1600746 (Refugee)

[2018] AATA 1318

1600746 (Refugee) [2018] AATA 1318 (30 April 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600746

COUNTRY OF REFERENCE:                  Samoa

MEMBER:Nora Lamont

DATE:30 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 April 2018 at 10:04am

CATCHWORDS
Refugee – Protection visa – Samoa – Whether there is a well-founded fear of persecution – Ongoing village land dispute – Assaulted – Consistent evidence regarding ongoing dispute – Exaggerated claimed fear of harm – Stayed as an unlawful citizen – Delay in applying for protection – Australian partner and children – Wants to apply  for a partner visa

LEGISLATION
Migration Act 1958 ss 5H, 5J, 5K-LA, 36,65, 499
Migration Regulations 1994 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 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 Immigration on 19 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Samoa, applied for the visa on 6 August 2015. The delegate refused to grant the visa on 21 December 2015.

3. The applicant appeared before the Tribunal on 24 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan language.

4. The applicant was not represented by a Migration Agent. The applicant’s fiancé also appeared before the Tribunal.  

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

2. 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.

3. 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 themself 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

1. According to the information on the Departmental file and confirmed at the Tribunal hearing, the applicant is a [age] year old Samoan male born in [Town 1] Samoa.

2. The applicant travelled to Australia on a valid Samoan passport and states he is a national of Samoa. The delegate determined the applicant’s identity as Samoan and without any information to the contrary the Tribunal has assessed the applicant’s claims against Samoa as his country of reference and nationality and the receiving country for Complementary Protection purposes.

3. The applicant’s claims as set out in his protection visa application and before the Tribunal can be summarised as follows:

• In his country his family and his neighbours are always fighting for the land

• These problems happened a long time ago when he was just born and he saw his mother and some of his family get hurt

• The case is in government court but they can’t solve the problems

• The Tsunami has affected him

• People talking about his family being poor and he has a daughter in Samoa and she argues with his parents and her family wants to fight with him

• He has scars [after] a fight with the neighbours and they beat him on the head with a rock and he had to go to the hospital and the police can’t stop it

• His country is too small to hide and he saw some people kill other people as there is anger

• I don’t have any land that belongs to my family

1. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Samoa, there is a real risk that he will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background

1. The applicant is from [Town 1] in Samoa. He has three sisters and four brothers. His mother has passed away and his father remains in Samoa.

2. The applicant attended [Maritime Training] in [Town 1] Samoa [and] completed a one year traineeship. He then served on [a ship] as an ordinary seaman from February 2007 until August 2009. From 2010 until 2012 the applicant was employed [in another role].

3. The applicant arrived in Australia on a tourist visa on 8 December 2012. The applicant’s visa expired on 8 January 2013. On 7 June 2013, the applicant contacted the Department requesting an extension to his tourist visa. The applicant was told he was unlawful and he was to check with immigration compliance. The applicant did not check in with immigration compliance. On 28 June 2015 the applicant was located and detained by the Department in immigration detention. On 7 July 2015 the applicant requested information on a partner visa from the Department and on August 6 2015, the applicant lodged his application for protection. On 6 October 2015, the applicant was granted a Bridging Visa E.

4. The applicant claims he has been in a relationship with his Australian partner since 2013. They have three children together and live together with his partner’s oldest child from another [relationship].

Assessment of Claims

1. The applicant claims he is seeking protection in Australia because there has been a long standing land dispute in his village in Samoa. The dispute is amongst his family and villagers over land. The applicant claims that when he was [age] he was hit in the head with a rock over this land dispute and ended up in hospital. The Chief of the Village claims the land belongs to him not to the applicant’s family. This dispute has been going on since before the applicant was born. The police have been called but there is only one police station and there are not many police officers. The Tribunal discussed with the applicant that in Samoa land disputes and village disputes are frequently dealt with by the Village Chief. The applicant stated that this dispute was in fact with the Village Chief.  Given that the applicant has given a reasonably consistent recount of the ongoing land dispute in his village the Tribunal accepts the applicants claim that his family has had a long going land dispute. However, the Tribunal has some concerns about the credibility of the applicant’s claims relating to the land dispute as discussed below and the applicant may have exaggerated his claimed fear of harm upon return.

2. The applicant was living in [Town 1] not in his village for many years before coming to Australia. Whilst the dispute was with his family the applicant had already moved from the village many years prior to coming to Australia. When questioned by the Tribunal about why the applicant could not return to [Town 1] to live as he had been living there before coming to Australia the applicant said that when he was in [Town 1] he was living with his Uncle and his Uncle no longer lives there. The applicant also stated it was difficult to get a place to rent. Whilst the Tribunal acknowledges that the applicant lived with his Uncle prior to coming to Australia the Tribunal does not accept that the applicant could not find a place to live in [Town 1] or other parts of Samoa upon return. A check by the Tribunal of real estate companies in Samoa showed rental properties are available in [Town 1] and surrounds. [1]

   [1] >

   The applicant told the Tribunal that the case involving his family and their long standing dispute is now before a court in Samoa. When asked if the applicant could provide the Tribunal with some documentation around the land dispute since it was in the courts in Samoa the applicant said he did not have access to any documents. The Tribunal asked him if he could get a relative to provide some documents to the Tribunal the applicant said he could not as his brothers live in [another country] and one of his sisters in in [an Australian city] and there was no way to get the documents. The applicant still has relatives in Samoa including his father and therefore the Tribunal believes he has the means of providing the Tribunal with the documentation about the land dispute. Whilst the Tribunal accepts the applicants claims of a long standing land dispute the Tribunal finds it odd that the applicant can provide no documentation for a matter that is before the Samoan court. Nonetheless the Tribunal accepts that there is a case before the Samoan courts and that the land dispute matter will be resolved in the court.

3. The applicant wrote in his written claims that he doesn’t have any land that belongs to his family. The Tribunal discussed this with the applicant at the hearing. The land is subject to a court determination and the applicant did detail the ongoing dispute over land in his village. As the court will determine the outcome of the land dispute and given the applicant has been away from his village for many years, the Tribunal does not find that the applicants lack of land amounts to serious or significant harm.

4. The applicant had in his written claims that the land dispute had been going on since he was born and that he saw his mother and family get hurt. However, during the hearing the applicant at no time alluded to his mother or other family members being hurt.

5. The Tribunal also turned its mind to the written claim that the applicant made that he had seen people killed. The applicant at no stage during the hearing spoke of seeing anyone killed or of generalised violence only that he had been hit in the head by a rock during a confrontation with the neighbours over the land dispute. The tribunal does not accept the applicant was hit by a rock during a land dispute as the applicant was vague about what happened on the day he was hit with the rock and vague about the response of his family and the police. Further, since the applicant did not speak to the Tribunal about seeing anyone get killed during these disputes nor did he speak about generalised violence the Tribunal does not accept that the applicant ever witnessed anyone being killed.

6. The Tribunal does not believe based on the applicant’s testimony or the little evidence before it that the applicant would be harmed either in the village or elsewhere in Samoa. The Tribunal has nothing before it to indicate that the Chief of the Village would harm the applicant if he returned to live in the village nor does the Tribunal believe that the Chief would pursue the applicant even if living outside the village based on a land dispute in the applicant’s home village. The dispute is before the courts in Samoa and as the applicant had been in [Town 1] prior to coming to Australia and nothing happened to the applicant that involved the Chief or anyone else related to the land dispute the Tribunal finds that nothing will happen in the future. The Tribunal finds that the applicant was unaffected personally by the land dispute whilst living in [Town 1].

7. The Tribunal asked the applicant to explain why it was that he arrived in Australia in 2012 and it was not until 2015 almost four years later that he applied for a protection visa. Given the passage of time, the Tribunal finds that if the applicant was indeed fearful he would have sought assistance right away upon arrival in Australia. The applicant said that he did not know that he could apply for a protection visa. If the applicant feared harm and was in Australia on a tourist visa the Tribunal finds it’s implausible that the applicant did not explore other visa options including a protection visa.

8. The applicant was asked by the Tribunal if there were any other claims he wished to bring up and the applicant said no. The Tribunal has turned its mind to the Tsunami that occurred in Samoa in 2009 since in the applicant’s written claims he said he was affected by the Tsunami. However he did not mention them during the hearing. The applicant did not explain how he was affected by the Tsunami and how this relates to a real chance of serious harm or real risk of significant harm in the future. The applicant was working and living in the capital of [Town 1] and did not leave Samoa until 2012 so it doesn’t arise from the evidence before it that the applicant was harmed by the Tsunami and it doesn’t arise from the evidence looking forward that the applicant would be harmed in the future.

9. The applicant spoke about how he has a child in Samoa and he spoke about the child’s mother. He said that the child’s mother had called the Department about him being unlawful in Australia and that he thought this was the reason he was picked up and placed in immigration detention. The applicant claims the child’s mother is obsessed with him. The applicant claims that the mother of his child in Samoa is angry at him but the applicant did not offer any other details such as in his written claims that the child’s mother and her family want to fight with him and that they are talking about his family being poor. It appears that this is a personal matter for the applicant not related to his claims for protection.

10. The applicant’s fiancé appeared before the Tribunal. She spoke of their children and their future hopes to get married. The applicant’s partner asked the Tribunal if they could get a partner visa. The Tribunal was also provided with a statutory declaration from the partner about her knowledge of her partners past in Samoa and the Tribunal also received a letter from the applicant’s partner about their relationship.

11. On 15 January 2018 prior to the Tribunal hearing the applicant contacted the Tribunal and asked if he could apply for a partner visa while his case was before the Tribunal. The applicant was told that the Tribunal does not give out immigration advice and that the applicant should contact the department.

12. The Tribunal accepts that the applicant is in a relationship with his fiancé and that they intend to get married. The Tribunal also accepts that the applicant has three children to his partner and that he is a step father to his step daughter. Further, the Tribunal accepts that the applicant wishes to stay in Australia with his partner and children. The applicant and his fiancé have both spoken of getting a partner visa as documented above and even contacted the Tribunal in regards to seeing if they could put in an application for a partner visa whilst the applicant was going through a Tribunal review of his protection claims. The applicant said he just asked the Department about visas and they told him that because he had a partner he could apply for a partner visa and he said that it costs nearly $[amount] AUD for the partner visa and he is unable to work so could not afford it.  The applicant did ask the Tribunal if he could apply for a partner visa. The Tribunal told the applicant it would not be giving any immigration advice and that the applicant should speak to the Department.

13. As above, the Tribunal finds that the applicant is interested in applying for a partner visa and the applicant has asked both the Department and the Tribunal on numerous occasions if he could apply for a partner visa at the same time as his protection visa. This negates the applicant’s claims for protection as the applicant is planning another visa application at the same time. Whilst the Tribunal accepts that the applicant has the right to explore all visa options it negates his claims of fear of harm due to the land dispute. This also goes to the credibility of the applicant’s claims of fear to the Tribunal.

14. It follows then that the Tribunal does not accept that the applicant was involved in the long term dispute over village land to the extent that the applicant was harmed and cannot return to Samoa due to fear of future harm. The applicant had been living and working in [Town 1] away from the village for many years prior to coming to Australia and nothing that the applicant has stated has shown he was fearful when he left Samoa due to the land dispute. In fact the applicant came to Australia by his own admission for a holiday.

15. The Tribunal finds the delay in applying for protection after the applicants arrival in Australia goes to the applicant’s fear of the situation in Samoa and the future fear the applicant claims to have. The applicant when asked why he waited almost four years said he did not know that he could apply for a protection visa and yet he did contact the Department about a partner visa during this period of time but at no time did the applicant contact the Department about a protection visa. The delay in applying outweighs his claims and leads to a finding that the applicant does not have a subjective fear of return to Samoa now or in the future.

16. For these reasons, whilst the Tribunal accepts the applicant’s family has been in a long dispute over land in Samoa it does not accept his claims to have been harmed by this in the past. Based on the above, whilst the Tribunal accepts the applicant’s family has been involved in a long term land dispute, it does not accept that it affects the applicant as the applicant was living in [Town 1] and did not live in the Village prior to coming to Australia. Therefore the Tribunal does not accept that if he returns to Samoa he faces a real chance of persecution from the Village Chief or anyone associated with him or for any other reason. The Tribunal finds the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).

1. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Samoa, there is a real risk that the applicant will suffer significant harm from the Village Chief over the land dispute or anyone associated with the land dispute. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

2. 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

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

Nora Lamont
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.

…

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 them 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.

..

36Protection visas – criteria provided for by this Act

…

(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.

…