2402759 (Refugee)

[2024] AATA 3364

2402759 (Refugee) [2024] AATA 3364 (21 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402759

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Hollie Kerwin

DATE:21 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 21 May 2024 at 11:34am

CATCHWORDS
REFUGEE – protection visa – East Timor – economic conditions – lack of employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 499
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 dependants.

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 is a citizen of East Timor applied for the visa on 5 November 2023. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee criteria because his claimed fears of economic harm were not for one of the required reasons under s 5J(1)(a) of the Act. The delegate also concluded the applicant did not meet the complementary protection criteria because: there was no material that indicated the applicant was at risk of significant harm as it is defined in s 36(2B)(a)-(c); and his claimed fears of economic harm did not fall within the definition of significant harm in s 36(2B)(d)-(e) as they were not attributable to the subjective intention of an actor or person.

3. The applicant appeared before the Tribunal on 16 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.

4. For the reasons that follow, the decision under review is affirmed.

   BACKGROUND

5. The applicant was born [on date]. He was born in Dili but grew up in [an] area the applicant described as the countryside. He lived in the same house with his 12 family members, until he travelled to Australia. He is [one of the children] in the family and his parents are both still alive. His family continue to live in the same house, and the applicant confirmed that they own or have an ongoing right to live in their home.

6. The applicant completed senior high school, but was unable to continue studying because of the economic situation in East Timor. He did not work in an official role after that and he explained that this was because there is no work in East Timor. He said that his mother has a stall in the markets and his father sells [product], and sometimes he helped them. He said this work provided his parents a small amount of earnings.

7. In March 2023, the applicant came to Australia as part of the seasonal worker program. He lived first in Perth and worked picking [fruit]. After that he moved to Melbourne and has worked in a [workplace] since then.

8. He shared with the Tribunal that he is grateful to be able to work in Australia, to send money back home, and to have helped his parents and siblings. He explained that his parents are proud of him for what he has been able to do during his time in Australia.

   CLAIMS AND EVIDENCE

   Before the delegate

9. The delegate refused to grant the applicant’s protection visa application for the reasons already set out above at paragraph 2. The delegate did not conduct an interview with the applicant. The claims and evidence considered by the delegate were those set out in the protection visa application. In summary, these are:

   a.The applicant wants to move to Australia to change his life, his fate and his future because in Australia he can find a job easily.

   b.In East Timor there is no opportunity for a job, which is why many people in his country have poverty and high cases of malnutrition. This is why he has made the decision to live in Australia so that he can change his future for the better and help his family economically.

   c.People, including he and his family, don’t have anything, both material and housing, and even just want to buy food to eat every day.

   d.If he was to return to East Timor, his life will get worse because there are no jobs and he will be unable to change his life and his future.

10. At the outset of the Tribunal hearing, the applicant identified that he did not know what claims were made in his protection visa application because another person had assisted him to complete the form. The Tribunal read his claims to him from the application and asked the applicant whether he wanted to clarify or correct any of the information. He said he did not wish to, and that it was ‘pretty accurate’. The Tribunal identified that he would have a further opportunity in the hearing to talk about his claims in more detail.

    Before the Tribunal

11. As identified above, the applicant attended the Tribunal to give evidence and argument in support of his case on 16 May 2024. The applicant explained that the reason he came to Australia was to improve his life and help his parents. He explained that as he grew up his parents were able to get the minimum they could from the little business they had. He explained that he had decided to come to Australia to do work and help his family. He shared that he was hoping to get the chance to stay in Australia for a long time so he could continue to help his family.

12. The applicant also gave evidence that if he was to return to East Timor he would add to the burden the family already have. He explained that this burden arose because the economic conditions in East Timor are so difficult he and his family can barely sustain themselves.

13. The Tribunal asked the applicant whether there was any other reason he wanted to share about why he feared returning to East Timor. The applicant added that his parents also want him to stay in Australia because if he is able to work here it improves the family economy. He did not raise any other matters.

14. The Tribunal also clarified with the applicant whether he had experienced any harm or other issues in the past in East Timor. He said that he had not.

15. The Tribunal asked the applicant whether the problems he was describing in East Timor were all because of the general economy, and asked him whether there was any other reason for the issues he feared on return to East Timor for himself and his family. He stated that it was just the economy and there were no other reasons.

    CRITERIA FOR A PROTECTION VISA

16. 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.

17. 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.

18. 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).

19. 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.

20. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether the applicant meets the refugee criteria or the complementary protection criteria. There is no indication on the material before me that the applicant is a member of a family unit which might otherwise entitle him to a protection visa.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Mandatory considerations

23. 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. For completeness I confirm there is no information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes in respect of East Timor.

    Credibility

24. I accept the applicant’s evidence regarding the economic conditions in East Timor and their affect on his family. I also accept and can appreciate the applicant’s sincere wish to continue to provide for his family by working in Australia, as well as the gratitude and pride he explained his family feel for him for his contribution to their shared financial situation. To the extent there are minor differences between the accounts in the applicant’s protection visa regarding his circumstances and his evidence at the Tribunal hearing,[1] they do not raise a credibility concern, nor do I consider they give rise to any inference under s 423A of the Act.

    [1] For example, in the applicant’s protection visa application he refers to issues affecting housing, whereas in the Tribunal hearing the applicant confirmed that his family own or have an ongoing right to live in their home, he has lived there since shortly after his birth, and his family continue to live there.

    Refugee criteria assessment

25. I do not consider that the applicant meets the refugee criteria in this case.

26. This is because the harm that the applicant fears in East Timor does not arise for one of the required reasons set out in s 5J(1)(a) of the Act. On the material before me, I am not satisfied that it arises for reasons of race, religion, nationality, membership of a particular social group or political opinion. Instead it arises, on the applicant’s evidence, as a consequence of the general economic conditions in East Timor. When I raised this legal issue in the review with the applicant at the hearing, he did not wish to comment on it.

27. Ultimately, for this reason, I do not consider the applicant has a well-founded fear of persecution as that term is defined by the Act, and he does not meet the refugee criteria.

    Complementary protection criteria assessment

28. I also do not consider that the applicant meets the complementary protection criteria.

29. As I explained to the applicant at the hearing, the issue which arises is that in order to engage the complementary protection criteria, the harm that the applicant claims needs to be attributable to an actor.[2] The actor can be unspecified but nonetheless identifiable for the actions they are predicted to take.[3] When I raised this issue with the applicant he identified that if the reasons he had given did not have force within the law, the fact is that he really needs help and would appreciate help from Australia in order to work and support his family.

    [2] GLD18 v Minister for Home Affairs, [2020] FCAFC 2 (GLD19), [31], [39]-[40], [46] (Allsop CJ and Moritmer J).

    [3] GLD19, [40] (Allsop CJ and Moritmer J).

30. In this case, taking into the account the criteria under the Act, I find that the applicant does not satisfy the complementary protection criteria. As set out above, the harm claimed is attributed (including by the applicant) to the economic conditions in East Timor. The applicant articulates no actor or even protagonists of a general posture who will act or omit to act, contributing to his claimed harm.

31. Ultimately, for this reason, the applicant’s economic and financial hardship claims do not fall within the meaning of any of the defined forms of significant harm under the Act. Therefore, he does not satisfy the complementary protection criteria.

    CONCLUSION

32. 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).

33. 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).

34. 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

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

    Hollie Kerwin
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

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

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …