1711073 (Refugee)

1711073 (Refugee) [2021] AATA 4216 (11 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711073
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Jane Marquard
DATE:11 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.

Statement made on 11 August 2021 at 10:29am
CATCHWORDS
REFUGEE – protection visa – Samoa – complementary protection – threats of harm by husband/father – victims of family and domestic violence – psychological trauma – physical and sexual violence – applicant’s relatives harassed and threatened – ongoing pattern of violent behaviour – high rates of domestic violence in Samoa – societal attitudes discourage reporting of and tolerate domestic abuse – no fear of reprisal – no follow-up action taken by police – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Khawar v MIMA [1999] FCA 1529
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2000) 101 FCR 501
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
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
BACKGROUND AND APPLICATION FOR REVIEW

The first named applicant is a woman from Samoa. The second and third named applicants are her children. The first and second named applicants arrived in Australia [in] October 2015 on Visitor (Subclass 600) visas. The third named applicant was born in Australia on [date].
The applicants applied for protection visas under s.65 of the Migration Act 1958 (Cth) (the Act) on 18 January 2016. The applicants claimed protection on the basis of family and domestic violence in Samoa. A delegate of the Minister for Home Affairs refused to grant the applicants the visas on 28 April 2017. The matter is now before this Administrative Appeals Tribunal (the Tribunal) for review.
The Tribunal must determine whether the applicants meet the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criteria, the applicants must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed to their home country there is a real risk of significant harm.
FINDINGS
For the reasons set out below, the Tribunal has decided to remit the matter for reconsideration by the Department of Home Affairs (the Department) with the direction that the applicants satisfy s.36(2)(aa) of the Act (the complementary protection criteria).
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act. 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.
Refugee criterion
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act.
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ).
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-5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia[1999] HCA 14 (1999) 197 CLR 510 at [187]). It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84,[1] made under s.499 of the Act, the Tribunal must take account of the 'Refugee Law Guidelines'[2] and 'Complementary Protection Guidelines'[3] prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There is no applicable DFAT report for Samoa. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[4]
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019
[2] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[3] Department of Home Affairs, Policy – Refugee and humanitarian - Complementary Protection Guidelines
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, evidence to this Tribunal and independent sources about Samoa.
Summary of evidence before the Department
The first named applicant on behalf of all the applicants, provided evidence in her application and supporting documents for the protection visa, submissions by her representative, and at an interview with the Department on 11 April 2017.
The first named applicant stated that she was born in [Location 1], Samoa, where she grew up in her grandmother’s house. She completed high school in [year] and then [studied] until 2012 at [a named college]. She worked [in a] shop, located near their house in [Location 1], from 2005 until December 2015. She belongs to the Methodist Church.
Her parents and a brother live in Samoa, as well as cousin, aunties, uncles and extended family. Her parents are [Country 1] citizens and they work [for the government]. Her brother and sister lived for some time in [Country 1] with her uncle, but they moved to Samoa to help her when she was ‘having trouble’ with her husband, [Mr A].
Her grandmother, two sisters and one brother live in Australia.
She said that she left Samoa with her son as both she and her son experienced physical violence and psychological trauma inflicted by her son’s father, [Mr A]. She also experienced sexual abuse.
She started dating [Mr A] in college in 2011. She said that at that time they ‘had fun, went to the movies and were in love’. In 2013 they moved in together at her family home where she lived with her grandparents and siblings. She said that it was a hard decision as her family had wanted her to find a job and get married. She said that they had a big house and their wing was private.
She told the Department that a month after moving in, she became pregnant and she and [Mr A] were overjoyed. However soon after, [Mr A] became abusive. He came home late and yelled at her calling her names like ‘bitch’ and ‘slut’. He told her that she was ugly and that he had a pretty girlfriend. She was confused as to his change in behaviour and tried to placate him by making good food and spending time with him. He often sexually assaulted her while pregnant, hit her, pulled her hair and scratched her. He forced himself on her every night and hurt her from rough sex. He told her that she was obligated to comply.
She said that she tried to make excuses for his behaviour, thinking that he was stressed from work. She suggested he get help, but he yelled at her saying that he was the head of the family. He would become enraged and hit her in places on her body where her family could not see the bruises. He also threatened to ‘rip off her face’ and kill her if she told anyone. She dreaded him coming home. Sometimes he would finish very late and demand she cook for him. She said that she was tired and pregnant. She said the more she wanted to yell out to her family when he beat her, the more threats he made. Her father said that she looked sad and depressed all the time, but she was too afraid to tell him why.
She claimed that at that time [Mr A] was drinking every night and would come home drunk and aggressive. He spent all his wages on alcohol. He would push her over and kick her. Her family paid for food. One night when she raised the issue of money when she was around 32 weeks pregnant, he punched her in the stomach, pulled her hair and punched her in the nose. As a result, she was bleeding. Her cousin came towards the living room from his part of the house, and [Mr A] made her go into the bedroom and told her to keep quiet. [Mr A] was ‘charming’ toward the cousin, while her nose was bleeding in the other room and she was too scared to come out. When [Mr A] came in, he told her that he would kill her if she told anyone. She started to have pain in her stomach and told him she was going into labour. He refused to get help or take her to hospital because he did not want anyone to see the bruises. She got warm water and a towel and held it to her side. The pains came through the night and she tried to sleep. In the morning [Mr A] went to work and her grandmother took her to hospital and she was in labour. She had a caesarean section and was too scared to tell the hospital what had happened. Her son needed neonatal care. [Mr A] did not come to the hospital. She stayed in hospital for one month, and during this time [Mr A] visited and threatened her. When she returned from hospital he ‘acted happy and proud’ when her family was around, but alone he was aggressive, and although she was still recovering from the birth, forced her to have sex. She became depressed. He was also sleeping around. When she asked him about this, he hit her so she landed on the ground, and he kicked her. She took photographs of her bruises, but he later took her telephone and deleted them.
She said that he was very possessive. Before moving in with him, she attended many church and youth gatherings with girlfriends and siblings. However, once she was with him, he would not allow her to attend. If she disobeyed he would hit her until her body was covered in bruises. She also was not allowed to have friends over to the house or go out with friends. She became isolated from family and friends. He would accuse her of looking at other men and cheating. He began to call her fat, undesirable and unattractive. He would grab her and sexually assault her at will and would tell her that he would kill the baby if she told anyone. She became emotionally drained. In front of the family, he appeared loving and happy but he never helped her with anything.
She said that throughout the relationship [Mr A] threatened to kill her, her son and her unborn baby. She never left him alone with her son. He regularly punched her in the stomach, including during her first pregnancy until she was 32 weeks pregnant when the punch resulted in her giving birth prematurely. She said that he had also punched her in the face, resulting in a broken nose, and on all parts of her body, causing extensive bruising. She said that he had slapped her, sexually assaulted her and threatened to kill their child. She said that he also financially controlled her and was possessive and jealous. He monitored her movements.
She said that when their son, [the second applicant], was around 7 months old, [Mr A] slapped the side of his face with force, which knocked him over. He then made fun of [the second applicant] who was crying hysterically. After this [the second applicant] was afraid of him. She was afraid to tell her family as [Mr A] threatened that he would kill her if she told anyone. [Mr A] also hit him regularly with his hand, a shoe and a stick. Sometimes he would deliberately make him cry by pinching him. If she tried to stop [Mr A], he would hit her. He called her a useless mother and his son a useless son and a bastard. He threatened to take [the second applicant] and kill him somewhere and she would never know where or how. She said that she was sick with worry about her son’s safety.
She said that one night in March 2015 [Mr A] arrived home late and slapped her, telling her to cook for him. She was tired and she refused, and he began to punch her and she was crying. Her sister and cousin awoke and heard, and came in and confronted him, but [Mr A] said she was crying about nothing. The next day she told her cousin it was her fault. Soon after her parents asked her why she was so sad but she was too afraid to tell them. She eventually told her grandmother who took her straight to the Police Headquarters where she filed a formal complaint. Her grandmother was supportive. The police said that only a life-threatening situation would be serious enough for them to act. They said that they would talk to [Mr A], but did not follow up. Her grandmother was angry and crying and felt that [Mr A] had tricked them as he had been charming to them. When they got home, she told [Mr A] that she had told her family and the police. He was enraged and tried to grab her and she ran outside with him chasing her. From that moment on, he left the house. He tried to contact her on her mobile phone, threatening to kill her so she changed her number. She also went to town with others as she was afraid.
The applicant stated that in June 2015 [Mr A] made contact and apologised. He promised he would change and they began a relationship again secretly. However, after she informed [Mr A] of the pregnancy, he punched her stomach. She said that she did not seek medical help as she did not want her family to find out she was pregnant with [Mr A]’s child. She believed he wanted to cause an abortion. He would switch from ‘nasty’ to ‘sweet’. She was very scared of him and upset that she had disappointed her family by returning to him.
She said that her family found out what was happening and were very concerned about the threats to her son and about her safety in the house. She told her mother when she was 5 weeks’ pregnant that [Mr A] was choking her and trying to kill her. Her mother came to the house and [Mr A] ran away, but later threw stones at their house. They went to the police to tell them. The police went to [Mr A]’s house in the morning. He said that he wanted to kill her but the police did not do anything, they just called her father and told him. Her family then helped her flee, to stay with her uncle and aunt in Australia.
She said that the physical violence continued until she fled Samoa in her fear of her life and the life of her child. She said that she is terrified of physical, psychological and sexual assault if she returns. She was also concerned that her son would be kidnapped.
She said that since she fled Samoa, [Mr A] has inflicted physical violence and threatened her brothers, parents and younger sisters, and tried to force them to tell him where she is located. [Mr A] physically assaulted her [brother] in the streets of [Location 1] in October 2015 after he told [Mr A] to stay away from her. He also went to her parents’ house in a fit of rage and stoned the house while family members were inside. She said that he is enraged she left the relationship. Her father said that he was like an ‘uncontrollable madman’ and they fear for their safety. A few weeks later [Mr A] attacked her brother, punching him in the eye. The applicant’s sister also received a call from a friend who told her that [Mr A] was still looking for the applicant, and asked questions about her.
In her Departmental interview, she said that she fears that [Mr A] will kill her and the children if they return to Samoa. Last she knew, he was living with family in a village 10 minutes’ walk from her house.
She said that she could not relocate as Samoa is a small community where most people from different villages know each other.
She said that effective protection is not available, and the police had not assisted them. Domestic violence is not taken seriously by police and many women live with domestic violence. She said that it is accepted that women are property. She claimed that the Matai Council do not help women. In the applicant’s village the leaders do not have regular ‘village talks’ and their ‘high chief’ lives far away so she cannot go to him for help.
Letter from [Domestic Violence Service 1] dated 14 January 2016.

A case manager from this service confirmed that the applicant, who had suffered ‘horrendous domestic violence’ in Samoa, was a client of their service.
Letter from the applicant’s brother dated 10 April 2017
The applicant’s brother, [named], said that he was living in Samoa from 2013 until 2015. He said that he had been very concerned about his sister and her son over past incidents he had heard about from relatives, when he had left home for school in [Country 1]. He also saw bruises on her face and body. He said that he asked her questions but she was reluctant to talk about her partner harming her.
He said that when he found out the way [Mr A] had treated her he felt really upset. He said that [Mr A] created barriers between them. He said that after he left his sister, he lived with his family nearby. However, [Mr A] started to ‘come during the night times and trying to make a fight with us and the worst of all is that he never respect the presence of my grandmothers and parents who tried to calm me and keep things in a peaceful way.’
He said that on 22 October 2015, after his sister had left for Australia, [Mr A] went to their house and tried to challenge him and his younger brother. He said that he had run out of patience and punched [Mr A] to tell him to stay away from their family.
Crime Report Samoa Police Service June 2015
According to the representative, this is a report of the complaint made by the first named applicant's parents in June 2015 to the police. The report names the applicant and [Mr A], and noted that he had not been arrested, nor had the investigation been completed. The report also indicated that the victim should be updated every 21 days on the progress of the investigation. (The applicant confirmed at the Departmental interview that she had not received any such update and, based on reports from her family, that they had not received any updates or reports of any kind.)
Report by [Mr B] dated [January] 2016
This report issued by [Mr B], [Senior Officer of Police], confirmed that a complaint was made at [a named] Police Station [in] June 2015. According to the representative, this report relates to the second detailed incident when the first applicant's parents sought police protection from [Mr A]. The report was obtained by the first applicant's mother. [Mr B] stated that the investigating officer had been transferred to police headquarters at the time of the complaint. He stated that the matter was being investigated but no further investigations or action had been taken against [Mr A] relating to the complaint in June 2015.
Summary of evidence before the Tribunal
The Tribunal wrote to the first named applicant requesting further information in relation to her claims. On 2 August 2021, the first named applicant’s aunt provided the following information. She said that she had been taking care of the applicant and her son when they first arrived in Australia. She said that she also initiated the ‘removal of them at the time when she was in a toxic and violent relationship with her former partner’. She said that since the applicants left Samoa there had been no contact with [Mr A]. However, there had been heated arguments and fights between [Mr A] and the applicants’ relatives in Samoa. He had also threatened the first named applicant, saying that her leaving him was embarrassing for him and his family. She said that the first named applicant had been involved in the Church Youth programmes in Australia, which has been therapeutic for her and she is ‘slowly healing’. Her children are enjoying school and Sunday school.
The applicant’s mother wrote to the Tribunal to corroborate that she had suffered domestic violence and provided a number of newspaper articles about domestic violence in Samoa, which she said was a ‘critical issue’ in Samoa.
The Tribunal did not invite the applicant to a hearing in this matter, given that the Tribunal was able to make a decision on the information before it, and taking into account the trauma which would have been suffered by the applicant in giving additional evidence about these matters.
FINDINGS AND REASONS OF THIS TRIBUNAL
Key issues for determination
In determining whether the applicants meet the refugee or complementary protection criteria, the key issues are:
·Whether the domestic and family violence described took place in Samoa as claimed (findings of fact).
·Whether there is a real chance of serious harm from the first named applicant’s husband for one of the reasons set out in the legislation.
·If not, whether there is a real risk of significant harm from the applicant’s husband.
·If so, whether the applicants could obtain, from an authority of the country, protection such that there would not be a real risk that the applicants would suffer significant harm.
These issues and other threshold issues are discussed below.
Nationality
For the purposes of the refugee criteria, s.5H(1) of the Act refers to a person being outside the country ‘of nationality’. For the purposes of the complementary protection criteria, s.36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
All three applicants have Samoan passports. The Tribunal is satisfied on the basis of their passports and the testimony of the first named applicant, that the applicants are nationals of Samoa, and that Samoa is the receiving country for the purposes of the legislation.
Findings of fact – domestic and family violence in Samoa
Taking a reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims made, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. In this case, the Tribunal must make findings as to whether the domestic and family violence took place in Samoa as claimed.
Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[5] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia. [6] As a threshold principle, in the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, given special considerations relating to seeking asylum, and processes should be conducted fairly and reasonably.
[5] Fox v Percy (2003) 214 CLR 118
[6] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims[7]. A similar approach is taken in the Department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook)[9], which provides useful guidance for this Tribunal.
[7] SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[9] UNHCR, re-issued February 2019 at [203]–[204]
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants.[10] As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken to credit assessment is reasonable, reflective and fair. The Tribunal has been guided by the Guidelines on the Assessment of Credibility,[11] and the Guidelines on Vulnerable Persons[12], in light of the evidence about the violence the first named applicant has suffered and the likely impact on her.
[10] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Guideline on Vulnerable Persons, available on the AAT Website, >
The Tribunal is satisfied on the basis of her consistent, detailed, coherent evidence as corroborated by her brother and aunt, police and medical reports, that the first named applicant was the victim of psychological, physical and sexual violence at the hands of her husband [Mr A] while living in Samoa. The psychological abuse included threats of death, threats of killing her child, calling her names like ‘slut’, degrading her, monitoring her movements, and controlling her by refusing her access to social situations including going to church. The physical violence included beating her, punching her in the face, scratching her, pulling her hair, punching her in the stomach while pregnant resulting in premature labour, breaking her nose, and kicking her. There was also frequent sexual assault. The Tribunal is also satisfied that the second named applicant was the victim of psychological and physical violence from [Mr A]. This included slapping him so he fell over, hitting him with a shoe or stick, pinching him and mocking and making fun of him such that the child became afraid of him.
The first named applicant’s evidence in her Departmental interview was coherent and consistent with the written evidence she provided, including in relation to small details. Consistency and coherency of account can often be indicators of veracity.[13] The first named applicant also provided the kind of detail commensurate with telling the truth about the development of her relationship and the start of her husband’s aggressive and controlling traits. She could recall small details as well, for example recalling that her cousin came towards the living room on one occasion, and [Mr A] telling her to wait in the bedroom with a bleeding nose. She also did not try to conceal, even though it could have undermined her evidence that she feared [Mr A], that on one occasion she went back to [Mr A] after he apologised to her, believing that he had changed. Returning to violent partners is not uncommon amongst domestic violence victims who are often connected to the perpetrators emotionally and financially. The first named applicant also described persuasively how, during the years she was with [Mr A], she felt sad all the time and isolated from her friends, and ashamed. This kind of response is common to many domestic violence victims.[14] She also provided evidence of how [Mr A] controlled her behaviour, for example, disallowing her going out on social occasions or to church and controlling her financially. He also beat her in places where the bruises were not visible through clothing and took her telephone away when she took photographs of the bruises. This kind of behaviour is often experienced in domestic violence situations.[15]
[13] AAT, Guidelines on the Assessment of Credibility, July 2015, available on the AAT Website, See for example, C Forner, ‘The role of shame within domestic violence relationships’, International Society for the Study of Trauma and Disassociation, 16 October 2018
[15] See for example, Mayo Clinic website, ‘Domestic violence against women: recognise patterns, seek help’
The first-named applicant’s experience of abuse was corroborated by her mother, brother and aunt. Police documents were provided to demonstrate that she had made reports to the police as claimed. She mentioned how her siblings had returned from [Country 1] to help her, which was corroborated by her brother. The first named applicant also sought assistance from [Domestic Violence Service 1] in January 2016, shortly after arrival in Australia and a confirmation of this has been provided. Rates of domestic violence are high in Samoa. There is also a significant amount of family violence, as demonstrated in findings in 2018 that 86% of children interviewed had been subjected to kicking, punching or other assaults.[16] On the basis of the first named applicant’s detailed and persuasive evidence of what took place in Samoa, the corroborative evidence, and statistics about domestic violence in Samoa, the Tribunal is satisfied that the applicants suffered domestic and family violence from [Mr A] over a long period of time while living in Samoa.
[16] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
Does the applicant meet the refugee criteria?
General principles
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. The next issue for consideration by the Tribunal is whether the applicants have a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Is the persecution feared for one of the reasons set out in the legislation?
The persecution feared must be for one or more of the reasons mentioned in s.5J(1)(a) of the Act. These reasons are race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal is satisfied that the applicant is a member of a particular social group of ‘women in Samoa’ in accordance with s.5L of the Act. As required by s.5L, the characteristic of gender defines each member of the group, shared by the applicant, and the characteristic distinguishes the group from society. Further, the characteristic is not a fear of persecution.
In Applicant A v MIEA (1997) 190 CLR 225, Gummow J said that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it.
Although it is possible that the applicant’s husband has hostile attitudes towards women generally, the Tribunal is not satisfied on the basis of the evidence provided that the stated reason, membership of the particular social group of ‘women in Samoa’, is the essential and significant reason for the persecution by [Mr A]. Instead it appears from the evidence that the reason for the persecution is the perpetrator’s own aggressive traits and other anti-social behaviour and/or his relationship with the first named applicant. Research indicates that abusers often feel a need to control their partner because of low self-esteem, extreme jealousy, difficulties in regulating anger and other strong emotions, or when they feel inferior to the other partner in education and socioeconomic background, or because they feel it is justified in traditional societies.[17]
[17] Toby D Goldsmith, PsychCentral, ‘What causes domestic violence’,17 May 2016
The Tribunal is not satisfied therefore that the persecution which the applicants fear would be for reasons of the first named applicant’s membership of a particular social group of women in Samoa, as the perpetrator is motivated by private issues, and possibly his propensity for violence or control. The Tribunal is also not satisfied that the persecution is for one of the other stated reasons[18] as no evidence of this has been provided.
[18] Basa v MIMA (Federal Court of Australia), Sackville J, 17 July 1998
Therefore, the Tribunal is not satisfied that the first named applicant has a well-founded fear of persecution for reasons of membership of a particular social group of ‘women in Samoa’ or any other reason set out in the legislation. The Tribunal is also not satisfied that the persecution the second and third named applicants would be for reasons of membership of a particular social group of children, or for any other reason set out in the legislation.
Where a state discriminatorily withholds protection for one of the stated reasons, an applicant may still have a real chance of serious harm for one of the stated reasons. In the case of MIMA v Khawar, the applicant feared harm from her violent husband. The Tribunal found that he was not motivated to harm her for a Convention reason; rather, his reasons for being violent towards her were personal. The applicant had also claimed that the police refused to provide her with protection against her husband’s violence. A majority of the High Court agreed with the primary judge[19] and Full Federal Court[20] that the Convention test may be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related.[21] The Tribunal has therefore considered whether there is a real chance that the state would withhold protection from the first named applicant for reasons of gender. The Tribunal is not satisfied that in Samoa there is state tolerance and condonation of domestic and family violence and systematic discriminatory implementation of the law, which was the standard of discriminatory withholding required in the case of Khawar[22]. In Samoa, efforts have been made to combat domestic violence through legislation, training and community programs. The Ministry of Police has a nine-person Domestic Violence Unit that works in collaboration with nongovernmental organizations (NGOs) and focuses on combating domestic abuse.[23] While there are still significant difficulties in adequately protecting women, the Tribunal is not satisfied that the state discriminatorily withholds protection from women because of gender. The country information about state protection available for domestic violence is discussed in further detail later in this decision.
Findings on refugee criteria
[19] Khawar v MIMA [1999] FCA 1529.
[20] MIMA v Khawar (2000) 101 FCR 501.
[21] MIMA v Khawar (2002) 210 CLR 1. See also the House of Lords decision in R v Immigration Appeal Tribunal, Ex parte Shah [1999] 2 AC 629 which is generally consistent with the High Court’s approach.
[22] MIMA v Khawar (2002) 210 CLR 1 at [26]
[23] United States Department of State, Country Report on Human Rights Practices, 2020

The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation – race, religion, nationality, membership of a particular social group or political opinion.
Does the applicant meet the complementary protection criteria?
General principles – complementary protection
If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The ‘real chance’ test was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 percent chance. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[24]
Is there a real risk of significant harm?
[24]Chan v MIEA (1989) 169 CLR 379 at 397
The Tribunal is satisfied that there is a real risk of significant harm, in the form of cruel or inhuman treatment or punishment or degrading treatment or punishment, were the applicants to be removed from Australia to Samoa, for the reasons set out below.
Firstly, it is clear from the evidence that [Mr A] inflicted violence on the first named applicant physically, sexually and psychologically over a long period of time and there is a real risk that he would do so again in the future if the applicants returned to Samoa. As stated by the High Court in MIEA v Guo (1997) 191 CLR 559, ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’ The violence inflicted on the first named applicant was of a severe nature, including sexual assault, beating during pregnancy, kicking, and psychological harm in the form of threats to her life and isolating her from family and friends. The second named applicant was also subject to some physical and psychological violence at a very young age. The perpetrator also persuaded the first named applicant to return to him on one occasion, but the abuse continued after she returned. This does indicate an ongoing pattern of violent behaviour from him. Since the applicants left Samoa, he has continued to harass her family members, suggesting that he would seek her out and abuse her if she returned to Samoa. Her aunt has said that he is also embarrassed by the fact that she left him, which is likely to exacerbate his hostility towards the first named applicant. Research indicates that domestic violence often involves violence over time with ongoing recidivism, rather than individual acts. [25]
[25]M Hester and D Westmarland, ‘Domestic Violence Perpetrators’, Crime and Justice, 2006/7
Secondly, rates of domestic violence in Samoa are high, indicating that [Mr A] may well feel a sense of impunity in committing abuse, were the applicants to return to Samoa. According to the United States Department of State in 2020, the government of Samoa has acknowledged in recent years that rape and domestic abuse are of significant concern.[26] An in-depth report by Samoa’s Ombudsman in 2018, the National Public Inquiry into Family Violence (the 2018 Ombudsman’s Report) revealed that 86 percent of women experienced some form of physical violence from an intimate partner including kicking, punching slapping, or being harmed by an object. Eighty-seven percent had been threatened with physical violence of bodily harm and 24 percent had experienced choking.[27] The report found that violence affected almost all families.[28] The report also indicated that cases of rape and domestic abuse often went unreported because societal attitudes discouraged such reporting and tolerated domestic abuse, and there was social pressure and fear of reprisal.[29] The 2018 Ombudsman’s Report stated that ‘this under-reporting of violence was apparent to the Inquiry as it was clear that people were becoming so sensitized to violence that for some a kick, a slap or a punch, no longer constituted violence and it had to be far more serious in order to meet that threshold’.[30] An article in the Guardian referred to the 2018 Ombudsman’s Report as indicating one of the highest rates of family violence in the world, referred to in the report as an ‘epidemic’.[31]
[26] United States Department of State, Country Report on Human Rights Practices, 2020
[27] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
[28] The Guardian, ‘The Silence is suffocating: family abuse epidemic uncovered in Samoa’, 3 September 2019
[29] United States Department of State, Country Report on Human Rights Practices, 2020
[30] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
[31] The Guardian, ‘The Silence is suffocating: family abuse epidemic uncovered in Samoa’, 3 September 2019
According to a government taskforce reporting in 2020:
The incidence of women 20-49 years experiencing violence (some level of physical, emotional, and sexual abuse) in their lifetime is high, with increases from 46% to 60% for two Samoa Family Safety Studies (2000 and 2017). About 22% or one in five ever partnered women report violence by a current or former intimate partner in the previous 12 months. An estimated 86% of women who were respondents to the National Public Inquiry into Family Violence in Samoa have been subjected to kicking, punching and other forms of physical assault. Worryingly 9.5% of female respondents reported being raped by a family member. While there is some debate on how the figures were provided, what is clear is there is an increase in the number of reported cases. These findings are supported by the number of violence against women matters received by the Police Domestic Violence Unit which tripled from 200 in 2012 to 723 in 2015. The increase in the reports may be partly influenced by increasing awareness and availability of focused support services by the Samoa Police, Samoa Victim Support Group (SVSG) [11], Ministry of Women Community and Social Development and other partners as well as more media reporting.[32]
[32] ‘Samoa’s Second Voluntary National Review on the implementation of the Sustainable Development Goals’, SDG Taskforce, Government of Samoa, 2020 [document created 9/07/2020], pp.69-70 paragraphs 171-172 [re ‘SDG 5 Gender Equality’], on United Nations Sustainable Development Goals Knowledge Platform, 20210504142624; as cited here omits original’s references 90-92 (at p.155 Endnotes)
The definition of ‘cruel or inhuman treatment or punishment’ under the Act includes severe pain or suffering, whether physical or mental, intentionally inflicted on a person; or pain or suffering, whether physical or mental, 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. The definition of ‘degrading treatment or punishment’ is ‘an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable’. The acts must be intentional.[33]
[33] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
The Tribunal is satisfied that there is a real risk of these kinds of significant harm if the applicants were to be removed from Australia to Samoa, on the basis of the extensive violence suffered by the first and second named applicants in the past, the perpetrator’s recurrent behaviour, his ongoing threats to family members, and country sources which indicate widespread domestic violence in Samoa. The Tribunal is satisfied that this harm could involve threats, violence and sexual abuse, which would amount to cruel or inhuman treatment or punishment and degrading treatment or punishment. The Tribunal is satisfied that there is a real risk of significant harm to the second and third named applicants as well as the first named applicant. The perpetrator was prepared to punch the first named applicant in the stomach during pregnancy causing premature labour. He also threatened to kill the second named applicant who was only a young child at the time, and inflicted physical and psychological violence on him, including slapping him so hard he fell over and then mocking him while crying, hitting him with a shoe and stick and pinching him until he cried. Due to his recurrent violent behaviour, the Tribunal is satisfied that there is a real risk of significant harm to the children as well as their mother.
The Tribunal is satisfied that the risk of harm to the applicants would be substantial, as opposed to a remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379) given the past harm and the perpetrator’s recurrent behaviour.
Is there taken not to be a real risk of significant harm?
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
The Tribunal is not satisfied that there is an area of Samoa where there would not be a real risk of significant harm. The Tribunal accepts the submissions of the first named applicant that Samoa is a small country and it would not be difficult for [Mr A] to locate the applicants if he wished to do so.
The Tribunal is not satisfied that the real risk is one faced by the population of the country generally and is not faced by the applicants personally. The first and second named applicants were specifically targeted by [Mr A] and threats have been directed at them since then through family members.
The Tribunal is not satisfied that the applicants could obtain from an authority of the country protection such that there would not be a real risk that the applicants would suffer significant harm. The Tribunal has taken into consideration in reaching this finding the credible evidence of the first named applicant that she and family members did report the abuse to police on two occasions, but no follow-up action was taken. This evidence was corroborated by two police reports.
Furthermore, although there has been significant progress in addressing women’s issues in Samoa, including domestic violence programs, the Tribunal is not satisfied that the protection is such that there would not be a real risk that the applicant would suffer significant harm. Samoa does have a long history of women’s rights and very recently appointed a female Prime Minister. The Constitution recognises equality for women and prohibits abuse of women.[34] According to the United States Department of State in 2020, the courts treated rape seriously, and the conviction rate was high.[35] Twenty five years ago, family violence as not talked about publicly, and there was a ‘veil of silence’ about the issue.[36] Since then the Family Safety Act 2013, the Crimes Act 2013 and other legislative mechanisms have established legislative protection for women, and a number of organisations have worked to deal with family violence.[37] Since the 2018 Report, 40 percent of village fonos have taken decisions on domestic violence, with two implementing a zero-tolerance approach, and there has been ‘steady’ progress including awareness raising.[38]
[34] United States Department of State, Country Report on Human Rights Practices, 2020
[35] United States Department of State, Country Report on Human Rights Practices, 2020
[36] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
[37] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
[38] J Petit, Human Right Adviser, 10 December 2020, Blog: Samoa’s response to violence against women and girls can guide other countries | The Commonwealth
Also indicating progress in dealing with domestic violence issues, the Ministry of Police has a nine-person Domestic Violence Unit that works in collaboration with nongovernmental organizations (NGOs) and focuses on combating domestic abuse.[39] The Government’s SDG Taskforce on ‘Ending violence and sexual and other types of exploitation of women’, stated that the government continued to support district and village led initiatives and faith-based led programs looking at the root causes and consequences of family violence.[40] The report suggested that the government was scaling up prevention efforts in response to family violence in Samoa by encouraging community involvement. It held a 16 Days of Activism against Violence Campaign in 2018, which included village led initiatives to highlight awareness of domestic violence in communities with objectives such as changing mindsets and zero tolerance.[41]
[39] United States Department of State, Country Report on Human Rights Practices, 2020
[40] Government of Samoa, ‘Samoa’s Second Voluntary National Review on the implementation of the Sustainable Development Goals’, SDG Taskforce, 2020 [document created 9/07/2020], pp.69-70 paragraphs 171-172 [re ‘SDG 5 Gender Equality’], on United Nations Sustainable Development Goals Knowledge Platform
[41] Government of Samoa, ‘Samoa’s Second Voluntary National Review on the implementation of the Sustainable Development Goals’, SDG Taskforce, 2020 [document created 9/07/2020], pp.69-70 paragraphs 171-172 [re ‘SDG 5 Gender Equality’], on United Nations Sustainable Development Goals Knowledge Platform
However, despite these efforts, there is no legal provision against spousal rape[42] and domestic violence continues to be a significant problem. Reports suggest that while Samoa’s family violence legislative framework is relatively strong, implementation and monitoring of effectiveness is weak or non-existent.[43] The 2018 Ombudsman’s Report found that ‘police are not adequately trained to properly deal with cases of domestic violence. There is no evidence to suggest that lessons were being learned from trainings to deal with victims of violence across the police force, and that harmful attitudes and practices were still dominant preventing reporting of family violence.’[44] In relation to government services the 2018 Ombudsman’s Report found that ‘the State is responsible for widespread human rights violations in failing to provide adequate services, support and prevention in relation to family violence, and in so doing implicitly endorses its continuation.’[45]
[42] United States Department of State, Country Report on Human Rights Practices, 2020
[43] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
[44] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
[45] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
The United States Department of State Report on Human Rights Practices for 2020 states that when police received complaints from abused women, authorities investigated and charged the offender. Authorities charge domestic violence as common criminal assault, with a maximum penalty of one year’s imprisonment. Village councils typically punished domestic-violence offenders only if they considered the abuse extreme, such as when there were visible signs of physical harm. In the past few years, several villages have taken the extra step of incorporating specific fines into their village by-laws.[46] A government report in 2020 stated that ‘while numerous government bodies and civil society organizations have devoted their efforts to empowering women and eliminating violence, and despite these valiant efforts, the problem continues to escalate in Samoa. The challenge remains very real and requires more targeted and strategic action’.[47] The 2018 Ombudsman’s Report found that ‘the government’s lack of commitment and approach through inadequate allocation of resources, support and lack of coordination sends to people a message that gender inequality and family violence is acceptable’.[48] A newspaper report in 2016 about the killing of a woman by her husband, referred to widespread criticism of the way the police had handled the couple’s domestic dispute.[49]
[46] United States Department of State, Country Report on Human Rights Practices, 2020
[47] Government of Samoa, ‘Samoa’s Second Voluntary National Review on the implementation of the Sustainable Development Goals’, SDG Taskforce, 2020 [document created 9/07/2020], pp.69-70 paragraphs 171-172 [re ‘SDG 5 Gender Equality’], on United Nations Sustainable Development Goals Knowledge Platform
[48] The Guardian, ‘The Silence is suffocating: family abuse epidemic uncovered in Samoa, 3 September 2019; Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
[49] RNZ, ‘Samoa man jailed for killing his wife’, 8 July 2016
There are also cultural challenges to be met in overcoming domestic violence as highlighted in the 2018 Ombudsman’s Report, which found that ‘fa’asamoa’ and other cultural norms are contributing to the persistence of family violence through the patriarchal framework and other cultural values.[50] Other commentators have also suggested that the cultural notion of ‘fa'a Samoa’ (the Samoan way) promotes the ideal that it is permissible for husbands to beat their wives and tolerates the use of violence within the family as a means of resolving disputes or infringements of village custom, and that this is a hurdle to change in attitudes and practices.[51] Village fono require that domestic violence be raised with chiefs before the police, and this is cited as a barrier to effective protection.[52]
[50] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018
[51] P Martin, ‘Implementing women’s and children’s rights: The case of domestic violence in Samoa’, [2002] AltLawJl 82; (2002) 27(5) Alternative Law Journal 227; PIR Editor, ‘Samoa Ombudsman Challenges Belief that Culture Condones Violence against Women’, Samoa Observer, 20 November 2016; Pacific Prevention of Domestic Violence Programme, Current Status Assessment, The Ministry of Foreign Affairs and Trade (James McGovern, Asia Pacific International Development Pty Ltd, March 2016
[52] Ombudsman NHRI Samoa, ‘National Public Inquiry into Family Violence in Samoa’, State of Human Rights Report, June 2018

These sources when considered cumulatively indicate that although significant efforts have been made to create mechanisms to deal with domestic violence in Samoa, implementation has been poor and domestic violence continues to be a significant problem in the society. The level of protection offered must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147. While some of the changes implemented in Samoa demonstrate commitment to counteracting the problem, and some overall progress, and the fact that there is now a female Prime Minister might create further momentum for positive change, it is too early to say that there has been a change in attitudes or patterns of domestic violence.
The Tribunal is not satisfied in light of this information that the applicants could obtain from an authority of the country protection such that there would not be a real risk that the applicants would suffer significant harm.
Findings on complementary protection
The Tribunal is satisfied 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 of significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.
Jane Marquard
Member

ATTACHMENT A - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4216

11 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Natural Justice