1609163 (Refugee)

1609163 (Refugee) [2019] AATA 6564 (4 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609163
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Gabrielle Cullen
DATE:4 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 04 December 2019 at 9:53am

CATCHWORDS
REFUGEE – protection visa – Samoa – religion – Mormon – drinker of alcohol and smoker – access to mental health services – pressure to return to the Church – non-Convention harm – removal from child’s place of burial – lack of commensurate employment opportunities – adjustment to life in Samoa – compassionate circumstances – serious, ongoing and irreversible harm – health needs of Australian citizen father – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MZAFZ v MIBP [2016] FCA 1081
SZRSN v MIAC [2013] FCA 751
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant), a citizen of Samoa, claims to fear return on account of the mental difficulties he has faced due to the death of his son, [Child A], in Australia and as he will be unable to obtain work at the level held prior to his departure or at all. He also refers to facing difficulties obtaining professional help for his grief as he is a Mormon and this will not be accepted. He refers to the problems associated with not finishing his studies in Australia, and as he drinks alcohol and smoking as a way to cope with his grief and that this is not accepted by his religion.
The applicant arrived in Australia [in] January 2009 on a [student visa]. On 14 December 2011 the Department cancelled the applicant’s student visa and he remained in Australia without a valid visa until he was located by [State 1] police in relation to a traffic matter and granted a number of bridging visas. He, together with the other applicants, applied for protection visas on 8 January 2015.
The second, third, fourth, fifth and sixth named applicants are the wife and children of the first named applicant and citizens of Samoa. They arrived in Australia [in] May 2009 on student dependent visas. They all completed Part D forms being applications for members of the family unit who do not have their own claims for protection. However, at the Tribunal hearing the second named applicant, being the wife of the first named applicant, made claims for protection similar to that of the first named applicant, although she is not a drinker or smoker.
The applicants were not invited to attend an interview at the Department. The delegate refused to grant the visas on 27 May 2016 on the basis that the first named applicant’s claimed fear of remaining in Australia due to [Child A]’s medical treatment and as treatment was not available in Samoa did not amount to serious harm as defined in s.5J(4)(b) and s.5J(5). She also found that the applicant did not fear significant harm in Samoa.[1]
[1] The Department decision was attached to the Application for review.
The first and second named applicants appeared before the Tribunal on 11 June 2019 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. Their representative attended the hearing. They were assisted with an interpreter in the English and Samoan languages although they chose to speak entirely in English. They were advised that the interpreter was available throughout the hearing to assist them if they did not understand anything or wanted to express themselves in Samoan.
While the first and second named applicants were initially questioned separately as to their claims, many concerns in their evidence were raised with both of them at the same time. They both agreed to this. When answering concerns raised both applicants indicated that they also relied on the response of the other applicant.
The applicants were given until close of business on 22 July 2019 to provide any further information they wished.
The issues to be considered in this case are as follows.
·Are the applicants credible as to their claims?
·Do any of the applicants have a well-founded fear of persecution in relation to Samoa and meet the refugee protection provisions of the Act?
·Do any of the applicants meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the Appendix.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decisions and other material available to it from a range of sources. This includes, but is not limited to, the following.
·The applicants’ protection visa applications dated 8 January 2015, including a handwritten letter outlining the first named applicant’s claims for protection and identity documents.
·Numerous medical documents relating to [Child A], who was also an applicant for protection before the Department and the son of the first and second named applicants’ son.
·Death Certificate of [Child A] indicating he died [in] 2015 from complications associated with [Medical Condition 1] and is buried at [specified] cemetery.
·Email from the first named applicant to the Tribunal dated 21 June 2016 as to why they are seeking review.
·Oral evidence of the first and second named applicants provided at the Tribunal hearing held on 11 June 2019.
·Letter from [a doctor] dated 6 June 2019 to [Mr B], psychologist thanking him for seeing the first named applicant in relation to stress, symptoms of depression and anxiety, grief, alcohol misuse and visa problems.
·Report of [Mr B], psychologist with regard to the first named applicant dated [July] 2019.
·Evidence of [Mr C], the father of the second named applicant, is an Australian citizen.
·Letter from [Dr D] dated 17 July 2019 indicating that [Mr C] suffers from multiple medical problems, outlining these and stating that he needs his daughter the second named applicant to care for him.
·Medical report from [State 1] Health relating to [Mr C].
·Letter from [the] Director of [Company 1] dated [July] 2019 noting the first named applicant is employed full time as a [Occupation 1] and has been since [December] 2014. He states that the first named applicant is of good character, hardworking, caring and loyal. He claims he was there for the first named applicant when he lost his son and these were difficult times. He notes the family has continued to grieve and this has led to difficulties for the first named applicant, although he is finally obtaining treatment. He asks the Tribunal consider the family’s mental health and the benefit they have to Australia.
·Letter of support from Australian citizen, [Mr E] advocating for the family to stay in Australia as they provide tremendous support to their community and have been involved in community work in the [Suburb 1] area. He refers to the death of their son and the suffering they have faced since. He notes that they are finally seeking professional help from medical people. He claims they need to stay in Australia to receive the help they need and if they return to their country their mental and physical health will worsen. He claims a person cannot go and seek mental health Doctors in Samoa as it is frowned upon and against the faith.
·Photos of [Child A]’s funeral and grave in Sydney.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decisions under review should be affirmed.
Section 438
The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 120,166,167 and 169 of the file would be contrary to the public interest, because it contains information relating to an internal working document and business affairs. In light of the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal further notes that, in any event, the information in folios 120, 166, 167 and 169 are not relevant to this decision as they refer to a Department record as to why one of the applicant children, at the time, could not undertake a biometrics test, documents granting consent to acquire a digital photograph from a minor and a Department onshore protection checklist.
[2] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016
The applicants’ claims
The first named applicant claims in a statement attached to his protection visa application that he came to Australia on a student visa and his wife and children arrived later. He claims he came to Australia [to] study at [University 1]. He claims he spoke to [University 1] about difficulties he encountered but they ignored it, did not make a decision and so he quit the school. He claims he then lived with his uncle and he had no idea his visa had been cancelled until he was caught on the road.
He claims while they were on bridging visas getting ready to depart Australia his [age] year old son, [Child A], who was born in Australia in [year], was diagnosed with [Medical Condition 1] [in] September 2014. He claims in Samoa there is no treatment and staying in Australia was the best option. He claims [Child A]’s life will be in danger if he returns as there is no treatment for him in Samoa and he will die. He claims he will also be ridiculed by other kids because of his [medical condition].
He claims his family disowned them because their son had this type of illness. He claims this will cause him to be sicker and he will end up dying from it.
He outlines in detail why treatment in Australia is better than in Samoa. He also claims he has qualifications from Samoa he wants to use in Australia.
In an email dated 21 June 2016 the first named applicant provided the following reasons as to why they are seeking review.
1. We have been here for 7 years now, we have a life in here I got a good job which I can be able to support my wife and kids without depending on the Centrelink for financial support for the kids. The kids got to go to good school here I have got 3 kids born in Australia which this is their land and they spend their whole life here.
2. My [age] year old son was diagnosed with [Medical Condition 1] in September 2014, relapsed in July 2015 and passed away [in] 11.2015 and we buried him at [specified] Cemetery. As we are going through our grieving process we just want to be with my son's grave every day. Visiting him every day can give us some comfort and we don’t want to be away from him.
3. My wife got his dad here and we are caring for him. He's got [medical procedure] 3 times a week and he is staying with us. Going back to Samoa is not an option for us as we don’t want to leave [Child A] here and also we will find it so hard to find jobs to support my kids and the kids will find it so hard to adjust the life of Samoa and not only that, people will mock us and making fun of us if we return back.
At the Tribunal hearing held on 11 June 2019 the applicants reiterated the reasons why they do not wish to return to Samoa.
The first named applicant’s evidence is summarised as follows:
·He came to Australia in 2009 [to] study [Qualification 1] but stopped going in 2011. He said he tried his best to understand a [specified] subject but did not complete it and his visa was cancelled.
·He claims he did not hold a visa from 2011 but only found out in May 2014 that he did not hold a visa when the police caught him on the road. He said he did not know his visa was cancelled but he thinks it was because he did not go to school. As to why he did not go to school, he said he went to school until 2011. He said he passed subjects. He said he stopped going to school in 2011 as there was a subject called [Subject 1]. He said the tests were on the internet and he tried his best to understand it but he only had basic knowledge about [a certain area]. He tried to read the text book but failed because he could not understand [a certain matter]. He said he was the best in the class but when it comes to this subject, [Subject 1] everyone beat him. Then he found out all the others cheated by getting the answers on Google and this is when he stopped going to school. He said he reported it to the teachers but they did not do anything. He said he received the Notification to Cancel and wrote back and then he did not receive anything more. He said he did not follow up with the Department. The Tribunal questioned why he did not do this and thought it odd and he agreed.
·As to his family in Samoa, he said his parents live there. He said his father is at home and they do not work. He said previously his father was a [Occupation 2]. He said they live [in a location].
·As to why he was able to obtain [deleted] he said he was a [Occupation 2] in Samoa. [Details deleted].
·As to his qualifications in Samoa; he said he did a [Qualification 2] and he was a [Occupation 2] at [an organisation].
·He said his wife was a [a certain occupation] in Samoa and her half brothers and sisters live in Samoa. He said she keeps in contact with them on [social media] and she sends money when needed.
·He said he is in contact once a month with his parents and he sometimes sends money when they need it.
·In Australia he works in [a certain industry] and his wife works at a [specified] company.
·He referred to the death of his son [Child A] in 2015, and that he is buried at [specified] Cemetery. He said he died of [Medical Condition 1]. He said they live in [Suburb 2], [and] he visits his grave every week. He said he is a Mormon and his family are Mormon.
·He said his wife is a Mormon, but she was Assembly of God but has converted to be a Mormon. He said he attends the Mormon Church every now and then with his kids and his wife, about once every two months.
·He confirmed he had no difficulties in Samoa when he left in 2009. He also said his wife did not have any difficulties when they departed.
·As to why he fears return; he said he went through difficult things with his son passing away and his religion won’t accept his drinking of alcohol and smoking, which he has to do to calm down his stress. He said back in his country this will be difficult with his family and the Church.
·The Tribunal raised with him that it was having trouble understanding how he will face serious or significant harm on return to Samoa as a drinker of alcohol and smoker. The Tribunal asked why he could not stop these things. He said he is still going through the process of grief and that is what he relies on. He said he is in the process of quitting.
·The Tribunal asked what harm he will face and who will harm him; he said he will be very stressed.
·He confirmed that he is saying because of the grief from the death of his son he is drinking and smoking a lot as a way to cope, The Tribunal raised with him that it had difficulty understanding why he will be harmed because of that and who will harm him. He responded they do not have help for their stress. He said their religion will say don’t drink, don’t do this and even from his family it will be the same thing.
·The Tribunal noted he has not seen a medical practitioner until referred the previous Friday. He said he did not realize he had this problem.
·The Tribunal asked again who will harm him; he said his religion. He said the Mormons. He said they will tell him not to drink and smoke.
·He said the other thing is he came as a [Occupation 2] but when he goes back he will not be able to get this job. He claims they will then say he is a failure and it will be very hard to support his family.
·The Tribunal asked whether that is because of the economic circumstances in Samoa and questioned whether this is something faced by all Samoans; he said yes. He said in Samoa it is hard to get a job.
·The Tribunal read to him the definition of serious harm under s.5J and noted that it has to be for certain reason and read the reasons. It raised that it had to be the essential and significant reason for the harm. The Tribunal raised with him it had difficulty accepting that the difficulties he claims he will face reaches the level of a real chance of serious harm and is for one of the reasons outlined, being the essential and significant reason. It also raised with him it did not seem to reach the level of significant harm or its definition. It raised with him that his claims did not seem to fit the refugee and complementary protection criteria.
·He said when he returns his religion and his family will be the main difficulty; and as he has been in Australia 10 years and his children have been in Australia for the majority of their life it will be very hard for them to return, especially as they are also grieving.
·The applicant then said it was not his family he feared but the Church but then said his family is with the Mormon Church. When asked what they will do to him; he said the Church will not give him the support he needs.
·The Tribunal asked if anyone is seeing or has seen a counsellor and he said in 2015, after the death of his son the family saw a counsellor for 4 or 5 visits. He said they stopped because they thought they were fine.
·When asked if he had anything to add; he said he wants to stay in Australia as he does not want to get more stressed.
The second named applicant evidence is summarised as follows:
·As to when she knew they were no longer on a visa; she said when her husband refused to go to school they moved to Sydney and then they had not received an email or letter from the Department. She said since they arrived in Sydney they have not heard anything. She said they moved to Sydney in 2012.
·As to why he refused to go to school; she said because he had difficulty with one of the subjects and he tried very hard.
·As to her family, she said her father is an Australian citizen and she said they came to Sydney as her father lives in Sydney. She said they live with him and they are looking after him as he is ill. She said her mother passed away.
·She said she has half brothers and sisters in Samoa.
·She said she did not leave Samoa in fear in 2009.
·As to why she fears return and what she fears will happen; she said it’s very difficult and she then became very emotional and spoke of leaving her son, [Child A]. She said he is buried at [specified] Cemetery and that she visits him often which is the only thing she finds of comfort. She said she goes twice a week and her husband goes a bit less. She confirmed she does not want to leave as she does not want to leave [Child A].
·She said she knows they have mental problems due to their son passing away, the grief and she is worried in Samoa as mental health problems are not dealt with.
·The Tribunal asked if she has seen a counsellor, she said when her son died she saw one but not since. She said her children had not seen a counsellor.
·As to her GP, she said she only goes if she is ill. She said she only goes once a year.
·The Tribunal asked if she had ever talked to her GP about her or her children’s grief and she said she had not, but later said she had just before the hearing.
·The Tribunal asked whether there were any other reasons she fears harm, whether someone will harm her and difficulties she will face. She said because they came on student visas and as her husband did not complete what he was supposed to, it will be degrading for him if he returns, especially as he was a [Occupation 2]. As to how it will be degrading she said because he will have to start from the bottom. She said he will find other jobs but not one similar to what he had before.
·The Tribunal asked who will harm her on return and who she fears return from; she said there are strong religious people in Samoa, their faith is the Mormon Church and that Church does not push a person to seek help from mental health professionals. She said the Church believes in God and cannot encourage them to go seek psychologists to deal with mental health issues.
·The Tribunal questioned the need to seek treatment and her fear of return as she said she had not seen a psychologist in Australia for 4 years and views as of concern as to why she is now saying she does not want to return to Samoa as she cannot see one.
·The Tribunal asked again what she fears on return or who she fears; she said they do not want to go back because of leaving their son.
·It raised that the difficulties she claims she will face do not seem to be for a reasons outlined in the law and or meet the level of serious or significant harm. It read to her s.5J. It also read to her the definition of significant harm

The Tribunal raised with the applicants that while it had much empathy for them having to depart from the son, the law indicates such a situation does not meet the complementary protection criteria and that it does not seem to meet the definition of a refugee.
The applicants’ representative noted the applicants were not afforded an interview with the Department and that the claims had changed since the death of their son. He said prior to today the applicants’ has not been afforded an opportunity to present their claims. He referred to the Tribunal’s concerns raised as to the lack of treatment sought in recent years; he noted that only in recent years had the Mormon Church accepted receiving mental treatment. He asked the Tribunal consider that their fear of harm arises on the part of their religion and also because of the particular social group “citizens of Samoa with mental health difficulties”. He noted no diagnosis has officially been made and requested that the applicant be given time to see a mental health professional.
The Tribunal raised with the applicants’ that information indicates there is mental health care available in Samoa and mental health professionals in Samoa. The representative said he was aware of that but from the culture the applicants’ come from this is difficult. He said if they return and live with their family the culture and religion they adhere to would not allow them to seek this type of treatment even if offered by the Government. He asked the Tribunal to look at how they have been dealing with their mental health issues without the help of mental health professionals and that the applicant has been dealing with it by smoking and drinking which will be difficult in his country.
The Tribunal questioned why they had not sought medical treatment for mental health issues in Australia if they now claim a fear of return because they won’t be able to access it in Samoa both due to lack of facilities and due to their religion; and raised this as a concern. The first named applicant said they did not realize until they spoke to their lawyer and that they never thought of seeking help. The second named applicant said they went to her GP for mental health assessment just before the hearing and the Dr said they need professional help. The Tribunal questioned whether these circumstances they raise meet the protection criteria and raised the issue of whether it meets serious and significant harm. The representative submitted that by adhering to their culture this will indirectly lead to serious and significant harm because of the grief, and the way they deal with it.
The Tribunal noted the first named applicant had worked for the last 4 years and the second amend applicant had worked in the last year.
The Tribunal raised concerns as to whether the claim of fearing return as the first named applicant had not finished his degree and due to employment issues meets the level of serious or significant harm and raised with them that the lack of employment opportunities appears to be faced by the population as a whole.
The first named applicant noted the second named applicant’s father is ill and lives in Australia. While the Tribunal noted this did not meet the protection criteria, they discussed the possibility of a Ministerial intervention recommendation.
The Tribunal raised concerns that it had difficulty accepting that leaving their son in Australia meets the refugee criteria or the complementary protection criteria.
The Tribunal received a psychological report following the hearing from [Mr B]. [Mr B] conducted three sessions with the first named applicant and the second named applicant was present for the first two sessions. The report recounts the psychological difficulties the family and particularly the first named applicant faced following the death of [Child A] in 2015. The psychologist notes that the first named applicant reported drinking until severely intoxicated to numb the pain and he reported a few years prior to driving his car into a pole in a suicide attempt. He reports that testing indicated the applicant suffers severe level of depression, and anxiety and stress and low levels of personal and general wellbeing. [Mr B] reports that psychology therapy has led to some improvements on the first named applicant’s psychological well-being and general functioning. The applicant reported to him increasing family and social activities; however he reported continuing to experience significant low mood, stress and anxiety over the uncertainty of the family’s future in Australia.
[Mr B] notes that the applicant referred to his concerns on returning to Samoa, including that his Church does not accept professional treatment as a legitimate method for dealing with health issues and is viewed as a sign of lacking faith. He reports that the applicant claimed he is experiencing much pressure to conform to the Church’s teachings in how to deal with the grief. He claims as a result he no longer feels connected with the Church and that there will be pressure on him to return to the Church if he returns to Samoa. The applicant reported that he is worried he will be isolated if he did not go back to the Church on return to Samoa as his whole family in Samoa are part of the faith. He also disused the difficulty of accessing mental health treatment in Samoa due to a shortage of qualified professionals. He also reported a strong emotional attachment to Australia as his son is burred in Sydney. [Mr B] opines that there is a substantial increased risk of worsening persistent complex grief and related issues for the first named applicant and his family were he to be returned to Samoa, due to the separation form his son’s grave, difficulties obtaining treatment in Samoa and pressure to return to his family’s Church which the first named applicant has found unhelpful in dealing with his grief.
Do any of the applicants have a well-founded fear of persecution and meet the refugee protection provisions or the complementary protection provisions of the Act?
Removal from their son and brother [Child A]
The first and second named applicants’ claim that they do not want to depart Australia as they will be removed from their son who is buried at [specified] Cemetery.
The Tribunal accepts from the extensive evidence before it that the first and second named applicants’ son [Child A] born [date] in Australia was diagnosed with [Medical Condition 1] [in] September 2014 and died [in] 2015. It accepts he is buried at [specified] Cemetery in Sydney and that the second named applicant visits him twice a week and the first named applicant approximately once a week. The Tribunal notes at the hearing the applicants, especially the second named applicant became very upset when the Tribunal discussed their removal from Australia and being away from their son. The Tribunal accepts that they gain great comfort from visiting his grave and being with him. It accepts from the photographs submitted that they take great care of his grave. The Tribunal accepts that being removed from their son, [Child A], being unable to visit his grave and leaving him in Australia would result in additional grief, stress and hardship to the first and second named applicants. They also claim that being removed from [Child A] will impact the other applicants.
While the Tribunal accepts being removed from their dead son or brother will be extremely difficult for the applicants, the Tribunal does not accept that they will face these difficulties for the essential and significant reason or reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s.5J(1)(a) and s.5J(4)(a). With regard to the difficulties they will face being removed from Australia to Samoa away from their dead son and brother the Tribunal finds that the applicants do not have a well-founded fear of persecution as required by s.5J.
With regard to these claims and complementary protection, in SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definition of ‘significant harm’ in s.36(2A).[3] As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself. Therefore on the basis of their claims of harm outlined above as a consequence of being removed from Australia to Samoa and leaving their son and brother, [Child A] in Australia, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Samoa, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Act for these reasons.
Returning without the applicant finishing his study in Australia and lack of or different employment
[3] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji.
The second named applicant claims that as the first named applicant did not complete what he was supposed to study in Australia, it will be degrading for him when he returns to Samoa. When asked why it will be degrading she said he worked as a [Occupation 2] before he departed. She said while he will find other jobs in Samoa on return he will have to start at the bottom. The first named applicant referred to being told he is a failure on return to Samoa as when he departed in 2009 he was a [Occupation 2], he did not finish his course and will not be able to obtain a job. He said he will find it very hard to support his family.
On the basis of the above information and what is accepted of the applicants’ circumstances, the Tribunal does not accept that the difficulties the applicants will face as a result of the first named applicant not finishing his course in Australia or having a reduced employment position amounts to serious harm outlined in s.5J(5). Further, as to the claim that the first named applicant will be unable to obtain a job and support his family; his evidence was that this situation is faced by everyone in Samoa. The Tribunal therefore does not accept that the applicants will face difficulties associated with the applicant being unable to obtain employment for the essential and significant reason or reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s.5J(1)(a) and s.5J(4)(a). The Tribunal therefore finds that the applicants do not face a real chance of persecution involving serious harm if they return to Samoa as the first named applicant did not finish his course in Australia and he will be mocked or degraded or as he will have a reduced employment position and have to start at the bottom or be unable to obtain employment or find it hard to support his family.
On the basis of the above information and what is accepted of the applicant’s circumstances, the Tribunal does not accept that the difficulties the applicants will face as a result of the first named applicant not finishing his course in Australia or having a reduced employment position meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act. As to his claim that he will be unable to obtain a job or have reduced employment circumstances, his evidence was that this is faced by everyone in Samoa. Considering the applicant’s evidence, the Tribunal cannot be satisfied that the problems the applicant and his family face upon return as a result of lack of employment or having difficulty finding a job and being unable to support his family constitutes significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of Samoa generally and is not faced by the applicant personally. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Samoa, there is a real risk that they will suffer significant harm as defined in s.36(2A) an s.5(1) of the Act as the first named applicant did not finish his course in Australia, will be mocked or considered a failure or as he will have a reduced employment position or be unable to obtain employment or find it hard to support his family.
Returning as a drinker of alcohol and smoker
The applicant claims that he will likely return to Samoa as a drinker of alcohol and smoker as these calm him down and helps him cope with the death of his son. He said it helps him deal with the grief. He said his Mormon religion does not accept his drinking or smoking. He said his smoking and drinking will be difficult for his family and the Church. When the Tribunal raised with him how he will be harmed he said he will be told by his religion not to drink and smoke. He said his family will also tell him this. He then said it is not his family he fears although added his family is a member of the Church. When asked what they will do to him; he said they will not give him the support he needs
While, the Tribunal accepts the first named applicant may be told not to smoke and drink by the Church, his family and the Mormon community and he may not receive the support he wishes, the Tribunal does not accept that the difficulties the applicant will face at the hands of his family, the Church, Mormons or anyone else as a result of being a drinker of alcohol or smoker amounts to serious harm outlined in s.5J(5) or meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act.
The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to Samoa in the reasonably foreseeable future on account of being a drinker of alcohol and smoker. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa, there is a real risk that he will suffer significant harm as defined in s.36(2A) as a drinker of alcohol and smoker.
Mental Health treatment
At hearing the second named applicant stated that their faith is Mormon and she was concerned as her Church does not push a person to seek help from mental health professionals. She said the Church believes in God and cannot encourage them to go seek psychologists to deal with mental health issues. The first named applicant indicated at hearing that he is also a Mormon and currently attends Church every now and then, about once every two months. When asked as to the difficulties he will face on return, the first named applicant referred to the Church and said they did not have help for their stress. When asked who will harm him he referred to his Mormon Church as they will tell him not to drink and smoke. He said they will not give him the support he needs.
The applicant’s representative claimed at hearing that the applicant’s fear of harm arises as a member of the particular social group, “citizens of Samoa with mental health difficulties”. He noted that only in recent years had the Mormon Church accepted their followers receive mental health treatment. When information was raised as to the medical treatment available in Samoa the applicant said their culture and religion would not allow them to seek it.
In his report dated [July] 2019 [Mr B], the psychologist indicated the applicant suffers severe levels of depression, anxiety and stress and low levels of personal and general wellbeing. [Mr B], the psychologist reported that psychology therapy had led to some improvements on the applicant’s psychological well-being and general functioning. He noted the applicant reported increasing family and social activities; however he reported continuing to experience significant low mood, stress and anxiety over the uncertainty of the family’s future in Australia. [Mr B] opined that there is a substantial increased risk of worsening persistent complex grief and related issues for the first named applicant and his family were he to be returned to Samoa, due to the separation form his son’s grave, difficulties obtaining treatment in Samoa and pressure to return to his family’s Church which the first named applicant has found unhelpful in dealing with his grief.
The psychologist states in his report dated [July] 2019, following review and treatment after the hearing on 11 June 2019 that the applicant stated that he no longer feels connected with the Church and feels pressure to return to the Church if he returns to Samoa. He reported that he is worried he will be isolated if he did not go back to the Church on return to Samoa as his whole family in Samoa are part of the faith. As a professional psychologist, it is not the role of the professional to test or question the credibility of the patient, in most cases, rather to take that into account in regard to dealing with the patient’s mental health situation. In making the above comment the Tribunal accepts this as completely appropriate, that it is a professional action on the part of the psychologist and that the psychologist is doing what he says, reporting what the patient/applicant said to him. However, in determining a protection visa claim the Tribunal is not bound to accept the history recounted in the report, rather the Tribunal is required to make an appropriate assessment of the applicant’s claims,[4]. The Tribunal therefore places no weight on the applicant’s claim made to the psychologist but not to the Tribunal or Department, despite repeated questioning as to why he fears return, that he no longer feels connected with the Church and feels pressure to return to the Church if he returns to Samoa, he is worried he will be isolated if he did not go back to the Church on return to Samoa as his whole family in Samoa are part of the faith and that his mental health will deteriorate because of this. This is particularly so as the applicant stated at hearing approximately one month before the report that he continued to be a member and follower of the Mormon Church and did not refer to wanting to leave the Church as a claim.
[4] MZWZB v MIMA [2006] FMCA 421.
The Tribunal accepts that the applicants, especially the first and second named applicants, will return to Samoa with continuing grief connected with the death of and separation from their son or brother including depression, anxiety and stress.
As to being able to access mental health services as Mormons, the second named applicant referred to a lack of encouragement or support in accessing mental health services by their Church and the first named applicant said their Church would not allow them to seek such treatment. The Tribunal also notes that [Mr E] in his letter of support to the Tribunal received after the hearing claims a person cannot go and see mental health Doctors in Samoa as it is against the faith. However, the evidence from the applicants’ representative, which is supported by independent information from the Church of Jesus Christ of Latter Day Saints (Mormon), indicates that accessing mental health treatment is accepted by the applicants’ Church.[5] The Tribunal therefore does not accept the applicants are prevented from accessing mental health services due to their faith.
[5] >
As raised at hearing information indicates that Samoa has mental health care and mental health professionals. Information from research conducted by the Department of Home Affairs into mental health services[6] indicates the following:
[6] 'Samoa - 20191028141823 - Mental Health Services', COISS, Country of Origin Information Services Section (COISS), 04 November 2019, 20191104162520
Samoa has an inpatient facility (its National Hospital’s Mental Health Unit), a community outpatient programme running out of this facility, and other mental health-trained professionals, for treatment of mental disorders. Samoan citizens are entitled to mental health services. Children 15 years and under, senior citizens on pension, mental health patients, people with disabilities and maternity patients do not pay health consultation fees.[7]
[7] ‘State of Human Rights Report 2015’, [Samoa] Office of the Ombudsman & National Human Rights Institute, 2015 [document created 11/08/2015], p.49, on Office of the Ombudsman website, 20191104130934
The Legislative Assembly of Samoa enacted the Mental Health Act in 2007, making provisions for the care, support, treatment and protection of persons with a mental disorder.3 The World Health Organization (WHO) Mental Health Atlas 2011 stated of mental health governance in Samoa:
A mental health plan exists and was approved, or most recently revised, in 2006. The mental health plan components include:
·Funding allocation for the implementation of half or more of the items in the mental health plan.
·Integration of mental health services into primary care.
Dedicated mental health legislation exists and was initiated, or most recently revised, in 2007.
Samoa’s WHO Mental Health Atlas 2014 country profile mental health data, compiled in the previous two years, ‘for public sector only’, stated that Samoa had one mental health outpatient care facility (a day treatment facility) and 167 mental health outpatient visits per 100,000 population. Samoa’s mental health inpatient care facilities were one mental hospital and one psychiatric unit in a general hospital (residential care facilities were not reported), and there were 6.8 mental health inpatient annual admissions per 100,000 population. There were 258 treated cases of severe mental disorder ‘per 100,000 population’. There were 4.2 ‘mental health workers per 100,000 population’.
Samoa’s Office of the Ombudsman and its National Human Rights Institute jointly reported in 2015:
There is currently one mental health treatment centre in Samoa that has been in operation for quite some time. The Mental Health Treatment Centre gives preference to the provision of care, support, treatment or protection on a voluntary basis and within the family and community in which the person lives.
Mental Health Treatment Centre was established pursuant to the Mental Health Act 2007 (MHA) and is now the main mental health treatment centre in Samoa.
Mental Health Act 2007, s. 5.17
Samoa’s Ministry of Health’s (MOH’s) Mental Health Unit (MHU) is at the Tupua Tamasese Meaole (TTM) National Hospital. The current, newly-built, MHU building at the National Hospital was occupied on 7 November 2014
The MHU focuses on diagnosing and treating mentally ill patients, while utilizing the ‘aiga (family) for the social support during the patient's rehabilitation back into the community.
The MHU is run by Tuifagatoa Dr George Tuitama. In August 2018 Samoa Observer reported that he:
… is the [MHU’s] only full time psychiatrist and mental health specialist, and is supported by a team of six senior nurses, two junior nurses, and three medical students. He also works with a consulting psychiatrist who is currently overseas till November.
Between them and their skills, they administer to the psychological, psychiatric, spiritual and emotional needs of their patients.
While Tuifagatoa admits having more staff would make their work easier, he said the team is managing, and has seen no major accidents or problems in the unit in recent years.
He said he and his team see each of their patients at least once a month to review their progress.
Some patients are kept at the M.H.U. until they can be safely returned to their families, while some stay at the Goshen Trust residential facility for an extended period.
Most patients on Tuifagatoa’s books are with their families in the community and are visited in their homes by the mental health specialist, to ensure they are taking their medications and recovering.
Tuifagatoa said that unfortunately, the supply of medical professionals will never meet the demand
The bottom line is that almost all the [hospital] units are short. Not matter how many doctors they get they will find demand is still up.”
According to Tuifagatoa, family is the most important part of treatment, to ensure a wide net of safety is cast around the patient.
“Some [patients] are well enough to go home but they get stigmatized badly by their families and discriminated against, so they can’t go home."
To try and counter this problem, the unit spends time bringing families in to spend time with their affected loved one, and join their journey towards recovery.
… “When a patient goes home we can’t rely on them to take their medication; we rely on their families to support them. Most of the time the treatment relies on how good the support is,” Tuifagatoa said.
… To support Tuifagatoa Dr. George Leao Tuitama and the team, the M.O.H. brings psychiatrists from Australia and New Zealand to review patients at the M.H.U. once or twice a year.24
Another August 2018 Samoa Observer article stated that the Mental Health Unit, ‘besides giving the patients medication … also provide patients with activities to assist in their rehabilitation’.25
A contemporary Samoa Observer editorial added:
… For a country whose population is nearing the 200,000 mark, the Ministry of Health’s Mental Health Unit only has one fulltime Psychiatrist. So you might have a tough time trying to find that one Psychiatrist because he is overworked.
… Tuifagatoa Dr. George Tuitama, deals with more than 500 recorded mental health cases. Now and then Tuifagatoa gets help from some visiting Psychiatrists from New Zealand and Australia but the bulk of the work is done by him and his small team.26
The editorial said that Samoa’s top challenge in mental health ‘is the lack of qualified manpower, resources and finances’

This country information indicates that the applicants would be able to access medical services and medication in Samoa. It does not accept based on this information in newspapers and as these services are provided by the Government of Samoa that they will be prevented from accessing the services due to their culture.
On the evidence before it, the Tribunal is not satisfied that the applicants would be denied access to medical treatment or to medication or be prevented from accessing due to their faith, church, their culture or family in Samoa for any of the reasons set out in s.5J(1)(a) of the Act if they return to Samoa now or in the reasonably foreseeable future. With regard to complementary protection and this claims, on the evidence before it the Tribunal finds that there is no real risk that the applicants will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that they will suffer arbitrary deprivation of their life or the death penalty.
The Tribunal is not satisfied that the general scarcity of psychological services, psychological professionals and support in Samoa involves serious harm amounting to persecution. While the information above indicates there are far fewer mental health professionals in Samoa than in Australia and the applicants would not receive the same level of treatment as in Australia, the Tribunal is not satisfied that the applicants would face a real chance of serious harm for a reason outlined in s.5J(a) as a person who requires mental health treatment, is accessing and being treated for a mental health problem. On the available evidence, the Tribunal finds that there is no real risk that the applicants will be subjected to any form of harm on account of accessing mental health services or being treated for a mental health problem which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on them, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that they will suffer arbitrary deprivation of their life or the death penalty. Additionally, the Tribunal is of the view that the difficulties accessing mental health services in Samoa due to scarcity of mental health professionals and lack of quality is harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of Samoa generally and is not faced by the applicants personally.
The Tribunal therefore finds that the applicants do not face a real chance of persecution involving serious harm if they returns to Samoa in the reasonably foreseeable future on account of being denied access to mental services or not being supported or pushed to go, isolated for accessing them or as there are not enough mental health professionals or as the quality is less than in Australia, or for attempting to or accessing mental health services and being treated for a mental health problem. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Samoa, there is a real risk that he will suffer significant harm as defined in s.36(2A) on account of being denied access to mental services or not being supported or pushed to go, isolated for accessing them or as there are not enough mental health professionals or as the quality is less than in Australia, or for attempting to or accessing mental health services and being treated for a mental health problem.
Adjusting to Life in Samoa
The first named applicant has claimed that his children the third, fourth, fifth and sixth named applicants will have difficulty adjusting to returning to live in Samoa as they have been living in Australia since 2009 or were born in Australia. The evidence indicates the third named applicant was born in Samoa in [month] [year], the fourth named applicant was born in Samoa in [month] [year] and the fifth and sixth named applicants were born in Australia in [month] and [month] [year] respectively. Despite being asked as to the difficulties they will face on return further information was not provided. In an email from 2016 the applicant claimed his children will find it hard to adjust to his life and be made fun of if they return. The Tribunal accepts that they have spent either the majority or all their lives living in Australia and return will require adjustment.
However, on the basis of the evidence before it, the Tribunal does not accept the difficulties the third to sixth named applicants will face returning and living in Samoa, including adjustment difficulties and being mocked, amounts to serious harm outlined in s.5J(5) or meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act.
The Tribunal therefore finds that the second, third, fourth and fifth named applicants do not face a real chance of persecution involving serious harm if they return to Samoa on account of having to return to live in Samoa and as they have lived all or most of their life in Australia. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second, third, fourth, fifth and sixth named applicants being removed from Australia to Samoa, there is a real risk that they will suffer significant harm as defined in s.36(2A) as they have lived all or most of their life in Australia.
Lack of Medical treatment for [Child A]
In a statement attached to the first named applicant’s application for a protection visa, the applicant refers to his son, [Child A]’s life being in danger due to the lack of appropriate medical treatment in Samoa and as he will be ridiculed by other children. The evidence indicates that since the application [Child A] has died and that these claims no longer exist. The first named applicant advised the Department of his death and did not refer to a fear of return at the Tribunal hearing on this basis.
The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to Samoa in the reasonably foreseeable future on account of [Child A]’s illness, the lack of appropriate medical treatment for [Child A] in Samoa, as [Child A]’s illness is a curse and [Child A] will be ridiculed. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa, there is a real risk that he will suffer significant harm as defined in s.36(2A) as a result of [Child A]’s illness, the lack of medical treatment for [Child A] in Samoa and as [Child A] will be ridiculed.
The applicant also refers in his application to his family disowning them because of [Child A]’s illness. As [Child A] has since died and the evidence from the applicant is that he does not fear his family, although they are strict, the Tribunal finds that the applicants do not face a real chance of persecution involving serious harm from their family if they return to Samoa in the reasonably foreseeable future on account of [Child A]’s illness. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa, there is a real risk that the applicants will suffer significant harm as defined in s.36(2A) from their family as a result of [Child A]’s illness.
Summary
The Tribunal has considered whether the combination of each of the individual claims raised by the applicants would together create a real chance of them being subjected to serious harm in Samoa in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicants would face serious harm for these reasons if they return in the reasonably foreseeable future. The Tribunal therefore is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of them being subjected to significant harm on return to Samoa. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Samoa, there is a real risk that they will suffer significant harm as defined in s.36(2A).
Should the Tribunal refer the matter to the Minister for his intervention?
The Tribunal notes that under s.417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so.
The Minister’s Guidelines indicate the matters that should be brought to his attention[8]. In particular it refers to
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.[9]
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
[8] PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J)
[9] Ibid
Information before the Tribunal indicates that the first and second named applicants’ son [Child A] born [date] in Australia was diagnosed with [Medical Condition 1] [in] September 2014 and died from this illness [in] 2015. He is buried at [specified] Cemetery in Sydney. His mother visits him twice a week and his father once a week. The Tribunal notes at the hearing the applicants, especially the second named applicant became visibly upset when the Tribunal discussed their removal from Australia and being away from their son. They gain great confirm from visiting and being with him and take great care of the grave. The Tribunal is of the view that being removed from their son, being unable to visit his grave and leaving him in Australia would result in serious, ongoing and irreversible hardship to the first and second named applicant.
Further, the second named applicant’s father [Mr C], who is an Australian citizen suffers from a range of medical difficulties as outlined in the report of [Dr D] and in 2018 had a [specified medical procedure]. He is in on [medication]. He also suffers from diabetes, hypertension and other conditions. He lives with the second named applicant who cares for him. Her removal would adversely affect him as it is understood he has little other support in Australia. [Dr D] notes in his report dated 17 July 2019 that he needs his daughter, the second named applicant to stay and look after him. On the basis of this the Tribunal considers that this case raises compassionate circumstances that could result in irreparable harm to an Australian citizen, being the father of the second named applicant should the applicants have to leave the country.
The Tribunal therefore refers the matter to the Minister for his consideration
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Gabrielle Cullen
Member

CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of 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.
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.
…

[2019] AATA 6564

4 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies