2402607 (Refugee)

2402607 (Refugee) [2024] AATA 2571 (16 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402607
COUNTRY OF REFERENCE:                   Timor-Leste (East Timor)
MEMBER:Jessica McLeod
DATE:16 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 June 2024 at 2.02pm
CATCHWORDS
REFUGEE – Protection Visa – Timor-Leste – claims of economic hardship – debt to [Company 1] – fears arising from conflicts between martial arts groups – delay in raising MRAG related claims – a member of the PSHT martial arts group – applicant is a low-level, ordinary member only – being wanted or targeted by Kera Sakti, the neighbours – did not experience harm in home country – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 2 February 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, arrived in Australia in April 2023. He applied for the visa on 12 November 2023 claiming that his life was in danger over an unpaid loan. The delegate did not accept the applicant’s claims to be credible and refused to grant the visa on that basis.
The applicant lodged an application for a review of that decision with the Tribunal on 16 February 2024. On 23 April 2023, he appeared before the Tribunal to give evidence and present arguments in a hearing. He then appeared in a second hearing on 30 May 2024 to discuss additional claims. Both hearings were conducted with the assistance of an interpreter in the Tetum and English languages.
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, 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.
CLAIMS AND EVIDENCE
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.
In his protection visa application lodged in November 2023, the applicant said that he left Timor-Leste because he was in debt after borrowing money (50000[1]) with 10 per cent interest per month. It wasn’t finished because of the COVID-19 pandemic and the bills kept increasing every month. He still doesn’t have the money to pay all this now. He is seeking a protection visa to stay longer in Australia and work so he can pay back his debt and bills and the monthly interest. He fears that if he returns and is unable to pay, his life will be in danger because in Timor-Leste there are many street gangsters, and they could pay them to hunt him down. Timor-Leste is a very small country, and it would be very easy for them to find him. He does not think the Timor-Leste authorities will protect him because they don’t want to get involved in this problem.
[1] The monetary unit or currency was not specified.
Although the delegate did not interview the applicant, the delegate wrote to the applicant in a letter dated 20 December 2023, inviting him to provide more information in relation to his protection visa application. In the letter, the delegate advised that they held concerns over the lack of detail provided, and lack of supporting evidence. It does not appear that the applicant responded to this invitation or provided the department with any further information.
In their decision, the delegate referred to the applicant’s claims as generic and lacking in any substantial detail. Citing this and that the applicant had had not responded to the invitation or explain why they could not provide the additional information, the delegate found that the applicant’s situation was not as described in their application. They did not accept the applicant’s claims to be genuine. They rejected them in their entirety, and on this basis, refused the application.
In the review process, the applicant has given evidence before the Tribunal in two hearings. The first hearing on 23 April 2024 was primarily concerned with the applicant’s claims of economic hardship and problems arising from his claimed debt to [Company 1]. In the second hearing on 30 May 2024, the Tribunal discussed with the applicant his claims raised late in the first hearing about fearing harm from a rival marital and ritual arts group in Timor-Leste. Further detail on all this is discussed below.
REASONS AND FINDINGS
The Tribunal has considered the applicant’s claims and evidence carefully, but for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity / Nationality / Background
The Tribunal accepts the applicant is a [age] year old citizen of Timor-Leste. He has provided copies of his Timor-Leste passport and I sighted this passport at the Tribunal hearings. No concerning issues have arisen; the Tribunal accepts his nationality and identity are as claimed. The Tribunal finds that Timor-Leste is the receiving country for the purpose of this review.
From evidence given in the first hearing, the Tribunal accepts that the applicant is from Dili, Timor-Leste and that he has never lived anywhere else. It accepts too, that he is married and has three children, but sadly, one of his children has very recently passed away. His other children are [age] and [age]. Despite the family’s loss, he has remained in Australia because he needs to earn money here; he is supporting his wife, his children and his parents.
The Tribunal also accepts the applicant’s evidence that before starting his business (discussed below), he worked selling fish and growing some vegetables to sell. On one occasion he worked for an Australian, doing some work around his house for a few hours at a time, but this is the only time he has worked for another employer.
Fears arising from debt to [Company 1]
The applicant claims that in addition to financially supporting his family, he needs to repay a loan he took out in Timor-Leste. He said he borrowed $55,000 USD in 2020 from the [Company 1][2] organisation, a microfinance provider in 2020 to fix-up his parents’ house and his own house and to start a business running a [business]. The workshop was small, and serviced people [and] in doing other small basic jobs. His wife also sold items for daily needs. But due to the poor economy and competition with other shops in the area, the business did not succeed. The money was slowly used for ‘this and that’ until all the money was gone.
[2] [Source deleted].
The applicant confirmed that [Company 1] is a legal, licensed lending institution. When asked about the loan terms, the applicant said it was a zero interest loan, requiring monthly repayments of $250. However, while he managed to make the repayments during the first year (in 2020), he was not able to meet the repayments in 2021, 2022 or 2023 until he came to Australia. It was only after he came to Australia that he was able to resume making repayments. To make the repayments from Australia, he transfers money from his bank to [Company 2] and then his wife goes to the [Company 2] office in Timor and withdraws the money and pays some of it to [Company 1]. He hasn’t kept a record of his repayments, but he thinks he has repaid about $10,000 but that he still owes more than $40,000.
The applicant said that he has faced threats in relation to the loan. He said [Company 1]’s security would come regularly (every week or two) to see him and demand the money. They threatened that if he didn’t pay, they would seize the goods from his shop, seize the shop itself, seize his or his parents’ properties leaving them with nowhere to live, or throw him into prison. They did end up seizing the shop, and in January 2024 they directly threatened his wife that if he doesn’t pay, they will seize the house. They said it was lucky he (the applicant) wasn’t there as they had been thinking bad things about him. Since then, they have continued coming and making those threats. They know his parents are very old and that his child recently died, so they told him the interest is not important and that he did not need to repay the interest, but he needs to repay the whole loan (principal) and make repayments every month.
In terms of the impact of one of the houses potentially being seized, the applicant said he would need to figure out what to do, and if he was imprisoned on return, he would be at a loss as to where his wife would live. When asked if his wife and children could live with his parents, the applicant said they cannot do that, because his parents live in the countryside and his wife needs to live in the city as she is sometimes able to earn a little bit of money from little jobs in the city.
The applicant confirmed that [Company 1] is a micro-finance organisation and a legal, licensed lending institution. When asked if he has any paperwork, written agreement or other evidence of his loan, he said there is no written agreement and [Company 1] is in the same area that he lives and everyone knows each other. So, it was all agreed verbally. The Tribunal noted to the applicant that there would be records if he has been making electronic money transfer via [Company 2], but as the applicant agreed, these records would merely show transactions to his wife, and would not serve as evidence of a loan with [Company 1].
The Tribunal raised with the applicant a number of concerns.
Firstly, the Tribunal noted the variance in the applicant’s evidence about the loan amount and interest, noting that in his written protection visa he said he had borrowed 50,000 with 10 per cent interest per month (as opposed to a zero interest loan of 55,000). The applicant responded that his English was poor, and he had told the person who had helped him fill out his protection visa application the correct information but that the person may not have written it down.
The Tribunal noted the delay between the applicant’s April 2023 arrival to Australia and his November 2023 lodgement of his protection visa application. He responded that he had expected constant work in Australia, but he often had no or little work, so he had not planned on seeking protection then decided to apply, so he could stay and repay the loan.
The Tribunal raised with the applicant its concern that he had no paperwork or evidence to show that he had a loan with, or had been making repayments to, a licenced micro finance institution. He responded that all he can say is that his claims are sincere; that he has that loan, and he needs to stay in Australia to work and repay it.
The Tribunal also raised with the applicant that $55,000 is a large sum of money to have been lent when it seemed he had little means of repaying it, and also noting he had only had a short space of time to repay. The applicant responded that [Company 1] hadn’t specified the time in which to pay the loan; they had only advised that he had to make monthly repayments. He said that at the time of agreeing, he was confident that he could pay it back, and he still is confident, as long as he can keep working in Australia.
The Tribunal acknowledged the applicant’s responses but advised that it may not accept the claims to be credible. The applicant indicated that he understood but he did not otherwise respond.
The applicant was given a further opportunity to provide more information about his debt with [Company 1] in the second hearing. However, he declined, saying he had explained everything already.
Findings
The Tribunal has carefully considered the applicant’s evidence about the loan he claims to have taken out with [Company 1] in Timor-Leste. However, it still holds the concerns raised in the first hearing; those concerns have not been abated by the applicant’s responses, nor from any other source. The applicant was put clearly on notice of these concerns and was given a chance in the second hearing to discuss his debt issue again. It has now been more than seven weeks since the Tribunal raised the concerns about the applicant’s loan related claims in the first hearing and the applicant has not provided any further information, evidence or responses.
In line with its concerns set out above, the Tribunal does not accept that any person, group or institution as claimed would loan the applicant $55,000 as claimed, nor that it would do so on a verbal agreement alone. The Tribunal does not accept the applicant’s claims of being in debt to [Company 1], or anyone. It follows that the Tribunal does not accept there to be a real chance that the applicant will be jailed for failure to repay that loan, nor does the Tribunal accept there to be a real chance that any person or group would seek to harm the applicant for reasons relating to that loan. The Tribunal does not accept there is a real chance of any harm arising from these claims.
The Tribunal finds that in relation to the claims about the loan, as the applicant does not face a real chance of any harm upon return to Timor-Leste now and in the reasonably foreseeable future, he does not meet s 5J(1)(b) or s 5J(1)(c) and therefore does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
Even if the Tribunal did accept his claims on this basis (which it does not), the Tribunal raised with the applicant that he does not appear to be fearing harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. The applicant agreed. The Tribunal finds that the applicant’s claimed fear of harm stemming from the loan is not for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. He does not therefore, meet the criteria in s 5J(1)(a) and (b) of the Act. On this basis as well, he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for the complementary protection criterion, noting that the Tribunal’s above finding related to ‘any harm’ and that ‘real chance’ and ‘real risk’ involve the same standard,[3] the Tribunal finds that in relation to his debt claim, there are not substantial grounds for believing that there is a real risk he would suffer significant harm inflicted by any act or omission by anyone in connection with the claimed loan (or any claimed consequences flowing from that claimed loan), 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).
[3] MIAC v SZQRB (2013) 210 FCR 505.
Financial concerns
The Tribunal accepts that the applicant is concerned about his financial future, and that of his family. The applicant has expressed multiple times, he needs to work and earn money in Australia.
In the first hearing, the Tribunal acknowledged these concerns. It noted to the applicant that country information about the situation in Timor-Leste indicates it is a poor country with little work available, and that a lot of people are struggling and live in poverty. It acknowledged that the applicant may experience financial or economic hardship on return. However, it discussed with him the s 5J(1)(a) reasons in this context as well, and that as his economic problems appeared to arise not from anyone’s intention to harm him but from conditions that are faced by the population generally, his circumstances may not meet the criteria for the protection visa. The applicant indicated that he understood, but did not comment, during this discussion, nor afterwards.
The Tribunal accepts that in Timor-Leste the applicant has previously found it difficult to earn a living and that he will likely face difficulties upon return. However, 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 act or omission intended to cause him harm for any other reason.

The Tribunal accepts there will be challenges, but it is not satisfied that any difficulties he might face in getting work, or any other difficulties he might face financially, arise from a reason mentioned in s 5J(1)(a).
Nor is the Tribunal satisfied any such difficulties would be the result of discriminatory conduct or intentional acts or omissions.
Nor is the Tribunal satisfied that such difficulties or challenges would themselves amount to, or otherwise lead to, a real chance of the applicant facing any harm that would amount to serious harm. The Tribunal does not accept he faces a real chance of economic hardship or a denial of opportunities to earn a livelihood or access basic services such that he would face a threatened capacity to subsist. Nor does it accept he faces a real chance of any other kind of serious harm.
The Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis. He is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for complementary protection, the Tribunal finds that the applicant does not face a real risk of facing the death penalty or being arbitrarily 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.
Further, the Tribunal considers the risk of harm to the applicant arising out of the state of the Timor-Leste economy is one faced by the population of Timor-Leste generally, rather than by the applicant personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the applicant will suffer significant harm.
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).
Fears arising from conflicts between martial arts groups
The applicant claims to be a member of the martial and ritual arts group (MRAG) Persaudaraan Setia Hati Terate (PSHT) and claims he is at risk of being harmed by a rival group, Ikatan Kera Sakti (Kera Sakti). This claim was raised at the end of the first hearing and while it was briefly discussed in that hearing, there wasn’t time to fully explore the claims. A second hearing was conducted to allow the applicant to extrapolate on these claims and provide evidence.
First hearing
In the first hearing, the applicant said he is a PSHT member and Kera Sakti burned down his neighbour’s house and that his cousin had run away. He said this kind of thing is happening all the time. There are two neighbouring sub-villages and the gangs from each of the sub-villages are constantly fighting each other.
The Tribunal noted to the applicant that there are thousands of PSHT members and asked why then would the rival group be holding him to account? He responded that they don’t really care – they just see that he is an PSHT member and is related to his cousin. He said even if he wasn’t related, he is a PSHT member from the same sub-village so they will still hold him accountable.
The Tribunal asked the applicant if he has experienced any violence personally and he said he had not, but that he would be held personally responsible.
Second hearing
The applicant was invited to discuss these claims more in the second hearing. His evidence, given in this second hearing is as follows:
The problem had existed for a while, but it peaked in January this year.
His neighbour’s house was deliberately burnt down in January 2024, by both Kera Sakti and PSHT, even though his neighbours aren’t members of either group. When asked why the neighbours would be targeted, the applicant said “they” don’t care and will burn down anyone’s house.
He said his cousin had become involved because he is a member of the PSHT. He said that it was his cousin and Kera Sakti /PSHT that was responsible and that between the first and second hearings (sometime in April – May 2024), his cousin has been arrested over it. However, the neighbours hold him (the applicant) accountable because the cousin often stayed with him. Kera Sakti have now fixated on him and are looking to harm him because of their problem with his cousin, and also because he himself is a member of the PSHT and his home is in the middle of Kera Sakti territory.
The applicant said that in January 2024, his family called and warned him not to come back because Kera Sakti were looking for him and wanted to kill him. He said they have also threatened his wife and child more recently and have communicated a warning threat that it is better that he (the applicant) doesn’t come back. When asked if anything had happened to his wife and child, the applicant said no, but that each day when his wife takes their child to school, they yell at her about him, and it reduces her to tears. Sometimes they throw rocks at his house too. He said that some of his wife’s relatives are in Kera Sakti, and they have advised that Kera Sakti have distributed his photograph around their group and likeminded groups, and that this means he is a marked man.
The applicant claims that even though his cousin has been arrested and is imprisoned, neither the neighbours, nor Kera Sakti are satisfied. They are still angry and seeking vengeance from the applicant. He also said that since his previous hearing, another one of his cousins had been badly injured with a machete. When asked what he feared would happen to him, the applicant said they would have him beaten up.
When asked about his PSHT involvement, the applicant said he joined the group in 2011. When asked about his activities with PSHT, he said that when he first started, they used to visit sick people and cure people and the other members were like his family, but lately it just seems like people want to cause problems. When asked about his level or ranking, the applicant initially said he was just one level up, but then referred to there being plain, black, purple and green levels and ‘really high white’ levels. He said he is white level, but just ‘normal white’, not ‘really high white’, which is for the older more experienced people. When asked what he had needed to do to move up the rankings to ‘normal white’, he referred to visiting sick people and curing people. When asked if he did any particular training with PSHT, the applicant said he used to train the young people, but he doesn’t do that anymore. When asked what he used to teach them, he said, he taught them about morals and how to be good people and do good things, and to treat to others in the group like family, even in different districts.
The Tribunal queried whether he considered the situation to be more dangerous for him than any other PSHT member and the applicant responded that they also face these problems; that the problems have been going on for a long time and PSHT members are really hated.
The Tribunal asked the applicant if there was any evidence showing he was known to Kera Sakti and being specifically targeted by them. He said there isn’t any really, but his photograph has been sent out and they will get him eventually.
Findings
Pursuant to 423A, in the first hearing, the Tribunal raised with the applicant his delay in raising these MRAG related claims either in his protection visa application or earlier in the first hearing when he was specifically asked if there were other reasons beyond the debt problem that he feared returning to Timor-Leste. He said he had thought his debt problem would be enough to secure him the protection visa and he had not wanted to admit his involvement in these types of things. He said he was also traumatised, and he had been really nervous when the Tribunal asked about other reasons, and that it was not easy to appear in front of the Tribunal. The Tribunal is prepared to accept this is a reasonable explanation for not raising these claims or evidence before the primary decision was made. It does not draw any adverse inference unfavourable to the credibility of the claims or evidence on this basis.
The applicant claims that he is a member of the PSHT martial arts group in Timor-Leste and that he is being targeted by rival group Kera Sakti on the basis of his membership and his familial link to his cousin.
Country information indicates that a lot of young people in Timor-Leste have joined martial and ritual arts groups (MRAGs) in large numbers since Timor-Leste’s independence. MRAGs have complex histories with roots in the Indonesian occupation, resistance struggle and Timorese society, and membership has been driven by factors such as the exclusion of young people from the development process, poor educational and employment opportunities and lack of facilities and events for youth engagement.[4] MRAGs have nationwide reach with branches at the district and village level. The group the applicant claims to be a member of, Persaudaraan Setia Hati Terate (PSHT), is the largest and most influential group and claims to have 35,000 members.[5] Membership of MRAGs has reportedly increased in recent years.[6]
[4] Fundasaun Mahein, ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy ’, 27 September 2022, 20230222133207
[5]Alves, J, Dialogos, ‘Martial and ritual arts groups in the formation of political parties in Timor-Leste’, Volume 7, 17 November 2022, 20230222135110 24
[6] Fundasaun Mahein, ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy ’, 27 September 2022, 20230222133207; Small Arms Survey, ‘Groups, gangs, and armed violence in Timor-Leste’, Number 2, April 2009, 20230222133948
While MRAGs have influence in every district, and there are reports of communal violence at the village level and in rural areas, Dili has been described as the main area of focus, where fighting has been ‘public and frequent.’[7] There are examples of such conflict in Dili as recently as in 2022 and 2023.[8] The information also indicates there are MRAG members within Timor-Leste’s security forces and political parties.
[7] Small Arms Survey, ‘Groups, gangs, and armed violence in Timor-Leste’, Number 2, April 2009, 20230222133948
[8] Tatoli, ‘Prime Minister Ruak urges young people to avoid conflict’, 24 January 2023, 20230224154711; Fundasaun Mahein, ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, 27 September 2022, 20230222133207
DFAT’s current Smart Traveller Travel Advice warns travellers that local unrest happens in Timor-Leste, including street gang fighting and political demonstrations, and that minor disputes can escalate into violence without warning.[9] DFAT notes there is a history of gang-related violence, robbery, arson and vandalism in major towns, especially Dili, and refers specifically to violence between rival martial arts groups:
“Martial Arts Groups (MAGs) and Ritual Arts Groups (RAGs) are mass membership organisations with a complex history in Timorese society and political culture. On 10 November 2023, the Timorese government announced a six-month ban on all MAG and RAG activities. Rival groups are frequently involved in violence against each other, which increases the potential for local disputes between individuals or families to escalate into communal violence.”
[9] Australian Department of Foreign Affairs and Trade, ‘Smart Traveller: Timor-Leste’, accessed on 15 April 2024
Having regard to the above country information about inter-group fighting between martial arts groups and street gangs in Timor-Leste, and particularly in Dili, it is not implausible that the applicant was once a member of the PSHT and that he lives in an area where Kera Sakti members reside. The Tribunal acknowledges too, there is a propensity for disputes to escalate to serious levels. It also acknowledges that country information does indicate that there are different coloured levels (including at least orange and green) and two white levels (including small white and great white)[10] which is broadly consistent with the applicant’s description, and it also indicates an emphasis on moral values, which the applicant claims to have to taught to younger members. The information suggests that common to the MRAGs are the promotion of a particular form of sports, such as a martial art, and that it takes years of practice and numerous exams to pass from one level to another. The exams cover physical tests and written exams covering moral values and the groups’ philosophy, history and objectives.
[10] Andrew McWilliam, Michael Leach, ‘Routledge Handbook of Contemporary Timor-Leste’, 20 march 2019, chapter available at https:// google.com.au/books?id=pNSNDwAAQBAJ&dq=PSHT+white+level&source=gbs_navlinks_s , accessed 11 June 2024
However, for the reasons below, the Tribunal does not find his evidence about his ongoing personal involvement in PSHT and the problems he is now facing from Kera Sakti or the neighbours in relation to this or his cousin’s actions, to be credible.
The applicant’s evidence about his involvement in PSHT and how he attained his ‘normal white’ level was vague and unconvincing. The applicant’s response when asked about his activities with the PSHT was limited to visiting and curing sick people, and he gave this same response when asked about how he moved up the levels to ‘normal white’. The Tribunal is mindful of the applicant’s education level, and his comments about feeling nervous in the previous Tribunal hearing setting, but even extending a generous view, the Tribunal considers the applicant’s evidence to be vague and generic and not commensurate with someone who claims to have joined the group in 2011, attained promotion up to the white levels (albeit to the lesser white level) and to have engaged in the teaching of other members. The Tribunal notes that the applicant did not dispute the Tribunal’s reference to his being an ordinary member only, when discussing its doubts about him being targeted by Kera Sakti. Given all of this, the Tribunal does not accept the applicant has risen to one of the white levels in PSHT. It finds the applicant is a low-level, ordinary member only and that he would not be perceived as anything other that either.
The applicant’s evidence about his neighbour’s house being burned down was also problematic, saying at first that it was Kera Sakti that burned it down, then saying it was both them and PSHT. His evidence about why the next door house was targeted was vague too, saying simply that “they” don’t care and will burn anyone’s house. And while he claims his neighbours are holding him accountable for this, and for this cousin’s involvement, the threats appear only to have come from Kera Sakti supporters, and he said the neighbours have moved away and they were not members of either PSHT or Kera Sakti. Nor has his evidence suggested they are members of any other rival group. Overall, the Tribunal found the applicant’s evidence about the incident with the neighbour’s house to be vague, muddled and not persuasive.
The Tribunal put to the applicant that it held doubts about his claims that all of Kera Sakti was seeking to harm him in relation to his PSHT membership and something his cousin did in January that he has already been arrested and punished for. In this context, the Tribunal noted that it seemed he was not more than an ordinary level member, that he had said himself that he hadn’t been involved in the previous problems or conflicts and that he hadn’t been in the country for more than a year. It also put to the applicant that the threats about it being better he doesn’t return seemed vague and led the Tribunal to question whether there was any intention to carry out actions against him. The Tribunal invited the applicant to comment, but he just said there was nothing to add to what he had already said. The Tribunal put its concern another way, that there didn’t seem to be strong indicators that anyone was wanting to harm him. It asked the applicant if there was anything more he could tell the Tribunal to help it understand the nature of the risk against him. He responded that because of his experience and growing up in the culture, he knows the risk is imminent and significant.
The Tribunal has carefully considered the applicant’s claims. But it considers he has attempted to embellish on his level and involvement in PSHT and his family’s involvement in conflict, and proximity to a destructive act (the burned house). It gives weight to its finding that the applicant is at most, a low-level, ordinary member of the PSHT and that he now hasn’t been engaged with the group, or in Timor-Leste for more than a year. It finds, as a matter of fact, that the applicant has not been particularly involved with the group at all, and that he would not seek to promote his level or profile within the PSHT, nor increase his involvement with them at all. The Tribunal is satisfied that this would not amount to any modification of the applicant’s behaviour either. On his own evidence he was not involved in any conflict and the nature of the activities he described were narrowed to very benign activities. Notably too, the applicant has not provided any evidence either, of his involvement with PSHT, any history of issues his family have experienced with Kera Sakti or other groups, the incident involving the neighbour’s house and the arrest and imprisonment of his cousin, nor his claims of being threatened and his photograph being distributed, or his status as a marked man. The Tribunal accepts it is not always possible for an applicant to substantiate their claims with corroborating or third party evidence. But in the applicant’s case, given he claims the house next door was burned down, that his cousin has been subject to official sanctions from the authorities and that his wife’s relatives have warned them about Kera Sakti’s distribution of the applicant’s photo as a marked man, it is concerning that there appears to be no available evidence at all.
Having considered the applicant’s evidence overall, the Tribunal does not find his claims of being wanted or targeted by Kera Sakti, the neighbours or anyone else to be credible.
The Tribunal finds that the applicant does not face a real chance of being targeted and harmed (including seriously harmed) for his membership or affiliation to PSHT, his relationship with his cousin or the incident involving his neighbour’s house. The applicant does not therefore 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).
For the same reasons and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is satisfied there is not a real risk of the applicant facing significant harm in relation to these claims.
The Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Timor-Leste, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).
CONCLUSIONS
The applicant has considered the applicant’s claims in their totality, but it is not satisfied he will face a real chance of serious harm or a real risk of significant harm from any person or group in Timor-Leste for any one or any combination of the reasons given. Even when considered cumulatively, the Tribunal is not satisfied that the applicant meets the refugee criteria, or the complementary protection criteria.
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.
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.
…

[2024] AATA 2571

16 June 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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