does not fear returning to Timor-Leste and will be happy to return if he is able to stay longer to work and money first.

26. He has not claimed, and the evidence does not suggest that his financial or economic problems arise from any reason mentioned in s 5J(1)(a) or any personal attribute of his own, nor out of any systematic and discriminatory conduct, or any act or omission intended to cause him harm. The Tribunal finds that the applicant does not meet the criteria in s 5J(1)(a) of the Act. Nor does he meet the criteria in s.5J(4)(a) or (c) of the Act. The Tribunal finds the applicant does not have a well-founded fear of persecution, he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a). 

27. Having regard to complementary protection, the Tribunal finds that the applicant does not face a real risk of facing the death penalty or being arbitrarily deprived of his life or being tortured. Nor does he face a real risk of being subject to any intentional acts or omissions that would result in his suffering cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of him suffering any harm that would amount to significant harm, as it is defined in the Act.

28. Further, the risk of harm to the applicant is economic in nature and arises out of the state of the Timor-Leste economy. It is a risk 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.

29. There are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Timor-Leste. Accordingly, the Tribunal finds that the applicant does not meet s 36(2)(aa).

    CONCLUSIONS

30. 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).

31. 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).

32. 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

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

    Jessica McLeod
    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 his  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 his  nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or his self 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 his  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 his  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 his  religious beliefs, including by renouncing a religious conversion, or conceal his or his  true religious beliefs, or cease to be involved in the practice of his or his  faith;

    (ii)conceal his or his  true race, ethnicity, nationality or country of origin;

    (iii)alter his or his  political beliefs or conceal his or his  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 his  sexual orientation or gender identity or conceal his or his  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 his  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.

    …