2402869 (Refugee) - [2024] AATA 3803

2402869 (Refugee) [2024] AATA 3803 (24 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402869
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Hollie Kerwin
DATE:24 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 June 2024 at 10:29am
CATCHWORDS
REFUGEE – protection visa – economic conditions and family responsibilities – working to support younger siblings – ongoing conflicts between martial arts groups in home area – house burned down and later rebuilt with government support, and applicant hit by stones – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
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 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 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 is a citizen of East Timor applied for the visa on 20 November 2023. The delegate refused to grant the visa on the basis that the applicant’s claims to economic hardship in East Timor and his family responsibilities to his siblings were not for one of the reasons set out in s 5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion). Also, the delegate concluded that the applicant did not meet the complementary protection criteria on the basis that his feared economic hardship did not arise because of the intention of an actor or a perpetrator, and therefore did not fall within any of the defined forms of significant harm under the Act.
The applicant appeared before the Tribunal on 6 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.
A further, short, hearing was held on 12 June 2024, which was also conducted with the assistance of an interpreter in the Tetum and English languages. This second hearing was conducted remotely at the applicant’s request because, since the time of the first hearing, he had moved a significant distance from Melbourne, and by telephone in circumstances where the applicant was unable to access the technology for a video hearing.
BACKGROUND
The applicant was born in [Year]. At the first hearing, the applicant explained that he grew up in [Town] in the mountains in [District] of East Timor. He lived with his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 3803
Decision Date: 24 June 2024

CaseChat Overview and Summary

The applicant sought review of a delegate's decision to refuse his protection visa application. The applicant, who arrived in Australia under a seasonal worker program, claimed he needed to remain in Australia to support his younger siblings in East Timor. He stated that his parents had passed away, and he had taken on a paternal role, working to ensure his siblings could complete their education and improve their living conditions. He argued that while his country was democratic and laws protected children, many lacked access to education, and the economic situation in rural areas made it difficult to earn a sufficient income to support his family.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under the refugee convention or the complementary protection criteria. Specifically, the Tribunal had to determine if the economic and financial hardships described by the applicant constituted reasons for persecution under the refugee definition, or if the claimed harm was attributable to an actor for the purposes of complementary protection. The Tribunal also considered the relevance of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' made under Ministerial Direction No. 84.

The Tribunal found that the applicant did not meet the refugee criteria because the economic and financial hardship he described were not linked to his race, nationality, religion, membership of a particular social group, or political opinion. The applicant himself indicated that the driving force behind his circumstances was the general economy of his home country, and he did not assert that these issues were for any of the reasons required by section 5J(1) of the Act. Consequently, the Tribunal concluded he did not face a well-founded fear of persecution. Regarding complementary protection, the Tribunal noted that for this to apply, the harm claimed must be attributable to an actor, which the applicant did not assert. While acknowledging the applicant's genuine wish for his family's financial security and his siblings' education, and accepting he would face difficulties upon return, the Tribunal affirmed the delegate's decision.

Orders

Orders of the court

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Background

Background to the litigation

A further, short, hearing was held on 12 June 2024, which was also conducted with the assistance of an interpreter in the Tetum and English languages. This second hearing was conducted remotely at the applicant’s request because, since the time of the first hearing, he had moved a significant distance from Melbourne, and by telephone in circumstances where the applicant was unable to access the technology for a video hearing. BACKGROUND The applicant was born in [Year]. At the first hearing, the applicant explained that he grew up in [Town] in the mountains in [District] of East Timor. He lived with his parents and [younger siblings]. During his high school years, he lived with his uncle in Dili because the school was in Dili. He completed up to the [number] year of senior school. His father died a long time ago, and his mother passed away three months after he arrived in Australia. In East Timor he has worked selling fish on a roadside stall, fishing, helping drive a minibus, and selling vegetables. In May 2023, the applicant arrived in Australia as part of the seasonal worker program. In East Timor he currently supports all of his younger siblings who he is in a position as a father for now that his parents have died. His siblings are currently living in the family home in [District]. He keeps in touch with his siblings very regularly.CLAIMS AND EVIDENCEBefore the delegate The delegate determined the protection visa application as summarised above at paragraph 2. The delegate did not conduct an interview, and determined the application based on the written claims in the protection visa application. In summary, the claims made in the applicant’s protection visa application are: a.After his father passed away, he has taken his place as father to his [younger siblings]. They are still young and still students. b.He wants to work for his siblings’ future.c.There is not discrimination or violence in East Timor but his reasons for wanting to stay in Australia are all about education and his siblings’ lives.d.If he returns home, he does not know how he can support his siblings to keep studying based on what he faced in East Timor where he sold vegetables to survive.e.If he returns, he can guarantee his family will survive but not receive education which means there will be no future for them, which is why he wants to work [in Australia] and help them out.f.The Government has been trying many ways to help the economic situation but ‘not all the necessary’. g.His country is democratic and the law protects children but many children do not have access to education. He does not want his siblings to stop their studies and he wants to help them out.h.He wants to work to help his siblings, which is all he can do for them, and this is why he hopes to get the chance to stay in Australia longer and work with the visa.Before the TribunalFirst hearing The applicant attended a hearing before the Tribunal on 6 May 2024. He did not call any witnesses or provide further documentary evidence. In summary, he made the following claims before the Tribunal about the economic conditions and his personal financial future in East Timor: a.He came to Australia because of economic reasons. In East Timor he and his family were really suffering. Coming to Australia was a good opportunity and his younger siblings are happy. b.The economic circumstances for people in the rural areas of East Timor are very difficult. c.His home in East Timor (where all of his siblings also live) is not very good. He would like to stay in Australia for 3 or 4 years more to work in Australia because by then his siblings will have finished their schooling and he will have been able to help them to build a new house. d.In East Timor he suffered just to be able to eat a bowl of rice. You have to plant rice and crops and then you can sustain the children but ‘when times are tough, they’re really tough’. e.In East Timor it is very difficult to earn $100 per month. If you don’t work things will be very tough. f.Some people live well in East Timor but they’re not the same as the many people in his situation who are affected badly by the economic situation.

Evidence

Evidence Before The Court

In May 2023, the applicant arrived in Australia as part of the seasonal worker program. In East Timor he currently supports all of his younger siblings who he is in a position as a father for now that his parents have died. His siblings are currently living in the family home in [District]. He keeps in touch with his siblings very regularly.CLAIMS AND EVIDENCEBefore the delegate The delegate determined the protection visa application as summarised above at paragraph 2. The delegate did not conduct an interview, and determined the application based on the written claims in the protection visa application. In summary, the claims made in the applicant’s protection visa application are: a.After his father passed away, he has taken his place as father to his [younger siblings]. They are still young and still students. b.He wants to work for his siblings’ future.c.There is not discrimination or violence in East Timor but his reasons for wanting to stay in Australia are all about education and his siblings’ lives.d.If he returns home, he does not know how he can support his siblings to keep studying based on what he faced in East Timor where he sold vegetables to survive.e.If he returns, he can guarantee his family will survive but not receive education which means there will be no future for them, which is why he wants to work [in Australia] and help them out.f.The Government has been trying many ways to help the economic situation but ‘not all the necessary’. g.His country is democratic and the law protects children but many children do not have access to education. He does not want his siblings to stop their studies and he wants to help them out.h.He wants to work to help his siblings, which is all he can do for them, and this is why he hopes to get the chance to stay in Australia longer and work with the visa.Before the TribunalFirst hearing The applicant attended a hearing before the Tribunal on 6 May 2024. He did not call any witnesses or provide further documentary evidence. In summary, he made the following claims before the Tribunal about the economic conditions and his personal financial future in East Timor: a.He came to Australia because of economic reasons. In East Timor he and his family were really suffering. Coming to Australia was a good opportunity and his younger siblings are happy. b.The economic circumstances for people in the rural areas of East Timor are very difficult. c.His home in East Timor (where all of his siblings also live) is not very good. He would like to stay in Australia for 3 or 4 years more to work in Australia because by then his siblings will have finished their schooling and he will have been able to help them to build a new house. d.In East Timor he suffered just to be able to eat a bowl of rice. You have to plant rice and crops and then you can sustain the children but ‘when times are tough, they’re really tough’. e.In East Timor it is very difficult to earn $100 per month. If you don’t work things will be very tough. f.Some people live well in East Timor but they’re not the same as the many people in his situation who are affected badly by the economic situation.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issue in this case is whether the applicant meets the refugee criteria or the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.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. I confirm there is not a country information assessment for East Timor prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes. Economic and financial hardship claims After considering the material before me, I am not satisfied that the applicant meets the refugee or complementary protection criteria on account of the economic circumstances he raised as confronting him and his family in East Timor. I can appreciate, however, that it is the applicant’s genuine wish to enable his and his family’s greater financial security, for his siblings to fully complete their schooling and to build a new house for his family. I also accept that the applicant will face, as he said at the hearing, difficulties presented by the economic conditions in East Timor upon return and that this will have implications for him and his siblings in terms of their access to the greater financial stability that the applicant has been able to provide while working in Australia.Refugee criteria assessment In relation to the refugee criteria, I do not consider that the economic and financial hardship that the applicant described are for reasons of his race, nationality, religion, membership of a particular social group or political opinion. Rather, as the applicant confirmed in his evidence to the Tribunal, the issue driving his own financial circumstances and his family’s is the economy (including the wages available and employment options) in general in his home country. When I raised this as an issue in the review with the applicant at the hearing he did not clarify or assert that it was for any of the essential reasons required under s 5J(1) of the Act. Accordingly, I find that he does not face a well-founded fear of persecution in his home area now or in the reasonably foreseeable future on account of his financial, employment, or economic circumstances in East Timor.Complementary protection criteria assessment In relation to the complementary protection criteria, 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.[1] The actor can be unspecified but nonetheless identifiable for the actions they are predicted to take.[2] The applicant did not assert there was.[1] GLD18 v Minister for Home Affairs, [2020] FCAFC 2 (GLD19), [31], [39]-[40], [46] (Allsop CJ and Moritmer J).[2] GLD19, [40] (Allsop CJ and Moritmer J).