2410916 (Refugee)

[2024] AATA 3460

2410916 (Refugee) [2024] AATA 3460 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2410916

COUNTRY OF REFERENCE:                   Timor-Leste

MEMBER:Carolyn Wilson

DATE:23 July 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 23 July 2024 at 10:41am

CATCHWORDS
REFUGEE – protection visa – East Timor – borrowed money from neighbours to fund travel and unable to repay – threatened by debt collectors – written claim of being threatened with death, oral evidence of threats to seize father’s land – no harm to applicant or family, and no threats of physical harm or death – inconsistent evidence of loan, and no documentation – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 May 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 claims to be a citizen of Timor-Leste, applied for the visa on 4 October 2023. The delegate refused to grant the visa on the basis that the applicant could obtain protection from the authorities if he feared harm arising from unpaid debts.

3. The applicant appeared before the Tribunal on 22 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The applicant claims to be a citizen of Timor-Leste and provided a copy of his Timor-Leste passport as evidence of this. I accept he is a citizen of Timor-Leste and find Timor-Leste is his receiving country.

11. The applicant came to Australia in April 2023 as the holder of a Subclass 403 Pacific Australia Labour Mobility (PALM) stream visa. In October 2023 he applied for a Protection visa, making the following claims:

    I chose not to go back to East Timor… because I had been threatened or killed, because I borrowed a lot of money for 540.00 and every week I had to pay 250 dollars in interest, but I did not have the money to pay that much money because I had no work if I went back to East Timor, so I was threatened with death if I could not pay their debts, and currently they are looking for me.

12. The delegate invited the applicant to provide more detail and evidence of his claim and the applicant responded with a written submission. Although he had said in his application he had no family, he gave details that he has parents, [a sister], and [two brothers]. He provided the following new information:

    ·In the beginning he had no problems working under the 403 program, but then his wages were not enough to cover his expenses including living expenses in Australia, sending money to family, and paying off a debt.

    ·He borrowed USD 9,000 dollars from two neighbours in Dili. They lent him the money because he had a job opportunity in Australia and would be able to repay them. They charged him 23 per cent interest per year. He signed a letter of agreement, which he will provide. He used his father’s land as a guarantee.

    ·He gave USD 1,500 to his father and brought the rest of the money with him to Australia as a back-up to cover his expenses.

    ·Debt collectors have visited his family because he stopped making payments on the loan for 3 months. They told his family they would confiscate the property if they cannot pay. His father is very worried because they mortgaged the land for the loan. The authorities cannot help in debt cases.

    ·In Dili he worked in a [factory] as [an occupation]. It was difficult to get this job, and they have replaced him since he left. Job opportunities are very limited in Dili.

13. At the Tribunal hearing the applicant said he did not complete the visa application himself, but asked a friend of a friend to do it for him. He could not give any more details about this person because he tried to telephone him but could not reach him.

14. The applicant said his family live in Dili in the family home he grew up in. His father is not in paid employment but sells vegetables. His mother is a housewife. His two brothers are both studying at university, and have done for around 3 years. His sister is unmarried and does not work. The applicant completed high school but unlike his brothers did not attend university. He worked on and off for a [company], and it was difficult to get ongoing work with the company.

15. The applicant said he came to Australia on a 6 month visa under the PALM scheme to work on a [farm]. When that contract ended, and his visa was about to expire, he applied for the Protection visa to continue working in Australia. He has done other [work] and currently works in a [workplace 2]. He said there were two reasons he wanted to stay in Australia: the first is to earn money to pay back his loan; the second is that there is no work for him in Dili and he will not be able to pay back his loan. He conceded at the hearing his only fear in returning to Timor-Leste is being unable to find work. He does not want to return until he has paid off his loan and saved enough money for his future.

16. The applicant maintains he borrowed USD 9,000 in early 2023 from two neighbours to fund his trip to Australia. Although he told the delegate he signed documents and would provide them, at the hearing he said the agreement to lend him money was an oral agreement only. He cannot provide any documents to prove he has a loan. When asked why he would borrow so much money, he said he wanted to leave USD 1,500 for his family and the rest was for him in case anything happened in Australia such as getting sick. He had heard the cost of living was high in Australia and he thought he needed to bring money to afford to live here. He initially said in his written statement, and at the hearing, that he brought USD 7,500 cash with him to Australia. When asked how he brought this money to Australia he said he brought it as cash in his suitcase. I asked whether he had declared the cash to customs on arrival, noting the requirement to do so when bringing in more than AUD 10,000. He said he did not declare it, because there was no need to. He did not bring USD 7,500 (more than AUD 10,000) because he had already spent some money to pay for his medical check to get the visa, and for items needed to come to Australia such as a suitcase and clothing. He could not remember how much he cash brought to Australia, but said it was much less than AUD 10,000.

17. In his written application the applicant claimed he had been ‘threatened with death’. At the hearing he said the only threats made are threats to seize his father’s land if he does not pay back the loan. He said debt collectors went to his family home twice when he stopped making repayments. He confirmed there have been no threats to kill or physically harm him, and no-one in his family has been personally threatened or harmed since he left. He re-started paying back the loans and his father’s land has not been taken. He has paid more than half the debt back but still owes around USD 4,000. It was not clear whether he is claiming he owes an amount of USD 4,000 including interest or 4,000 plus interest. I asked how much money he currently has and he said he has about AUD 8,000 in his bank account. I put to him this would be enough to clear his loan, and he agreed it would but said this money is for his future and he does not want to use it on the loan. He wants to stay in Australia to work for another 1 or 2 years so he could earn enough money for his future in Timor-Leste as well as paying back the loan.  

18. I consider the applicant’s evidence regarding borrowing money to come to Australia has been inconsistent and lacking in credibility. In his application he claimed only to have borrowed ‘540.00’.  He later told the delegate it was USD 9,000 and said he had a letter of agreement that he would provide as soon as possible. However, no letter of agreement or any other documentary evidence was provided to the Department or Tribunal. He told the Tribunal he cannot provide any documentary evidence because there is no letter of agreement, it was only an oral agreement, however this does not explain why he cannot provide any evidence of re-payments. He was also inconsistent in his account of how much money he brought with him to Australia. He claimed he brought cash, and during the hearing said he brought USD 7,500 cash, but changed his evidence when challenged about the need to declare this amount of money. As raised with him at the hearing, even if it was less than USD 7,5000 it seems unlikely he would travel with that much cash in a suitcase. I consider his reasons for borrowing such a large sum were also lacking in credibility. He had a contract of employment in Australia, and was coming here to earn money for his future. I do not accept he believed he needed to bring such a large amount of cash for living expenses or just in case of emergency. Having regard to his inconsistent evidence and lack of supporting evidence, I consider the claim that he borrowed USD 9,000 is not credible and is an embellishment.

19. It is plausible the applicant borrowed some money to cover his personal expenses such as for the medical and buying and bringing personal effects, but for the reasons given I do not accept it was as much as USD 9,000. The applicant gave oral evidence that he has AUD 8,000 in savings. I find that if he borrowed money in Timor-Leste, he has the means to pay back any outstanding loan on return. I acknowledge he said that money is for his future and he did not want to use it to pay a debt. However he also gave evidence that when his father’s land was at risk he made payments on the loan. I do not accept he would refuse to pay off a loan with the money he has saved.

20. I find the applicant does not face a real chance of serious harm for reason of owing money, because I am not satisfied he borrowed or owes as much money as claimed, and there is no evidence he has been threatened with serious harm for owing money. There is also no evidence he would be targeted for one of the s 5J(1)(a) reasons for having a debt.

21. The applicant said he fears returning to Timor-Leste because he will not be able to find work and in particular find ongoing work. In the past he worked in a [factory] but did not have an ongoing position and found it difficult even to get this work.

22. Country information indicates Timor-Leste is one of the poorest countries in the Asia-Pacific region and around 40 percent of the population live in poverty. Only about a quarter of the working-age population is formally employed and the majority of households live by working in the informal sector. Many rely on subsistence farming.[1] 

    [1] Bertelsmann Stiftung, BTI 2024 Country Report 2024 – Timor-Leste, 19 March, 2024

23. The applicant fears not finding ongoing work if he is returned to Timor-Leste, but has not articulated any fear of persecution for one of the reasons in s 5J(1)(a). There is nothing to indicate, and I do not accept, he would be denied the capacity to earn a livelihood of any kind or the ability to subsist or any other form of serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

24. I find the applicant does not have a well-founded fear of persecution in Timor-Leste and does not meet the definition of refugee in s 5H.

25. I have considered whether the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The harm or suffering brought on by cruel or inhuman treatment or punishment, or degrading treatment or punishment, must be intentionally inflicted by a person or persons with an actual subjective intention to bring about the suffering by their conduct.

26. The applicant does not claim, and there is nothing to suggest, that he faces a real risk of being subjected to the death penalty, arbitrary deprivation of life, or torture, if he is returned to Timor-Leste. I accept the applicant may have difficulties getting ongoing work in Dili, however he was able to get some work in the past and has gained more experience and work skills in Australia. He will likely earn less than he has in Australia and may experience economic hardship, however this would be due to the general economic conditions in the country, and not due to any intentional act or omission by a third party to inflict cruel or inhuman treatment or punishment, or degrading treatment or punishment. I find any difficulty in finding ongoing work or economic hardship he may suffer does not amount to ‘significant harm’ as defined in the Act.

27. The applicant claims he still owes money to his neighbours but concedes he has savings that are more than sufficient to pay back a loan. There have been no threats to inflict significant harm on him for owing money. The only ‘threat’ is that his father may lose land if the debt is unpaid. I am not satisfied his father losing land would amount to the applicant suffering significant harm. In any event I do not accept this would occur, as the applicant has savings he can use to pay off any outstanding loan.

28. I find there are not substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste there is a real risk he will suffer significant harm.

    CONCLUSION

29. 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).

30. 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).

31. 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

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

    Carolyn Wilson
    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.

    …