2314397 (Refugee) [2023] AATA 4688 (8 December 2023)

Last Updated: 19 March 2024

2314397 (Refugee) [2023] AATA 4688 (8 December 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 2314397

COUNTRY OF REFERENCE: East Timor

MEMBER: Peter Haag

DATE: 8 December 2023

PLACE OF DECISION: Melbourne

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

Statement made on 08 December 2023 at 4:11pm

CATCHWORDS
REFUGEE – protection visa – Timor-Leste – fear of investors who lost money in scam – claims invented by person who authored the application – intentionally misused the Australian protection visa system – new claims at the hearing – particular social group – victims of unscrupulous money lenders – insufficient evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 1 September 2023 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 13 August 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
3. The applicant appeared before the Tribunal on 6 December 2023 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.

Section 5AAA of the Act

9. Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.

Mandatory considerations

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Applicant’s background

12. In her application for a protection visa, the applicant claims to be a citizen of Timor-Leste, born on [date] in [Town 1], Timor-Leste. The applicant claims to be of Timorese ethnicity and Catholic faith, who can speak, read, and write in Tetum and speak and read in English.
13. The applicant did not provide details of any other family members in her protection visa application.
14. At the time of her protection visa application, the applicant was residing in [Town 2], South Australia since December 2022. Prior to this, she resided in [Town 1], Timor-Leste, between [birth] and 21 December 2022.
15. At the time of her protection visa application, the applicant claimed to be unemployed. Prior to this, the applicant was employed in [named industry] in [Town 2], South Australia, between [December] 2022 and 9 August 2023. The applicant said in evidence that she is currently [employed].
16. In her protection visa application, the applicant stated that she completed her primary and secondary schooling in [Town 1], Timor-Leste, between [date range].

Applicant’s identity

17. The applicant provided the Department with an uncertified copy of her Timor-Leste passport.
18. The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Timor-Leste, and as such her protection claims will be assessed against Timor-Leste as the country of reference and ‘receiving country’ respectively.

Migration history

19. [In] December 2022 the applicant arrived in Australia holding a Temporary Work (GD-403) visa.
20. On 13 August 2023 the applicant lodged an application for a protection visa and on 1 September 2023 the Delegate for the Minister refused the protection visa application.
21. On 14 September 2023 the applicant lodged an application with the Tribunal for review of the protection visa application.

Claims for protection and other documentation

22. The applicant provided her claims for protection with her protection visa application on 13 August 2023. The applicant’s claims for protection are as follows:^[1]

I RUN AWAY FOR MY SAFETY BECAUSE OF MONEY CLAIMS FROM INVESTORS WHO FOLLOW THE MULTILEVEL MARKETING SCHEME IN [TOWN 1].

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

Yes

I AM AN INVESTOR IN THE [NAMED] COOPERATIVE THAT OFFERS INVESTMENT UP TO 45% PROFIT. I AM EXCITED TO HAVE INVESTED A FEW MONTHS THERE AND GOT A GREAT RETURN. THAT'S WHY I INVITE MY CO-WORKERS, NEIGHBORS WHO HAVE A LOT OF CAPITAL MONEY TO INVEST INTO THE SCHEME. BUT UNFORTUNATELY THE SCHEME IS SCAM AND TRAPPED ME WHO LOST HUGE INVESTMENT MONEY. ALL THE FRIENDS, NEIGHBORS WHO FOLLOWED THE SCHEME LOST THE DEPOSIT AND BLAME ME FOR THIS INCIDENT. THEY ACCUSED ME OF BEING A MASTERPIECE LOOKING TO PROFIT FROM THIS FRAUD SCHEME.

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

No

NO ONE CAN AVOID LOSING MONEY INVESTED. THE POLICE ARE STILL INVESTIGATING. I HAVE NO PLACE TO ASK FOR HELP.

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

No

I CAN'T ESCAPE BECAUSE I'M STILL WORKING AND ALSO IF I ESCAPE IT WILL CAUSE THE SITUATION TO GET WORSE. I JUST KEEP QUIET AND BE CAREFUL. THOSE WHO BLAMED ME EVERY DAY CALLED ME, CURSING, INSULTING AND SUCH. THEY ALSO LOOK FOR ME AT WORK. THE SITUATION BECAME VERY SERIOUS WHEN THEY THROWED STONES AT THE HOUSE, SPILLED PAINT ON MY MOTORCYCLE AND THEY GAVE VARIOUS THREATS.

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

AS LONG AS THEY CAN'T ACCEPT LOSING THE MONEY I WILL

STILL BE THEIR TARGET.

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

Yes

AS PER REASON ABOVE.

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

No

POLICE CANNOT GUARANTEE ON MY SAFETY.

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

ESCAPE IN MY OWN COUNTRY IS DIFFICULT, EVEN THIS COUNTRY IS HUGE BUT ONE DAY I BELIEVE I WILL BE FOUND.

23. The applicant did not provide any further documents or evidence to the Department in support of their protection claims.
24. On 14 September 2023 the applicant provided to the Tribunal a copy of record of the decision to refuse to grant her a protection visa.^[2]

Claims for protection and supporting evidence not raised before the primary decision was made

25. The applicant claimed at hearing that together with her husband, she borrowed money to buy a house. They fell behind in their repayments. The money lenders came to their house and demanded the loan repayments be met. While demanding the repayments, they said they would kill the applicant and her husband if the repayments were not made. (It is convenient to refer to this new claim as the home loan).
26. The applicant and her husband thought they would be able to make their home loan repayments if they worked. The applicant’s husband remained in the family home in Timor-Leste and worked; the applicant entered Australia on a ‘work visa’ and they jointly applied their incomes to repaying their home loan.
27. According to the applicant’s oral evidence, her husband was fatally injured in his workplace when a tractor fell on his legs. He died from his injuries [in] March 2023. At that time the applicant decided to apply for a protection visa. She did not know the requirements for a protection visa however, about the time her work visa was due to expire, she spoke to a fellow worker about how to extend her stay in Australia.
28. Additionally, the applicant said that she wants to remain in Australia because her father is now living with his mistress, and she is now responsible for supporting her mother and siblings in Timor-Leste. Consequently, the applicant sends money home each fortnight to support her family members, and each alternative fortnight she sends money home to pay down her home loan.
29. At hearing, the applicant did not give evidence that demonstrated she continued to maintain and rely on the protection claims she made in her written visa application.^[3]
30. After hearing the applicant’s oral evidence about the home loan protection claim, the Tribunal briefly summarised the protection claims the applicant relied on in her written visa application. The Tribunal reminded the applicant that she claimed she invested in an entity called the [named] Cooperative because it offered a high rate of return on money invested in the organisation. And that she claimed she persuaded other people to invest in [named Cooperative]. The investment turned out to be a scam and the investors lost their money. Consequently, the investors threatened to harm and kill her.
31. Next, the Tribunal informed the applicant that the Tribunal considered the difference between what she said in her written vias application ([named Cooperative]) and her oral evidence (home loan) to be materially different and invited the applicant to comment.
32. In response, the applicant said a fellow worker told her that his cousin could help her. It became evident that this conversation occurred at a time when the applicant’s work visa was about to expire, and she wanted to extend her stay in Australia. According to the applicant’s evidence, she agreed with her work colleague that a way to extend her stay in Australia was to apply for a protection visa. The applicant paid an undisclosed sum of money to her work colleague for the visa assistance she received from an unidentified person said to be her work colleague’s cousin.
33. In response to questions from the Tribunal the applicant said she did not know the name of person who wrote and submitted he visa application, that he is her work colleague’s cousin, and that she did not know his occupation. She said he moved to Queensland, and she was unable to contact him.
34. The applicant said she did not tell the person who wrote her protection visa application the reasons she needed protection, or what information to write in her application. According to the applicant’s evidence, the paid author of the application wrote the application and sent it to the Department on behalf of the applicant. The applicant asserted in her oral evidence that she had no knowledge of the contents of the application when it was submitted to the Department.
35. The evidence satisfies the Tribunal that the applicant paid an unidentified person to assist her to obtain a protection visa for the purpose of extending her stay in Australia when her work visa was due to expire. At that time the applicant knew the visa application submitted in her name was an application for a protection visa. In substance, the applicant admitted in her oral evidence that she did not know whether the protection claims made on her behalf were true or false. It is also evident the applicant had no reason to believe the claims made in her visa application were true, but she had good reason to believe the claims were invented by the person who authored the application for her, and that they were unreliable and untrue.
36. It is evident the applicant knowingly agreed to and paid for her application for a protection visa to be composed and submitted to the Department without any regard to whether the protection claims made in the application were accurate and true.
37. The Tribunal has considered the home loan-based claims that were the subject of the applicant’s oral evidence at hearing. The applicant said in evidence the loan was not a bank loan and the lender was from [another country]. Nevertheless, the applicant’s claims and related evidence about the home loan is general in nature, lacking in compelling specificity and unsupported by concrete evidence capable of identifying the lender, the date of the loan agreement, the terms of the loan agreement, any relevant documentation, or other evidence specifically supportive of the existence of the home loan agreement. The Tribunal finds the applicant’s home loan claim and the evidence relevant to the claim to be unpersuasive. This finding, however, does not determine the application.
38. The Tribunal has considered country information that demonstrates ‘loan sharks’ and ‘illegal money lenders’ operate in the applicant’s home country, Timor-Leste, and that they charge excessively high rates of interest and use threats, intimidation, and violence to enforce the terms of loan agreements.^[4] The Tribunal is satisfied unscrupulous money lenders operate in Timor-Leste and that they use threats of violence and violence to enforce compliance with loan agreements.
39. In view of the Tribunal’s findings about the accuracy and reliability of the applicant as a witness, and that she intentionally misused a visa application to obtain a protection visa, the Tribunal gives neutral weight to the county information.

Findings

40. Based on the totality of the evidence, the Tribunal is satisfied the applicant is willing to claim she meets the requirements for a protection visa irrespective of whether her protection claims and the evidence she advances to sustain her claims, are accurate and true.
41. The Tribunal is satisfied the applicant intentionally misused the Australian protection visa system by representing she meets the legal requirements for a protection visa, irrespective of the accuracy and truth of the claims, and that she did so dishonestly for the purpose of obtaining a protection visa and extending her stay in Australia.
42. The Tribunal is satisfied the applicant abandoned her initial protection claims relating to being targeted by persons she persuaded to invest in a fraudulent investment scheme called [named] Cooperative, by her evidence that she had no part in the [named Cooperative] claim being written into her application; that she did not know what had been written into the application; that she did not tell the author of the application any reasons for claiming protection; and, she did not rely on that claim in evidence to the Tribunal.
43. Additionally, the Tribunal finds the applicant’s claims in her written visa application relating to [named] Cooperative to be wholly unconvincing, and Tribunal does not accept the [named] Cooperative claims to be accurate, or truthful.
44. Based on the totality of the evidence, the Tribunal is satisfied the applicant intentionally and dishonestly misused the Australian visa system for the purpose of obtaining a protection visa, and the Tribunal is not persuaded to accept that the protection claims and related evidence that the applicant advanced in her oral evidence to be truthful, accurate and reliable evidence.
45. On balance, the evidence is insufficient to establish to the satisfaction of the Tribunal, existence of a real chance the applicant would be subjected to serious harm for the reason of membership of a particular social group, namely victims of unscrupulous money lenders (loan sharks) if she is removed to Timor-Leste, now or in the reasonably foreseeable future.
46. Having considered the applicant’s claims individually and cumulatively, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if she is removed to Timor-Leste now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
47. Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.

Complementary protection

48. The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
49. A person will meet that criterion if there are ‘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’.
50. Pursuant to s 36(2A), a person will suffer significant harm if:

(a) they will be arbitrarily deprived of their life; or

(b) the death penalty will be carried out on them; or

(c) they will be subjected to torture; or

(d) they will be subjected to cruel or inhuman treatment or punishment; or

(e) they will be subjected to degrading treatment or punishment.

51. The test for ‘real risk’ is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505.
52. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
53. In applying the decision in MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
54. Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
55. In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
56. There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
57. Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.

DECISION

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

Peter Haag
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.

...

---

^[1] Department file [number], Doc ID 11618318.
^[2] Tribunal file 2314397, Doc Id 11513659.
^[3] Department file, No. [number]
^[4] Country Partnership Framework for the Democratic Republic of Timor-Leste for the Period FY2020-FY2024; World Bank Group, 27 November 2019, p 7-8, 20201021140212; Mutual Evaluation Report on Timor-Leste, Asia/Pacific Group (APG) July 2012, p.25 20201030164738; Te3h Globalisation of Crime: A Transnational Threat Organised Crime Threat Assessment, United Nations Office on Drugs and Crime, 2010 Pp 46-47, P 56, P 188.