1711221 (Refugee) - [2021] AATA 4367

1711221 (Refugee) [2021] AATA 4367 (1 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1711221
COUNTRY OF REFERENCE: Samoa

MEMBER: Jane Marquard
DATE:1 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 September 2021
CATCHWORDS
REFUGEE – protection visa – Samoa – religion – Pentecostal Christianity – evangelical Christianity predominant in home village – no family support – officially Christian country – right to choose, practise and change religion and many different churches – communal pressure to belong to predominant village church, but no reports of threats or harm – possibility of relocation and help from new church community – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 18B, 25, 33
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 351, 417, 424, 501J
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
CSO15 v MIBP (2018) 260 FCR 134
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
SZTOO v MIBP [2015] FCCA 1631
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND AND APPLICATION FOR REVIEW

The applicant is a [age]-year-old woman from Samoa. She first travelled to Australia in 2009 on a tourist visa. After that she entered and exited Australia a number of times. Her most recent arrival was [in] February 2014 on a [Visitor] visa. In March 2014 she applied for a [specified] visa which was refused.
She applied for a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act) on 29 June 2016. She claims protection on the basis that she would be persecuted for her belief in the Pentecostal denomination of Christianity which she has practised since living in Australia.
A delegate of the Minister for Home Affairs refused to grant the applicant the visa on 28 April 2017. The matter is now before this Administrative Appeals Tribunal (the Tribunal) for review.[1]
[1] s.25, Administrative Appeals Tribunal Act 1975 (Cth)
FINDINGS
The Tribunal has sympathy for the applicant’s situation as she has been living with her family in Australia since 2014 and claims that she no longer has any family members in Samoa. She has waited a long time for her review by this Tribunal. She is clearly very well established in her church community in Australia and contributes significantly to it. In these circumstances it may well be difficult for her to relocate to Samoa.
However the Tribunal’s role is limited to determining whether the applicant meets the refugee or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1711221 (Refugee)

Details

AGLC: 1711221 (Refugee) [2021] AATA 4367
Case: [2021] AATA 4367
Decision Date: 1 September 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman who claimed she would face persecution upon her return to Samoa due to her conversion to Pentecostal Christianity. The applicant asserted that her home village strictly adhered to evangelical Christianity, prohibiting other forms of Christian worship, and that disobedience to village rules carried severe consequences, including threats of psychological and physical harm. She stated she had no family support in Samoa, having moved to Australia to join her mother and siblings, and feared being ostracized and endangered if she returned. The Administrative Appeals Tribunal (AAT) reviewed the decision of the Department.

The core legal issues before the Tribunal were whether the applicant had genuinely changed her religion from evangelical to Pentecostal while in Australia, and if so, whether there was a real chance of serious or significant harm to her from villagers or chiefs in Samoa due to her religious practice. The Tribunal also considered whether any such persecution would be country-wide. The applicant's nationality as a Samoan national was not in dispute, with Samoa being the receiving country for the purposes of the legislation.

The Tribunal found that the applicant had indeed changed her religion to Pentecostalism while in Australia, based on her consistent and convincing testimony regarding her involvement in a Pentecostal church, her description of its worship style, and her stated love for her new faith. While acknowledging the applicant was unrepresented and had not provided documentary evidence of church attendance, the Tribunal considered her oral evidence sufficient. The Tribunal also considered country information and found that while communal pressure existed in her village to conform to the predominant church, there were no reports of threats or harm directed at individuals for changing their religion. Furthermore, the Tribunal noted the possibility of relocation within Samoa and the potential for support from a new church community, suggesting that harm was not a certainty and that the applicant might find refuge elsewhere in the country.

The Tribunal affirmed the decision under review, concluding that the applicant had not established a real chance of serious or significant harm upon return to Samoa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 in Department files The applicant provided details of her claims in an application form to the Department, as well as supporting documents. She also attended an interview with a delegate of the Department. A summary of her evidence follows. The applicant was born in [Village 1], Samoa in [Year]. Her mother and [siblings] live in Australia and she has no contact with her father. She was brought up by her grandparents in her village. She states that she is not in contact with any relatives outside Australia. She fears returning to Samoa because her village will not accept her new Pentecostal religion. She said that as soon as she got to Australia she met with her parents and then ‘had the opportunity to know more’ about God and Christianity. She worked in the Ministry and built her connection with God. She said that she attends [Church 1] with her mother and siblings, on Sundays. They have ‘youth’ on Fridays and ‘young ladies [meeting]’ on Tuesdays. They also have prayer meetings on Wednesdays and ‘practise’ on Saturdays. She said that the Pentecostal style is a contemporary way of worshipping, including playing of guitars, drums and dancing. She said that there is more ‘praising, singing, worshipping’ than in the evangelical church. She said that she loves her newfound faith and would ‘not change it for anything’. She said that it has ‘helped her spiritually’ and she feels more connected to God through this free style of worship. She said that Evangelism is the only Christianity allowed in her village by her village council which is the decision-making body for the village. She said that village mayors are politically appointed and stand for government authorities. Pentecostalism has been strictly prohibited for as long as she can remember. She said that actions of disobedience against their rules and protocols are severely punished. Families who have tried to depart from the evangelical church have suffered severe consequences. She said that she saw people trying to practise ‘that type of church’ in their homes, using instruments and being ‘loud’, singing and dancing. She said that they got an order from the village high chiefs to stop. She said that her grandfather was a high chief and knew of this. She said she came to Australia as the last remaining relative to join her mother and siblings. Her grandparents had raised her but passed away. She had no-one left in Samoa. She said that she could not move elsewhere as she had no land and had never been anywhere but her home village. She fears being persecuted and harassed if she returned to Samoa, and said that her life would be at risk. The village council would ask her to leave and if she did not, she would be at threat of psychological and physical harm. She said that she would have no support if she returned to Samoa.Information from Departmental records

Decision

Reasons for decision

The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.DECISION OF THE DEPARTMENT The delegate of the Department was satisfied that if the applicant was at risk of harm in her home village, she could relocate to another area in Samoa. The delegate was satisfied that her mother would continue to support her in Samoa.FINDINGS AND REASONS OF THIS TRIBUNALKey issues for determination In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:· Whether she changed her religion from evangelical to a Pentecostal denomination after living in Australia (finding of fact).· Whether there is a real chance of serious harm or a real risk of significant harm from villagers or chiefs for reasons of her religion were she to return to Samoa.· Whether the persecution relates to all areas of the country. 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. The applicant has a Samoan passport issued [in] 2019. The Tribunal is satisfied on the basis of her passport and testimony that the applicant is a national of Samoa, and that Samoa is the receiving country for the purposes of the legislation.Findings of factTaking 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 applicant changed her religion from evangelical to Pentecostal while living in Australia. The Tribunal is satisfied that the applicant practises in a Pentecostal church in Australia and has done so since she travelled to Australia. Although she has not provided documents from the church to corroborate her attendance, this may have been because she is unrepresented and was not aware that this evidence could be useful. In any event, her evidence to both the Department and Tribunal about her involvement in the Pentecostal church has been consistent. Her evidence was also straightforward and convincing, she was able to discuss the more ‘free and expressive’ style of practice at the Pentecostal church and gave details about her involvement in Sunday School, the band, [ladies’ meeting] and the service itself. It makes sense that she would accompany her mother and other family members to their church, which is the Pentecostal church, when she arrived in Australia. She also appeared to have genuine love for her new church, saying that she would ‘not change it for anything’, that it has ‘helped her spiritually’ and she feels more connected to God through this free style of worship.

Ratio Decidendi

Legal Principle Established

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. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination,[2] but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836). As the applicant was unrepresented, the Tribunal provided her with extra time to make submissions and has taken a broad approach to whether she has satisfied the statutory elements.[2] S.424(1) of the ActMandatory considerations In accordance with Ministerial Direction No.84,[3] made under s.499 of the Act, the Tribunal must take account of the Refugee Law Guidelines[4] and Complementary Protection Guidelines[5] prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[6][3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019.[4] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)[5] Department of Home Affairs, Policy – Refugee and humanitarian - Complementary Protection Guidelines[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634President’s Direction The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[7] In particular the Tribunal has had regard to the direction that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’.[8] [7] Issued under Section 18B of the Administrative Appeals Tribunal Act 1975 (Cth)[8] At [2.1] (consistent with AAT Act 1975 s.33(1)(b)). The Tribunal exercised its discretion to hold the hearing via MS Teams due to restrictions necessary because of the COVID-19 pandemic. The Tribunal was satisfied that it was reasonable to hold a hearing by MS Teams having regard to the nature of this matter and the individual circumstances of the applicant. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical and quick.[9] There may have been significant delay to the matter if the hearing was not to be conducted in this manner. [9] Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth)