2402339 (Refugee)
[2024] AATA 2252
•11 June 2024
2402339 (Refugee) [2024] AATA 2252 (11 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2402339
COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Ben Goulding
DATE:11 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 June 2024 at 11:39am
CATCHWORDS
REFUGEE – protection visa – East Timor – financial hardship – support for siblings’ education – no further material provided and consent to decision without hearing – applicant’s responsibility to specify particulars and establish claim – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 425(2)(b), 425(3)
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Timor-Leste, applied for the visa on 12 November 2023. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a [Age]-year-old male from Timor-Leste. The applicant travelled to Australia on an apparently genuine Timorese passport. A copy of the biodata page of the applicant’s passport is contained on the Departmental file. The Tribunal finds he is a Timorese citizen and has assessed his claims against Timor-Leste as the country of nationality and the receiving country.
According to the applicant’s protection visa application, he last arrived in Australia [in] February 2023 and lodged an application for a protection visa with the Department on 12 November 2023.
The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of his claims. The delegate refused the applicant’s protection visa application on 31 January 2024 on the basis of not being satisfied that he had a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The delegate also considered the applicant’s claims under the complementary protection criteria and determined that there is not a real risk that the applicant will suffer significant harm if returned to Timor-Leste and therefore does not engage Australia’s protection obligations.
The applicant appealed the Department’s decision to the Tribunal on 13 February 2024. On 14 March 2024, the Tribunal wrote to the applicant and invited him to give oral evidence and present arguments at a hearing on 22 April 2024 at 9:00 am. The hearing invitation set out that the Tribunal had considered all the material before it, but it was unable to make a favourable decision on that information alone. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 15 March 2024, the applicant responded to the Tribunal’s hearing invitation by email. The applicant returned the hearing invitation form and checked the box which reads ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. The applicant also checked ‘no’ to the question asking whether the applicant or any other person would have issues that may affect their ability to participate in a hearing. Additionally, the applicant wrote ‘I DO NOT WANT TO PARTICIPATE IN THE HEARING’ in response to questions relating to ability to participate in the hearing, documents relied on, and whether witnesses were to be called.
The applicant did not appear before the Tribunal on 22 April 2024 at the time and place of the scheduled hearing.
The Tribunal is satisfied that the necessary consent has been provided by the applicant under s 425(2)(b) and that, pursuant to s 425(3), the applicant is no longer entitled to appear before it.
The applicant’s claims and evidence
In summary, in his protection visa application, the applicant claimed as follows:
a.He left Timor-Leste due to financial hardship which means he cannot help his brother and sisters to continue studying. As the oldest brother, he has replaced his father as being the person responsible for his siblings. His parents have their own problems and cannot support them anymore. The applicant wants to work so he can continue supporting his siblings.
b.In response to the question regarding relocation, the applicant said there is no violence or criminal issue, but he needs to help his brother and sisters to complete their education and support them in their daily life so they can survive.
c.The applicant fears that if he returns home, he does not know how he or his siblings will survive.
d.The applicant does not think the authorities could help him as there is no solution to this issue.
No further material has been provided by the applicant in support of his claims.
Reasons and findings
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. As per s 5AAA of the Act, the Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
Other than the information summarised above, the applicant has not provided any further details to the Tribunal in relation to his claims for protection. Moreover, those claims that have been outlined are vague and insufficiently detailed. For instance, the applicant has claimed that he and his family have experienced economic hardship, however, he has not provided any details as to their income or financial situation. The Tribunal also notes that in the protection visa application form, the applicant states that prior to coming to Australia he was a student and was financially supported by his parents.
The Tribunal accepts that the applicant may be able to earn more money in Australia than he is able to in Timor-Leste. The Tribunal also acknowledges that the applicant will have some expenses if he returns to Timor-Leste, although the extent of these expenses is unclear given the applicant has not provided details of those expenses.
However, nothing in the applicant’s protection visa application suggests that the essential and significant reason for the economic difficulties experienced by the applicant arise from his race, religion, nationality, political opinion or membership of a particular social group. For this reason, the economic harm feared by the applicant on return to Timor-Leste does not meet the criteria set out in s 5J(1)(a) of the Act. It follows that the applicant does not meet the definition of a refugee set out in the Act and therefore he cannot meet the criteria set out in s 36(2)(a) of the Act.
In considering whether economic harm described by the applicant would amount to significant harm in the complementary protection criterion under s 36(2)(aa), the Tribunal has had regard to the definition of ‘significant harm’ as exhaustively defined in s 36(2A), as follows:
(2A) A non-citizen will suffer significant harm if:
a. the non-citizen will be arbitrarily deprived of his or her life; or
b. the death penalty will be carried out on the non-citizen; or
c. the non-citizen will be subjected to torture; or
d. the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
e. the non-citizen will be subjected to degrading treatment or punishment.
The applicant does not suggest that he will be tortured or subject to the death penalty if returned to Timor-Leste. The definitions of arbitrary deprivation of life; cruel or inhuman treatment or punishment and degrading treatment or punishment each require the harm or punishment be intentionally inflicted on a person. In the claims outlined in the protection visa application, the applicant does not suggest that any person or group are intentionally seeking to harm him. As such, the Tribunal is not satisfied that the economic harm feared by the applicant would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, or degrading treatment or punishment as those terms are defined in the Act.
For these reasons the Tribunal does not accept the economic harm described by the applicant comes within the definition of ‘significant harm’, as that term is defined in s 36(2A). It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ben Goulding
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Statutory Construction
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Natural Justice
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