1711221 (Refugee)

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 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 applicant 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 criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to her home country there is a real risk of significant harm. The Tribunal is not satisfied that the applicant meets these criteria and for the reasons set out below, the Tribunal has decided to affirm the decision under review.
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 the attachment 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 the attachment 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 the attachment 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) 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. 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 Act
Mandatory 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 634
President’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)
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that she could hear the Tribunal member well. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.
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 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
The Departmental records indicate that the applicant visited Australia on three occasions between 2009 and 2013 as the holder of tourist visitor visas.
She lodged an application for a [specified] visa on 5 March 2014. This visa was refused on 9 June 2014, a decision which was affirmed by this Tribunal, differently constituted, on [date]. The applicant also made two requests for Ministerial Intervention pursuant to s.351 of the Act, but the Department did not refer the requests to the Minister.
In her application to the Department for the [specified] visa, she said that her brother, [Mr A], resided in [Country 1]. She said that she does not know the whereabouts of her biological father whom she has not seen since birth. The Department was not satisfied that the applicant’s father was an Australian citizen or permanent resident and therefore was not satisfied that the applicant did not have near relatives overseas.
Summary of evidence before the Tribunal
The applicant appeared before the Tribunal by MS Teams on 18 August 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. She said that she fears returning to Samoa because she is single, she has changed her religion and has no-one to rely on. She said that ‘there is no place for her to return to and no-one to turn to’. Her evidence before the Tribunal is referred to where relevant in the findings. A brief summary is set out below.
The applicant confirmed that she was born in [Village 1 hospital] Samoa in [year]. She lived in a village called [Village 2] until she came to Australia. [Village 2] is a village about [number] minutes’ bus ride from the main town of Apia and is one of many villages around the outskirts of Apia. Her mother came from this village. Her mother has one brother. He now lives in [Country 1]. Her mother moved to Australia when she was three years old because ‘she had the opportunity to do so’. The applicant was left in Samoa with her grandparents. She had no siblings living there with her. It was just the three of them in the house. Her mother works in a warehouse in Australia. When the applicant was living with her grandparents, her mother sent money back to her in Samoa. They sold crops from their plantation. Her mother only started visiting in 2004 when she got a visa.
Her mother married in Australia. Her stepfather passed away in 2019. They had [children] in Australia. The other children are living and working in Australia. Her mother is a permanent resident and the applicant’s siblings are Australian citizens.
She has never had any contact with her father and does not know where he is or where any of his extended family is.
The applicant said that in Samoa she lived with her grandparents who have now passed away. She attended primary school in her village and then secondary school in [Location 1]. She completed a [Qualification 1] at [institution 1] in [Location 2] in 2009. In 2011 she completed a [Qualification 2] at [Institution 1]. She then enrolled, but withdrew, from a [Qualification 3] in 2011. She was studying until she came to Australia.
She did not work at all in Samoa. Before completing her [qualification] she travelled to Australia as both her grandparents had passed away. She lives with her mother and siblings in Australia. Her visa has a no work condition so she is unable to work. Her mother and siblings provide for her. If she were able to work she would take whatever job she could, as she has ‘no experience of anything’.
The applicant is seeking protection for reasons of her religion. She said that she became a Pentecostal Christian in Australia, but before she left Samoa she was part of an Evangelical Christian group. In Samoa, she attended church weekly with her grandparents and other ‘village people’.
Given her concerns about not being able to survive, the applicant was asked if her family could support her in Samoa, as they have been doing so in Australia. She said that she has no family in Samoa with whom she could live. Asked if she has friends from the village, school or university, she said that her friends have families themselves. She was asked if she could draw on them to help her get established. She said that she did not think so as they would not have time for her. She has also not been in contact with them since she moved to Australia.
She said that she attended the ‘[name] evangelical church’ in her village while growing up. It was not part of the Assembly of God church. There was a church building in her village where they worshipped. There were more than a hundred families in her village. There was also a Catholic and a Methodist church in her village. She said that the form of worship at her church involved ‘song, prayer, song and preaching’. The service lasted an hour or less.
She was asked why she feared harm considering that there are three churches to choose from in her village, which does suggest villagers can choose the church to which they would like to belong. She said that the Pentecostal church is not allowed in her village. She said that one time the Pentecostal church ‘tried to come in’ but ‘were not allowed to go in by the chiefs’.
She was asked why she could not live in a different village or a different part of Apia where there is a Pentecostal church community. She said she has no land or place to go other than her village. She was asked if she could find a place in town to rent near a Pentecostal church community. She said that she did not think that rental properties were available. She said that in Samoa it was ‘based on one’s own family and land’. She was asked if she could approach a Pentecostal church community for assistance with accommodation. She said she had not thought of it, she thought she would not have to move because of her beliefs.
She said that in Australia she attends [Church 1] in [suburb]. She first went to this church with her mother, who is a parishioner there. She said she has belonged to [Church 1] since she has been in Australia and attends with her mother and other family members. The style of practice is different to her evangelical church in Samoa. She said that at [Church 1] the service is for three hours, there is a lot of singing, it is loud, and there is dancing. She said ‘then we worship, it is free.’ She said that it is more like ‘a fellowship’. She sings in the band. She also assists the Ministry and works in the Sunday School. As it is lockdown, they do online streaming. Before lockdown she was involved on Wednesdays for prayer meetings, on Saturdays they had band practice and on Sundays there is service and Sunday School. She said the beliefs of the Pentecostal and evangelical churches are the same, but the practice in the Pentecostal church is more expressive and open.

She was asked if there was a Pentecostal church near her village in Samoa or in other parts of Apia. She said that she did not know.
Independent country information
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 TRIBUNAL
Key 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 fact
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 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.
Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia, as is the case here. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the Tribunal that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee. The Tribunal is satisfied that the applicant engaged in conduct otherwise than for the purpose of strengthening her refugee claim, as she accompanied her family to the church because she is a Christian and this was the church her family attended and she appears to be a genuine and devoted parishioner.
The refugee criterion
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.[10]
[10] Section 5H(1) of the Act
The next issue for consideration by the Tribunal is whether the applicant has 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 there a real chance of serious harm if the applicant were to return to her home country?
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b) of the Act provides an objective element to that concept;[11] not only must a person fear persecution, there must be a prospect of that fear being realised.
[11] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, 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. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J of the Act.
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’.[12]
[12] Chan v MIEA (1989) 169 CLR 379 at 397.
The Tribunal has assessed whether there is a real chance of serious harm in the reasonably foreseeable future for reasons of the applicant’s religion.[13]
[13] SZTOO v MIBP [2015] FCCA 1631 at [27].
The UNHCR provide information on freedom of religion as expressed in international conventions: ‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance. Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.’[14] The Tribunal in assessing whether there is a real chance of serious harm has considered whether there is a real chance of serious harm, as well as whether she would suffer serious harm as envisaged by the legislation.
[14] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees
The applicant acknowledged at the Tribunal hearing that she did not believe that the chiefs or villagers would inflict violence on her. She has claimed that she could be harmed by not being permitted to practise Pentecostal Christianity in her village, being ostracised and possibly banished from her village by village chiefs and villagers, because she now practises Pentecostal Christianity rather than the evangelical Christianity practised in her village. The Tribunal is not satisfied that there is a real chance of harm on this basis for reasons set out below.
To provide some context for this finding, some background information about Samoa and the practice of religion there is provided. Samoa consists of four inhabited and a number of smaller, uninhabited islands. The capital Apia, near where the applicant lived, is located on Upolu, the most populous and developed of the islands. Upolu and Savai’i, the other main island, account for 99 percent of the population.[15]
[15] Department of Foreign Affairs and Trade, Samoa country brief
Samoa is a stable parliamentary democracy. Samoa’s constitution and its political system take substantial account of Samoan traditions and culture.[16]
[16] Department of Foreign Affairs and Trade, Samoa country brief
The government and society generally support freedom of religion and Samoa is predominantly Christian. The Samoan Constitution provides for the right to choose, practise and change one’s religion, and it defines the country as a Christian nation.[17] The US government estimates the total population at 204,000 (mid-year 2020 estimate). According to the 2016 national census, Congregational Christians constitute 29 percent of the population; Roman Catholics, 18.8 percent; members of The Church of Jesus Christ of Latter-day Saints (Church of Jesus Christ), 16.9 percent; Methodists, 12.4 percent; members of the Assemblies of God, 6.8 percent; and Seventh-day Adventists, 4.4 percent. Groups together constituting less than 12 percent of the population include Jehovah’s Witnesses, Congregational Church of Jesus, Church of the Nazarene, nondenominational Protestants, Baptists, Worship Centre, Peace Chapel, Samoa Evangelism, Elim Church, Anglicans, Baha’is, and small numbers of Hindus, Buddhists, Muslims and Jews, primarily in Apia. Less than 1 percent stated no religion or did not select a religion.[18]
[17] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
[18] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
In June 2020, the pastor of a small Christian denomination gave televised sermons on the country’s largest broadcaster calling other Christian denominations ‘anti-Christ followers.’ The Prime Minister, government officials, religious leaders and the general public criticised the sermons as provocative and derogatory.[19]
[19] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
These reports indicate a generally tolerant and stable Christian society with many different churches. However villages do tend to have one primary Christian church.[20] Village chiefs traditionally choose the church based on the denomination of their extended families.[21] Titled chiefs (matai) are often the elders or deacons of the church.[22] While the original missionary churches, Congregational, Methodist and Catholic, maintain the majority of adherents,[23] evangelical churches are also prominent.
[20] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
[21] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
[22] J Hardin, ‘Claiming Pule, manifesting Mana: ordinary ethics and Pentecostal self-making in Samoa’, in M Tomlinson and ors, New Mana: Transformations of a Classic Concept in Pacific Languages and Cultures, Australian National University Press, 2016
[23] J Hardin, ‘Claiming Pule, manifesting Mana: ordinary ethics and Pentecostal self-making in Samoa’, in M Tomlinson and ors, New Mana: Transformations of a Classic Concept in Pacific Languages and Cultures, Australian National University Press, 2016
As discussed with the applicant at hearing, the Assemblies of God, which is Pentecostal, is regarded as an evangelical church by some sources.[24] As discussed in the decision of the Department it appears that [Church 1], the applicant’s church in Australia, through a broader Christian group, does missionary work with evangelical churches in Samoa. The applicant said that notwithstanding this information the churches are different. The Tribunal accepts that they are different types of churches, however the fact that they are both regarded as ‘evangelical’ in the sense of ‘lotu patipat’ (clapping churches) or ‘lotu fou’ (new churches)[25] is likely to cause less antagonism towards the applicant were she to want to practise in the Pentecostal church rather than her village church, than if she wished to practise in a different style of church altogether.
[24] J Hardin, ‘Claiming Pule, manifesting Mana: ordinary ethics and Pentecostal self-making in Samoa’, in M Tomlinson and ors, New Mana: Transformations of a Classic Concept in Pacific Languages and Cultures, Australian National University Press, 2016
[25] J Hardin, ‘Claiming Pule, manifesting Mana: ordinary ethics and Pentecostal self-making in Samoa’, in M Tomlinson and ors, New Mana: Transformations of a Classic Concept in Pacific Languages and Cultures, Australian National University Press, 2016
Sources indicate that within villages, villagers are generally expected to follow the branch of Christianity followed by the village hierarchy.[26] According to the United States Department of State Report on International Religious Freedom, ‘there is strong societal pressure at the village and local levels to participate in church services and other activities in addition to supporting church leaders and projects financially. In some denominations, financial contributions often totalled more than 30 percent of family income. Some individuals interviewed by local media expressed concern that church leaders abused their privileged status among the congregation and village.’[27]
[26] J Hardin, ‘Claiming Pule, manifesting Mana: ordinary ethics and Pentecostal self-making in Samoa’, in M Tomlinson and ors, New Mana: Transformations of a Classic Concept in Pacific Languages and Cultures, Australian National University Press, 2016
[27] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
While there is pressure to be part of the village church, the United States Department of State Report on International Religious Freedom does not report on any incidents of serious harm against an adherent who changes churches or leaves their village church for another church,[28] although leaving a traditional village church can be difficult, as it can be regarded as ‘leaving the family’.[29]
[28] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
[29] J Hardin, ‘Claiming Pule, manifesting Mana: ordinary ethics and Pentecostal self-making in Samoa’, in M Tomlinson and ors, New Mana: Transformations of a Classic Concept in Pacific Languages and Cultures, Australian National University Press, 2016; United States Department of State, ‘2016 Report on International Religious Freedom: Samoa’, 2017
Sources stated, however, that many larger villages, such as Vaitele and Vailima, had multiple churches serving different denominations and coexisting peacefully.[30] There was no mention in recent versions of the highly reputed International Religious Freedom Report of persecution of specific Christian denominations or churches by village church leaders, or of Pentecostal believers specifically.[31] Searches did not reveal evidence of threats against Pentecostal Christians by evangelical churches or village leaders.[32]
[30] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
[31] United States Department of State, 2020 Report on International Religious Freedom: Samoa, 12 May 2021
[32] Sources consulted included UNHCR Refworld, The European Country of Origin Information Network (ECOI), Department resources including CISNET, US Department of State, NGO and human rights organisations, local news sources and major international newspapers
Statistics indicate that about 6.8 percent of the population identify as belonging to Assembly of God which is the largest Pentecostal denomination in Samoa.[33] Sources indicate that Pentecostal or charismatic churches are increasing in popularity in Samoa.[34] Google searches indicate a number of Pentecostal churches around Apia. Searches reveal a Pentecostal church n Moto’otua called Life Point, which has a Facebook page.[35] An article in the Samoa Observer states that ‘A new church was dedicated and launched on Sunday at the Poinsettia Building at Moto’otua and is led by an American Missionary couple. The Life Point Church is led by Pastor Stephen Merritt and his wife Angelica Merritt, who are missionaries from America through the United Pentecostal Church International (U.P.C.I), and have been in Samoa for almost a year. Their affiliation in Samoa is through the U.P.C.I and the newly established Life Point Church.’[36] Searches also revealed a Pentecostal church in [Location 2], where the applicant went to [Institution 1], called [name].[37]
[33] United States Department of State, ‘2020 Report on International Religious Freedom: Samoa’, 12 May 2021
[34] J Hardin, ‘Claiming Pule, manifesting Mana: ordinary ethics and Pentecostal self-making in Samoa’, in M Tomlinson and ors, New Mana: Transformations of a Classic Concept in Pacific Languages and Cultures, Australian National University Press, 2016; M Ernst, ‘Changing Christianity in Oceania: A Regional Overview’, Archives de Sciences Sociales des Religion, no 157, 2012; United States Department of State, ‘2016 Report on International Religious Freedom: Samoa’, 2017; Facebook, ‘Pentecostal Churches in Apia’ page
[35] Facebook, LifePoint Church - Home | Facebook
[36] H Siutaia, ‘New church dedicated at Moto’otua’, Samoa Observer, 15 December 2020
[37] Google search, [search terms deleted]
These sources were discussed with the applicant. It was put to her that the society is generally stable and Christian, that many different churches co-exist and that although pastors and elders may not be pleased that she had moved to a different church, it would be unlikely she would suffer serious harm, given little reporting of such harm in country sources. She said that there would be a risk to her. She said that if she went to gatherings, the way she worships now, which she would do, then it would be a harm to her. She said that she did not believe villagers or elders would physically harm her, but they would banish her from the village. She said that she knows her newfound religion is not allowed in her village and that is the place she would live. She said that she feels danger in her village. She does not trust the authorities to help her if she were to go back. She said that she is mostly worried about her own village.

The Tribunal acknowledges that the village chiefs in the applicant’s village may only permit the existing evangelical church to operate in that village.[38] Commentators have suggested that there must be a balance between the right to religious freedom and the communal interests intrinsic in Samoan culture[39] and the sources suggest there is significant power in the village chiefs.[40] However the Tribunal is not satisfied, given the country sources, that the applicant would suffer serious harm if she lived in her village and wished to practise in a church outside her village, or live elsewhere and attend a Pentecostal church. There are a number of Pentecostal churches in her broader region, as discussed earlier. She could also live in Apia or nearby in another village where there was a Pentecostal church, seeking help from the Pentecostal church community. According to some country sources, there are no formal barriers to relocating for unmarried women, in regards to gaining employment, signing contracts, registering a business, opening a bank account, choosing where to live, obtaining a national ID card and travelling.[41] She was asked about this, and she said that she agrees there are no formal barriers but she does not have any land and did not complete her education. She said that for some they could afford it, but in her case it would be difficult and she did not want to move from the village. The Tribunal acknowledges that it may be difficult for her to establish herself, however her mother has supported her while she lived in Samoa and Australia and would be likely to continue to do so if the applicant could not find a job and she could seek help from a church community. The Tribunal acknowledges that she may wish to live in her home village, however, given that there is no Pentecostal church in that village, she would need to live elsewhere or travel to church on Sundays if she wished to practise the Pentecostal denomination. As discussed earlier, there are Pentecostal churches available nearby, and there does not appear to be any targeting of members of those churches.[42]
[38] Ming C Leung Wai, ‘Religious Freedom and Social Stability’, Presentation at the 22^nd Annual International Law and Religion Symposium (Religion, Law and Social Stability), BYU International Centre for Law and Religion Studies, 4 to 6 October 2015
[39] Ming C Leung Wai, ‘Religious Freedom and Social Stability’, Presentation at the 22^nd Annual International Law and Religion Symposium (Religion, Law and Social Stability), BYU International Centre for Law and Religion Studies, 4 to 6 October 2015
[40] Ming C Leung Wai, ‘Religious Freedom and Social Stability’, Presentation at the 22^nd Annual International Law and Religion Symposium (Religion, Law and Social Stability), BYU International Centre for Law and Religion Studies, 4 to 6 October 2015
[41] World Bank website, ‘Women, Business and the Law: Samoa Accessing Institutions’, 2016
[42] Sources consulted included UNHCR Refworld, The European Country of Origin Information Network (ECOI), Department resources including CISNET, US Department of State, NGO and human rights organisations, local news sources and major international newspapers
Country sources indicate that Samoa is a democracy where freedom of religion is practised. Within this context, it is important to note that Christianity is the predominant religion and that Pentecostal churches are increasingly popular. Importantly, while villagers and elders may expect adherence with the village church, there is no evidence to suggest that the applicant would suffer serious harm if she chose to practise a Pentecostal denomination. There may be ostracism and disdain from the chiefs, although searches did not reveal individuals being harmed for practising in the Pentecostal church[43] and the power of the matai (the chiefs’ council) to banish people or other extreme punishments have been limited by the courts.[44] The Supreme Court in Samoa has ruled that on the basis of the freedom of worship provision in the Constitution, village councils or ali’I and faipule have no legal right to make a prohibition against any new religious group coming into a village[45] or to force someone to attend a particular church.[46] This decision was upheld in a later decision in which a village council had said that only three denominations could practise in their village. The village council prohibition was found to be unconstitutional.[47]
[43] Sources consulted included UNHCR Refworld, The European Country of Origin Information Network (ECOI), Department resources including CISNET, US Department of State, NGO and human rights organisations, local news sources and major international newspapers
[44] M Forsyth, ‘Banishment and Freedom of Movement in Samoa: Leituala v Mauga, Kilfifi et al’, Journal of South Pacific Law, [2004] WSSC 9
[45] Tariu Tuivaiti v Sila Faamalaga & Others (Unreported, 17 December 1980, Supreme Court, St John CJ)
[46] Ming C Leung Wai, ‘Religious Freedom and Social Stability’, Presentation at the 22^nd Annual International Law and Religion Symposium (Religion, Law and Social Stability), BYU International Centre for Law and Religion Studies, 4 to 6 October 2015; Tariu Tuivaiti v Sila Faamalaga & Others (Unreported, 17 December 1980, Supreme Court, St John CJ)
[47] A Toleafoa, ‘Religion in Samoa is free, court rules in overturning banishment’, Pacific Islands Report, 26 August 2002
The Tribunal is not satisfied that any ostracism inflicted on the applicant would amount to serious harm. Indicative examples of serious harm are set out in the legislation as follows: (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.[48] These are indicative kinds of harm only, and there may be other kinds of serious harm. However the examples indicate that the legislators intended that the harm be of a serious nature. The Tribunal is not satisfied that ostracism for attending a different church would reach the level of serious harm envisaged by the legislators.
[48] Section 5J(5) of the Act
The Tribunal is not satisfied that there is a real chance, in the sense of a substantial and non-remote chance of serious harm[49] (such as violence or denial of services) for reasons of practising a different branch of Christianity.
[49] Chan v MIEA (1989) 169 CLR 379
Although not specifically raised by the applicant, the Tribunal has also considered whether the applicant would suffer serious harm in the form of inability to subsist or through crime, as she has indicated that she will be a single woman returning to Samoa without close family.
The Government of Samoa’s Sustainable Development Goal (SDG) Taskforce reported in mid-2020:
Women and girls make up 49% of the total population and they continue to play prominent roles in many spheres of society; such roles are widely acknowledged. They are critical to the stability and wellbeing of families and communities’ which are at the heart of a Samoan society. Compared to 30 years ago, women’s advances in managerial positions and professional occupations have increased significantly including representation in parliament. Current statistics show they outperform their male counterparts academically, and there are increasing numbers of women occupying leadership roles in the public sector, private sector, and civil society organisations. Access to basic services have improved including to sexual and reproductive health services. There is also an improvement in the number of females in the labour force from 32.2% of the labour force in 2012 to 36% in 2017. While overall average gross monthly wages for paid employees reduced slightly in 2017, this increased for females from 2012 to 2017. However, women’s unemployment level is double that of the men, and they represent the majority in the informal sector and are likely to be more vulnerable to hardship than those in paid employment as studies have confirmed.
Samoa’s commitment to the elimination of discrimination against women and implementing SDG 5 [Gender Equality] have been a priority since Samoa ratified CEDAW [United Nations Convention on the Elimination of Discrimination against Women] in 1992. While much progress had been made in the past 30 years, the progress on SDG 5 in this report highlights some key areas where dedicated attention needs to be focused on. To truly address the issues of inequalities and add the needs of the most vulnerable, the gender equality components across all goals cannot be ignored. There is also recognition that women and girls can be agents of change and will be an important part of the transformational equation for the SDGs.
While gender equality is recognised as a cross cutting issue in our sustainable development approach, more work still needs to be done on gender mainstreaming. The importance of evidence-based policies and interventions has led to Samoa including some of the key violence against women and intimate partner violence statistics in the DHS-MICS [Demographic and Health Survey-UNICEF Multiple Indicator Cluster Survey] surveys. These are important developments and crucial to the much-needed whole of society approach to ending violence and sexual and other types of exploitation of women and girls.[50]
[50] SDG Taskforce, Government of Samoa, ‘Samoa’s Second Voluntary National Review on the Implementation of the Sustainable Development Goals’, 2020 on United Nationals Sustainable Development Goals Knowledge Platform
This suggests that Samoa does have a commitment to women’s rights, and that access to the labour forces and services has improved significantly for women, although unemployment for women is double that of men. Generally sources indicate that in some areas Samoa performs well in regard to women’s rights[51] and Samoa has recently voted in a female Prime Minister. The Government of Samoa has provided limited ‘[s]ocial protection, basic services, and government spending on essential services.’[52] The Tribunal is not satisfied given these sources, that there is a real chance of serious harm in the form of inability to subsist. The applicant’s mother has been financially supporting the applicant for many years and it is likely that she would continue to do so were the applicant unable to find a job in Apia. The applicant also has other siblings and extended family who could assist if necessary while looking for a job or trying to access services, and she could seek help from a church community.
[51] Pacific Community and the United Nations Office of the High Commissioner for Human Rights, ‘Human Rights in the Pacific. A situational analysis’, 15 September 2016
[52] SDG Taskforce, Government of Samoa, ‘Samoa’s Second Voluntary National Review on the Implementation of the Sustainable Development Goals’, 2020 on United Nationals Sustainable Development Goals Knowledge Platform
While there are high rates of crime in Samoa and violence against women continues to be an extreme problem,[53] the Tribunal is not satisfied that there would be systematic and discriminatory conduct, that is, conduct targeted at the applicant for any of the reasons set out in the legislation, rather such violence would be random and generalised.
[53] SDG Taskforce, Government of Samoa, ‘Samoa’s Second Voluntary National Review on the Implementation of the Sustainable Development Goals’, 2020 on United Nationals Sustainable Development Goals Knowledge Platform
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of membership of a particular social group of women, or single women, in Samoa.
Does the real chance of persecution relate to all areas of the receiving country?
Under s.5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.
The Tribunal has considered first whether there is a real chance of persecution in the area of the receiving country in which the applicant will return or be returned.[54]
[54] See CSO15 v MIBP (2018) 260 FCR 134 at [42].
As set out above, the Tribunal is not satisfied that there is a real chance of persecution in her home village. However even if there were, there would be no reason she could not move elsewhere including to the capital Apia, as discussed earlier.
Summary of findings – refugee criterion
The Tribunal has considered the applicant’s claims, individually and cumulatively. It is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if she returns to Samoa. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does the applicant meet the complementary protection criterion?
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 Tribunal has accepted that the applicant has become a devotee of the Pentecostal church in Australia, for reasons set out earlier. The Tribunal is not satisfied however that there is a real chance of serious harm were she to return to Samoa in the reasonably foreseeable future, for reasons set out earlier in this decision. For the same reasons, in accordance with MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of significant harm from village chiefs or villagers because of her religion, or on the basis of her status as a single woman. The Tribunal is satisfied that the risk of crime is one faced by the population generally and not the applicant personally.
Findings on complementary protection
The Tribunal is not satisfied 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 of significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
The applicant has previously applied for Ministerial Intervention pursuant to s.417(1) of the Act on two occasions. According to Department records, on those occasions the requests were not considered by the Minister. The ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’[55] provide that with limited exceptions, the Minister does not wish to consider requests for intervention where there has been a previous request made. The Tribunal does not therefore refer the matter to the Minister as it is not aware of significant changes in circumstances since the previous requests. The applicant may wish to refer the matter to the Minister if there are significant changes in circumstances given the length of time the applicant has been living in Australia, involvement in her church community and evidence of the absence of family members in Samoa.
[55] PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417, and s501J), 29 March 2016
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

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

[2021] AATA 4367

1 September 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction