2415102 (Refugee)

[2024] AATA 3680

2415102 (Refugee) [2024] AATA 3680 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2415102

COUNTRY OF REFERENCE:                   Timor Leste

MEMBER:Wayne Pennell

DATE:31 July 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 31 July 2024 at 6:10pm

CATCHWORDS

REFUGEE – protection visa – Timor Leste – no Convention nexus – economic conditions – employment conditions – plans to work in Australia – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 420, 424, 499
Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423

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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 31 May 2024.

2. The applicant, who claims to be a citizen of Timor Leste, applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Timor Leste, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act,[3] and therefore he was not a person in respect of whom Australia had protection obligations.[4]

   [2]The applicant’s application was received by the Department on 30 December 2023.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] On 4 July 2024, the Tribunal dispatched a letter to his nominated email address advising that it had considered all the material before it relating to the review application but it was unable to make a favourable decision on that information alone. He was invited (‘hearing invitation’) to give oral evidence and present arguments at a hearing scheduled on 30 July 2024.

   [5]The applicant’s review application was filed with the Tribunal on 4 June 2024.

4. On 18 July 2024, the applicant advised the Tribunal that he had relocated interstate and he could not personally attend the hearing, and he requested that he be allowed to attend by video conferencing. Appropriate arrangements were put in place for his attendance at the scheduled hearing by video and he appeared at the time, date and place of the hearing and was assisted throughout that process by an interpreter in both the Tetum and English languages. 

   CRITERIA FOR A PROTECTION VISA

5. The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

7. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

8. The Act also provides that 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, and 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]

   [11]Migration Act 1958 (Cth), s 5J(1).

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

   [13]Migration Act 1958 (Cth), s 36(2)(a).

   [14]Migration Act 1958 (Cth), s 36(2)(aa).

   [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

10. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

    [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

11. Notwithstanding that, the Act goes on to provide for certain circumstances where there is taken not to be a real risk that they will suffer significant harm in a country, which arise if the Minister is satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

12. The applicant claims to be a citizen of Timor Leste and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and, based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Timor Leste is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. 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 he is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

    BACKGROUND, APPLICATION AND CLAIMS

    [20]Migration Act 1958 (Cth), s 499.

    Background

15. On 23 January 2023, the applicant was granted a Temporary Work (International Relations) visa (subclass 403) (‘work visa’) which was valid for nine months after his arrival. Almost three and a half months after being granted the work visa, he arrived in Australia [in] May 2023. Subsequently, his work visa was due to expire [in] February 2024.

16. On 30 December 2023, which was almost eight months after he arrived, the applicant lodged an application for a Protection visa. In conjunction with that application, he was granted a Bridging visa A (subclass 010). In identifying the delay of eight months between his arrival and his application being lodged, the Tribunal will return to discuss this issue later in these Reasons.

17. Inserted below are the claims the applicant expressed in his application as to why he has a well-founded fear of persecution if he returned to Timor Leste.

Provide reasons why this applicant left that country or those countries:

I AM LOOKING FOR A GOOD LIFE FOR MY FUTURE. I AM NOT WILLING TO WORK IN TIMOR-LESTE ANYMORE BECAUSE OF THE SMALL SALARY AND OPPRESSED BY RICH PEOPLE (COMPANY OWNER). A SALARY THAT I CAN'T AFFORD TO CONTINUE TO BE INDEPENDENT.

Did this applicant experience harm in that country or those countries?

Yes

Give details including:

• the type of harm this applicant experienced
• the person/people responsible for the harm

• why they harmed this applicant.

I HAD TO WORK LONG TO EARN MORE MONEY. BUT THE SALARY I RECEIVE STILL CAN'T SUCCEED FOR ME TO PAY MY DEBT AND IT'S ALSO DIFFICULT FOR ME TO LIVE HERE. I ALSO NEED TO HELP MY PARENTS AND OF COURSE I BECOME THE PERSON OF HOPE IN THE FAMILY TO GET OUT OF THE PROBLEM OF POVERTY. WHEN I WORK I AM ALWAYS MISUNDERSTANDED, THIS IS BECAUSE THE MANAGEMENT WANTS TO TAKE ADVANTAGE OR PRESSURE ME BY WORKING MORE. THE SALARY I RECEIVED IS NOT EQUAL AND NOT WORTH IT.I AM ALWAYS OPPRESSED BY THEM  (COMPANY OWNER) WHO USE ME BUT DON'T WANT TO PAY  MORE.

Did this applicant seek help within the country or those countries after the harm?

No

Give details of why this applicant did not try to seek help.

I DON'T GET ANY HELP AS A POOR I NEED TO WORK EVEN THOUGH THEY PRESS THEM.

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

No

Give details for why this applicant did not try to move to another part of the country or those countries.

DILI HAS JOB OPPORTUNITIES COMPARED TO  OTHER PLACES.

Explain what the applicant thinks will happen to them if they return to that country or those countries:

I WILL CONTINUE TO BE USED BY THEM  (OPPRESSED), NOT GETTING PROPER JUSTICE IN EMPLOYMENT OPPORTUNITIES, SCAMMED BY THE COMPANY WHILE WORKING AND PRESSURED BY THE COMPANY.

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Yes

Give details including:

• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment

• why they would harm or mistreat this applicant.

THIS POOR COUNTRY NEEDS AT LEAST 50 YEARS TO MAKE PROGRESS. THIS TIME IS ONLY POVERTY AND NO CHANCE TO SUCCEED.

Does this applicant think the authorities of that country or those countries can and will protect this

applicant if they go back?

No

Give details about why this applicant thinks the authorities could not, or would not, protect them.

NO ONE CAN HELP.

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

No

Give details about why this applicant is unable to relocate.

THERE ARE NO WAY TO GO. HOPELESS.

1. The applicant’s claims for protection are summarised in that he was not willing to work in Timor-Leste anymore because he was paid a small salary and he was being oppressed by rich people. His job did not provide him with sufficient wages to support himself and his family and that the ‘management’ where he worked took advantage of him and pressured him to work more hours without being compensated for his time. In regard to whether he tried to relocate to another part of Timor Leste to protect himself, he said that he did not try and relocate and nor did he seek help from the authorities.

2. After his application was lodged, the Department wrote to him on 4 January 2024 and acknowledged receiving his application. It was explained to him that as it was outlined in his Protection visa application form, all claims, supporting documentation and evidence should have been provided when he lodged his application, and any additional information may be submitted via his ImmiAccount, email or by post.

3. He was not offered the opportunity by the Department to participate in an interview and it is noted by the Tribunal that as of the date of the delegate undertaking an assessment of his application, the applicant had not provided any additional information, evidence or material in relation to his claims.

4. After assessing the applicant’s application, the delegate was not satisfied that the applicant had a well-founded fear of persecution because he did not fear being persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by section 5J(1)(a) of the Act. Therefore, he was not a refugee as defined in section 5H(1) of the Act and he was not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

5. In respect to the alternative criteria (Complementary Protection), the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Timor Leste, there was a real risk that he would suffer significant harm as defined in section 36(2A) of the Act. Nor was the delegate satisfied that he was a person in respect of whom Australia has protection obligations as provided for in section 36(2)(aa) of the Act.

6. The delegate wrote to the applicant on 31 May 2024 to advise him that his application for a Protection visa had been refused. Included with that letter was a copy of the delegate’s Decision Record. On 4 June 2024, the applicant lodged his review application with the Tribunal to review the delegate’s decision. When lodging that application, he provided the Tribunal with a copy of the delegate’s Decision Record and the Department’s letter advising him that his application for a Protection visa had been refused.

7. On 6 June 2024, the Tribunal dispatched an email to him enclosing a letter which advised him that it was important that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. Notwithstanding that advice, he has never provided the Tribunal with any evidence, material or written arguments to support his claims.

8. On 4 July 2024, the Tribunal wrote to the applicant advising that it had considered all the material it had about his application but could not make a favourable decision on that information alone. He was invited to give evidence and present arguments at an in-person hearing scheduled to be held at the Tribunal’s Brisbane Registry on 30 July 2024. Enclosed with that invitation was a ‘Response to hearing invitation’ template and he was asked to complete the template (‘hearing response template’) and return it to the Tribunal.

9. On 18 July 2024, the applicant returned to the Tribunal (by email) the completed hearing response template where he indicated that he did not intend to rely upon any written witness statements, written submissions, country information or other evidence.

10. He also informed the Tribunal in the template that he had relocated interstate and could not attend  the Tribunal’s Brisbane Registry for the scheduled hearing. Instead, he asked that the hearing’s venue be changed to the registry nearest to where he was living, or alternatively, he be allowed to attend the hearing by video conferencing. Arrangements were put in place so that he could attend the scheduled hearing by video, and an interpreter was engaged to assist him throughout the hearing process.

    REVIEW HEARING 

    Background

11. The applicant said that his parents, along with his [siblings] still live in Timor Leste. In regard to his education, after he graduated from school he attended the UNPAS, which he described as [a named university] where he studied a [Qualification 1]. He graduated from university in [specified year].

12. In regard to his employment in Timor Leste as it was described in his application, from October 2017 to August 2021 he was employed as [a Position 1] with a company in Dili. He told the Tribunal that this is not correct, as he was only employed as a Manager of a [business 1] in Dili from September 2021 to April 2023.  The [business 1] was set up by his [sister] and he managed the [business 1] for her right up until just before he left for Australia. His sister still operates the [business 1] and when asked if she would re-employ him if he returned to Dili, he said that he could get work but it would be difficult for him to sustain his life and improve his life. It is noted by the Tribunal that his application suggests that he was taken advantage of by the [business 1] owner and he was not provided with sufficient wages, although he was silent about his sister owning the [business 1]. He did not advocate a position in his evidence at the hearing that this statement was correct, and the Tribunal does not accept that he was oppressed by his sister.    

13. When asked about his work as [a Position 1] for the other company, he told the Tribunal that he had never worked for anyone else. He added that he had not personally filled out his application and because he did not understand English and the immigration laws of Australia, he got a friend to fill it out for him.

14. Because of his comment that someone else had filled out his application, he was asked if he knew what type of visa he had applied for. His response was “Bridging visa A”. When asked why he was seeking a Bridging visa A, he said that he did not really know about the Bridging visa A, but he knew that it was good for him because it allowed him to stay for a long time in Australia so that he could get work. When asked if he knew what a Protection visa was, he said that understood it to be a visa for immigrants like him can stay in Australia for a long time and work in Australia. He went on to explain that he wanted the opportunity to get a visa to stay in Australia to work for a long time, and if he could not get the opportunity and he had to go back to Timor Leste, this would not be good because his decision to stay in Australia weighs heavily on him. He said that would like the opportunity to have a visa that allows him to later on return to Timor Leste and then come back to Australia, but at present his Bridging visa only allows him to return to Timor Leste, and it prevents him from returning to Australia for work if he ever departs.. 

    Delay in lodging application

1. The Tribunal is aware that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[21]

   [21]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.

2. As the Tribunal understands the applicant’s case, his claims revolve around the economic circumstances he experienced in Timor Leste. According to his application, he left Timor Leste looking for a good life for his future because he was no longer willing to work in Timor Leste because of the small amount of salary he was being paid. He said that he was being oppressed by the owner of the company he worked for, which he described as ‘rich people’, although his evidence at the hearing was that the [business 1] was a small business owned by his sister.

3. He was granted a work visa and travelled to Australia subject to the conditions of that visa, and in that regard, the Tribunal was in possession of certain information in the form of the applicant’s migration history held by the Department. The Tribunals considered that his migration history would be the reason, or a part of the reason, for affirming the decision that is under review. Subject to section 424AA of the Act, clear particulars of that information were given to him and as far as is reasonably practicable, the Tribunal made sure that he understood why the migration history was relevant to the review, and the consequences of that information being relied on in affirming the delegate’s decision. He was also advised that he may seek additional time to comment on or respond to the information; and if he did, then the Tribunal would adjourn the review hearing, if the Tribunal considered that he reasonably needed additional time to comment on or respond to the information. He did not seek any additional to comment or respond.

4. Two specific points are identified in regard to the work visa which was granted to the applicant. Specifically, when he travelled to Australia and when he made his application for a Protection visa. Firstly, on 23 January 2023 he was granted a work visa. His departure from Timor Leste and arrival in Australia did not take place until [in] May 2023 which was approximately three and half months after the visa was granted to him. Secondly, at the time of lodging his Protection visa application on 30 December 2023, he had been in Australia for almost eight months, and it was approximately four weeks before his work visa expired.

5. When asked at the hearing about those delays, he told the Tribunal that his delay in departing Timor Leste after he had been granted his work visa was because he was relying on Timor Leste’s Secretary of State to tell him when it was ok for him to travel to Australia for work, but he was not able to explain why it took so long. In that regard, the Tribunal accepts that it was possibly an administrative issue by the appropriate government department in Timor Leste which caused such a delay between when he was granted the work visa to when he travelled to Australia.

6. The applicant explained that when he got to Australia, he had a six month contract to work on a farm, and his visa was due to expire after nine months. His work contract ran out at the end of November 2023, and the income he had earned did not meet his target for the amount of money he wanted to take back to Timor Leste. When asked why it took him almost eight months to make his application for a Protection visa, he said that it was only much later after he arrived in Australia that his friends gave him some guidance and he was told that he should wait for his work visa to expire after nine months and then make an application for a Protection visa. He knew that if he made that application, he would be granted a Bridging visa which would allow him to stay and work for a lot longer in Australia

7. He also told the Tribunal during the hearing that he wanted to get a ‘good’ visa to stay in Australia so he could work because there is no work, or at least no good income paying employment in Timor Leste. His plan was to financially help his family because [of his family duty] and working in Australia was a good opportunity for him to financially help his family back in Timor Leste until such time as when they (his family) could be together again.

8. The Tribunal has given careful consideration to the delay between his arrival in Australia to when he made his application, and is satisfied (and so finds) that under the circumstances relating to the features of this case, that delay is a significant delay. In respect to any consideration given by the Tribunal about that significant delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

9. When considering the nature of the claims made, along with the timing of when he left Timor Leste after being granted his work visa, and his application being made some eight months after he arrived here, the Tribunal is not satisfied as to genuineness or depth of his claimed fear of persecution should he return to Timor Leste. His evidence was that he only wants to stay in Australia so that he can work and earn a living to financially support his family back in Timor Leste. When carefully assessing that evidence, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[22]

   [22]     ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

   CONCLUSION AND REFUGEE FINDINGS

10. The very nature of a review proceedings is that the Tribunal is to undertake the review from the beginning (anew) and review the material, information and evidence made available to it, and fresh consideration should be applied to that material, evidence and information. The Tribunal is to make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. In doing that, the Tribunal is not bound by technicalities, legal forms or rules of evidence; but must act according to substantial justice and the merits of the case.[23]

    [23]Migration Act 1958 (Cth), s 420.

11. Although the very nature of a review hearing is inquisitorial, and the Tribunal can seek out evidence it requires in order to reach a determination, it does not however have any obligation to seek out evidence to support the applicant’s claims, even though the Tribunal is entitled to do so.[24]

    [24]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

12. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[25] Nor is the Tribunal required to accept uncritically any of the allegations made by the applicant.[26]

    [25]Migration Act 1958 (Cth), s 5AAA.

    [26]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

13. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

14. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons.

15. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Timor Leste, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm because of the economic circumstances of Timor Leste.

16. The applicant has been given the opportunity by both the Department and the Tribunal to provide all of the details of his protection claims. The application form that he completed informed him that he should provide all of his claims for protection and all documentation or other evidence to support his claims.

17. After receiving his application for a Protection visa, the Department wrote to him and acknowledged receiving his valid application. In that letter, he was advised that he could provide additional information relating his claims, and he was advised how he could provide this to the Department. He was also provided with an invitation under section 56 of the Act to provide additional information to the Department, however he has not taken advantage of those opportunities.

18. When he filed his review application with the Tribunal, the Tribunal also wrote to him and advised him that if he wished to provide material or written arguments for the Tribunal to consider, then he should do so as soon as possible. The Tribunal is satisfied that he has provided no material, information or evidence to either the Department or the Tribunal which supports or validates his claims.

19. In respect to his protection claims, he told the Tribunal that his well-founded fear of experiencing serious harm or significant harm in Timor Leste related to the economic situation within Timor Leste. He also said that it was not related to his race, religion, nationality, membership of a particular social group or political opinion.

20. After carefully considering his evidence at the hearing, the Tribunal is satisfied (and so finds) that the sole focus or basis for the making of his application for a Protection visa was for economic reasons and his desire to earn money by working in Australia to financially support himself and his family who all reside in Timor Leste. Further to this, he has not experienced harm in Timor Leste, and nor does he have a well-founded fear of experiencing harm or being mistreated if he returned home to that country for any of the reasons provided for in section 5J(1)(a) of the Act..

21. After careful consideration of the facts, circumstances and the evidence in this matter, the Tribunal is therefore satisfied (and so finds) that those economic claims raised by the applicant during the hearing do not fall within the ambit of ‘persecution’ as defined in section 5J(1)(a) of the Act in that he has a well-founded fear that if he returns to Timor Leste he will be persecuted because of his race, religion, nationality, membership of a particular social group or political opinion.

22. Furthermore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as he does not fear that if he returns to Timor Leste he will be persecuted for any of those reasons prescribed in section 5J(1)(a) of the Act. Therefore the Tribunal is not satisfied that he is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

23. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[27] the Tribunal has considered the alternative criterion[28] and an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Timor Leste, there is a real risk that he will suffer significant harm as it is defined in the Act.[29] Significant harm is defined within section 36(2A) of the Act that a person will be arbitrarily deprived of his or her life; the death penalty will be carried out on that person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment; or the person will be subjected to degrading treatment or punishment.

    [27]Migration Act 1958 (Cth), s 36(2)(a).

    [28]Migration Act 1958 (Cth), s 36(2)(aa).

    [29]Migration Act 1958 (Cth), s 36(2A).

24. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Timor Leste. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[30]

    [30]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

25. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[31] The question of ‘real chance’ is the test to be applied on an application for a Protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[32] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[33]

    [31]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.

    [32]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.

    [33]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

26. When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A) of the Act. The Tribunal particularly notes that when a careful assessment is made of the information available to the Tribunal, the applicant has not claimed that he will be arbitrarily deprived of his life, the death penalty will be carried out on him or that he will be subjected to torture. Nor is there any information before the Tribunal to indicate that he would suffer any of these forms of ‘significant harm’ in section 36(2A)(a)-(c) of the Act if he returned to Timor Leste.

27. The Tribunal has also carefully considered whether the harm he claimed he feared in relation to the economic difficulties he would experience if he returned to Timor Leste could constitute either of the other forms of significant harm in section 36(2A)(d)-(e) of the Act, that is ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in section 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional.

28. The ordinary meaning of intention implies a plan or aim and the High Court found that intention requires a perpetrator to have an ‘actual, subjective, state of mind’.[34] No information has been provided by the applicant to show that there will be a perpetrator of any harm to him and therefore the Tribunal is satisfied that there is no actual, subjective state of mind, meaning there will be no intention to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment). For those reasons, the Tribunal is satisfied (and so finds) that the economic hardship the applicant claims he would face does not amount to ‘significant harm’ under section 36(2A) of the Act.

    [34]SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362, [26] – [27] and [114].

29. When careful consideration is given to this matter, the Tribunal accepts, on the basis of the applicant’s evidence, that he will suffer economic hardship if he is removed to Timor Leste. However, that would be as a result of the general economic conditions in that country and it would not be the result of any conduct intended to inflict severe pain or suffering, or extreme humiliation on the applicant.

30. Therefore, the Tribunal, is satisfied (and so finds) that although the applicant’s fears of economic hardship are genuine and well-founded, they do not entail significant harm as defined within the Act.[35] His claims relating to the economic conditions he experienced in Timor Leste are something which is faced by the population of Timor Leste generally and is not specifically targeted towards him and it is not a situation whereby he is the only person who faces those issues individually or personally.

    [35]Migration Act 1958 (Cth), s 36(2B)(c).

31. After having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Timor Leste now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

32. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Timor Leste. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

33. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Timor Leste, he will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

1. 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 section 36(2)(a) of the Act.

2. Having concluded that the applicant does not meet the refugee criterion as defined in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion and is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

3. There is no suggestion that the applicant satisfies section 36(2) of the Act based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Wayne Pennell

   
   

   Senior 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.

   …