2406669 (Refugee)

2406669 (Refugee) [2024] AATA 2515 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2406669
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Sophia Panagiotidis
DATE:14 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 June 2024 at 5:32pm
CATCHWORDS
REFUGEE – protection visa – East Timor – violence and threats by ex-partner – ex-partner detained briefly and warned – separated, no incidents since and some evidence of acceptance – applicant’s new relationship in Australia – applied for visa to be able to work to support family – detailed, spontaneous and credible evidence of past harm – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 1 March 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Timor-Leste, applied for the visa on 5 October 2023. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa)of the Act.
The applicant appeared before the Tribunal on 4 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was asked if she would prefer the matter was adjourned in order to try and get an interpreter in the Tetum language, although she had indicated she speaks Indonesian. She indicated she was happy to proceed in the Indonesian language as she was familiar with it.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant travelled to Australia on a Timor-Leste passport, a copy of which has been provided to the Department. She has at all times stated that she is a citizen of Timor-Leste and has been assessed on that basis by the Department. Based on the documentary evidence of her identity documents provided to the Department and to the Tribunal, it finds she is a citizen of Timor-Leste and has assessed her claims against that country.
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.
The applicant’s personal background and evidence
The applicant confirmed her date and place of birth in Timor-Leste and that she is a Timorese by ethnicity and a citizen of Timor-Lest. She is a Catholic. She also confirmed she had gone to university and studied [Subjects]. She has never worked in her profession because finding employment in her field was very difficult. She has not worked in her country and details regarding her previous employment in the protection visa application were incorrect. She has worked in Australia picking [fruit] since arriving in 2023 but did not work while she was in Timor-Leste as she was supported financially by her parents. Her father is now retired and he had previously worked as [a work position]. Her mother is still working as [an occupation] for [a workplace] in Dili. Although the applicant indicated she is divorced, she was never officially married in church and the marriage was not registered. She was in the relationship with her ex-partner from 2010 to 2019. He worked for [Employer] but then left his job and did not work after they separated. She has two children from that relationship and has provided birth certificates for the two children and the oldest one does not have his father’s name as there were problems with her ex-partner when he was born. The youngest child has his father’s and mother’s names. They live with her parents. Her parents are in Timor-Leste and she has one brother and two sisters. Her older sister lives close to their parents and her other sister and brother are in [Country] working. The applicant is the youngest of her siblings. She did not apply to work in [Country] because the government sponsored visa to Australia was easier.
The applicant confirmed she left Timor-Leste in February 2023 and arrived in Australia on the same date. She confirmed she made an application for protection in October 2023. When asked why she came to Australia and why she was applied for a protection visa, she said she came to Australia to work and support her children. She was on a sponsored visa by her government to come to Australia which was valid for nine months. Before it expired, she wanted to apply for a new visa to be able to stay and work in Australia. She then applied for a bridging visa and a protection visa. When asked if she was familiar with the purpose of a protection visa, the applicant said all she knew was that it would allow her to work. If she left Australia she would not be able to work. She did not know much about protection visas but many of her friends who had applied before suggested this. The applicant said it was not possible to extend her sponsored work visa but she admitted she had not made any enquiries but she heard that if she had to return to her country there was no possibility of returning. Many of her friends have returned to Timor-Leste and have not been able to come back to Australia.
The applicant was asked if there were any reasons she would be harmed if she returned to her country. She said she has received threats from her ex-partner. After she was in Australia for two or three months he called her and said he would come to Australia to kill her. This was because he did not accept her being in Australia and also because she had a new partner. She felt afraid as a woman. She said she did not really believe him but nevertheless she was afraid.
The applicant confirmed she and her ex-partner separated in 2019 and she did not see him much after that. He did not have any contact with the children. The lack of contact started when they separated. She had been upset and had an argument, then he had hit her in front of them. They were traumatised and her parents became aware of the incident and then decided that he should not come to their house again and she should also not contact him again. The reason she had been upset was that he had an affair and she had caught him. While she was in Australia, he tried to go and see the children but her father refused to let him. She is not sure if anything else had happened but her father does not want to allow him to see her again. However, her ex-partner contacted her by phone and asked to reconcile. She refused. He later called her again and that is why he threatened her.
The applicant said she has a new partner and she met him in Australia. He is also from Timor-Leste and has been here for the same amount of time as she has. He has also applied for a protection visa. Her ex-partner would have found out about her new relationship from friends. The applicant was asked if her ex-partner had previously asked for a reconciliation since their separation in 2019. She said her parents did not want her to return to him. When asked what she wanted to do, the applicant said she did not want to go back to him either. They were different from each other, he has a different religion and he is a protestant. When asked if this was a problem while they were still together, she said it was but she was too much in love with him and could not see any problems.
In relation to her ex-partner’s violence towards her, the applicant said there was one occasion when they were dating, he hit her with a motorcycle helmet. She reported this to the police and he promised he would not be violent towards her again. The applicant was asked if there had been any other incidents since then. She indicated that the incident where he hit her after she found out about his affair was the second time. She did not report that incident to the police because she was distressed and traumatised but she told her parents. They kicked him out, but they did not report him to the authorities either. He is afraid of her parents. The applicant was asked if she could seek protection if she were to return to her country and was threatened or harmed by her ex-partner, for example by complaining to the police. The applicant said the police would give him a warning. Previously when she had reported him, the police held her ex-partner in police cells for 12 hours. It is possible they would take further action as he had been previously warned. The applicant said she has thought of making peace with him. In May 2024, he contacted her and asked how she was and she thinks this was a gesture of peace. She does not want them to be enemies anymore. The applicant was asked given her evidence that she has attempted to make peace with her ex-partner, who or what does she fear if she were to return. She said when she made the application for the protection visa the incident with her ex-partner had happened and he had threatened her but they are not enemies any more. However, she still wants to stay in Australia to work and support herself and her children and also to help her family, especially her parents. Her father is getting a pension and her mother is still working and she will get a pension when she retires from the [workplace]. Her ex-partner now has a business. When asked if he would help to support her children, she said that in the past she had asked him but her parents did not want him to. She has been trying to talk to her parents about this.
The applicant was referred to her training in [Subject] and asked if she ever thought of starting her own business, maybe helping other small businesses to [do a business task]. She said she has tried and most people aim to work for the government to be secure but she needs to have contacts or political connections.
When asked if there were any other reasons the applicant is not able to return to her country, she said she is hoping to be granted a protection visa so she can stay in Australia to support herself and her family.
Discussion and findings
Fear of former partner
Country information indicates that inequitable gender norms and gender-based violence are prevalent in Timor-Leste, with a 2016 survey conducted with 1,426 randomly selected women aged between 15 and 49 years indicated that 59 percent of women experienced violence from an intimate partner in their lifetimes, with 47 percent of women experiencing it in the previous 12 months. Eighty percent of women and 79 percent of men reported that they believed a husband was justified in hitting his wife under certain circumstances.[1]
[1] Asia Foundation, May 2016, Understanding violence against women and children in Timor-Leste: Findings from the Nabilan Baseline Study, Understanding Violence Against and Women Children in Timor-Leste: Findings from the Nabilan Baseline Study - The Asia Foundation
During 2022, domestic violence offenses were the second-most charged crimes in the criminal justice system. However, prosecutors routinely charge cases involving aggravated injury and use of deadly weapons as low-level simple assaults.[2] Most cases of domestic violence are dealt with informally and never reported to the police.[3] The above-mentioned 2016 survey found that 66 per cent of women who have experienced intimate partner violence have not told anyone.[4] Only 3 per cent of women stated they had reported their partners’ violence to the police.[5] The most common reasons for not seeking help were because it would damage family reputations, the violence was normal or not serious, and concerns they would not be believed or would be blamed for the violence or would lose their children.[6]
[2] US Department of State, 20 March 2023, Country Reports on Human Rights Practices for 2022 - Timor-Leste, p.11, TIMOR-LESTE 2022 HUMAN RIGHTS REPORT (state.gov)
[3] Relief Web, 21 May 2021, Tackling Gender-Based Violence (GBV) in Timor-Leste, Tackling Gender-Based Violence (GBV) in Timor-Leste - Timor-Leste | ReliefWeb
[4] Asia Foundation, May 2016, Understanding violence against women and children in Timor-Leste: Findings from the Nabilan Baseline Study, Understanding Violence Against and Women Children in Timor-Leste: Findings from the Nabilan Baseline Study - The Asia Foundation
[5] Asia Foundation, May 2016, Understanding violence against women and children in Timor-Leste: Findings from the Nabilan Baseline Study, Understanding Violence Against and Women Children in Timor-Leste: Findings from the Nabilan Baseline Study - The Asia Foundation
[6] Asia Foundation, May 2016, Understanding violence against women and children in Timor-Leste: Findings from the Nabilan Baseline Study, Understanding Violence Against and Women Children in Timor-Leste: Findings from the Nabilan Baseline Study - The Asia Foundation
Laws against rape, domestic violence and sexual harassment are not effectively enforced.[7] A lack of police training hampers investigatory procedures, including the ability of investigators to recognise or collect evidence.[8] The vulnerable persons unit of the police are responsible for handling domestic violence and sexual crimes; however, they do not have enough staff to provide a significant presence in all areas of the country.[9] Police often encourage women to resolve the issue within the family or within traditional community justice mechanisms.[10] Judicial observers note that judges are lenient in sentencing domestic violence cases. Civil society groups report that courts only issue prison sentences in the most severe cases.[11] NGOs highlight a failure to issue protection orders and overreliance on suspended sentences, including in cases involving significant bodily harm.[12] According to USDOS, the police, prosecutors and judges ‘routinely’ ignore many elements of the law designed to protect victims of gender-based violence.
[7] US Department of State, 20 March 2023 Country Reports on Human Rights Practices for 2022 - Timor-Leste, p.10 & p.11, TIMOR-LESTE 2022 HUMAN RIGHTS REPORT (state.gov)
[8] Freedom House, 2023, Freedom in the World 2023 - Timor-Leste, Timor-Leste: Freedom in the World 2023 Country Report | Freedom House
[9] US Department of State, 20 March 2023, Country Reports on Human Rights Practices for 2022 - Timor-Leste, p.10, TIMOR-LESTE 2022 HUMAN RIGHTS REPORT (state.gov)
[10] Asia Foundation, May 2016, Understanding violence against women and children in Timor-Leste: Findings from the Nabilan Baseline Study, p.117, Understanding Violence Against and Women Children in Timor-Leste: Findings from the Nabilan Baseline Study - The Asia Foundation
[11] Freedom House, 2023, Freedom in the World 2023 - Timor-Leste, Timor-Leste: Freedom in the World 2023 Country Report | Freedom House
[12] US Department of State, 20 March 2023, Country Reports on Human Rights Practices for 2022 - Timor-Leste, p.10, TIMOR-LESTE 2022 HUMAN RIGHTS REPORT (state.gov)
In considering the applicant’s evidence regarding the assaults and threats to her by her former partner, the Tribunal found the applicant to be a credible witness who gave detailed and spontaneous answers to questions asked about past violence perpetrated on her by her ex-partner in 2019 and an incident prior to that while they were still dating. The Tribunal accepts her evidence in that regard and in particular that when she reported his assault to the police they detained her ex-partner in a cell for 12 hours and gave him a warning. The Tribunal also accepts that the applicant’s ex-partner hit her in front of their children when she confronted him about his affair in 2019 after which they separated permanently. The Tribunal also accepts this was traumatic for the applicant and her children who she said were still affected by that incident. The Tribunal also accepts she did not report the second incident to the police but told her parents who told her husband to leave the house which he did. The applicant’s evidence indicates that her parents appear to have influence over her and her ex-partner and on their advice she has had little to do with him after they separated in 2019 and she has refused to reconcile. She also indicated that if she had reported the 2019 assault, the police may have taken further action as he has had a previous warning but was not sure.

Overall, the evidence shows the applicant and her ex-partner have been separated since 2019 with no further incidents until after the applicant came to Australia in 2023, when a few months later, her ex-partner called and threatened her after learning she was in a new relationship. However, the applicant has also given evidence that since then, both she and her ex-partner have made overtures of peace and she was pleased with this.
Considering the country information and noting the limitations of police resources and capacity for gender-based violence, the Tribunal notes that they did take action in the past when the applicant reported that first assault to the police. She did not notify the authorities of the second assault and this was dealt with privately by her and her family, however she indicated she was aware that the police could have taken action against her ex-partner if she had approached and complained to them in view of the previous warning and detention.
On that basis, and in view of the applicant’s evidence, the Tribunal does not accept there is a real chance that the applicant’s ex-partner will seek to harass, threaten or otherwise harm the applicant if she returns to Timor-Leste, now or in the reasonable foreseeable future.
For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will be subjected to significant harm from her former partner as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste.
Economic hardship
The Tribunal notes country information that Timor-Leste is one of the poorest countries in the Asia-Pacific region and must of government spending is reliant on overseas aid.[13] Timor-Leste has experienced significant economic growth since its independence in 2002, with GDP per capita increasing from $453 in 2004 to $1381 in 2020. The economy is almost entirely reliant on oil and gas.[14] Approximately 80 percent of state expenditure comes from a sovereign wealth fund, the Petroleum Fund, but oil and gas income into this fund is now almost negligible due to declining reserves. It is estimated that the fund could be depleted entirely within a decade.[15]
[13] United Nations Development Program (UNDP), May 2019, United Nations Development Assistance Framework (UNDAF) 2015-2020 in Timor-Leste: Evaluation Report, 3ec2b510-325a-4f21-b7f9-e55574616999_Final_Evaluation_Report_UNDAF_Clean_Version-2.pdf
[14] Al Jazeera, East Timor: Between hope and unease 20 years after referendum,
[15] Bertelsmann Stiftung, [Bertelsmann Stiftung’s Transformation Index, BTI 2022 Country Report.
Timor-Leste, 23 February 2022, 20220310150555, p.4
Timor-Leste has achieved a medium human development status, positioned 131 out of 189 countries.[16] However, it appears to have experienced a decline between 2014 and 2020, with the poverty rate (based on the international poverty line of $1.90) rising from 22 percent to 27 percent in that period.[17] The poverty rate is higher in rural areas.[18] Forty-six per cent of the population are multidimensionally poor and a significant majority rely on small-scale subsistence farming.[19] The majority of households are in the informal sector, with only about 23 percent of the working-age population in the cash economy.[20]
[16] United Nations in Timor-Leste, Socio-Economic Impact Assessment of COVID-19 in Timor-Leste,
2021, p.30
[17] United Nations in Timor-Leste, Socio-Economic Impact Assessment of COVID-19 in Timor-Leste,
2021, p.30
[18] United Nations in Timor-Leste, Socio-Economic Impact Assessment of COVID-19 in Timor-Leste,
2021, p.31
[19] United Nations in Timor-Leste, Socio-Economic Impact Assessment of COVID-19 in Timor-Leste,
2021
[20] Bertelsmann Stiftung, [Bertelsmann Stiftung’s Transformation Index, BTI 2022 Country Report.
Timor-Leste, 23 February 2022, 20220310150555, p.4
Household vulnerability is increased by the dependence of nearly 70 percent of citizens on climate-sensitive livelihoods and agricultural production, in a country which experiences frequent floods, droughts, storms, landslides and is impacted by sea-level rises and higher temperatures as a result of both natural climate variability and climate change.[21] The economy continues to depend on government outlays, and state spending in recent years has fallen due to political impasses.[22] Prior to 2020, Timor-Leste had experienced recession since 2017, attributed to internal political divisions.[23] GDP was estimated to have expanded by 3.4 percent in 2019, recovering from the earlier recession.[24]
[21] United Nations in Timor-Leste, Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’
2021, p.31.
[22] Bertelsmann Stiftung, [Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report.
Timor-Leste, 23 February 2022, 20220310150555, p.4
[23] Lowy Interpreter (The Interpreter), Timor-Leste: The consequences of Covid-19, 3 April 2020,
20200406074724
[24] World Bank Group, April 2020 Timor-Leste Economic Report: A Nation Under Pressure, 15 May
2020, 20201021131121, p.i.
The applicant explained that one of the primary reasons she did not wish to return to her country was that she wanted to work in Australia and provide for her children and herself. She also wished to assist her parents. She had not worked prior to coming to Australia although she had completed higher education as it was difficult to find work in her country and doubtless she had primary care of her children. She gave evidence she had been previously financially supported by her parents and also indicated that prior to their separation, her former partner had been employed by [Employer] but left his job when they separated.
In terms of her family situation, the applicant indicated she and her family (including her ex-partner) had been living with her parents prior to their separation in 2019. Her father, who is now retired, previously held [a work position] district and now receives a pension. Her mother continues to work as [an occupation] in [a workplace] and will be entitled to a pension when she retires. The applicant’s children are living with her parents and are being financially supported them, and since coming to Australia, she has been contributing financially as well. When asked about child support, the applicant indicated that her ex-partner had now started his own business but she had not asked him about this. This is mainly because her parents have advised her to have nothing more to do with him and therefore he had not been providing financially for their children. However, according to her evidence, more recently there have been overtures between them to settle their differences.
In discussing the criteria for the grant of a protection visa, the Tribunal does not consider the applicant’s economic hardship was attributable for one of the five nexus reasons required by the refugee criteria. The Tribunal outlined at the beginning of the hearing that to have a well-founded fear of persecution it must be because of her race, religion, nationality, membership of particular social group or her political opinion. The applicant did not disagree that those reasons were not relevant to her personal circumstances.
The Tribunal accepts the applicant’s evidence in relation to her family’s circumstances and that she has had difficulty finding work in her field in the past. The Tribunal accepts that the applicant has not meaningfully worked in Timor-Leste mainly because she was raising her children, was in a long term relationship with her partner who was working and was also supported by her parents. She has completed higher education but has not worked in the field of her training. As she said, her barriers to employment appear to have been raising her children, a lack of suitable positions and her few connections to the business community or to political parties. This may be related to the economic management of the country and the poor economic conditions that exist throughout the country.
The applicant was able to qualify for the government sponsored work visa to enable her to come to work in Australia and has ongoing employment in Australia indicating she has strong capacity and willingness for work. The Tribunal accepts that returning to her country will have an adverse impact on the applicant financially and she may be excluded from returning to Australia and accessing its labour markets on a temporary visa for at least three years.
The Tribunal has considered the applicant’s personal circumstances, including that she has two children who are living with her parents who both have an income. Her former partner’s capacity to contribute financially was also considered even though she said she had not asked him and her parents had advised her not to do so. He is now self-employed and could potentially assist financially in supporting their children. This is particularly the case as the applicant has given evidence that they have come to a peaceful understanding about their relationship. Given these facts, the Tribunal accepts that if the applicant is returned to Timor-Leste there is a real chance she will experience some economic harm as a result of being unable to secure employment that pays as much as in Australia. However, the Tribunal does not accept, and nor has she claimed that the economic harm will be directed at her for essential and significant reasons related to applicant’s race, religion, nationality, membership of a particular social group or political opinion. Therefore, the applicant’s economic hardship does not constitute a well-founded fear of persecution as that term is defined in s 5J.
The Tribunal has also considered the complementary protection criteria and whether, in looking at her personal circumstances, returning to Timor-Lest means that the applicant will be returning to relative poverty such that she will encounter significant economic hardship that threatens her capacity to subsist; or the denial of capacity to earn a livelihood of any kind, where denial threatens her capacity to subsist. The evidence does not support such a conclusion. Further the Tribunal does not accept that any economic harm the applicant may experience in her country by way of reduced earning capacity or financial hardship would arise from the intentional or deliberate act or omission of any person or persons such as could constitute arbitrary deprivation of life, cruel inhuman treatment or punishment or punishment, degrading treatment or punishment or torture. It is not suggested that the applicant will be subjected to the death penalty in Timor-Leste for any reason. For these reasons the Tribunal does not accept that the economic harm feared by the applicant would meet the definition of ‘significant harm’, as that term is exhaustively defined in s 36(2A).
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.
Sophia Panagiotidis
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.
…

30 August 2019

[2024] AATA 2515

14 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction